James S.

Fish kin

Yale Press New and

University Haven London

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

Copyright 1992 by Yale University. All rights reserved. This book may not be reproduced, in whole or in part, including illustrations, in any form (beyond that copying permitted by Sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), without written permission from the publishers. Designed by Nancy Ovedovit/. and set in Sabon type by Tseng Information Systems. Printed in the United States of America by BookCrafters, Chelsea, Michigan. Library of Congress Catalogmg-in-l'ublication Data Fishkin, James S. The dialogue of justice : toward a seif-reflective society / James S. Fishkin. p. cm. 0-300-05161-1 2. Liberalism, 1992 92-15494 <;ii> A catalogue record for this book is available from the British Library. The paper in this book meets the guidelines for permanence and durability of the Committee on Production Guidelines for Book Longevity of the Council on Library Resources. _L Social justice. I . Title.

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

Part

One

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

1. 1 1.2 1.3 L4 1.5

Introduction The The

1 5

P r o b l e m of Value 9

Problem of Value C o n t i n u e d : Future 19

Generations

S t r u c t u r e : Problems of Progress Opportunity 29 35

includes bibliographical references and index.

ISBN

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

1. Justice. JC578.F56

1.6

D e m o c r a c y and Progress

3 2 0 ' . 0 U 1 dc20

Part

Two

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

2. I 2.2 2.3

C r i t e r i a for an Acceptable Theory Beyond l n t u i t i o n i s m 45 50

41

Political T h o u g h t Experiments

2.4 2.5 2.6 2.7

Category i : The Quest for Consent Category 2: Realistic Hypotheticais

.53 67 79

Category 3: I m p a r t i a l Decision Procedures M o r e on Category 3: Preference, U t i l i t y , and the G o o d 101

Hustrations

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

3.1 3.2 3.3 3.4 3.5 3.6 3.7

T o w a r d Reconstruction T h e Legitimacy Problem

115 117 129 144 165

Tables

Legitimacy and O b l i g a t i o n L i b e r t y of Poiiticai C u l t u r e

The Conditions of A c t i v i s t L i b e r t y Polls 197 201

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

1. 2.

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

21 33

Notes Index

205 233

Figures

1. 2. 3. 4. 5. 6. 7. 8.

T h e Forms of Democracy Decision Procedures O p t i o n s i n Category I N o z i e k ' s Scenario O p t i o n s for H y p o t h e t i c a l - C h o i c e Theories M a x i m i n w i t h a Guaranteed M i n i m u m U t i l i t a r i a n i s m w i t h a Guaranteed M i n i m u m E q u a l i t y w i t h a Guaranteed M i n i m u m

37 51 54 75 83 88 89 90

IIIIIIIIII

The beginnings of this book were supported by the John Simon Guggenheim Foundation d u r i n g a research leave I spent at the I n s t i t u t i o n for Social and Policy Studies at Yale U n i versity i n 1 9 8 4 - 8 5 , The book was revised and expanded as part of my research d u r i n g a year spent as a fellow at the Center for A d vanced Study i n the Behavioral Sciences at Stanford in .1987-88. 1 completed the book after my return to the University of Texas at A u s t i n w i t h support f r o m the Darrcll K. Royal Regents Chair in Ethics and A m e r i c a n Society. A l l of this assistance is gratefully acknowledged. I w o u l d especially like to thank the f o l l o w i n g people for their help over the p e r i o d 1 have w o r k e d on theories of justice: Bruce A c k e n n a n , R i c h a r d Arneson, Brian Barry, D a v i d Braybrooke, Robert D a h l , Bill Gaiston, Peter Lasiett, Sandy Levinson, Ed L i n d b l o m , Claus O f f e , D o u g Rae, G i o v a n n i Sartori, T o m Sermg, M i c h a e l W a l d , and Bernard W i l l i a m s . 1 w o u l d also like to thank T i m Terrell f o r organizing a three-day s y m p o s i u m about this b o o k at the Emory University L a w School O c t o b e r 2325,1988. I am very grateful to all of the participants in that dialogue, w h i c h has greatly improved the final result. A r rangements are being made for the proceedings of the symposium to be published separately.

art One

aal

The Limits of Systematic Justice

LI

Introduction

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

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

e x t r a o r d i n a r y level of activity, concentrated on philosophies of the ideal or just society, has yielded inconclusive results at best. I propose, first, to offer a diagnosis of the difficulties afflicting the c o n t e m p o r a r y dialogue about the just society, and, second, to offer a proposal that avoids those difficulties, a proposal based ultimately o n the c l a i m that justice requires a certain k i n d of dialogue. We w i l l begin w i t h the dialogue about justice and move to the c l a i m that justice comes f r o m a "self-reflective society." The v i a b i l i t y of liberal democracy as a public philosophy has been held hostage by three false dilemmas. These overly condialogue i n w h a t i w i l l call

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

Sntradustion

stricted views of our possible options can be summarized absolutism tematic versus relativism, versus religion versus amoralism, theory intuitionistn.

as:

to such systematic theories, I n the first t w o parts of this book 1 w i l l examine those impediments, arguing that theories w h i c h ignore them fail to d o justice to the true complexity and controversiality of the subject. Part I w i l l focus on substantive impediments, part 2 on m e t h o d o l o g i c a l ones.
1

and sys-

Leo Strauss and his popular

disciple A l l a n B l o o m w o u l d have us believe that w i t h o u t the certitude of rationally undeniable " n a t u r a l r i g h t s , " we can have n o t h ing but " r e l a t i v i s m , " where the m o r a l judgments central to Western c i v i l i z a t i o n and democracy must be on the same f o o t i n g as those o f cultures w h i c h practice cannibalism. Others w o u l d have
1

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

systematic

theorv. It w i l l offer a constructive argument for the first principles of a defensible liberal societyan argument that, w i t h i n a more l i m i t e d d o m a i n , avoids all of the difficulties discussed i n parts 1 and 2. W h a t do 1 mean by a systematic theory? First, one that gives us a coherent picture of an ideal in clear focus, an ideal defined by full realization of one or more first principles that hold out exception, defines moral Rawls calls the " p r i o r i t y progress
problem."
6

us believe that unless religion is b r o u g h t back explicitly into our public spaces, we w i l l have "a naked public square" in w h i c h outsociety can profess to believe i n n o t h i n g at all.* A n d w i t h i n the
1

camp of liberalism itself, those w h o w o u l d reconstruct a public philosophy aspire to systematic solutions, believing that a n y t h i n g less complete and determinate w o u l d amount to an " i n t u i t i o n t s m " where, i n effect, we each appeal to our personal tastes. W h e n the new versions of liberalism fall short of such grand expectations, they w r o n g l y appear to amount to n o t h i n g at a l l . This b o o k w i l l chart a t h i r d way, to free the hostage f r o m these false dilemmas. It proposes foundations for liberalism that f a l l i n t o neither absolutism nor relativism, that are based on neither religion nor a m o r a l i s m , and that amount, in the end, to something less than systematic theory and to something more than i n t u i t i o n ism. This t h i r d way, the ideal of a self-reflective society, combines the o b j e c t i v i t y of morals asserted by the absolutists w i t h the sensitivity to social context asserted by the relativists; it combines the value of neutrality on religion asserted by the secularists w i t h the value of having values i n public spaces asserted by the new religious r i g h t ; and i t combines the sensitivity to social justice asserted by the reconstructors of liberalism w i t h the awareness o f the c o n t r o v e r s i a l l y and incompleteness of those solutions asserted by i n f l a t i o n i s t s . Let us begin w i t h the debate inside liberalism itself. Over the last t w o decades, those a t t e m p t i n g to reconstruct liberalism have aspired to present us w i t h a systematic theory of the first p r i n ciples of the just society. However, there are serious impediments

with-

one or more first principles that solve w h a t John Second, a systematic theory for us because we can measure h o w just

a society we have by h o w close we are to the ideal. Even if we could never fully actualize such an ideal, our progress should be measured, asymptotically, by h o w closely we approach i t . T h i r d , a systematic theory should provide solutions that h o l d as a matter of general theory regardless of social context. They should offer the same prescriptions regardless of the d i f f e r i n g beliefs or practices i n d i v i d u a l s or groups may b r i n g to the issue of justice. They s h o u l d , i n other w o r d s , be context-independent context-dependent. rather than Given the availability of certain objective con-

ditions such as resources and technology (and the lack of outside interference), the principles of justice offered by systematic theories do not vary in their basic substantive implications f r o m one society to another. In particular, they do not vary w i t h the beliefs and practices accepted by the people w h o live in the societies being evaluated. I w i l l argue that there are crucial impediments, both substantive and m e t h o d o l o g i c a l , to this k i n d of systematic theory, and that the most plausible model for understanding the true complexity of p o l i t i c a l m o r a l i t y is not the systematic liberalism gen-

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

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

erally aspired to, but a different model that I w i l l call " l i m i t e d l i b e r a l i s m . " O n this construction, three main points should be made about the status of liberal political philosophy. First, we have c o m p e t i n g first principles, "['here are fundamental moral conflicts a m o n g competing ultimate principles even under the best conditions to w h i c h we m i g h t realistically aspire. I n other w o r d s , the pieces of our ideal solution d o n ' t neatly fit together even under the best conditions we m i g h t realistically imagine. We have c o m peting "ideals w i t h o u t an i d e a l " rather than a solution to the p r i o r i t y p r o b l e m that resolves all conflict among first principles. Second, we have fundamental moral conflicts in our identification of m o r a l progress. U is possible, in other w o r d s , for each preferred state of affairs to be more just than the last but for us to end up in a cycle where we started, v i o l a t i n g transitivity (or acyclicity). T h i r d , instead of systematic solutions that are context-independent, we have l i m i t e d solutions that are context-dependent. By this 1 mean that w h a t is m o r a l l y appropriate may vary significantly, depending on the social practices that are widely accepted in a given society. W i t h i n l i m i t e d liberalism, we w i l l not aspire to resolve a l l m o r a l conflicts. We w i l l not presume to settle the p r i o r i t y p r o b lem a m o n g c o m p e t i n g substantive principles. Indeterminacies and fundamental tensions a m o n g first principles are inevitable. To presume otherwise is not to d o justice to the true c o m p l e x i t y of p o l i t i c a l m o r a l i t y . But then h o w are trade-offs among c o m p e t i n g principles to be arrived at? Can we get definite results w h e n p r i n ciples conflict and w h e n theory does not seem to define systematicpriorities? Part 3 w i l l propose a strategy that embraces these complexities, w h i l e at the same time o f f e r i n g a basis for definite prescriptions. Since Rawls, the crucial options for liberal theory have seemed to b o i l d o w n to either systematic theory or " i n t u i t t o n i s m . " I n t u i t i o n ism has been treated, essentially, as the absence of a systematic t h e o r y a tack that seems to leave us all to trade off conflicts a m o n g principles as we see fit. I n part 3, we w i l l see that there are other o p t i o n s . It is possible to abandon systematic theory w h i l e

o f f e r i n g definite conclusionsprescriptions

that give far more

specific guidance than w o u l d sheer i n t u i t i o n i s m . Briefly, I w i l l propose a solution to the p r o b l e m of p o l i t i c a l legitimacy by arguing that a self-reflective society produces o b l i gations on the p a r t of all its members, instead of basing o b l i g a t i o n on legitimacy, I w i l l propose that we base legitimacy on obligat i o n . T h e resulting n o t i o n of political legitimacy purports to solve the core issues c o n f r o n t i n g the liberal state w i t h o u t the necessity for a systematic theory resolving all the substantive issues of social justice. W i t h i n a more limited d o m a i n , this strategy supports first principles f o r an ideal theory of the liberal state. Instead of a systematic theory of justice, it offers a more limited theory of legitimate p o l i t i c a l institutions. Instead of one overall judgment of social justice, it decomposes justice i n t o many morally appropriate decisions by many people i n distinct roles in the requisite legitimate p o l i t i c a l institutions. Its distinctive prescriptions w i l l focus, not on the substance of social justice, but on the conditions w h i c h must be satisfied by the institutions that must make the decisions, i n that way, my proposal w i l l avoid the full force of the conundrums of systematic justice to w h i c h we n o w t u r n .

1.2 The Problem

of

Value

D i s t r i b u t i v e justice can be thought of as a c o n j u n c t i o n of three separate issues: (a) T h e p r o b l e m of value, or what is being d i s t r i b u t e d (b) T h e p r o b l e m of structure, (c) T h e p r o b l e m of assignment, o r given out These three issues, together, define justice within a given socior how that value is d i s t r i b positions i n the u t e d t h a t is, its shape, impersonally considered or to whom structure are granted, or how those positions are rationed

ety. I n a d d i t i o n , there are, of course, issues about justice or injustice i n the relations among societies. However, we shall see that

fbs

l i m i t s ef Systematic Assise

The fmhhm

S s b e

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

1

if we depart systematically f r o m actual preferences, we face an alternative source of difficulty that is equally d a u n t i n g . Beginning w i t h theories that rely o n preference satisfaction, we can dramatize the problem by considering some e m p i r i c a l w o r k of F.. i T h o r n d i k e , a psychologist w h o used dollars as place holders for u t i l i t y in studies of C o l u m b i a University students in the 1930s. T h o r n d i k e tells us that for the sums of money specified, the C o l u m b i a students w o u l d o n averageagree to: Have one upper f r o n t t o o t h pulled out Have one little finger of one hand cut off Eat a dead beetle one inch long C h o k e a stray cat to death ( w i t h bare hands) Have to live all the rest of your life on a farm in Kansas, ten miles f r o m any t o w n These d o l l a r amounts were offered as the students' o w n precise assessments of their interests at stake in these possible events.' The i m p l i c a t i o n is that if one of the C o l u m b i a students were stranded on a f a r m i n Kansas for the rest of his life, i t w o u l d amount to a d e p r i v a t i o n equivalent to the mental suffering his peers w o u l d experience if they had to eat t w o hundred dead beetles, each an inch l o n g . As i n the later development of cost-benefit
1

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

substantive issues posed by the three problems. Part 2 w i l l t u r n to the variety of possible decision procedures for resolving these substantive issues, i n the end, I w i l l argue for a particular categ o r y of decision procedure that can deal w i t h these substantive issues to the degree necessary for l i m i t e d liberalism. T h i s decision procedure w i l l contrast sharply w i t h the hypothetical thought experiments that have f o r m e d the basis for all recent attempts at systematic liberal theory. W h i l e the substantive and m e t h o d o l o g i cal impediments to systematic theory are indeed very great, m y theme i n part 3 w i l l be that a version of unsystematic theory can be developed that satisfies criteria for an acceptable theory that [ w i l l propose. By the problem of value, I mean the problem of defining w h a t we are d i s t r i b u t i n g . Is it money, utility, or w h a t Rawis calls p r i mary goods? Is it prestige or self-esteem? Is it w h a t Bruce Ackerman calls m a n n a ?
2

S 5,0 00 $75,000 $5,000 $10,000 $1,000,000

For there to be an issue about the structure

of d i s t r i b u t i o n , there has to be something that is being d i s t r i b u t e d s o m e t h i n g whose d i s t r i b u t i o n has a m o r a l l y relevant effect on human interests. In other w o r d s , to resolve the problem of value, we must have a t h e o r y for assessing human interests. I w i l l pursue these issues in greater detail i n sections 2.6 and 2.7, but it is w o r t h pausing here to identify the basic issues. I w i l l treat the p r o b l e m of value i n terms of t w o dilemmas, one that arises immediately and another that arises w h e n time is considered. W e ' l l t u r n to the second d i l e m m a i n the next section. T h e immediate difficulty in assessing human interests is that If we use ivant-regarding c r i t e r i a t h a t is, if we rely o n criteria that identify interests w i t h satisfaction of at least some actual preferenceswe face various w e l l - k n o w n difficulties about interpersonal comparisons of want satisfaction.
1

analysts,

dollars are treated as place holders for utility.' Such conclusions seem s t a r t l i n g t o us today because they are entirely innocent of the difficulties t h a t apply to interpersonal comparisons of the intensity of preference satisfaction, difficulties emphasized by Pareto, Lionel R o b b i n s , and others.' O n the other hand, if we use criteria for evaluating interests that are not w a n t - r e g a r d i n g , we can interpret a change as serving someone's interests even if none of that person's o w n preferences

O n the other h a n d .

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

F u t a r e erse restions

agree w i t h the assessment. Such criteria face a different f u n d a mental challenge. They must justify paternalistic inferences that, somehow, the theorist is a better judge of person X s interests than X is. W h i l e we m i g h t all agree that paternalism may be justified in dealing w i t h children (and in some other isolated cases), to b u i l d paternalism into a general answer to the p r o b l e m of value w o u l d be to treat an entire adult p o p u l a t i o n as if it were composed of c h i l d r e n a s i f the theorist (or the state f o l l o w i n g such theories) c o u l d routinely judge their interests better than they could.* T h i s d i l e m m a appears to enmesh any substantively ambitious assessment of human interests in one intractable controversy or another. Later, we w i l l see that the real force of this dilemma depends u p o n considering interests in a context-independent manner. It depends o n the expectation that we should be able to assess the interests of any i n d i v i d u a l simply by k n o w i n g h o w she ranked on an index of p r i m a r y goods, or on a utilitometer, or in her shares of manna. For this k i n d of systematic theory of justice, there is no need to k n o w the social practices for dealing w i t h these matters that are generally accepted in a particular society. My p o s i t i o n w i l t be that if those social practices satisfy certain d e m a n d i n g conditions, then they are legitimate and, for purposes of the relevant social choices by the relevant institutions, p r o v i d e a basis for appropriate judgment.'' O f course, there are also severe limitations to relying on w h a t is generally believed. Some of the worst injustices in history have been largely accepted in their respective societies, even by their victims. "
1

orities of the liberal state. The institutions that have l e g i t i m a c y in w h a t I w i l l cal! a self-reflective political c u l t u r e w i l l specify procedures more determinate than sheer i n t u i t i o n i s m for dealing w i t h the inevitable fundamental m o r a l conflicts. I n d o i n g so, they w i l l wrestle, i n particular contexts, w i t h the d a u n t i n g problems of value, structure, and assignment.

1.3 The Problem Vuture

of Value

Continued:

Generations

The challenge for systematic justice becomes much more difficult once time is i n t r o d u c e d . O u r notions of i n d i v i d u a l human interests have not been refined to deal w i t h problems i n v o l v i n g possible future people. However difficult the p r o b l e m of value mav be w h e n applied to the interests of the l i v i n g , once the interests of future generations are taken i n t o account, new sources o f intractable conflict emerge. If we consistently tie our conception of interests to personal identity, we face one sort of c o n u n d r u m ; if we consistently untie our conception of interests f r o m personal identity, we face another, l b give up either conception consistently w o u l d open us to bizarre and compelling counterexamples. But we cannot rely on both simultaneously w i t h o u t tolerating fundamental m o r a l conflict and fundamental p l u r a l i s m . A n d we cannot ignore this set of issues, because no defensible theory of justice can neglect the facts that people are b o r n and die and that our actions may have serious effects on the interests of those yet to be b o r n . The t w o conceptions of interests at issue are radically incommensurable; they do not fit together i n t o a coherent image of the interests of possible future people.' Once more, we get a k i n d of broken image rather than a unified vision in clear focus/ We w o u l d o r d i n a r i l y assume that person X can be harmed if and o n l y if X is made worse off than X otherwise w o u l d have been. For o r d i n a r y cases, this assumption w o r k s well enough, if 1 punch you in the nose, you are worse off a f t e r w a r d than be-

H o w e v e r , by specifying criteria for the development of shared understandings, we can distinguish forms of consensus that arc suspect f r o m those that have legitimacy. When victims of injustice accept the ideologies that rationalize their positions, it w i l l be obvious that the conditions under w h i c h they came to develop those notions fall far short of our requirements. I w i l l propose a context-dependent strategy that is sufficiently demanding about l i b e r t y of political culture that it plausibly clarifies the first p r i -

10

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

fufare Generations

11

fore (your nose is bleeding); that is w h a t we mean w h e n we say you were harmed. If, somehow, it could be s h o w n that your nose w o u l d spontaneously have begun to bleed at exactly that m o m e n t , regardless of whether you had been punched, most, if not a l l , of the case for your having been harmed (by my punch) w o u l d evaporate. Let us call this the identity-specific have been h a r m e d . A l t h o u g h the identity-specific n o t i o n of h a r m is b o t h c o m m o n sensical and a central part of many legal notions (particularly i n t o r t law),' it is inadequate for the evaluation of the interests of
5

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

policy o p t i o n . To

simplify matters, we m i g h t imagine an alternative o p t i o n l e t us that w o u l d sharply curtail p o p u l a t i o n g r o w t h over several generations. W i t h o u t specifying h o w this m i g h t be accomplished, let us imagine that our demographers and economists tell us that great prosperity w o u l d likely be achieved after several generations of restriction. It is w o r t h n o t i n g that the p o p u l a t i o n that would exist after several generations of p o p u l a t i o n restriction is not merely a subset of the p o p u l a t i o n that w o u l d exist after several generations of laissez-faire. I n fact, after several generations, the overlap q u i c k l y fades to v i r t u a l l y n i l . Consider all the contingencies involved in d e t e r m i n i n g the identity of a particular generation ( w h o marries w h o m , the t i m i n g of c h i l d r e n , w h o m the c h i l d r e n marry, and so on). M y i d e n t i t y or yours w o u l d be different if any of these factors had been different (so that I could no longer speak of " m y " identity i n the same sense). I w i l l accept Thomas Schwartz's calculations o n this issue and conclude that after several generations, the overlap v i r t u a l l y disappears.
6

notion

of harm:

X must

be made worse off than X otherwise w o u l d have been for X to

possible future people. Consider t w o simple cases, one at the level of i n d i v i d u a l choice, the other at the level of social choice. First, a w o m a n has a disease or is under medication for a given p e r i o d such that, if she were to conceive a child d u r i n g that p e r i o d , it w o u l d have serious disabilities (perhaps, for instance, she has German measles and the c h i l d w o u l d be deaf). Llowever, if she were to w a i t u n t i l after that p e r i o d , she could reliably expect to conceive a n o r m a l c h i l d . M a n y of us w o u l d say that she should w a i t in the interests of the c h i l d . H o w e v e r , we cannot say so w i t h i n the confines o f the identity-specific n o t i o n of h a r m . The child w h o is b o r n w i t h serious disabilities is not worse off than it otherwise w o u l d have been, because i f the mother had w a i t e d , it w o u l d not have been; another c h i l d w o u l d have been conceived instead, as differentiable f r o m the first as one sibling f r o m another. W i t h i n the confines of the identity-specific n o t i o n , the other child is not harmed by the m o t h e r ' s decision to conceive d u r i n g the risky p e r i o d . O r , if it is
4

If this is the case, then we are

in the same p o s i t i o n t r y i n g to condemn the policy of laissez-faire as we were in a t t e m p t i n g to condemn the decision of the w o m a n to conceive d u r i n g the risky p e r i o d (leading to a child w i t h serious disabilities). We cannot say of all those w h o w o u l d experience suffering and mass misery due to o v e r p o p u l a t i o n that they are worse off than they otherwise w o u l d have been, because were it not for the laissez-faire p o p u l a t i o n policy, they would been, not have i f the other policy had been chosen, completely different

people w o u l d have existed instead. Over several generations, the results of the t w o p o p u l a t i o n policiesmass misery f r o m laissezfaire versus prosperity f r o m r e s t r i c t i o n w o u l d be visited upon people w i t h entirely different identities. Hence, whatever benefits or harms may be involved cannot be conceptualized w i t h i n the confines of the identity-specific n o t i o n of h a r m . T h i s issue is not a mere philosopher's q u i r k , i t is w o r t h n o t i n g that a f l o o d of l i t i g a t i o n has bedeviled the courts on exactly this

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

5

Consider this social choice parallel: Let us imagine a t h i r d w o r l d c o u n t r y facing massive p o p u l a t i o n problems. Suppose that demographers and economists together establish that if n o t h i n g is done about o v e r p o p u l a t i o n , after several generations the c o u n try w i l l face disastermass misery, m a l n u t r i t i o n , starvation o n

12

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

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

13

p r o b l e m . M a n y " w r o n g f u l l i f e " lawsuits have been b r o u g h t o n behalf of children whose prenatal defects should have been d i a g nosed by a doctor or a laboratory.' Typically, the contestants c l a i m that the fetus should have been a b o r t e d i f the doctor or laborat o r y had only been sufficiently competent to i n f o r m the prospective parents ot the child's probable disability. The difficulty faced by the courts has been very much the same as the one mentioned here. T h e o r d i n a r y way to conceptualize damages w i t h i n t o r t l a w is to imagine r e t u r n i n g the injured party to the position he w o u l d have been in had the injury not occurred. But in this case, t h a t p o s i t i o n is nonexistence. Nonexistence is, of course, not the same as death. Never to have existed is very different f r o m having a life that is interrupted. G i v e n some of the bizarre implications of the identity-specific v i e w o f h a r m , one clear alternative takes on new attractiveness. Why not compare states of affairs by l o o k i n g at the benefits and f r o m any considerations having to do w i t h the harms disconnected

Rawlsian p r i m a r y goods or of some other metric for benefits and harms that d i d not make essential reference to preference satisfact i o n . We can call such theories, u t i l i t a r i a n i s m included, independent identitytheories (for the assessment of interests). Derek Par fit

is the most p r o m i n e n t theorist w h o has argued for some v a r i ant of u t i l i t a r i a n i s m precisely on the grounds that it is identityindependent, that it avoids the counterexamples to w h a t I have been c a l l i n g the identity-specific view.'' The p r o b l e m w i t h identity-independent theories is replaceability. T h i s p o i n t can be made most dramatically w i t h a science fiction scenario. Suppose that I could painlessly and instantaneously replace all the readers of this book w i t h others w h o wilt appreciate it more. Furthermore, as a general matter, the new readerslet us call them replacements-will get more out of life. O n whatever identity-independent dimension of value we are talking about, they w i l l achieve higher scores. To s i m p l i f y matters, if we assume that the dimension of value is u t i l i t a r i a n i s m , then the point is that they w i l l add more utiles to life each day than d i d their predecessors. Note that I have not specified anything about how sition takes place. Perhaps, as in the movie Invasion Snatchers, this tranBody of the

identities of the individuals? One theory has, of course, been part i c u l a r l y n o t e w o r t h y for d o i n g this: u t i l i t a r i a n i s m . Setting aside problems of interpersonal comparisons, let us suppose that we had a utilitometer, or that we could make at least rough interpersonal comparisons of the intensity of preference satisfaction.^ T h i s w o u l d p e r m i t us to compare the disutility experienced by the seriously disabled c h i l d w i t h the u t i l i t y experienced by the norma! one, or to compare the disutility experienced by all those w h o suffer f r o m mass misery due to overpopulation w i t h the u t i l i t y of those w h o experience prosperity f r o m p o p u l a t i o n restriction. U t i l i t a r i a n i s m has the property that it permits us to look at any t w o states of affairs and compare the benefits and harms w i t h o u t having to k n o w anything about h o w the identities of the people in one state compare to the identities of the people i n the other. It is w o r t h n o t i n g that w h i l e u t i l i t a r i a n i s m is the most notable example of this property, it is not the only possible one. Suppose w e compared the t w o states in terms of an i m p a r t i a l d i s t r i b u t i o n o f

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

on your appearances and incorporating your roles and memories. Perhaps 1 have a machine that simply fabricates new copies. O r perhaps a new, m i n i a t u r e technology is contained w i t h i n the book you are reading, a technology that w i l l go into effect as soon as you reach a certain page. I n any case, the reason for posing the issue in a science f i c t i o n scenario is that it clarifies the v u l n e r a b i l i t y of identity-independent views to replaceability arguments w i t h o u t raising e m p i r i c a l complications about the fear and disutility experienced by those w h o are eventually replaced. (For this reason, you w i l l have to consider my example hypothetical or assume that you have already passed the crucial page.) O f course, replaceability arguments are not l i m i t e d to science

14

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

f u t u r e geaeritHaras

IS

f i c t i o n . Consider this dialogue about the collectivization of Soviet agriculture f r o m A r t h u r Koestler's novel Darkness at Noon (Commissar ivanov is addressing the prisoner Rubashov):
"Yes, we l i q u i d a t e d the parasitic part of the peasantry and let it d i e of s t a r v a t i o n , i t was a surgical o p e r a t i o n w h i c h had to be done once and for a l l ; but i n the g o o d o l d days before the R e v o l u t i o n just as m a n y d i e d in any d r y y e a r o n l y senselessly and pointlessly. T h e v i c t i m s of the Y e l l o w River floods i n C h i n a amount sometimes to h u n dreds o f thousands. N a t u r e is generous in her senseless e x p e r i m e n t s o n m a n k i n d . W h y s h o u l d m a n k i n d not have the rights to e x p e r i m e n t on itself?" H e paused: Rubashov d i d n o t answer. H e went o n : " H a v e you ever read brochures of an a n d - v i v i s e c t i o n i s t society? They are s h a t t e r i n g and h e a r t b r e a k i n g ; w h e n one reads h o w some p o o r cur w h i c h has h a d its liver cut o u t , whines a n d licks his t o r m e n t o r ' s hands, one is just as nauseated as y o u were t o n i g h t . But i f these people had their say, we w o u l d have n o serums against cholera, t y p h o i d , or d i p h t h e r i a . "
1 0

d u c t i o n of the d e f o r m e d child or to the miseries of o v e r p o p u l a t i o n w i t h o u t w o r r y i n g about whether the better-off people envisioned under the alternative choice are the same people. But the same anonymous consideration of interests leads these theories to neglect the question of whether the people under the replacement scenario are the same as the people in the o r i g i n a l p o p u l a t i o n . The general d i l e m m a is that if we tie interests consistently to personal identity, we face the identity-specific counterexamples, but if we untie them consistently f r o m persona! identity, we face the replaceability scenario. It may be w o r t h pausing to consider t w o creative efforts to avoid one h o r n or another of this d i l e m m a . The first, f o r m u l a t e d by Peter Singer, aspires to avoid replaceability. I w i l l argue that it does not. T h e second, formulated by Jonathan Bennet, seems to avoid the identity-specific counterexamples, i w i l l argue that it does not. Singer distinguishes his "preference" u t i l i t a r i a n i s m f r o m the sensate classical version: " T h i s other version of u t i l i t a r i a n i s m judges actions, not by their tendency to m a x i m i z e pleasure or avoid p a i n , but by the extent to w h i c h they accord w i t h the preferences of any beings affected by the action or its consequences." F r o m this property of preference u t i l i t a r i a n i s m , Singer concludes: " K i l l i n g a person w h o prefers to continue l i v i n g is therefore w r o n g , other things being equal. T h a t the v i c t i m s are not a r o u n d to lament the fact that their preferences have been disregarded is i r r e l e v a n t . " '
1

The general p r o b l e m is that for any identity-independent conc e p t i o n of interests, so long as the abstract structure of d i s t r i b u t i o n , the payoffs to positions, is at least as g o o d under the replacement scenario, there are no grounds for objecting w i t h i n the confines of this k i n d of theory. In fact, if we are utilitarians and the replacement scenario w o u l d increase utility, we can be obligated to k i l l everyone and replace them w i t h a new p o p u l a t i o n of better u t i l i t y - m a x i r n i z e r s . O n the identity-independent view, people are simply vessels for h o l d i n g so much u t i l i t y (or whatever else is o u r m e t r i c of value), i t is the u t i l i t y that matters, not the vessels. If a vessel breaks, it has no importance p r o v i d e d another vessel can be f o u n d or be created that w i l l h o l d as much or more. i t is the very m e r i t of the identity-independent principles i n dealing w i t h the earlier counterexamples to the identity-specific view--namely, that they disconnect the assessment of interests f r o m the identities of the people a f f e c t e d w h i c h renders t h e m vulnerable to this repiaceabitity scenario. Because the interests are v i e w e d anonymously, such theories w i l l permit us to object to p r o -

Singer's n o t i o n is that some beings, such as animals, fetuses, and infants, experience u t i l i t y only i n the p r i m i t i v e sensate sense. Singer believes that replaceability arguments still apply i n their case, and he explores the implications of this fact for the eating of meat and the permissibility of a b o r t i o n and even infanticide. However, he believes that the applicability of u t i l i t y to more developed c h i l d r e n and adults i n this second-higher sense of preference u t i l i t a r i a n i s m w o u l d block replaceability scenarios f r o m being applied to such persons, i t is in this way that his d i s t i n c t i o n

16

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

Future Generations

17

between preference and sensate u t i l i t a r i a n i s m m i g h t be taken to get us out of our dilemma (when applied, at least, to older c h i l d r e n and adults). I believe that Singer's escape is illusory. Preference u t i l i t a r i anism is, at b o t t o m , identity-independent and thus vulnerable to some versions of the replaceability scenario. This becomes apparent if one thinks carefully about w h a t the "other things being e q u a l " clause might mean in Singer's s o l u t i o n . Recall that i n o u r various scenarios, the replacements can also be imagined to have preferences i n a self-conscious and reflective sense. Satisfaction o f those preferences may easily t u r n out to balance the f r u s t r a t i o n o f the life plans of the previously existing p o p u l a t i o n . M o r e specifically, if we imagine, as Singer seems to, a special d i s u t i l i t y in an o n g o i n g life being interrupted (whether or not the person is around to regret the i n t e r r u p t i o n ) , we m i g h t , s y m m e t r i cally, imagine a special u t i l i t y experienced by each r e p l a c e m e n t for example, u t i l i t y f r o m the miracle of his or her being b r o u g h t i n t o existence. The new person may well experience an "existence b o n u s " that counterbalances the disutility f r o m the previous person's existence i n t e r r u p t i o n . A n y reader of Walt W h i t m a n ' s Song of Myself w i l l have a v i v i d sense of such an existence bonus. There is no reason, in principle, why one of these must be greater t h a n another. The theoretical v u l n e r a b i l i t y to replaceability arguments remains. T h e v u l n e r a b i l i t y is built i n t o the foundations of u t i l i t a r i a n i s m . It is unavoidably identity-independent because it is w h a t m i g h t be called a purely structural p r i n c i p l e . It defines the sufficient c o n d i tions f o r a p p r o v i n g a change based entirely on i n f o r m a t i o n available f r o m a listing of payoffs to positions under one alternative as compared to another. ' If the total (or average, for some versions)
1

personal identities, i t avoids the counterexamples w i t h w h i c h we started, but only by creating a vulnerability to replaceability arguments. Consider a second strategy for avoiding our d i l e m m a . It has sometimes been argued that we should only count the utilities of those w h o w o u l d exist were an action not taken. Bennett has developed one variant of this approach: " T h e question o f whether action A is m o r a l l y o b l i g a t o r y depends only u p o n the utilities of people w h o w o u l d exist if A were not p e r f o r m e d . "
u

T h i s pro-

posal helps w i t h the particular examples we directed against the identity-specific view. For example, if the p o p u l a t i o n planner compares the benefits of the restrictive policy w i t h the misery experienced by those persons w h o w o u l d exist were that alternative not taken, then there is a clear case for the restrictive policy. Similarly, i f the prospective mother compares the benefits of having a n o r m a l c h i l d w i t h the disutility of the child w h o w o u l d exist if that alternative were not chosen, then there is a clear case for her waiting. T h i s strategy does n o t , however, offer a genuine way out of our d i l e m m a . W h i l e i t handles our t w o particular examples, it is still vulnerable to the same basic difficulty we encountered w i t h identity-specific positions: on these views, it cannot be counted as a harm that someone is created to endure a miserable existence. Bennet's strategy is vulnerable whenever the others who would exist anyway are benefited by the misery of the newly produced person. For example, imagine a p o p u l a t i o n considering whether to breed a race of test-tube-produced slaves. The persons w h o w o u l d exist were this policy not adopted are the present populat i o n . They w o u l d benefit overwhelmingly f r o m having a race of slaves. T h e only ones w h o w o u l d suffer are precisely the ones w h o cannot be considered in this strategythe ones w h o w o u l d not exist were the policy not adopted. They are the ones harmed by the policy, yet their misery could not be counted by this proposal. The t w o horns of our dilemma are constructed out of partial pictures of the interests of possible future people. Each of the

is higher under one alternative, then i t must be chosen. There is no reason for u t i l i t a r i a n i s m (or any other purely structural p r i n ciple) to be concerned w i t h the issue o f whether the identities o f the replacements are different f r o m the identities of the o r i g i n a l s . Because u t i l i t a r i a n i s m completely unties human interests f r o m

18

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

Structure

19

approaches has something to he said for i t . But relying o n one consistently to the exclusion of the other w o u l d lead to disastrous or bizarre results. Consider a more mundane area where no exotic examples are required to make the p o i n t : procreational liberty. Procreat i o n a l l i b e r t y defines a sphere of choice of undeniable i m p o r tance where single-minded reliance on either identity-specific or identity-independent notions of human interest w o u l d lead to bizarre and d i s t u r b i n g results. Identity-specific theories, if relied o n consistently, give procreat i o n a l l i b e r t y t o o broad a mandate, w h i l e identity-independent theories, if relied o n consistently, give i t an overly restrictive one. Identity-specific theories open up too broad an area of procreat i o n a l l i b e r t y because they do not count as harms actions w h i c h , o n other theories for the assessment of interests, m i g h t plausibly be counted as harms. I am assuming that we are placing procreational liberty w i t h i n some variant of the h a r m p r i n c i p l e , namely, that people acting i n d i v i d u a l l y or together, consensually, can do as they please so long as they do not h a r m (or invade the rights of) others. '
1 1

mode, we w o u l d be led to other bizarre results. O u r procreational liberties, i n the negative-liberty sense of unconstrained personal choice, w o u l d be encroached upon by a host of new obligations and restrictions. Suppose we were consistent classical utilitarians and applied that position to the question of p r o d u c i n g or not p r o ducing a d d i t i o n a l c h i l d r e n . So long as the a d d i t i o n a l c h i l d w o u l d add (or was reasonably likely to add) more u t i l i t y than disutility (including whatever utility/disutility was caused by the c h i l d but was experienced by siblings, friends, and others), then w e w o u l d be obligated or m o r a l l y required to produce that c h i l d . I t w o u l d no longer be a matter of discretion or of persona! choice. Once such issues are put in the category of m o r a l requirement, they are no longer w i t h i n the realm of procreational liberty. They are no longer i n the area of life where we are permissibly free to do as we please so long as we do not h a r m or violate the rights of others. They are moved i n t o the category of duty or requirement, where failing to p e r f o r m the action i n question is m o r a l l y b l a m e w o r t h y and l i v i n g up to the requirement is an o b l i g a t i o n . Consistently relying o n the identity-specific view of h a r m overly demoralizes and broadens procreational liberty. Consistently relying o n the identity-independent view overly moralizes and narrows procreational liberty. Each of these familiar and coherent approaches, approaches that w o r k well enough in o r d i n a r y life, yields bizarre and unacceptable results for the interests of possible future people. We are left w i t h conflicting, incommensurable imagesimages w h i c h d o not fit together i n t o a unified conception but w h i c h serve, at best, to identify c o n f l i c t i n g m o r a l considerations that can be balanced out in particular cases.

Suppose families go ahead and produce seriously disabled or d e f o r m e d children w h e n they k n o w perfectly well that after a w a i t i n g p e r i o d they could produce n o r m a l ones (or be reliably likely to d o so). Is that not sufficiently irresponsible that it raises basic questions about the appropriate breadth of procreational liberty? I am raising this p r i m a r i l y as a m o r a l question, w i t h o u t getting i n t o the complicated issue of legal remedies or restrictions. I merely w a n t to make the p o i n t that there is something objectionable about p r o d u c i n g a c h i l d under such (avoidable) conditions, and that w h a t makes that action objectionable is some considera t i o n of the interests of the c h i l d o n c e those interests are conceived i n some way different f r o m the manner permitted by the identity-specific n o t i o n . O n the other hand, i f we were consistently to conceive the interests of possible children i n the alternative, identity-independent

f A Structure:

Problems

of

Progress

Let us t u r n to the second basic problem of justice, the issue of structure.' Suppose w e were to have perfect solutions to the issue of h o w to measure people's interests (at least so far as these are at stake in questions of d i s t r i b u t i v e justice), and suppose we were to

20

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

Sfruture

2i

have perfect solutions to the issue of h o w people ought to be assigned positions i n the structure according to some viable theory oi: equal o p p o r t u n i t y .
2

Table i . T h e Pure P r o b l e m of Justice A Position Payoffs B Position Payoffs

Even w i t h perfect solutions to the problems of value ( w h a t is d i s t r i b u t e d ) and of assignment (how people get and m a i n t a i n positions in the structure), the fundamental p r o b l e m of structure w o u l d remain to be considered in its o w n right before we c o u l d arrive at a systematic, substantive theory of justice. Given a listing of payoffs (in our chosen value) to positions (n-tiles of the p o p u l a t i o n defined by their shares of the chosen value), w h a t can w e say about the justice or injustice of any t w o alternative situations A and B? (See table i . ) M e r e l y f r o m the i n f o r m a t i o n in t w o such listings of payoffs to positions, we can tell whether A or B has a higher total or a higher m i n i m u m , or is more equal or w o u l d benefit or disadvantage more strata of society. M a n y of the central issues of distributive justice can be stated w i t h i n the confines of this pure p r o b l e m . I n an i m p o r t a n t article, Douglas Rae dubs this pure p r o b l e m " s i m p l e j u s t i c e . ' W h i l e i t is " s i m p l e " because many of the crucial c o m 1 3

P, p"

S. s"

S, s"

i\ p"

this stock example, w h i c h I w i l l b o r r o w f r o m G i l b e r t H a r m a n , J u d i t h T h o m s o n , and others/' Imagine a doctor i n a battlefield or other emergency situation w h o has to choose between saving five lives and saving one. The one life w i l l take all of his time and resources. But if he neglects the one, he can save five others. We w o u l d not blame h i m for neglecting the one. indeed, five lives saved at the cost of one lost, seems, on its face, a reasonable calculation. But now consider a second version. O u r doctor, n o w a convinced u t i l i t a r i a n , has returned to the hospital, where he has five patients, each needing emergency d o n a t i o n of some vital organ. There are, unfortunately, n o v o l u n tary organ donors. But a patient in r o o m 306 has checked in for a routine physical exam. H e is a healthy specimen and, by himself, could supply all the organs necessary to save the other five. O u r doctor cuts up the patient and redistributes the organs so as to save five lives. If the calculation (that five lives saved are w o r t h more than the cost of one lost) was correct in the first case, w h y is it not also correct i n the second? O f course, some complexities must be accounted for i n any u t i l i t a r i a n calculation applied to this case, i f it is u t i l i t y that is ultimately being m a x i m i z e d , we must assume that i n d i v i d u a l lives are place holders for future streams of u t i l i t y . I n this way, we can reach the conclusion that five lives are likely to yield m o r e longterm u t i l i t y than w o u l d one life. W h i l e the case m i g h t be m o d i f i e d so as to b r i n g this assumption into question, it is n o t , on its face,

plexities have been relegated to the problems of value and structure, it is, i n its o w n r i g h t , even more difficult than has previously been realized, i n fact, I w i l l argue, no solution that passes certain m i n i m u m tests is possible. I w i l l use these conclusions to raisesome general issues about the kinds of answers we should expect f r o m theories of justice. U n t i l relatively recently, there was a widespread consensus about the p r o b l e m of structure, and indeed about answers to the entire issue of d i s t r i b u t i v e justice. As H . L . A . H a r t noted, there was "a once widely accepted o l d faith that some f o r m of u t i l i t a r i a n i s m , i f only we could discover the right f o r m , must capture the essence of p o l i t i c a l m o r a l i t y . "
4

W h y has utilitarianism fallen into disfavor? The most p o w e r f u l arguments against it focus on the fact that it does n o t , i n some sense, take seriously the "separateness of persons." M o s t notably,
5

it does not offer sufficient protections f r o m the kinds of sacrifices that the greater social g o o d can place on individuals. Consider

22

Tfie limits

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

Stnjsture

23

an unreasonable assumption. Second, there are problems

about

3. E q u a l i t y 4. The m i n i m u m share (or the m a x i m i n principle} W h e n we t h i n k of the general welfare, we t h i n k of the t w o separate dimensions in considerations I and 2, "the greatest g o o d of the greatest n u m b e r , " as i n Bentham's slogan (even t h o u g h , operationally, only the first clause really mattered for Bentham).* Alternatively, d i s t r i b u t i o n raises t w o fundamental and separable issues: equality, w h i c h can be thought of as the relative standing of the less w e l l off strata, and m a x i m i n , w h i c h can be t h o u g h t of as the absolute standing of the least well off stratum. In the examples that f o l l o w , I w i l l measure equality simply by t a k i n g the mean of the differences f r o m the mean; A m a r t y a Sen has demonstrated some subtle and i m p o r t a n t differences in measures of equality, but these do not affect the basic argument developed here. '
1

the effect of such an intervention on social practices that do p r o duce great long-term u t i l i t y so long as people continue to rely o n t h e m s o c i a l practices such as the routine physical exam. However, utilitarians have always had a response for such objections. I hey can lie or deceive or just keep things secret if it w i l l produce greater social u t i l i t y . W i t h o u t g o i n g into whether this strategy i n itself constitutes further grounds for objecting to u t i l i t a r i a n i s m , we can see that it should be possible to preserve the inference that aggregate u t i l i t y is served. bor our purposes, t w o m a i n conclusions are w o r t h d r a w i n g f r o m this example. First, aggregate utility, even w h e n supplemented by the fact that most people are made better off, hardly constitutes an adequate solution to the problem of structure. We must also deal w i t h distributive objections focused o n l i m i t i n g the sacrifices that may be demanded in the name of overall social u t i l i t y . Second, criteria for structure cannot be applied in isolation f r o m criteria f o r assignmentcriteria for w h o gets w h a t p o s i t i o n in the structure. There must be some fair process for d e t e r m i n i n g w h o suffers and w h o benefits. The arbitrariness of p i c k i n g out the patient in r o o m 306 violates our i m p l i c i t assumptions about fair assignment. We w i l l return to the assignment problem below, but m the meantime, it should be emphasized that any solution to the structure problem can, at most, be necessary and not sufficient for an adequate s o l u t i o n , because criteria for fair assignment w o u l d be required as w e l l . In dealing w i t h the structure p r o b l e m , we must c o n f r o n t t w o distinct families of consideration. One focuses on the general w e l fare, the other o n d i s t r i b u t i o n . F o l l o w i n g Brian Barry, I w i l l say that one m i g h t be called "aggregative" and the other " d i s t r i b u t i v e . " ' F r o m each of these t w o families, I w i l l take t w o basic considerations, to yield the f o l l o w i n g four: 1. The total welfare 2. The numbers affected

Each of these four basic criteria has its proponents. 'The first point 1 w a n t to develop is that the inadequacy of each can be dramatized by the fact that it w i l l support choices w h i c h v i o late all three of the other basic criteria. Despite the enthusiasm of Rawlsians, o n the one hand, and of utilitarians, o n the other, single-minded reliance on any one of these basic criteria, even for the pure p r o b l e m of justice, leads to disaster. The more basic difficulty is that any complete principle w h i c h attempted to avoid these disasters w o u l d violate t r a n s i t i v i t y . A n other way of saying this is that any principle w h i c h always sides w i t h three of these basic criteria w i l l take public policy i n a cycle (under some possible c o n d i t i o n s ) a result that raises basic questions about the k i n d of connection commonly assumed between ideal theory and public policy. Let me demonstrate the first difficulty w i t h a series of simple numerical illustrations. I am assuming that all of the issues about what wc are. d i s t r i b u t i n g and -about h o w we measure it have already been resolved. Suppose we solved these issues to a degree beyond anyone's wildest o p t i m i s m . We have an index for, say, Rawlsian p r i m a r y goods or Ackermanian manna that we can rep-

24

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

Strwture

25

resent, for these purposes, w i t h cardinal, interpersonal shares to ranked positions. " Even w i t h such a s o l u t i o n , the pure p r o b l e m
1

tive objection to u t i l i t a r i a n i s m that has become a commonplace of recent theories of justice emphasizing the separateness of persons and the great sacrifices w h i c h m a x i m i z i n g the total can sometimes require. I n this case, most people are made worse off, equality is decreased, and the m i n i m u m is devastated: A 10 20 30 40 50 60 70 Scenario i ? ; * \ i \ B I 1 I I i 1 1,000 3: M a x i m i n violates equality, the t o t a l , and the n u m -

of justice Is far more difficult than has been imagined. T h e p o i n t can be made as a sequence of abstract h o r r o r stories. Each h o r r o r story can be thought of as a m i n i m u m test for an adequate theory of justice. W h e n three of our basic criteria prefer one alternative, it is the one that should be chosen. Each h o r r o r story consists i n siding w i t h one of the four against the other three. I w i l l later show, however, that these four m i n i m u m tests, i n c o m b i n a t i o n , violate transitivity. Hence, any principle that satisfied all f o u r w o u l d not define a unified and coherent direction for public policy, i n that sense, we have to choose between m o r a l l y adequate choices in particular cases (avoiding the four h o r r o r stories) and coherent progress in our sequence of policy choices over time. In either case, the n o t i o n that we can gradually realize an ideal w i t h m o r a l l y adequate principles is undermined. The true c o m p l e x i t y of justice does n o t , by itself, i m p l y relativism or subjectivism, s o l u t i o n our principles ought to provide. Scenario I: Equality violates m a x i m i n , numbers, and the t o t a l . T h i s scenario is just an extension of Rawls's argument against equality. The leveling approach to equality can be ruinous to a l l l o w e r i n g the total in a way that makes most people worse off, i n c l u d i n g those at the b o t t o m . This possibility is illustrated by the choice between A and B below: A 10 20 30 40 50 60 70 B 2 2 2 2 2 2 2 2; The total welfare violates m a x i m i n , equality, and
11

bers c r i t e r i o n . T h i s case is an extension of Douglas Rae's critique of m a x i m i n . Rae showed h o w m a x i m i n can distribute less i n t o t a l , less equally.'" Particularly i n cases where the m i d d l e classes are devastated, the welfare state may, nevertheless, i m p r o v e the lot of those at the b o t t o m w h i l e the rich continue to get richer, i n that case, the t o t a l may decrease w h i l e inequality increases along w i t h the m i n i m u m share. The example is not f a n c i f u l . Some may regard it as a g o o d description of the " B r i t i s h disease," a synd r o m e that has, at times, been thought to affect many of the aging welfare states of the West, i n this scenario, I have simply added a f a c t o r t h e numbers affected. If d i s t r i b u t i n g less in t o t a l , less equally was a serious objection to m a x i m i n , an even more serious o b j e c t i o n is d i s t r i b u t i n g less in t o t a l , less equally, w h i l e at the same t i m e m a k i n g most people (or most strata) worse off. Here is an example: A 10 20 30 B 11 15 15

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

Scenario

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

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

Strusture

27

40 50 60 70

20 30 30 LOO

so clearly served along w i t h a central element of d i s t r i b u t i o n , or when d i s t r i b u t i v e interests are so clearly served along w i t h a central element of the general welfare, the result is very d i f f i c u l t to argue against. Let us label these four tests in the order of our four scenarios; Test I: Prefer alternatives prescribed simultaneously by m a x i m i n , the t o t a l , and the numbers c r i t e r i o n . In other w o r d s , prefer more in total when it helps most people, including the least well off. Test 2: Prefer alternatives prescribed simultaneously by maxi m i n , equality, and the numbers c r i t e r i o n . I n other w o r d s , prefer equality w h e n it is to most people's advantage, including the least favored. 'lest 3: Prefer alternatives prescribed simultaneously by the total, equality, and the numbers criterion. In other w o r d s , prefer alternatives that distribute more in total, more equally to the advantage of most people (or strata). Test 4: Prefer alternatives prescribed simultaneously by the t o t a l , m a x i m i n , and equality. I n other w o r d s , prefer alternatives that distribute more i n t o t a l , more equally, when it is to the advantage of the least favored. W h e n viewed i n i s o l a t i o n , each of these tests seems o v e r w h e l m ingly c o m p e l l i n g . H o w e v e r , if they are taken together as constit u t i n g necessary c o n d i t i o n s for an adequate principle of d i s t r i b u tive justice, then no adequate principle of distributive justice can avoid v i o l a t i n g transitivity. A simple illustration demonstrates this result. I n the table on the f o l l o w i n g page, test 1 w o u l d force us to choose B over A , test 2 w o u l d force us to choose C over B, test 3 w o u l d force tis to choose L) over C, test 4 w o u l d force us to choose over D , but then test I w o u l d lead us f r o m E i n a cycle back to A . The move f r o m A to B is required by test 1 , because the t o t a l is increased f r o m 250 to 2 7 0 , the m i n i m u m is increased f r o m 10 to 1 1, and three of the five strata are better off. The move f r o m B to C is required by test 2 because the m i n i m u m is increased f r o m 11

i n the move f r o m A to B, the total is lowered f r o m 2 8 0 to 2 2 1 , five out of seven strata are worsened, and inequality is i n creased. O n l y a fanatical advocate of m a x i m i n w o u l d s u p p o r t such changes because of the small increase of the m i n i m u m share ( f r o m 10 to 11). Scenario 4: The numbers c r i t e r i o n violates the total, m a x i m i n , and equality. Serving the m a j o r i t y here distributes less in t o t a l , less equally, to the d e t r i m e n t of the least favored. T h i s case maybe t h o u g h t of as a tyranny of the m a j o r i t y that violates b o t h u t i l i tarian and distributive justice considerations at the same t i m e : A 10 20 30 40 50 60 70 B 0 5 5 45 55 65 95

I he move to B serves the most advantaged four strata, but i n a way that increases inequality (the mean of the differences f r o m the mean increases f r o m 17.14 to about 3 0 ) , lowers the total ( f r o m 2 8 0 to 2 7 0 ) , and devastates the m i n i m u m ( f r o m 10 to 0). Each of these four scenarios can be thought of as a m i n i m u m test w h i c h the other criteria, taken in isolation, fail. If 1 am correct that these basic criteria should be f o l l o w e d when three agree, then we have four separate m i n i m u m tests for any principle of dist r i b u t i v e justice. The power of each test is that it combines b o t h of the members of either the aggregative or distributive family w i t h a member of the rival family. W h e n aggregative interests are

r
i
j M Use U S J H S I S y s t e a a s f k Jasiise Assignment 29

A 10 30 50 70 90 II

B 1 I 30 50 80 100

C 12 31 51 52 53

D S 42
52

F. 9 50 50 51 52

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

1:

undermines the n o t i o n of a unidirectional approach to the ideal, where it is b o t h possible and desirable for each state of affairs to be " m o r e j u s t " than the last. Such a ranking may no longer be possible because " m o r e j u s t " is no longer a transitive r e l a t i o n . This new picture is the one i have termed "ideals w i t h o u t an i d e a l " conflicting principles, without a single unified vision to be gradually approached.'' Each element of mora! conflict, if taken seriously, w o u l d lead public policy in a quite different d i r e c t i o n . T h i s may force an i n t u i t i o n i s t i c balancing of particular cases to take policy, over time, in a cycle. Because progress in one d i r e c t i o n may force us to retrace our steps along another valued dimension, patterns of m o r a l conflict can eventually take us back to where we started. [f we do justice to the true complexities of the p u r e - d i s t r i b u t i o n p r o b l e m , we must take account of all four of the basic criteria I have proposed. But once we take this step, it seems difficult not to accept the four m i n i m u m tests. Either one or more of these tests must be abandoned, or the n o t i o n that " m o r e j u s t " is necessarily a transitive relation must be. O n substantive grounds, the former o p t i o n seems clearly indefensible, for it w o u l d expose us to cond o n i n g one or more of o u r four h o r r o r stories as an e m b o d i m e n t oi justice. T h e alternative, w h i c h I accept, is that there are crucial impediments to any systematic theorv of justice,

54 55

to 12, equality is increased (the mean o i the differences f r o m the mean is lowered f r o m 28.24 to 14.64), and three of the five strata are better off. The move f r o m C to D is required by test 3 because the total increases f r o m 199 to 2 1 1 , equality increases (the mean of the differences f r o m the mean decreases f r o m 14.64 to 13.7), and four of the five strata are made better off. The move f r o m D to K is required by test 4 because the total increases f r o m 2 1 1 to 2 1 2 , the m i n i m u m increases f r o m 8 to 9, and equality increases (the mean of the differences f r o m the mean decreases f r o m to 13.36). T h e cycle is completed w i t h the move f r o m E back to A . T h i s w o u l d be required by test 1 because the m i n i m u m increases f r o m 9 to 10, the total increases f r o m 212 to 250, and three of the five strata are clearly made better off. Hence, if an adequate p r i n c i p l e of d i s t r i b u t i v e justice must pass our four tests, such a p r i n c i p l e , however it is f o r m u l a t e d , must violate t r a n s i t i v i t y . '
1

13.7

W h y should this be disturbing? Recent theories of justice have given us a picture of ideal theory whose task is to offer a systematic s o l u t i o n that holds w i t h o u t exception ( w h i c h solves the p r i o r i t y p r o b l e m in Rawls's language), and w h i c h we are to attempt, perhaps o n l y asymptotically, to approach so far as circumstances p e r m i t . We are given a unified and coherent picture of an ideal s o l u t i o n , i n w h i c h all the elements of m o r a l conflict have been p u t in their appropriate p r i o r i t y relations. The task of public policy is to get us as close as possible, even if the best we can possibly d o is an a p p r o x i m a t i o n . T h e v i o l a t i o n of transitivity, however, supports a quite different

1.5 Assignment; of Equal

Conflicting Opportunity

Visions

Regardless of h o w we handle the problem of structure, we face a separate set of issues in the problem of assignment: who what position gets in the structure. The life histories of individuals can

be affected as decisively by assignment as by structure. N o viable theory of d i s t r i b u t i v e justice could a f f o r d to ignore the issue of assignment. Imagine one that d i d so. Then imagine that it ranked some sequence of situations A, B, C, D as successive improvements in terms of structure (as judged, for example, by the percentage of

30

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

Assignment

31

the stated value held by each tenth of the society), i t no criteria are offered for assignment, but only for structure, then the sequence A , B, C, D c o u l d , in theory, be compatible w i t h any objectionable set o f l i m i t a t i o n s in terms of assignment. We m i g h t , for example, imagine the i n t r o d u c t i o n of a caste system, or of an underclass, or of an apartheid system of racial segregation. In principle, n o t h i n g prevents objectionable forms of assignment f r o m coexisting w i t h an i m p r o v e d structuresay, greater equality in income d i s t r i b u t i o n , greater totals, or whatever your favorite structural principle may be.
1

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

approached of i n -

whatever ideal was posited. Even advocates of perfect equality of outcomes w o u l d have to evaluate many d i f f e r i n g degrees w o u l d face). However, the difficulty i n developing a viable theory of assignment is that the values that are implicated by the equal o p p o r t u nity p r o b l e m do not fit together into a unified picture of an ideal s o l u t i o n e v e n under the best conditions that m i g h t realistically be imagined for a m o d e r n , large-scale society. The issue can be posed as a " t r i l e m m a , " a k i n d of dilemma w i t h three corners. A first principle at issue i n the trilcmrna is merit:
1

equality (in a d d i t i o n to the many other difficulties such advocates

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

that is, that

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

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

ration-

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

The

UmiH o f

Sysfemssfis JusHs

Assignment

33

wc m i g h t imagine, is on the verge of starvation. This fact turns the equal o p p o r t u n i t y c o m p e t i t i o n into a series of wrestling and boxi n g matches between three-hundred-pound sumo wrestlers and n i n e t y - p o u n d weaklings. Clearly, such a c o m p e t i t i o n w o u l d not adequately realize equal o p p o r t u n i t y . N o t e , however, that its results w o u l d be supported by the principle of merit. The sumo wrestlers, we can assume, really are better w a r r i o r s than the weaklings. They are better warriors because they have had a lifetime of favorable conditions to develop the desired characteristics, to prepare for the same c o m p e t i t i o n . Real equal o p p o r t u n i t y , i t m i g h t be argued, must get at those c o n d i t i o n s , for they determine the real terms of c o m p e t i t i o n . T h e d i f f i c u l t y , of course, is that those conditions are protected by the l i b e r t y to confer benefits w i t h i n the private sphere of family relations. A more ambitious account of equal o p p o r t u n i t y w o u l d add to m e r i t the second requirement that there should be equality of life chances. By this 1 mean that we should not be able to predict the eventual places in society of new-born infants about w h o m we k n o w certain a r b i t r a r y native characteristics such as family backg r o u n d , race, sex, religion, and ethnicity. This c r i t e r i o n captures w h a t was objectionable about the w a r r i o r society.' We could (but should n o t be able to) predict the winners and losers in the c o m p e t i t i o n merely by k n o w i n g the class into w h i c h they were b o r n . O f course, this principle is widely violated in our o w n society, as various sociological studies demonstrate, If we k n o w father's income o r education, we can make g o o d statistical predictions of the life chances among any cohort of n e w - b o r n infants/' I he causal mechanism operating here is, to a large extent, simply a more discreet version of w h a t was blatant in the w a r r i o r society example. Advantaged families differentially influence the development of qualifications, talents, motivations, and so f o r t h in their c h i l d r e n compared to less advantaged families. Those favorable causal conditions prepare such children to do comparawhile their rivals have had a lifetime of grossly unfavorable conditions

Table 2. T h e T r i i e m m a of Equal O p p o r t u n i t y Option i Merit ('A[u;il life chances L i b e r t y in f a m i l y

4

Option 2 "
v

Option i

'
;

uvely w e l l in meritocratic c o m p e t i t i o n . The principle of m e r i t then becomes a mechanism for generating unequal life chances. It is w o r t h m e n t i o n i n g that in real life we do not fully realize any of these principles. But we attempt to approach each of them and, to one degree or another, we are successful (even t h o u g h each p r i n c i p l e m i g h t take public policy i n a different d i r e c t i o n ) . The p o i n t is that these criteria do not combine to make a unified and coherent scenario for the appropriate relations between liberty and equality, even under the best conditions that m i g h t realistically be imagined. Consider the three options p i c t u r e d in table 2. O p t i o n I is exemplified clearly by the w a r r i o r society. L i b erty w i t h i n the family (the liberty to confer benefits) protects the process whereby advantaged families differentially benefit thenchildren i n the developmental competition so that, as a statistical matter, those c h i l d r e n w i l l achieve unequal life chances. Suppose we attempted to achieve b o t h m e r i t and equal life chances. I hen, as p i c t u r e d in o p t i o n 2, we w o u l d have to somehow insulate children f r o m the advantages their parents w o u l d wish to confer upon t h e m . Perhaps some system of collectivized child rearing w o u l d do the j o b . O r perhaps a school system could be designed that w o u l d even out advantages and disadvantages f r o m class backg r o u n d and block the exit options of private schools, t u t o r i n g in the home, and so o n . Whatever the precise details, any such sce7

nario w o u l d require a significant sacrifice in liberty w i t h i n the family. A t h i r d possibility w o u l d be to preserve l i b e r t y w i t h i n the family, but to attempt to realize equal life chances independently of the principle of m e r i t . This t h i r d o p t i o n might be termed the

an^F*^mw^

34

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

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

3S

"reverse d i s c r i m i n a t i o n " scenario because it w o u l d require that people be assigned to positions according to some pattern thai tieparted systematically f r o m merit. One strategy w o u l d be simplv to hire less-qualified people f r o m comparatively disadvantaged backgrounds. A n alternative version of this scenario w o u l d assign all positions randomly, perhaps t h r o u g h a job lottery. Regardless of the details, any version of o p t i o n 3 w o u l d require a significant sacrifice in merit {and i n the values p r o m o t e d by m e r i t o c r a c y that is, procedural fairness and efficiency). Clearly, each of our three scenarios is a h o r r o r story. A c h i e v i n g any t w o of our principles precludes achieving the t h i r d u n d e r an}' realistic scenario of favorable conditions. i t is as if we had
8

the best conditions that m i g h t realistically be imagined. If we are left w i t h principles in intractable conflict, even under favorable conditions, then we do not have the k i n d of ideal s o l u t i o n d e fined w i t h o u t m o r a l c o n f l i c t a s p i r e d to by systematic theory. We do not have a s o l u t i o n to the p r i o r i t y p r o b l e m . Instead, we have "ideals w i t h o u t an i d e a l . "

1.6 Democracy

and

Progress democracy

F r o m the perspective of many theorists of justice,

is a narrower topic than distributive justice, because many theories w o u l d include the right to participate in political institutions as part of the more general d i s t r i b u t i o n of p r i m a r y goods or of fundamental rights and liberties in a just society. Other theorists, however, w o u l d regard the c o n u n d r u m s of dist r i b u t i o n just discussed as p r o v i d i n g an argument for focusing o n democratic procedures rather than on outcomes. Perhaps, if we cannot settle substantive questions on the merits, we can at least determine procedures in w h i c h each person's conscientious views get an appropriate hearing and an appropriate chance to influence a fair process of collective decision m a k i n g . The d i f f i c u l t y is that the democratic t r a d i t i o n has bequeathed to us a variety of fundamental values at stake in democratic procedures, a variety of ideal images of w h a t an appropriate collective procedure m i g h t be. Because these ideal images cannot all be simultaneously realized, they require some hard choices. 1 believe that figure I provides a useful way of p i c t u r i n g the dimensions along w h i c h this democratic debate tends to range. I have labeled the n o r t h - s o u t h dimension " M a d i s o n i a n " versus " m a j o r i t a r i a n . "
!

a three-cornered stool, but only t w o legs available to h o l d it u p . Even after we p r o p up any t w o sides, lack of the t h i r d leg is enough to undermine or destabilize the whole structure. One reasonable response to this pattern of conflict w o u l d be to trade off these three principles in particular cases, but to avoid any systematic attempt to fully realize any of them, given the cost in c o m p e t i n g principles. Such a position w o u l d , of course, be an example o f w h a t n o w is c o m m o n l y termed " i n t u i t i o n i s m " t h e t r a d i n g o f f of competing principles in particular cases w i t h o u t any systematic s o l u t i o n that can be fully realized.
9

The i n t u i t i o n i s t position is unpopular and dissatisfying, in part, because it is w i d e l y seen as vague in its prescriptions. H o w e v e r , such a charge is not entirely appropriate. Clearly, when there are strong gains to be made w i t h o u t a corresponding loss i n c o m peting p r i n c i p l e s , gain,
11 10

or significant losses w i t h o u t a corresponding

then there w i l l be a case for choice of a policy o p t i o n w i t h i n

the i n t u i t i o n i s t f r a m e w o r k . There w i l l also be cases under other c o n d i t i o n s , but the t w o possibilities just mentioned are the most obvious ones. W h e t h e r or not we adopt an i n t u i t i o n i s t response, the t r i l e m m a poses a significant obstacle to the ambitions of systematic t h e o r y .
12

By M a d i s o n i a n , I simply mean the degree to w h i c h the system includes impediments of one sort or another to popular m a j o r i ties. These impediments are usually justified, at least i n theory, by a desire to prevent t y r a n n y of the m a j o r i t y . Theoretically, the
2

Either we give up one of the pieces or we have to a d m i t that the three components of the t r i l e m m a do not fit together, even under

construction of impediments could go far beyond a n y t h i n g envisioned by M a d i s o n , so that, strictly speaking, he w o u l d not have

36

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

S e m m r a c y m

Progress

advocated a perfectly " M a d i s o n i a n " system. T h e t e r m , however, provides a useful label for a basic m o t i v a t i o n underlying checks and balances, the t e r r i t o r i a l , federal, and bicameral character of many A m e r i c a n representative arrangements, and the operation of j u d i c i a l review and other institutions that serve as impediments to majorities. Alternatively, movement south along the same d i mension s i m p l y means that there are no effective impediments to p o p u l a r majorities, so that the tatter tend to get their way. As D a h l noted i n a classic study, the American system is not very m a j o r i t a r i a n . W i t h a system of " m i n o r i t i e s r u l e , " it is somewhere in the u p p e r - r i g h t - h a n d quadrant of figure I .
1

itriire i - The Forms of Democracy Figu (Unanimous direct democracy) Madisonian (Avoiding tyranny^

Direct (participation)

- A

Indirect (competence)

T h e east-west dimension is familiar i n that it depicts the degree to w h i c h the system is indirect (representative) or direct (relying o n the p a r t i c i p a t i o n of members w i t h o u t the intermediary of representatives). For both the north-south and east-west dimensions, many d i f f i c u l t judgments of degree w o u l d be required to make any precise comparisons. The main usefulness of the diagram is that i t captures a w i d e range of debate and a variety of c o n f l i c t i n g images w i t h i n a single space, so as to clarify h o w gains i n one value can be expected to require costs i n another. T h e A m e r i c a n system w o u l d fit somewhere in the u p p e r - r i g h t hand q u a d r a n t of figure l . T o v a r y i n g degrees, most parliamentary systems w o u l d fit somewhere to the south of the American system. D e p e n d i n g on the impediments they offered to popular m a j o r i ties, they m i g h t fit i n the lower p o r t i o n of the northeast quadrant or the upper p o r t i o n of the southeast one. T h e western positions i n figure i are most usefully exemplified by certain extreme ideal images. Suppose, for example, t h a t the W a r n e r - A m e x Qube system i n C a n t o n , O h i o , were used f o r actual government policy m a k i n g . Each resident could respond immediately o n any question posed o n the t w o - w a y cable television system. Constant referendums w o u l d thus be feasible o n all public questions. Some w o u l d regard instantaneous, majoritarian direct democracy as the perfect embodiment of a certain i n f l u e n t i a l , ideal image. Others w o u l d regard i t as a reductio ad absurdum. I n any case, any extreme version w o u l d fit the lowerleft-hand corner of the diagram. By contrast, R o b e r t Paul W o l f f ' s proposal for unanimous direct democracy fits the extreme upper-left position.' The u n a n i m i t y
1

(Majoritarian direct democracy)

Majoritanan (popular control)

rule gives everyone a veto, p r o v i d i n g the greatest possible protection against tyranny of the m a j o r i t y f r o m new policies. I t w o u l d not provide protection f r o m omissions, but that is not an issue we need to pursue here. T h e placement of unanimous direct democ5

racy in the upper-left corner and the placement of m a j o r i t a r i a n direct democracy in the lower-left corner illustrate h o w extreme direct systems (both implementable through a t w o - w a y cable system) can be crucially different on our north-south d i m e n s i o n . In a p p l y i n g the l i m i t e d liberalism model to my discussion of justice, I argued that there were not only fundamental conflicts in our ideal images, but also fundamental conflicts in our notions of moral progress intended to realize those ideal Images. We can get the same cycles i n a p p l y i n g democratic principles that we encountered in a p p l y i n g principles of justice. I do not have i n m i n d here the cycles familiar to students of the classic v o t i n g paradox.

as Cycles i n applying

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

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

39

particular democratic arrangements {say, ma-

popular c o n t r o l , movement west on participation as a value i n itself, movement n o r t h on the prevention of tyranny of the maj o r i t y , and movement east o n the greater competence of representatives. D e p e n d i n g on w h i c h of these partial images is given greater emphasis, one can go r o u n d and r o u n d . Each d i r e c t i o n for r e f o r m has plausibility because of its emphasis on a distinctive value. Elowever, the end result is the same kind of cycle t h a t we encountered w i t h d i s t r i b u t i v e justice. C o n f l i c t i n g values in the identification of the ideal yield c o n f l i c t i n g directions for m o r a l progressdirections where we started. Focusing on democracy rather than on the full range of issues in the theory of justice does not provide a basis for a v o i d i n g either of the t w o basic problems we encountered earlier w i t h systematic theory. We get neither a unified and coherent picture of the ideal nor an unambiguous route to m o r a l progress. Rather than a systematic s o l u t i o n , the l i m i t e d liberalism model is a more plausible interpretation of the m o r a l complexities at stake in democratic theory, just as it is in the theory of justice. Despite these l i m i t a t i o n s , the move to proceduralism as a response to substantive difficulties has merit, as we w i l l see in part 3. However, m o r e is required than a f o r m a l proceduralism based merely o n the character of democratic institutions. C o n s i d e r a t i o n of procedures in the context of all the background conditions f o r l i b e r t y of p o l i t i c a l culture w i l l provide the basis for more a m b i tious conclusions. w h i c h , step by step, can take us back to

j o r i t y rule} to policy or candidate choice can be distinguished f r o m cycles i n the design of the democratic arrangement itself. H o w a cycle of democratic reforms m i g h t arise can be charted in figure I . Imagine an American-style status quo somewhere in the upperr i g h t - h a n d quadrant, at p o i n t A . W i t h i n the family of arguments loosely counted as democratic, a variety of reforms m i g h t be supp o r t e d that w o u l d increase m a j o r i t y c o n t r o l over policy outcomes ( p r o p o r t i o n a l representation, r e f o r m of the electoral college, a less activist or independent judiciary, p o l i t i c a l control over the Federal Reserve, and so on). 1 am not advocating these reforms, but only p o i n t i n g out that were they to come about they could move the entire system south, f r o m A to B in the diagram. F r o m B we could imagine a second line of r e f o r m based on the argument that real democracy requires far greater direct participat i o n . Even w i t h i n the confines of a generally representative system, a number of reforms could be designed to move the system westw a r d to a p o i n t such as C. Referendum and recall provisions and p r o l i f e r a t i o n of direct primaries, t o w n meetings, and other directg o v e r n i n g arrangements w i t h i n specific jurisdictions are some of the reforms that could be employed to move the system in this direction." F r o m p o i n t C, the greater power in the hands of an aroused populace m i g h t well produce calls for p r o t e c t i o n against t y r a n n y of the m a j o r i t y . Reinvigoration of the separation of powers, checks and balances, and an activist judiciary determined to protect v a r i ous c o n s t i t u t i o n a l rights could move the system f r o m C to a p o i n t such as D , directly n o r t h . H o w e v e r , f r o m p o i n t D arguments about the greater c o m petence of representatives could be employed to undermine the earlier p r o l i f e r a t i o n of referendums, primaries, t o w n meetings, and other direct institutions, so as to return the system to our o r i g i n a l status q u o , point A . Each step in this scenario relies o n values that are deeply rooted w i t h i n the general family of democratic arguments/ M o v e m e n t south depends on the emphasis of

2.1 Criteria

for an Acceptable

Theory

If I am correct about the impediments to systematic versions of liberalism, where does that leave efforts to reconstruct liberal theory? Perhaps the aspirations of systematic theory demand too m u c h . It may be possible to define criteria for an acceptable theory, criteria w h i c h it is possible for some versions of liberal theory to f u l f i l l , but w h i c h are, nevertheless, far less ambitious than the requirements for systematic theory. I propose that we consider four criteria for an acceptable theory of the first principles of a liberal state. Such a theory, at the least, should provide e x p l i c i t grounds for satisfying these c r i t e r i a : 1. It should differentiate among alternatives: i t should p r o one or a few most vide an e x p l i c i t basis for d e t e r m i n i n g , if only incompletely, w h i c h states are better than other states, selecting preferred states f r o m a plausible construction of the feasible set.

There are t w o crucial ways in w h i c h the theories considered here fail this c r i t e r i o n . They can be distinguished as: (a) vacuousness: (b) blind alleys: a theory can tail to differentiate by legitimata theory can fail to differentiate by r u l i n g out

i n g all (or v i r t u a l l y all) the realistic possibilities; all the realistic possibilities.

S t r a t e g i e s f ^@fonsS7ticH@n

Criteria for o n a s s e m b l e Theory

43

Vacuous theories legitimate too m u c h ; blind-alley theories leg i t i m a t e too little. We w i l l find that some forms of consent theory t u r n out to be vacuous. A n d if we assume, as 1 d o , that we live in a w o r l d of states, one obvious way a theory couid produce b l i n d alleys is t h r o u g h philosophical anarchism ( r u l i n g out all the realistic possibilities). These are not the only possible ways of failing c r i t e r i o n 1 . A theory m i g h t , for example, offer no prescriptions ment, so they are w o r t h distinguishing. Political philosophy fails to be prescriptive if it telis us either that all the possibilities are absolutely unacceptable or that they are a l l equally acceptable. In failing either c r i t e r i o n 1(a) or 1(b), p o l i t i c a l philosophy basically w o u l d be telling us that there was n o t h i n g to choose f r o m among the alternatives. Theories failing these criteria w o u l d h o l d that, even as a matter of aspiration, no distinctions need to be made and no guidance needs to be offered about the most basic differences among p o l i t i c a l systems. If these m i n i m a l criteria cannot be satisfied, then i n an i m p o r t a n t sense the subject w o u l d have n o t h i n g to offer. I am assuming that an adequate theory must, at the least, make some distinctions a m o n g states a n d , in that sense, be prescriptive. 2. A n acceptable theory should be individually binding. For each person subject to its a u t h o r i t y , the state should have an exp l a n a t i o n for w h y that person is obligated to u p h o l d the regime. ' I his c r i t e r i o n can be b r o k e n d o w n into t w o parts: (a) T h e scope of the individually b i n d i n g requirement must be universal for those subject to its a u t h o r i t y . (b) T h e manner must be particular or satisfy the p a r t i c u l a r i t y requirement; that is, the citizen must not be equally o b l i gated to u p h o l d regimes other than his o w n as part of his political obligation.
1

that the e x p l a n a t i o n for that obligation should apply to all those who must c o m p l y w i t h the o b l i g a t i o n . Since part of the very notion of having a state is that the state apply its a u t h o r i t y universal lv w i t h i n a given t e r r i t o r y , the individually b i n d i n g character of its obligations must apply universally t h r o u g h o u t its t e r r i t o r y . The last p a r t of c r i t e r i o n 2, the particularity requirement, is based on the n o t i o n that states have a claim on the loyalty of their citizensa c l a i m that is not equally satisfied for those citizens by any number of other states w i t h similar characteristics. O f course, those other states, if they are legitimate, may make similar claims on their citizens. Just as I have obligations to my mother that 1 d o not have to total strangers, no matter h o w similar to my mother those strangers may be, I have obligations to m y state, if it is a legitimate state, that I do not have to any number of other states, no matter h o w similar to my state those states may be. If I am a citizen of state X , i t is my state in the sense that 1 owe special o b l i gations to i t . I am assuming that if a theory of the first principles of a liberal state p u r p o r t s to explain the obligations of citizens to support i t , then the special character of those political obligations needs to be accounted for. 3. A n acceptable theory should solve or deal successfully w i t h the jurisdiction problem. By this I mean that the fundamental basis a theory offers for its prescriptions should not p r o v i d e rival theories (offering rival prescriptions) w i t h grounds for c l a i m i n g jurisdiction over the resultgrounds for c l a i m i n g that their prescriptions have the same justification. Such j u r i s d i c t i o n problems undermine the sense i n w h i c h a theory can be taken to solve anyt h i n g . If, for example, rival courts claim j u r i s d i c t i o n over the same issue, the mere fact that each m i g h t give us a k i n d of i m p a r t i a l decision does not help us to resolve the issue until we find some way to resolve, in t u r n , the jurisdictional conflicts among the courts' claims to decide. We w i l l see that the rivalries among theoretical "decision procedures" pose a similar p r o b l e m , leaving us w i t h no court or decision procedure for choosing among them. 4. A n acceptable theory should satisfy criteria 13 without

whatsoever.

H o w e v e r , these are the t w o ways that w i l l piay a roie in our argu-

Legitimate states h o l d that individuals are obligated to u p h o l d and obey their authority. The basic idea of c r i t e r i o n 2 is merely

44

S t r a t e g i e s }

feionstresfiim

45 poses a constructive strategy that does p u r p o r t to satisfy all of these criteria.

f a l l i n g i n t o indoctrination

problems.

The manner of establishing

o b l i g a t i o n s and their acceptance should not be subject to a del e g i t i m a t i n g charge that people were brainwashed or coercively m o l d e d so as to support the regime in the required way. We need, of course, a more detailed, constructive account of w h a t w o u l d constitute n o t being brainwashed or coercively m o l d e d . This p r o b lem w i l l detain us later at some length. These are criteria w h i c h a libera! theory of the state must satisfy i f it is to offer authoritative prescriptionsat the levels of b o t h social and i n d i v i d u a l choice. The key social-choice question is: W h i c h states are better than others? The key individual-choice question is: W h y are individuals w i t h i n a state bound to supp o r t the answer to the social-choice question? To deal w i t h the social-choice question, an acceptable theory should differentiate a m o n g alternatives so as to satisfy c r i t e r i o n 1. To deal w i t h the i n d i v i d u a l - c h o i c e question, members should be bound to u p h o l d the social-choice response so as to satisfy c r i t e r i o n 2. To deal adequately w i t h both of these questions, a theory must also conf r o n t c r i t e r i o n 3 : i f a theory's implications are to be authoritative, they must avoid j u r i s d i c t i o n problems; that is, they must avoid p r o v i d i n g a fundamental basis for rival theories to provide i n c o m patible prescriptions. Theories bedeviled by j u r i s d i c t i o n problems u n d e r m i n e their o w n authority. Finally, i n d o c t r i n a t i o n problems must also be avoided i f the theory's prescriptions are to be aut h o r i t a t i v e ; if their apparent authoritativeness rests on collective b r a i n w a s h i n g , then they are subject to obvious, delegitimating arguments. Hence, a theory needs to satisfy all four of our criteria i f it is to provide an authoritative basis f o r choice at b o t h the social- and individual-choice levels. M o s t of part 2 w i l l juxtapose these criteria w i t h a scheme for classifying the basic strategies available to liberal theory tor establishing its first principles. I w i l l argue that all but one of the strategies can be expected to fail one or more of the criteria just proposed. T h i s argument w i l l set the stage for part 3, w h i c h p r o -

2.2 Beyond

Intuitionism

Our first c r i t e r i o n challenges us to decide whether a theory can distinguish a m o n g the range of relevant alternatives, i t requires that an acceptable version of liberal theory provide an e x p l i c i t basis for d i s t i n g u i s h i n g the morally preferred p o l i t i c a l arrangement (or a l i m i t e d class of such arrangements) f r o m most of its serious rivals. By "serious r i v a l s " I mean p o l i t i c a l alternatives w i t h i n some plausible construction of the feasible set, and for w h i c h significant philosophical claims have been advanced. O f course, w h a t is meant by " l i b e r a l i s m " or " l i b e r a l t h e o r y " is itself a matter of considerable dispute. We can generally distinguish t w o approaches to this problem. One approach w o u l d classify normative theories or ideologies as " l i b e r a l " in terms of what they prescribe, w h i l e another approach w o u l d classify them in terms of how they prescribe i t . The first approach relies o n the substantive prescriptions resulting f r o m a theory, w h i l e the second relies on the kinds of arguments employed by a theory to support its substantive prescriptions, The first strategy is exemplified by M a u r i c e Cranston's q u i p : " A liberal, i suppose one could say, is a person w h o believes in liberty, as a nudist is a person w h o believes in n u d i t y . " As liberals
1

are those w h o believe in liberty, liberal theories, o n this view, are those w h i c h offer systematic justification or support for liberty. By contrast, the second strategy w o u l d identify as " l i b e r a l " those theories w h i c h employ a certain mode of argument. A n example is Ronald D w o r k i n ' s claim that "a certain conception of equality, w h i c h I shall call the liberal conception of equality, is the nerve of l i b e r a l i s m . " ' D w o r k i n means by equality a certain l i m i t a t i o n o n the arguments w h i c h it is appropriate for the state to employ in justifying its policies. Whatever their other differences,
5

Rawls's

46

Strategies s i g e s n s t r u s f r a

g-eyoriet I n t u i t i o n i s m

47

t h e o r y of justice, Aekerman's n o t i o n of " n e u t r a l d i a l o g u e , " and the recent attempts to reconstruct utilitarianism all rely o n a f o u n d a t i o n a l conception of i m p a r t i a l i t y or equal consideration as a strategy for d e r i v i n g the first principles of a liberal state;
1

for the trade-offs between fundamental principles such as l i b e r t y and equality. If the trade-offs between all competing principles
6

can be fully captured by a series of clearly ranked indifference curves, let us call the p o s i t i o n that results systematic i n t u i t i o n i s m . This position does not represent the absence of a theory p r o v i d ing p r i o r i t y rules. Rather, it embodies a complex statement of a single clear p r i o r i t y rule: Prefer alternatives o n the most highlyranked indifference curve achievable. Provided that all of the moral considerations are adequately captured by the indifferencecurve analysis, there is no indeterminacy about h o w to evaluate any alternatives that may present themselves. Systematic i n t u i t i o n ism of this k i n d is not really i n t u i t i o n i s m , precisely because it is systematic. I t is simply the use of a distinctive device for stating a complex principle that is supposed to have clear p r i o r i t y over all competing considerations. It is the unsystematic variety of i n t u i t i o n i s m w h e r e the m o r a l c o m p l e x i t y of possible trade-offs has not been reduced to a series of ranked indifference curvesthat represents a basic challenge to the theoretical aspirations of liberal political philosophy. U n systematic i n t u i t i o n i s m leaves us w i t h o u t guidance. We are stuck w i t h incommensurable, c o n f l i c t i n g factors whose relations to one another are regarded as a matter of unsettlable dispute. A t most we may k n o w w h i c h factors to weigh. However, even the metaphor of " w e i g h i n g , " standard though it is, is misleading. T h e absence of any c o m m o n metric for comparing incommensurable considerations is itself a central part of the p r o b l e m . ' I t is the mysteriousness of i n t u i t i o n i s m , leaving each of us to c o n f r o n t conflicting ultimate principles w i t h o u t further guidance, that violates the " e x p l i c i t n e s s " requirement of our criteria. Yet the m a i n thrust of m y argument thus far has been that unsystematic i n t u i t i o n i s m is unavoidable. Liberal theory, i n particular, must inevitably assign a p r i m a r y role to i n t u i t i o n i s m ; it is beyond any reasonable construction of its capacities to produce a full-fledged systematic alternative.* Such a conclusion w i l l not

We need not decide the question here whether liberalism is best defined in terms of its substantive conclusions or in terms of its modes of argument for those conclusions. The position 1 w i l l develop can plausibly be classified as " l i b e r a l " on either account. O n the one hand, its centerpiece w i l l be an attempt to justify the p o l i t i cal liberties of t h o u g h t , belief, and associationprescriptions that have long been at the core of whatever substantive consensus l i b eralism has achieved. O n the other hand, my argument for libertyw i l l depend o n recognizably liberal methodological assumptions. It w i l l , in fact, be based on a claim about the conditions under w h i c h certain forms of m o r a l evaluation w o u l d be possible i n a liberal state. W h y do our criteria require an " e x p l i c i t " basis? By this I mean that criteria must be offered spelling out the proposed p r i o r i t i e s . Relying solely on " i n t u i t i o n i s m " is not enough. The intuitionist is c o m m i t t e d to a plurality of principles w i t h o u t any clear weights or p r i o r i t y rules and w i t h o u t any m e t h o d for resolving conflicts a m o n g t h e m . The label " i n t u i t i o n i s t " indicates that a person has no further e x p l i c a t i o n of the trade-offs to w h i c h he is c o m m i t t e d in p a r t i c u l a r cases. I n t u i t i o n i s m is, i n an i m p o r t a n t sense, the absence of a theory.
5

H o w e v e r , suppose there were a very decisive i n t u i t i o n i s t w h o c o u l d always select his preferred alternative f r o m a list w i t h i n the feasible set. W o u l d this ability to determine preferred alternatives satisfy o u r criteria? I t w o u l d still fall short because the basis f o r s e l e c t i o n i f i t were t r u l y i n t u i t i o n i s t w o u l d defy further exp l a n a t i o n . I n this connection, we should distinguish w h a t m i g h t be called systematic intuitionism f r o m the unsystematic variety that falls c r i t e r i o n 1 (see section 2.1 above). Some w r i t e r s , most n o t a b l y B r i a n Barry, have experimented w i t h indifference curves

48

S t r a t e g i e s t

Resmastrsstiw

Beyorid InfytHsnism

49

only be d i s a p p o i n t i n g to many, but it w i l l also appear to foreclose completely the prospects that any construction of liberalism w i l l satisfy our criteria for an acceptable theory. However, this pessimistic conclusion is mistaken. As we w i l l see in part .3, other strategies h o l d promise for satisfying our criteria despite all the negative and l i m i t i n g conclusions developed here. W h y should we be concerned w i t h these criteria? Why, for example, should we require an explicit basis for selecting a m o r a l l y preferred state f r o m the feasible set (criterion 1)? W i t h o u t passing even this m i n i m a l test, liberal theory seems to be n o t h i n g more than a bundle of conflicting principles o f f e r i n g us no definite d i r e c t i o n , even for our aspirations. As Bruce Ackerman has argued, a successful case for the morally preferred state w o u l d dispatch, at a stroke, the charge that liberalism, philosophically", is n o t h i n g more than "a p i t i f u l blob of s e l f - c o n t r a d i c t i o n . " " It is for this reason that his theory, along w i t h the other main attempts to revive liberal theory, adopts a version of this c r i t e r i o n as its m a i n order of business. If a theory's prescriptions are so easy to f u l f i l l that most states already satisfy t h e m , then it fails our first c r i t e r i o n because it is vacuous. O n the other hand, if its prescriptions are impossibly d i f f i c u l t to f u l f i l l , so that all the serious possibilities are ruled o u t , then it fails our first c r i t e r i o n by landing us in a b l i n d a l l e v by l i m i t i n g its prescriptions to possibilities that fall outside the feasible set. W h a t we require is some basis for distinguishing the m o r a l l y preferred state f r o m most or all of the rival alternatives that deserve to be taken seriously. O f course, we can only consider the range of alternatives i n f o r m a l l y . There are always new possibilities to be imagined or invented, new objections to be weighed, new implications of f a m i l iar principles in new situations. Given these complexities, it seems q u i x o t i c to expect to narrow the range of possibilities to one preferred alternative. F u r t h e r m o r e , the alternatives for w h i c h serious philosophical

claims have been advanced w i l l vary f r o m one p e r i o d to another. There w i l l be similar v a r i a t i o n in our understanding of the range of feasible alternatives and of the probable collective and i n d i v i d u a l responses to various empirical conditions, I need to assume o n l y that the state of debate is robust: that a w i d e variety of alternatives is advanced w i t h sophistication f r o m a wide variety of m o r a l and ideological perspectives. These criteria are really a s h o r t - h a n d device for assessing w h a t one proposal or another contributes to the current state of theoretical debate.' They are merely a w a y
0

of f o r m u l a t i n g the p r o b l e m : W h a t does any given proposal contribute to the state of debate about the fundamental alternatives available to libera! theory? Our question is: Can liberalism produce any definite conclusions about its m o r a l p r i o r i t i e s , at least when favorable conditions are assumed? If these definite conclusions do not n a r r o w the alternatives to one, they should eliminate everything but a l i m i t e d subclass whose members are essentially equal in their realization of significant prescribed values. We should be able to characterize w h y and h o w the members of this subclass are equivalent and how they are, together, distinctive compared to the f u l l range of rival possibilities. W h a t are the g r o u n d rules for determining the feasible set of alternatives? I w i l l f o l l o w Rawls and assume the favorable conditions of w h a t he calls "ideal theory."
M

I w i l l assume g o o d - f a i t h
12

efforts at strict compliance w i t h the principles proposed, b o t h i n the present and i n the relevant recent past. Furthermore, I w i l l scarcity assume only "moderate scarcity" and not the extreme fourth) w o r l d .
1 3

of resources that blights many countries today in the t h i r d (and The first task for liberal theory is to prescribe a preferred solution under an o p t i m i s t i c scenario of conditions. Unresolvable dilemmas or t r o u b l i n g indeterminacies w o u l d not be surprising under situations of tragic conflict or of extreme scarcity. But acceptable versions of liberal theory should be able to differentiate

50 the most preferred alternative (or a subclass of equivalents) under favorable conditions w h e n they are insulated f r o m these c o m p l i cations..

elrHd Thought gxjMmmests

51

Figure 2. Decision Procedures Motivations 1 4 Situations Actual Brute Hypotht 2 3

2 3 Political

Thought

Experiments

Refined

Recent liberal theory has been distinctive for its thought experiments: t r a n s p o r t i n g us to an imaginary situation or t r a n s f o r m i n g our m o t i v a t i o n so that we choose p o l i t i c a l principles under cond i t i o n s i n w h i c h only the m o r a l l y relevant factors bear on the decision. T w o kinds of imaginary devices have been e m p l o y e d changes i n the s i t u a t i o n of choice and changes in the m o t i v a t i o n ( w i t h i n w h i c h I include filtering requirements by w h i c h only certain m o t i v a t i o n s are selected, w h i l e the rest are prevented f r o m bearing o n the decision). W h e n the m o t i v a t i o n for choosing p r i n 1

Category 2 transforms the situation for choice but not the m o t i v a t i o n . The state of nature i n Robert N o z i c k ' s Anarchy, Utopia State and is a g o o d example. We are to take the question whether
1

there should be a state at all to the "best anarchic s i t u a t i o n one reasonably c o u l d hope f o r . ' " The motivations of people i n this state of nature are not altered; they must be given a realistic construction. We are to assume that some w o u l d j o i n protect i o n associations v o l u n t a r i l y ; others w o u l d choose to be independent. As we w i l t see later, a major problem facing N o z i c k ' s argument is whether his scenario for the m i n i m a l state is compatible w i t h a realistic construction of people's preferenceswhether, forced to j o i n the state.
5

ciples has been altered or filtered i n the interests of i m p a r t i a l i t y , ( w i l l classify i t as " r e f i n e d " ; when people choose, or are imagined to choose, w i t h unaltered m o t i v a t i o n (as, realistically, we w o u l d expect t h e m to do i n actual life), 1 w i l l classify those m o t i v a t i o n s as " b r u t e . " W h e n the situation for choosing principles is the one in w h i c h those w h o must abide by the principles live together as an o n g o i n g enterprise, i w i l l classify it as an " a c t u a l - " choice s i t u a t i o n . W h e n the situation for choice is an imaginary one, held to be m o r a l l y relevant, but not the situation in w h i c h those w h o must abide by the principles must live together as an o n g o i n g enterprise, 1 w i l l term it " h y p o t h e t i c a l . " These distinctions are
2

in

particular, independents w o u l d be fully "compensated" i n being Category 3 transforms not only the situation, as i n category 2, but also the m o t i v a t i o n s for choice in that situation. For example, in Rawls's o r i g i n a l p o s i t i o n , agents are to choose principles of justice so as to m a x i m i z e their shares of p r i m a r y goods w i t h o u t k n o w i n g w h o i n particular they w i l l t u r n out to be once the veil of ignorance is l i f t e d . They are endowed w i t h an abstract preference for p r i m a r y goods regardless of the details of their actual life plans; they w i l l k n o w the latter only after the principles o f justice have been chosen. I n Ackerman's spaceship dialogues, entrants
6

represented i n figure 2. A n example of category i is offered by actual-consent theory. A c c o r d i n g to this approach, if people consent in real life, they are obligated to u p h o l d the state; if enough (whatever that means) do actually consent, then the state is held to be legitimate and, somehow, everyone is obligated. M o t i v a t i o n and situation are as
3

to a new w o r l d argue over the d i s t r i b u t i o n of " m a n n a " t h r o u g h a filtering device for relevant arguments (the " n e u t r a l i t y " assumpt i o n ) . The perfectly sympathetic spectator of the classical u t i l i tarians has b o t h an imaginary vantage p o i n t (omniscience) and a

we find t h e m . N e i t h e r Is subjected to some t r a n s f o r m a t i o n in the name of i m p a r t i a l i t y or moral relevance.

52

Strategies of ^e^onstructioii

The Q u e s t f o r Consent

S3

postulated m o t i v a t i o n (he reproduces in himself every pain and pleasure in the w o r l d and, hence, w i l l prefer states of the w o r l d that m a x i m i z e the net balance o f pleasure over pain). O f the possibilities presented in figure 2, the basic difficulty w i t h the t o p - r o w categories ( I and 2) is that they are subject to i n d o c t r i n a t i o n problems, while the basic difficulty w i t h the rightc o l u m n categories (2 and 3) is that they are subject to j u r i s d i c t i o n problems. The only possibility offering a prospect for avoiding b o t h is category 4 (the l e f t - b o t t o m quadrant). M y proposal is an instance of that approach. A similar p o i n t can be made about our other criteria. Consider the varieties of actual-consent theory that fit in category 1, T h e p r o b l e m w i t h universal express-consent w i l l t u r n out to be that it violates c r i t e r i o n 1(b) in section 2 . 1 . As W o l f f shows, to req u i r e that everyone expressly agree to the state is to require the b l i n d alley of philosophical anarchism. Alternatively, the p r o b l e m w i t h universal tacit consent w i l l t u r n out to be that it violates c r i t e r i o n 1(a). In order to get everyone committed to supporting the state, the criteria for consent are loosened to the p o i n t that v i r t u a l l y any state can c l a i m universal consent. Such an approach produces vacuous results by legitimating v i r t u a l l y everyt h i n g . F u r t h e r m o r e , the problem w i t h nonuniversal tacit consent w i l l t u r n out to be that it violates c r i t e r i o n 2(a). W i t h i n the confines of actual-consent theory, those w h o d o n ' t consent have no reason to believe themselves obligated to uphold the law. T h e i n d i v i d u a l l y - b i n d i n g criterion is not satisfied because the obligat i o n is not universal. By contrast, the p r o b l e m w i t h hypothetical contract theories w i l l t u r n out to be that w h i l e they may satisfy c r i teria I and 2, they violate criterion 3. They are inherently subject to j u r i s d i c t i o n a l challenge. But i n h i n t i n g at h o w some main strategies violate one or another o f our criteria, we are j u m p i n g ahead of ourselves. Let us t u r n to each category in greater detail, The rest of this b o o k is largely organized around the possibilities presented in figure 2. 1! he difficulties in categories I and 2 w i l l be our subject in sections

2.4 and 2.5. The difficulties in category 3, the main focus of recent theoretical activity in liberalism, w i l l be our subject in sections 2.6 and 2.7. Last, the o p p o r t u n i t y represented by category 4 w i l l be our subject i n part 3.

2.4 Category

1: The Quest for

Consent

In the simplest of our four categories (box I i n figure 2), we are dealing w i t h brute preferences and an actual, rather than a hypothetical, s i t u a t i o n . M y basic c l a i m about the " b r u t e " categories (whether actual as in box 1 or hypothetical as in box 2) w i l l be that they are rendered vulnerable to i n d o c t r i n a t i o n problems by their lack of a refinement mechanism for purging motivations of bias. Their v u l n e r a b i l i t y takes the f o r m of a dilemma: n o t h i n g in the strategy rules out extreme efforts at i n d o c t r i n a t i o n , but w i t h o u t such i n d o c t r i n a t i o n , the strategy cannot plausibly be interpreted as leading to determinate results that satisfy our other criteria, in particular, criteria I and 2 t h e requirements that our theory be nonvacuous, that it avoid b l i n d alleys, and that it produce obligations that are i n d i v i d u a l l y b i n d i n g . Together, these criteria require some differentiated solutions and bind us to them. The basic p r o b l e m w i t h category 1 is that it is vulnerable, genericaliy, to i n d o c t r i n a t i o n problems. Furthermore, each version of category i w i l l fail one aspect or another of our first t w o criteria. Recall that all four categories concern decision situations (real or imagined) for j u s t i f y i n g a state, either by choosing the state (or its basic character) e x p l i c i t l y or by choosing the principles that justify i t . For theories i n each of our four categories, it is i m p o r tant to ask whether the choice i n question must be unanimous, and w h a t k i n d of agreement or consent is required of each participant (whether or not the n o t i o n of agreement is interpreted strictly, an issue I w i l l attempt to refine further b e l o w ) . W i t h these distinctions i n m i n d , my basic point about category 1 theories w i l l be that they are, as a general matter, subject

54

S t r a t e g i e s f K e t s n s f i m t i M

The Quest f o r Consent

55

Figure 3. Options in Category I CATEGORY 1 THKORIES (subject to indoctrination problems violating criterion 4)

all issues of public decision: "Since by the rule of u n a n i m i t y a single negative vote defeats any m o t i o n , the slightest disagreement over significant questions w i l l b r i n g the operations of the society to a halt. It w i l l cease to f u n c t i o n as a political c o m m u n i t y and fall into a c o n d i t i o n of anarchy (or at least into a c o n d i t i o n of n o n legitimacy; a de facto government may of course emerge and take control)."
2

A
Normnamnious (violates criterion 2) Unanimous J \ Loose (violates Strict (violates criterion 1 fa|) criterion l [ b j )

Given a realistic construction of the variety of preferences i n a m o d e r n large-scale society, it is implausible to suppose that unanimous voluntary agreement w i l l maintain itself. Once it breaks d o w n , the prescription that resultsnamely, anarchismis ir-

to i n d o c t r i n a t i o n problems. I n a d d i t i o n , they are vulnerable to v i o l a t i o n s o f one or another of our other criteria, as shown i n figure J. I heories fitting category 1 either require unanimous agreement or s u p p o r t , or they do not. If they do not, then they are vulnerable to c r i t e r i o n 2 because they lose their individually b i n d i n g character. If they do require unanimous agreement, then if that agreement is loose, m y claim w i l l be that i t leads to violations of c r i t e r i o n 1(a), by p r o d u c i n g vacuous results. It legitimates t o o m u c h to differentiate among states. O n the other hand, i f the n o t i o n of agreement required is strict, then i t leads to violations of c r i t e r i o n 1(b) by, i n effect, r u l i n g o u t all the possibilities and creating a b l i n d alley. i w i l l attempt to illustrate these difficulties by briefly exami n i n g some particular theories e x e m p l i f y i n g each alternative. A g o o d example of a theory r e q u i r i n g actual unanimous agreement in the strict sense is Robert Paul W o l f f ' s argument for a system o f " u n a n i m o u s direct democracy" where "every member of the society w i l l s freely every law w h i c h is actually passed." The resultis that "he is only confronted as a citizen w i t h laws to w h i c h he has consented."
1

relevant co our p r o b l e m of differentiating among states. For this reason, the requirement for unanimous consent i n the strict sense can be taken as a v i o l a t i o n of criterion 1(b), the no-blind-alleys requirement. O f course, we m i g h t imagine a coercive system of collective brainwashing that produced near-perfect homogeneity of preferences, perhaps o n the order approaching w h a t w o u l d be required to support c o n t i n u i n g u n a n i m i t y in the large-scale nation-state. But such a system, even if it were successful, w o u l d not produce unanimous v o l u n t a r y agreement. It could realistically be m a i n tained only t h r o u g h systematic m a n i p u l a t i o n and coercion, issues to w h i c h we w i l l r e t u r n i n part 3. In any case, a choice situation that requires coercive collective thought c o n t r o l to s u p p o r t its conclusions exemplifies the other h o r n of our d i l e m m a : its results are delegitimated because they rest on i n d o c t r i n a t i o n , therebyviolating c r i t e r i o n 4. Suppose, however, that the no-agreement p o i n t were interpreted not as the b r e a k d o w n or cessation of the legitimate state (as in the passage quoted above), but simply as the c o n t i n u a t i o n of the status quo combined w i t h nonpassage of whatever policy produced disagreement. This possibility brings into relief some i m p o r t a n t differences between hypothetical- and actual-choice situations. We can plausibly interpret an appropriately designed hypothetical situation as a one-time-only event w i t h m o r a l rele-

H o w e v e r , as W o l f f rightly admits, this solution "requires the i m p o s i t i o n of impossibly restrictive conditions w h i c h make it applicable only to a rather bizarre variety of actual situations." The reason is that we must imagine c o n t i n u i n g perfect agreement o n

56

Strategies of R e i o r s s t r y s f i e n

The Quest foF Consent

57 are

vancc f o r whatever p o p u l a t i o n the situation is invoked. AH of those w h o are b o r n or enter the society at whatever time can participate i n the very same thought experiment: they can all imagine themselves in Rawis's original p o s i t i o n , or in Ackerman's neutral dialogues, or they can all delegate the choice of principles to the same imaginary u t i l i t a r i a n spectator, There is no problem of past actual p a r t i c i p a t i o n not a p p l y i n g to new members ( i n c l u d ing n e w l y b o r n ones) as compared to o l d ones; no one actually p a r t i c i p a t e d i n any of these imaginary scenarios, in any case. By contrast, actual-choice theories face the p r o b l e m that new members are b o r n , o l d ones die; new members arrive, o l d ones leave. W h a t has unanimous support at one time may not have it at another. Even if, somehow, the laws on the books were passed unanimously, there is no guarantee, as time goes o n , that each person w i l l be " o n l y confronted as a citizen w i t h laws to w h i c h he has consented." W h a t relevance does the unanimous consent of past generations have to him? Ele is "subject to the w i l l of a n o t h e r " just as m u c h as if he were an outvoted m i n o r i t y in a decision taken in the present."' A related p o i n t is that policy omissions (failures to adopt new policies) can be just as salient and burdensome as policy commissions (the a d o p t i o n of new policies). There may be unexpected emergencies, new issues, new requirements for action. The most i m p o r t a n t issues of the moment may never have been previously decided, or even formulated as matters for public debate. The unan i m i t y rule, by g i v i n g everyone a veto, holds each of us hostage to the w i l l of any other person w h o m i g h t block the required action.'
1

earlier decisions, and the consequences of policy omissions

not consequences to w h i c h they have consented.' T h e b r e a k d o w n of unanimous consent confronts such a theory w i t h violations of criterion 2. If I have not actually consented to such a law, h o w , w i t h i n the confines of this k i n d of actual consent theory, am 1 supposed to be b o u n d to u p h o l d it? W o l f f abandons this o p t i o n because it is not t r u l y compatible w i t h i n d i v i d u a l autonomy. Because his assumptions lead h i m to take strict unanimous choice seriously, he is led to anarchism and, hence, in our scheme, to violations of c r i t e r i o n 1(b) (the blind-alley c r i t e r i o n ) . The basic p o i n t is that if we interpret the u n a n i m i t y rule strictly, for an actual, o n g o i n g society rather than for a one-time-only hypothetical s i t u a t i o n , i t does not provide the basis for differentiating choices among nation-states. Rather, W o l f f is correct to conclude that the rule, w h e n taken seriously, implies anarchism. Alternatively, if unanimous agreement is given a looser interpretation, it is possible to escape anarchism and provide a basis for morally acceptable states. The difficulty is that to get c o n t i n u ing unanimous agreement under realistic conditions, agreement or consent has to be defined so loosely that it provides no basis for differentiating conclusions. Rather, agreement defined so loosely w o u l d legitimate a host of states indiscriminately. Relying on loose unanimous agreement w i l l lead, if taken seriously, to violations of criterion '1(a), the nonvacuousness requirement. The difficulties that lie d o w n this road are suggested by Locke's loosening of w h a t we have been calling strict agreement i n the definition of tacit consent, as eventually developed i n the Treatise: The difficulty is, what ought to be look'ci upon as a tacit Consent. . . . And to this I say that every Man that hath any Possession or Enjoyment of any part of the Dominions of any Government doth thereby give his tacit Consent, and is as far forth obliged to Obedience to the laws of that Government, during such Enjoyment, as any one under it; whether this his Possession be of Land to him and his Heirs for ever, or a Lodging only for a Week; or whether it be barely travelling freely Second

As W o l f f makes clear, the special attraction of the u n a n i m i t y rule is that i t defines a system where "every member . . . w i l l s freely every law w h i c h is actually passed." As a result, he has " c o n s e n t e d " to every law w i t h w h i c h he is " c o n f r o n t e d . " H o w ever, once b o t h new issues and new members are taken into account, i t becomes implausible to claim that c o n t i n u i n g whatever policies were previously passed preserves unanimous s u p p o r t , at least for those policies. N e w generations were not party to those

S t r a t e g i e s of

Seconstrtstien

H i e Q e s for Consent

59

on the Highway; and, in Effect, it reaches as far as the very beans?; of anyone within the Territories of that Government/
1

u n a n i m i t y i n a sense loose enough to legitimate some m o d e r n nation-states w o u l d legitimate too many to be useful for our purposes. W i t h i n the confines of unanimous-actual-choice theory, we are faced w i t h v i o l a t i n g either criterion 1(a) or c r i t e r i o n 1(b)

Once tacit consent is defined so broadly that receiving any benefitsimply using the king's highways, or even "the very being of anyone w i t h i n the Territories of that Government"-counts as consent, i t does become plausible to claim that the conditions for unanimous tacit consent can be continually fulfilled under realistic conditions in a modern large-scale nation-state. So long as someone has not explicitly rejected the state's l e g i t i m a c y a n d attempted to leave the country so as to relieve himself of all obligations to it-he can be counted w i t h i n the f r a m e w o r k of tacit consent defined so loosely. As H a n n a Pitkin concludes in her critique of this d o c t r i n e of tacit consent, few states w o u l d be ruled out by this strategy: "Being w i t h i n the t e r r i t o r y of the w o r s t tyranny in the w o r l d seems to constitute tacit consent to it and create an o b l i g a t i o n to obey i t . O n l y physical w i t h d r a w a l - e m i g r a t i o n and the abandoning of all p r o p e r t y frees you f r o m that o b l i g a t i o n ; there is no such t h i n g as tacit dissent" The (emphasis in o r i g i n a l ) .
7

in effect, the choice of l e g i t i m a t i n g too m u c h or of l e g i t i m a t i n g too little. One alternative, of course, w o u l d be to abandon the u n a n i m i t y requirement entirely. Eiowever, nonunanimous versions of category 1 only seem to encounter a d d i t i o n a l difficulties. Unanimous agreements, at least when undertaken v o l u n t a r i l y , appear to b i n d everyone w h o is party to them and, in that sense, provide a certain i m m u n i t y f r o m further controversy. If acts of consent produce obligations in the way that promises d o , then if everyone has consented, everyone is obligated. We have at least some grounds for c o m m i t t i n g everyone to whatever policies and/or system was consented to-regardless of whatever else they m i g h t advocate.* This basis for countering rival prescriptions seems to vanish once u n a n i m i t y breaks d o w n (or if it is never achieved). W h y should / be obligated because you consented, any more than I w o u l d be obligated because you promised? Even i f my v i e w is a m i n o r i t y one, u n t i l we get some justification for s u b m i t t i n g the matter to m a j o r i t y rule (or to some other nonunanimous decision rule), m y v i e w cannot be dispatched by c i t i n g the greater numbers w h o support a rival view.'' The numerically predominant v i e w has often been m o r a l l y suspect and may well be in the f u t u r e .
10

basic difficulty is that w h e n agreement is interpreted

loosely, i t is plausible to include everyone in the state i n the agreement, but v i r t u a l l y no state is ruled o u t ; by contrast, w h e n agreement is interpreted strictly, it becomes implausible to include everyone i n the agreement, so v i r t u a l l y every state is ruled out (by the requirement for u n a n i m i t y ) . Unanimous actual agreement is far t o o d e m a n d i n g a c o n d i t i o n to provide the basis for conclusions differentiating among m o d e r n nation-states under realistic c o n d i tions. A t the very least, realistic conditions w i l l require that there be numerous complex questions affecting large numbers of people w h o have c o n f l i c t i n g interests at stake, and c o n f l i c t i n g conscientious o p i n i o n s about the result. Under such conditions, we cannot expect perfect u n a n i m i t y to m a i n t a i n itself v o l u n t a r i l y over time, inevitably, disagreements w i l l arise, b o t h about w h a t decisions o u g h t to be made and about h o w people ought to make t h e m . To require c o n t i n u i n g u n a n i m i t y in the strict sense w o u l d effectively rule out the modern nation-state; to require c o n t i n u i n g

Consider w h a t happens to actual-consent theory once the i n evitability of nonconsent on the part of many is acknowledged once, i n other w o r d s , the quest for u n a n i m i t y is abandoned. Joseph Tussman's p o s i t i o n offers a good i l l u s t r a t i o n . He argues that obligations to the state must derive f r o m the model of a " v o l u n t a r y o r g a n i z a t i o n " ; his argument builds o n the v i e w " t h a t obligations are, or even must be, voluntarily assumed." H o w e v e r , he is forced to c o n f r o n t the fact that
any d e s c r i p t i o n o f a b o d y p o l i t i c , like the U n i t e d States, w o u l d have to recognize that there are some, o r many, " c i t i z e n s " w h o c o u l d n o t be

60

S t r a t e g i e s of

l &eiotistrustion

?He Q u e s t f o r Consent

described as h a v i n g consented. There is no p o i n t to r e s o r t i n g to f i c t i o n to conceal this fact. It makes m o r e sense to speak o f the social c o m pact as an ideal w h i c h is never completely realized. N o n - c o n s e n t i n g a d u l t citizens are, i n effect, like m i n o r s w h o are governed w i t h o u t t h e i r o w n consent. T h e p e r i o d o f tutelage and dependence is u n d u l y p r o l o n g e d . A n d this . . . is a failure o f p o l i t i c a l e d u c a t i o n .
!i

[engc i n c r i t e r i o n 2. If only some people consent, then it seems exceedingly problematical that those w h o do not consent w o u l d be i n d i v i d u a l l y b o u n d to u p h o l d the result. It is arguable that actual-consent theory encounters these difficulties because it is being employed to solve too m u c h . C o n sent is deeply r o o t e d in Western, especially A m e r i c a n , p o l i t i c a l ideology, i n the Declaration of Independence we are told about "Governments . . . d e r i v i n g their just powers f r o m the consent of the governed." By being employed to solve " t o o m u c h , " I mean that consent theory is being employed to address t w o separate questions simultaneously. W h i c h states are more legitimate or morally appropriate than others? and W h y am 1 (or any other member) obligated to obey or u p h o l d the authority of my state? In other w o r d s , consent theory is c o m m o n l y applied (a) to the social-choice p r o b l e m of evaluating and c o m p a r i n g states and (b) to the individual-choice problem of establishing one's linkage to the state t h r o u g h p o l i t i c a l o b l i g a t i o n . There is, as we w i l l see in part 3, a natural connection between these t w o questions. But actual-consent theory provides too slim a basis for resolving b o t h simultaneously. The difficulty is that if consent is to serve as a self -sufficient response to the individual-choice problem of political o b l i g a t i o n , it is rendered v i r t u a l l y useless as a self-sufficient response to the social-choice p r o b l e m of comparing states. The reason for this c o n u n d r u m is, basically, that if actual consent is to provide a basis for everyone's p o l i t i c a l obligations to the state, then everyone must have consented. Something approaching unanimous or universal consent is required. But if unanimous consent is given a strict i n t e r p r e t a t i o n , then, as W o l f f illustrates, v i r t u a l l y all states are ruled out. O n the other hand, if unanimous consent is given a loose i n t e r p r e t a t i o n l o o s e enough to apply to everyone, say, w i t h i n the t e r r i t o r y (so as to get them all obligated to obey the state)-then meaningful differentiations among states are lost (as we saw w i t h Locke's loosening of tacit consent), i t is always, of course, possible to abandon the u n a n i m i t y requirement, but that

Tussman has simply attempted to w o r k t h r o u g h the i m p l i c a tions of the primacy that "consent of the g o v e r n e d " (conceived as actual, v o l u n t a r y agreement) has i n American p o l i t i c a l culture. B u t the result is an incoherent theory of political o b l i g a t i o n because of w h a t he calls the " s h r i n k a g e " of the body p o l i t i c to a subgroup of the politically self- conscious. Their agreement cannot obligate the others any more than my promise could obligate y o u . If there were some magic percentage beyond w h i c h support was w i d e l y , and justifiably, acknowledged to be b i n d i n g on everyone, then the shrinkage problem w o u l d not undermine nonunanimous actual agreements as a fundamental basis for p o l i t i c a l p r i n ciples. But there Is no such magic percentage. It is certainly not 50 percent plus 1 ( m a j o r i t y rule). M a j o r i t i e s , like other w i n n i n g coalitions, can sanction or support unjustified and drastic actions whose consequences are felt by losing coalitions. F r o m M a d i s o n , Tocqueville, and M i l l to the present, avoiding the possibilities f o r t y r a n n y of the m a j o r i t y has been one of the central tasks of m o d ern democratic theory. - Increasing the percentage required for
1

a p p r o v a l does not solve the p r o b l e m ; it only makes passage of new policies o r legislation more d i f f i c u l t - w h i c h means more people may be frustrated by having to experience the consequences of an u n w a n t e d status q u o .
u

O f course, once a system has been estab-

lished, those w h o are already bound to it for whatever reason may then find that they are also bound to u p h o l d m a j o r i t a r i a n approved results f r o m w h i c h they dissent. But we are p r o b i n g arguments about the fundamental issue of w h a t binds them to the system i n the first place. W h a t these points amount t o , at bott o m , is that nonunanimous-actual-consent theory, in a v o i d i n g the problems w i t h criteria 1(a) and 1(b), faces a fundamental chai-

62

Strategies of S e i o n s t u j i t i e n

t h e Quest for Consent

63

w o u l d produce an incoherent theory of political o b l i g a t i o n (one in w h i c h 1 a m obligated because you consented). W h a t this shows is that the aspiration overreaches to employ actual-consent theory simultaneously as the basis for b o t h the social choice-problem of evaluating states and the individual-choice problem of his p o l i t i cal o b l i g a t i o n . Actual-consent theory certainly may have a role, but if cannot be employed to provide the sufficient conditions for the s o l u t i o n of b o t h problems at the same t i m e .
14

t 0

it w h i l e , at the same time, a d m i t t i n g that not everyone had

c0

n s e n t e d , an incoherent account of political o b l i g a t i o n resulted, But perhaps the basis for mora! prescriptions in a given society

leading to violations of c r i t e r i o n 2. is not every individual's consent but the collective, shared under-

standings of the society. W h i l e every single i n d i v i d u a l has not consented to those understandings, they are widely acknowledged and their status as shared conventions m i g h t arguably s u p p o r t their a p p l i c a t i o n to the society in question. In this way, some variation of nonunanimous-actual-consent theory m i g h t be employed for social-choice judgments about the legitimacy of the state w i t h o u t also being required for individual-choice judgments of p o l i t i c a l o b l i g a t i o n . I n a way, this o p t i o n can be t h o u g h t of as an attempt to employ nonunanimous-consent theory for the evaluation of the state, w h i l e relinquishing the previous a m b i t i o n to provide a theory of p o l i t i c a l obligation as well (or at least one that relies o n the analogy between acts of consent and promises). M i c h a e l Walzer's argument in Spheres this strategy.
15

By contrast, theories of hypotheticalas opposed to actual- consent may be employed for b o t h problems. They can, in a sense, apply universally to everyone w i t h i n a t e r r i t o r y , w h i l e at the same t i m e y i e l d i n g differentiating conclusions. Rawis's theory of justice is a p r i m e example. It purports to provide distinctive, significant conclusions and it ties those conclusions to a k i n d of c o n s e n t they are the conclusions we ourselves w o u l d supposedly reach, to the extent that we were rational and to the extent that we judged the p r o b l e m under ideally fair conditions. But Rawis's theory does not affect the conclusions just reached about actual-consent theory, i n Rawis's theory, universal consent w i t h i n the t e r r i t o r y is achieved only t h r o u g h a scenario that departs f r o m the l i m i t s of realism. The purely imaginary character of the scenario renders it vulnerable to j u r i s d i c t i o n problems f r o m r i v a l scenarios that also p u r p o r t to tell us w h a t we w o u l d , r a t i o nally, choose under fair or i m p a r t i a l c o n d i t i o n s b u t w i t h slight variations i n the notions of rationality or i m p a r t i a l i t y . As we w i l l see below, any differentiating conclusions that result can easily be evaded by r i v a l constructions of the hypothetical story. W h a t we are t e r m i n g category 3 theories such as Rawis's have the merit that they may satisfy criteria 1 and 2 but they are genericalty vulnerable to c r i t e r i o n 3, j u r i s d i c t i o n problems. R e t u r n i n g to category 1 and variations o n actual-consent theory, the nonunanimous-choice strategies ran into trouble because they employed consent as the basis for p o l i t i c a l o b l i g a t i o n as well as for a theory of the legitimate state. Because they proposed that we regard everyone w i t h i n the state's territory as obligated

of Justice

exemplifies

Because i t is the most sophisticated recent effort of

this k i n d , it can usefully illustrate the difficulties i n this general a p p r o a c h b r u t e actual-choice theories that are nonunanimous in their requirements.
16

Walzer's central c l a i m is that there are

qualitatively distinct "social goods" and that " i n t e r n a l " to our "shared u n d e r s t a n d i n g " of each good are criteria for its d i s t r i b u t i o n w i t h i n its o w n sphere. " T y r a n n y " occurs w h e n a given good is d i s t r i b u t e d for reasons irrelevant to those c r i t e r i a , t y p i cally t h r o u g h c o m m a n d over other goods ( f r o m another sphere) w h i c h are " d o m i n a n t , " such as capital. T h u s , medieval Christians condemned the sin of simony, for example, because "the meaning of a particular social g o o d , ecclesiastical office, excluded its sale and p u r c h a s e . "
17

Similar objections apply to p r o s t i t u t i o n and

b r i b e r y ; given certain "shared understandings" about h o w sexual gratification and p o l i t i c a l power are supposed to be d i s t r i b u t e d , the i n t r u s i o n of money is a m o r a l l y irrelevant determinant, one that perverts those shared understandings.

64

S t r a t e g i e s o i ResBiistruitissn

The Quest f o r Consent

65

Walzcr believes that a distinctive theory of justice can be developed f r o m the mere fact of shared understandings about the app r o p r i a t e spheres of each social g o o d , combined w i t h the requirement that these spheres be respected, "justice is relative m e a n i n g s " a n d , indeed, " i n matters of m o r a l i t y , argument is the appeal to common meanings."
18

nels for p o l i t i c a l expression, and how to adjudicate disputes. We lack shared understandings of a methodological k i n d about h o w to interpret and choose among whatever shared understandings may actually exist in our culture. Except where there is complete agreement, rival notions each w i l l have a f o o t h o l d . For the theory to yield any determinate content, we w o u l d require criteria for choosing a m o n g rival accounts of otir shared m o r a l notions. W i t h out such c r i t e r i a , the theory is threatened w i t h silence i n the face of serious m o r a l controversy. But such criteria cannot be developed w i t h o u t abandoning the reliance on relativism, on n o t h i n g more than the sheer fact of shared understandings. Once the possibility of a manipulated or indoctrinated consensus is acknowledged, any claims that this k i n d of theory c o u l d satisfy c r i t e r i o n 2 are e x p l o d e d . U n a n i m i t y about shared understandings is unrealistic and is not claimed by the theory. But then the issue arises: w h y should those w h o disagree be b o u n d by the consensus? If there were machinery in the theory to give us c o n f i dence about h o w the consensus was arrived at, then perhaps there could be some basis for resolving this issue. But such machinery w o u l d , by d e f i n i t i o n , take us outside the confines of category 1 (the actual-brute category) because preferences w o u l d no longer be merely brute. There is no such machinery in Walzer's theory, nor could there be w i t h o u t some radical change in its basic character. But w i t h o u t such machinery, there are no grounds for b i n d i n g dissenters to a consensus that is open to delegitimating charges of m a n i p u l a t i o n . W h y should such dissenters defer to the consensus unless there are grounds for being confident in the greater r a t i o nality of its collective process? W i t h such grounds, we w o u l d have a different kmc! of t h e o r y .
22

to social simply

Obviously, everything de-

pends on the "shared understandings" about each g o o d and its respective sphere in a given culture. Walzer's book is organized a r o u n d his list of goods: membership, security and welfare, money and c o m m o d i t i e s , office, hard w o r k , free time, education, k i n s h i p and love, d i v i n e grace, r e c o g n i t i o n , and political power. Is this an exhaustive list? W o u l d we all interpret our shared understandings about the spheres of justice this way? Others have proposed quite different lists of the p r i m a r y social goods whose d i s t r i b u t i o n defines the p r o b l e m of justice. For the design of i n s t i t u t i o n s , Rawls's list reduces to liberty, equal o p p o r t u n i t y , and income and wealth.
! y

H a r o l d Lassweil, in a famous analysis, proposed power,

2

enlightenment, w e a l t h , well-being, s k i l l , affection, rectitude, and deference. '' There are t w o m a i n difficulties w i t h this general strategy of appealing to shared (but not unanimously shared) understandings. T h e first is: h o w are we to decide between rival lists and rival understandings of their appropriate spheres? For Walzer, this issue seems relatively s t r a i g h t f o r w a r d . It comes d o w n to a p r o b lem o f social a n t h r o p o l o g y a n investigation and i n t e r p r e t a t i o n of shared understandings about social goods and their b o u n d aries in a particular culture. H e treats the whole issue of choosing a m o n g rival notions in the same culture parenthetically: " ( W h e n people disagree about the meaning of social goods, w h e n understandings are controversial, then justice requires that the society be f a i t h f u l to the disagreements, p r o v i d i n g institutional channels for their expression, adjudicative mechanisms, and alternative distributions.)"
2 1

W i t h o u t such grounds, we have no

basis for responding to c r i t e r i o n 2. W h a t Walzer's relativism does to his attack on t o t a l i t a r i a n i s m reveals a second major difficulty w i t h the general strategy. W i t h i n this relativistic f r a m e w o r k , there can be no criteria, except shared understandings w i t h i n the culture, for the alteration and m a n i p u lation of that culture. It is for this reason that it is appropriate for

Yet there w i l l also be g o o d - f a i t h disagreements about h o w (if at all) to resolve disagreements i n g o o d f a i t h , h o w to design chan-

S t r a t e g i e s ef

Mewmtmsim

Sealisk

Hyjattsksb

us to treat Walzer's theory as a p r i m e example of category .1, the reliance on brute-actual preferences ( " b r u t e " because there are no criteria f o r p r o t e c t i n g or refining the f o r m a t i o n of preferences; " a c t u a l " because it is the existing consensus w h i c h must provide the basis for argument). T h e central p o l i t i c a l i m p l i c a t i o n of the book is supposed to be the c o n d e m n a t i o n of t o t a l i t a r i a n i s m . However, imagine a t o t a l i tarian regime that happens to succeed in the task that many have a t t e m p t e d b r a i n w a s h i n g its citizens into accepting a set o f shared understandings about the proper sphere of its p o l i t i cal power. Once such shared understandings are accepted, there are no grounds w i t h i n the confines of relativism to condemn the regime. The expansion of political power o n t o virtually every other sphere of life (as the boundaries were previously d r a w n ) cannot n o w constitute " t y r a n n y , " by definition, once that expansion is supported by the culture's shared understandings.
25

We require transcultural criteria for the alteration and permissible m a n i p u l a t i o n of m o r a l cultures. But such criteria must do more than simply reflect whatever understandings happen to be shared w i t h i n those cultures at a given t i m e . The strategy 1 w i l l propose in part 3 is, in part, a response to this problem because it focuses on the conditions under w h i c h values and preferences develop. W i t h o u t criteria directed at this latter p r o b l e m , actualchoice theories are vulnerable to the basic d i l e m m a : either they fail to yield determinate implications or they yield determinate implications only by the k i n d of manufactured consensus that renders t h e m vulnerable to i n d o c t r i n a t i o n problems.

2.5 Category

2: Realistic

Hypotheticals

In category 2 of figure 2, there is a m o r a l l y relevant h y p o t h e t i cal story about the choice of the state or the choice of the first principles by w h i c h the state should be evaluated. The story is imaginary, but the people are realistic in a special sense; they are as we w o u l d find them in actual life under conditions where no refinement mechanisms have been employed to purge their m o t i vations of bias or i n d o c t r i n a t i o n . I n this respect, the people are no different than they were in category I . Brute preferences are combined w i t h an imaginary story w h i c h , for some reason contended by the theorist, is m o r a l l y relevant to us i n that it bears on our evaluation of the state. As in category 1 , my basic line of argument for category 2 w i l l be that w i t h o u t i n d o c t r i n a t i o n , brute preferences produce sufficient disagreements and indeterminacies that they lead to failures to differentiate ( v i o l a t i n g c r i t e r i o n I ) , but that w i t h i n d o c t r i n a t i o n , they violate c r i t e r i o n 4. I w i l t focus on interpretations of category 2 that strive for unan i m i t y or unanimous acceptability, at least in some sense, The agreement or consent of people m i g h t well vary i n the extent to w h i c h it is strict or loose, but m constructing hypothetical stories w i t h m o r a l relevance, we need some basis for t y i n g the a u t h o r i t y of the result to everyone. H y p o t h e t i c a l , nonunanimous-brute theories w o u l d fail the i n d i v i d u a l l y - b i n d i n g c r i t e r i o n (2), just as d i d

Thus,

once an O r w e l l i a n regime operates perfectly, once it succeeds in t o t a l l y m a n i p u l a t i n g its o w n political culture, its t o t a l i t a r i a n i s m is transmuted i n t o justice by the relativistic strategy of relying entirety o n shared understandings. Rather than p r o v i d i n g us w i t h the u l t i m a t e grounds for c o n d e m n i n g t o t a l i t a r i a n i s m , this relativistic t h e o r y of justice has laid the g r o u n d w o r k for its defenseprov i d e d only that thought control and propaganda are sufficientlv effective. M a n y o f the most d i s t u r b i n g cases of injustice and e x p l o i t a t i o n involve acceptance by the victims of the ideology ration a l i z i n g their v i c t i m h o o d . Provided that those ideologies are accepted w i t h i n a given culture, a consistent relativism provides no grounds f o r contrary evaluation. The same argument that B a r r i n g ton M o o r e applied to Untouchables, ascetics, and even some concentration camp victims can then be applied to entire regimes. '
2 1

If an entire society is victimized by a t o t a l i t a r i a n r e g i m e b u t its members have been t h o r o u g h l y brainwashed to accept these abuses of power as l e g i t i m a t e t h e n there are no grounds for c o n d e m n a t i o n w i t h i n a consistent relativism. For such a theory, " t y r a n n y " w o u l d have become "justice."

68

S t r a t e g i e s of R e c o n s t r u c t i o n

Realistic H y p o t i i e t i s a l s

69

the actual-choice versions of nonunanimous-brute theory. W h e n unanimous acceptability is not achieved, we have the same p r o b lem of j u s t i f y i n g the decision rule by w h i c h those w h o disagree can justifiably be overruled or ignored. If there is no further step at w h i c h unanimous acceptability is achieved, or if no refinement mechanism exists to establish the greater rationality or objectivity of the consensus (as compared to the m i n o r i t y view), then criter i o n 2 must be violated. There is no reason to believe the result to be i n d i v i d u a l l y b i n d i n g . 1 w i l l take Robert N o z i c k ' s argument for the m i n i m a l state as o f f e r i n g a g o o d specimen of category 2, that is, of a hypotheticalchoice theory e m p l o y i n g a realistic construction of unrefined or brute preferences. As we w i l l see, it aspires to unanimous accepta b i l i t y t h r o u g h a compensation argument. As i n the discussion of actual-consent theory, it is w o r t h dist i n g u i s h i n g between strict and loose interpretations of consent or agreement. By the strict interpretation of agreement, we mean consent or satisfaction w i t h the result that is explicit and unambiguous to the agent as an account of his actual preferences at some identifiable p o i n t i n time. It is not a matter of w h a t we t h i n k a person w o u l d agree to if she were rational or if she really t h o u g h t about the issue; nor is it a matter of our interpreting certain a c t s w h i c h the agent clearly thought she was p e r f o r m i n g for other reasonsas appropriate tokens of consent according to our conventions. Rather, by strict agreement, we mean that she actually d i d agree (or consent or indicate, i n terms of her actual preferences, satisfaction w i t h the result) at some point and that she k n e w precisely w h a t she was d o i n g when she d i d so. O f course, this k i n d of strict agreement may play a role i n a hypothetical scenario, i n w h i c h case, as part of the story, we must imagine that the people involved actually do agree. We can also leave open the possibility of a p p l y i n g strict agreement retroactively (as N o z i c k does i n the doctrine of full compensation),
1

point i n the story when the person's actual preferences e x p l i c i t l y and unambiguously support the result. N o z i c k ' s theory strives for unanimity w i t h an extremely weak f o r m of strict agreement. If this f o r m is unavailable, given a realistic construction of brute preferences, then so w i l l more demandi o forms. T h i s case w i l l help support a more general c l a i m : that
n

strict (voluntary) unanimous agreement is too demanding a requirement, whether for actual or for hypothetical constructions of brute preferences. We have already seen that loose interpretations of agreement (such as Locke's doctrine of tacit consent) fail to yield d i f f e r e n t i a t i n g conclusions, because they can be invoked by an enormous variety of states. If using the king's highways or finding yourself w i t h i n the territory is taken as tacit consent, then m a i n t a i n i n g consent of the people i n such a loose sense does not do much to distinguish among states. Whether we are dealing w i t h actual or hypothetical constructions of brute preferences, strict agreement rules out t o o m u c h , while loose agreement legitimates too much to be of any use in satisfying our first c r i t e r i o n . A c c o r d i n g to N o z i c k , we are to take the question of whether there should be a state at all to the "best anarchic s i t u a t i o n one reasonably could hope f o r . " The state of nature is offered as a
2

m o r a l l y relevant hypothetical situation for d e t e r m i n i n g whether or not there should be a state. The test for whether we should have a state is to imagine our not having oneunder conditions that are b o t h realistic and o p t i m i s t i c a n d then we shall see whether a state w o u l d have to be introduced or invented. The imagined alternatives must be realistic, for otherwise they w o u l d not be alternatives bearing on our range of choice; they w o u l d not constitute, even remotely, alternatives for us. The construction of the state of nature must be o p t i m i s t i c because a pessimistic or Hobbesian account of the state of nature could justify almost any state (even a Leviathan). The idea is that if we can justify the state in preference to the best nonstate alternative, then we w o u l d have convincingly justified the state and, indeed, a particular k i n d of state. We are given a hypothetical history. The state could have arisen

or of r e q u i r i n g that

the u n a n i m i t y be prospective (rather than merely retroactive). But if the agreement is retroactive, then there must actually come a

ReatisHs H y p o i h e t U o l s

71

by the scenario N o z i c k describes; and, the argument goes, this scenario w o u l d have required no morally impermissible steps: " i f one could show that the state w o u l d be superior even to this most favored situation of anarchy, the best that realistically can be hoped for, or w o u l d arise by a process i n v o l v i n g no m o r a l l y impermissible steps, or w o u l d be an improvement if it arose, this w o u l d p r o v i d e a rationale for the state's existence; it w o u l d j u s t i f y the s t a t e . "
1

Let us explore the precise scenario by w h i c h N o z i c k proposes to justify the m i n i m a l state. It illustrates the difficulty of preserving unanimous acceptability w i t h brute preferences, realistically construed. We can s i m p l i f y Nozick's story into the f o l l o w i n g four steps: j. i n d i v i d u a l s ( w i t h rights) live in the state of nature. protect themselves. 3. T h e associations i n step 2 sort themselves out t e r r i t o r i a l l y (so that each is d o m i n a n t in its o w n t e r r i t o r y ) , f o r m i n g an " u t t r a m i n i m a l state" (where those w h o join and pay get protected and those w h o do not, do not), 4. The u l t r a m i n i m a l state in step 3 compensates the independents i n its t e r r i t o r y so as to incorporate everyone and f o r m a m i n i m a l state. T h e " r i g h t s " assumed in step I are "side-constraints" upon

2. T h e individuals in step 1 f o r m voluntary associations to

B u t there are innumerable possible scenarios under w h i c h states far more extensive than N o z i c k ' s " m i n i m a l state" ( l i m i t e d i n its functions to protection against force, theft, fraud, and interference w i t h contracts) m i g h t also have come about w i t h o u t violating rights (in his sense). W i t h i n Nozick's strictly nonpaternaiistic p o s i t i o n , people even have the right, voluntarily, to sell themselves i n t o slavery or to arrange for their o w n murders.' i f they were to
1

d o so, no rights w o u l d be violated. A state whose subjects were mostly slaves (or whose rights were comparable only to those i n m o d e r n t o t a l i t a r i a n societies) could have come about t h r o u g h no m o r a l l y impermissible steps. Clearly, if slavery could conceivably come about t h r o u g h no morally impermissible steps, then so c o u l d less drastic states more extensive than the m i n i m a l state, a p r i m e example being the m o d e r n welfare state. W h a t N o z i c k requires to sort t h r o u g h these counterfactuals is not merely the claim that the m i n i m a l state (and only the m i n i m a l state) could come about t h r o u g h no morally impermissible steps, but that this h y p o t h e t i cal scenarioand only this hypothetical scenariois compatible w i t h a plausible, realistic construction of w h a t we could reasonably expect to happen i n the state of nature he describes. I n particular, i t must be uniquely compatible w i t h a plausible, realistic c o n s t r u c t i o n of the preferences we can attribute to these i m a g i nary people in his choice scenario. We are not impressed bv the h y p o t h e t i c a l story that if evervone were to w i s h , voluntarily, to become slaves, then a t o t a l i t a r i a n society could come about t h r o u g h n o " m o r a l l y impermissible steps." The force of this h y p o t h e t i cal is completely blunted by the i m p i a u s i b i l i t y of a t t r i b u t i n g such preferences to the people under any realistic construction.

action. It is not permissible to violate even one person's rights, regardless of whether the motive is to protect a greater number of others. N u m b e r s of rights violations are not to be compared or balanced; part of the appeal of the theory is the s i m p l i c i t y of the basic p o s i t i o n that one never violates rights.' Because even one rights v i o l a t i o n w o u l d delegitimate the outcome, and because the independents have the right to remain independent unless they v o l u n t a r i l y cede that right to the m i n i m a l state, the theory ends up r e q u i r i n g unanimous acceptability for the transition to the m i n i m a l state. As noted in step 4 above, N o z i c k attempts to accomplish this t h r o u g h a " c o m p e n s a t i o n " argument. However, in order to remain compatible w i t h the theory's fundamental assumptions, compensation has to be interpreted i n a sense that makes it a p r o x y for unanimous agreement or consent f r o m those w h o apparently disagree. A n d once compensation is interpreted in this way, it becomes impossible to get significant substantive conclusions f r o m the theory. So long as a choice scenario is b o t h realistic i n its construction of brute preferences and unanimous in its requirements, it w i l l simply not produce t h e m .

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

Realistic H y p o t h e t k s l s

73

For our purposes, \vc d o not need to dispute steps 1-3 j

satisfying our c r i t e r i o n 2as a way of m a k i n g the obligations to

s u

N o z i c k ' s tour-step scenario. These transformations depend on e m p i r i c a l assumptions about the market for protection services (assumptions that we can grant for purposes of argument). But if the scenario reached only so far as step 3, it w o u l d not have accomplished its purpose, since the so-called u l t r a - m i n i m a l state is not a state at a l l . It does not satisfy a state's m i n i m u m defining feature: it cannot r i g h t f u l l y claim a m o n o p o l y over the legitimate use of force in its territory.' The independents, those w h o have n o t
1

p p o r t the state individually

binding.

Hence, w h i l e the details of

this p r o b l e m may be special to N o z i c k , the general issue applies

u

, any theory i n this category that m i g h t aspire to satisfy outNozick's scenario has not produced the unique legitimacy of

conditions. the m i n i m a l state. Instead, up to step 3, it has produced only a forced choice between a legitimate nonstate (anarchy) and an illegitimate state ( t h r o u g h forced i n c o r p o r a t i o n of the independents). The move f r o m step 3 to step 4 a move that N o z i c k requires if there is to be any point to the argumentseems, at first glance, to be doubly objectionable. N o t only does it appear to violate the rights of the independents, by t a k i n g away their right to selfhelp enforcement, but it also appears to violate the rights of the members by f o r c i n g r e d i s t r i b u t i o n f o r c i n g the members to pay for p r o t e c t i o n services to be given to the independents, after they are incorporated. ' N o z i c k believes, roughly, that these t w o (ap1

v o l u n t a r i l y joined the p r o t e c t i o n association, have the same right to e m p l o y legitimate force as does the association (the " u l t r a m i n i m a ! state"). The independents cannot be incorporated w i t h out losing a crucial right, the right to interpret and defend their o w n rights as they sec f i t a right that N o z i c k calls "self-help enforcement." ^ i f the association takes away this right w i t h o u t consent, then the resulting state is illegitimate, because even one rights v i o l a t i o n is enough to delegitimate the outcome (it is this characteristic of N o z i c k ' s theory that brings it w i t h i n the category of theories req u i r i n g unanimous acceptability). But if the independents retain this r i g h t , then no state has been produced. If the scenario reached only this far, then the whole point of the story w o u l d have been lost. We w o u l d have imagined an alternative to the statenamely, a n a r c h y o n l y to see it eventually yield anarchy. O f course, N o z i c k m i g h t have argued that all the independents simply decide, voluntarily, to buy protection contracts and j o i n the state. These people are imaginary, so actual history does n o t l i m i t the endings that m i g h t be devised for the story. But this reduces the scenario to our i m a g i n i n g that there was anarchy but that somehow, miraculously, absolutely everyone agreed to f o r m a state. It strains credulity to imagine u n a n i m i t y on such a quest i o n . But a n y t h i n g less than u n a n i m i t y either prevents a state f r o m
8

parent) w r o n g s make the next step r i g h t . The idea is that forced i n c o r p o r a t i o n can be justified through compensation. O n the one hand, the members have not had their rights violated t h r o u g h red i s t r i b u t i o n to the independents (giving the independents services they have n o t paid f o r ) , because they owe compensation to the independents f o r t a k i n g away the right to self-help enforcement. O n the other hand, the independents have not had their rights violated t h r o u g h forced i n c o r p o r a t i o n , because they are fully compensated. A n d if one interprets compensation strictly, as N o z i c k does, and if it is actually paid, then it becomes a p r o x y for a k i n d of consent, applied ex post facto." This aspect of compensation
1

becomes e x p l i c i t f r o m his b o r r o w i n g of the "indifference c u r v e " terminology f r o m economics: " F u l l compensation keeps the vict i m on as high an indifference curve as he w o u l d occupy if the other person h a d n ' t crossed." " X's indifference curves arc a representation of X's actual preferences. Once he has been fully compensated in his o w n estimation, there is a sense in w h i c h he has consented to the change: he re-

resulting or violates rights so as to delegitimate the resulting state. N o t e that, for our purposes, the aspiration for u n a n i m i t y s h o u l d not be viewed as a peculiarity of the theory, but rather as a way o f

74

S t r a t g i e s e toc&sradiHi

gards the new situation ( w i t h compensation) as at least as g o o d as the o l d s i t u a t i o n ( w i t h o u t compensation). Just as voluntary consent opens the " b o r d e r " for crossing, f u l l compensation after the fact legitimizes apparent border crossings t h r o u g h a k i n d of subsequent consent. I n fact, the only objection N o z i c k offers to the extreme case of an eccentric w h o goes around breaking arms and w r i t i n g fat checks to fully compensate the victims is that not all the victims c o u l d possibly be fully compensatedbecause a general climate of fear w o u l d be created t h r o u g h o u t the c o m m u n i t y .
12

r i e n r e 4. N o z i c k ' s Scenario

O P T I O N S F O R TFIF. RESOLUTION O F N O Z I C K ' S SCENARIO

A
A Independents incorporated B Independents n o t i n c o r p o r a t e d (no state and violates c r i t e r i o n ! [ b j ) A2 Loss not fully compensated (illegitimate state and violates c r i t e r i a l [ b j and 2)

A
A t Loss fully compensated ( m o r e than m i n i m a l state and violates criterion l(a!)

H o w e v e r , once compensation is taken seriously (and N o z i c k must take it perfectly seriously if he is to preserve the simple sideconstraint view of rights that boundary crossings are never to be p e r m i t t e d w i t h o u t consent), then the options resulting f r o m the argument reduce to those p i c t u r e d in figure 4. For our purposes, N o z i c k must take compensation perfectly seriously or else he loses his basis for satisfying c r i t e r i o n 2 and m a k i n g the result individually binding. T h e possibilities in figure 4 depict the options available after step 3 i n the hypothetical history. Obviously, either the independents are incorporated i n t o the state ( o p t i o n A) or they are not ( o p t i o n B). If they are n o t , then, by the criteria stated earlier, the p r o t e c t i o n association does not q u a l i f y as a state. It does not have the requisite m o n o p o l y over the legitimate use of force i n the terr i t o r y because the independents retain the same right to use force as does the d o m i n a n t association. Since the t h o u g h t experiment for the possibility of justifying the state w o u l d then have failed, anarchism w o u l d have w o n the argument and the theory w o u l d then violate otir c r i t e r i o n 1(b). I f the independents are incorporated (option A in fig. 4 ) , a necessary part of that i n c o r p o r a t i o n is the loss of the right to selfhelp enforcement. It is precisely the right to use vigilante justice, to i n t e r p r e t and enforce one's rights entirely as one sees f i t , that distinguishes anarchy f r o m the state. Hence, if the t r a n s i t i o n to a state is to be accomplished, there are t w o possibilities: either

the loss of this right to self-help enforcement is fully compensated (option A l ) or i t is not ( o p t i o n A 2 ) . If the loss of the right to selfhelp enforcement is not fully compensated, then the resulting state is not legitimate. For N o z i c k , even one rights v i o l a t i o n is enough to invalidate the process. Flence o p t i o n A 2 , w h i l e p r o v i d i n g a state, does n o t provide a morally acceptable one. For our purposes, o p t i o n A 2 can be interpreted as violating b o t h criteria 1(b) and 2. It violates c r i t e r i o n 1(b) because we are still w i t h o u t a justification for state a u t h o r i t y . I t violates c r i t e r i o n 2 because less than full compensation cannot be considered a p r o x y for consent. Flence, w i t h inadequate compensation, the case for the theory satisfying the i n d i v i d u a l l y b i n d i n g c r i t e r i o n breaks d o w n . Clearly, prospects for a successful c o m p l e t i o n to the argument t u r n on o p t i o n A l . W h a t does i t take to fully compensate the independents for losing the r i g h t to self-help enforcement? Recall that they are i n dependents precisely because they previously turned d o w n the o p t i o n of j o i n i n g the p r o t e c t i o n association. N o w N o z i c k p r o poses to take away the very independence they wished to preserve and, in compensation, to give them merely the p r o t e c t i o n services

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they hat! previously refused! It strains credulity to imagine that they feel fully compensated, in their o w n estimation by this forced bargain. T o be fully compensated, they must be on as high an " i n d i f f e r ence c u r v e " w i t h o u t the right but w i t h the compensating services and/or goods as they were previously w i t h their rights but w i t h out the compensation. The case can only be made plausible if many more services and''or goods are p r o v i d e d than w o u l d be compatible w i t h the meager offerings built into the d e f i n i t i o n of the m i n i m a l state (the m i n i m a l services p r o v i d e d are w h a t make the m i n i m a l state " m i n i m a l " ) . W h e n we begin to imagine w h a t other goods and services mightbe p r o v i d e d in order to make the resulting compensation sufficiently attractive to place the independents on as high an indifference curve as they w o u l d have been on otherwise, the resulting structure of the state begins to look quite different. We m i g h t imagine the new state p r o v i d i n g money, f o o d , medical care, educat i o n , and a host of other human services. In order to render p l a u

to be subservient to any government, objecting to their forced i n c o r p o r a t i o n into the s t a t e .

b

i n that case, however, the scenario

simply ends up in the A 2 category and the state that results is illegitimate because rights have been seized w i t h o u t full compensation. C r i t e r i o n 2 is then violated because there is no basis in the people's o w n preferences for b i n d i n g them to the state ( f r o m w h i c h they w o u l d prefer to remain independent). C r i t e r i o n 1(b) is also violated because we end up w i t h the b l i n d alley of anarchism once again. O n the other hand, once we assume that it is possible, at least in principle, to compensate for the loss of the independents' rights, the required goods and services clearly surpass those offered by the m i n i m a ! s t a t e p r o v i d e d that full compensation must be p r o vided. A n d as we saw earlier, anything less than full compensation should be construed as a rights violation because it w o u l d not constitute any sort of consent or permission (even if retroactive) for border crossings. Once border crossings w i t h o u t permission are tolerated, the entire theory begins to disintegrate.
16

sible the c l a i m that the independents are fully compensated, the apparent r e d i s t r i b u t i o n w o u l d have to be substantial. I say " a p p a r ent r e d i s t r i b u t i o n " because, as N o z i c k rightly notes, if transfers are paid as compensation, they should not be considered redistrib u t i o n (even t h o u g h they w i l l have this appearance because goods or services are moved f r o m one g r o u p to another). '
1 1

The possibilities i n figure 4 reduce t o : (A 1) legitimate but more extensive states than the m i n i m a l state; (A2) an illegitimate state; and (B) no state. Nozick's proposed conclusion, the unique legitimacy of the m i n i m a l state, is not one of the possibilities. I he argument clearlv does not produce d i f f e r e n t i a t i n g conclusions. O p t i o n B, anarchism, rules out all the possibilities that involve having a state. O p t i o n A l fails to differentiate a m o n g states. From it, we o n l y k n o w that some indeterminate range of more extensive states may be legitimate. We cannot k n o w more f r o m the argument because the issue turns o n an e m p i r i c a l question about a hypothetical history: it depends on the preferences of imaginary people. W i t h i n the g r o u n d rules of realism, there is w i d e latitude in how m u c h compensation m i g h t be required and in h o w much
r

Whatever the details, the resulting state wilt be more than m i n i m a l i f f u l l compensation must be paid. In fact, since many of the independents may have failed to join earlier because they c o u l d not a f f o r d t o , the particular character of the m o r e - t h a u - m i n i m a l state that results m i g h t t u r n out to be precisely the one N o z i c k is most concerned to argue against, namely, that of the m o d e r n welfare state. It is, o f course, possible that none of these offerings w i l l t u r n o u t to be sufficient. F r o m the standpoint of the independents, perhaps no compensation w i l l be enough to make up for loss of their rights. We m i g h t imagine hardy individualists, w h o do not w i s h

these people m i g h t t u r n out to value their independence. W h a t we can conclude is that if the argument legitimates any state at a l l , it legitimates an indeterminate range of states that engage i n at least some r e d i s t r i b u t i o n . T h a t is v i r t u a l l y the full range of states in the

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I m p a r t i a l i&etistan F i m e J r e s

79

m o d e r n w o r l d today. Clearly, o p t i o n A l fails criterion 'I(a), the nonvacuous requirement. We reached this dead end by assuming a realistic construct i o n of brute preferences w i t h o u t any explicit efforts to t r a n s f o r m those preferences t h r o u g h i n d o c t r i n a t i o n . N o z i c k , like Watzer and the actual-choice theorists of category I , does not provide protect i o n f r o m i n d o c t r i n a t i o n for the process of preference f o r m a t i o n . We should see w h a t happens when this assumption is relaxed. Suppose, f o r example, that everyone i n the t e r r i t o r y belonged to a religious cult w h i c h raised its children to defer entirely to the j u d g m e n t of a particular leader o n all questions of public policy. Its members were indoctrinated i n the sense that no rival views were ever discussed, even i n private, and heavy social sanctions were applied to anyone offering the merest h i n t of d o u b t or of f r e e - t h i n k i n g . In the t e r r i t o r y of this homogeneous and coercive cult fa t e r r i t o r y we m i g h t call C u l t - l a n d ) , once the leader approves j o i n i n g the m i n i m a l state, everyone unanimously and sincerely f o l l o w s . In other w o r d s , C u l t - l a n d achieves the transition to the m i n i m a l state w i t h o u t having to c o n f r o n t the compensation p r o b l e m , simply because there are no independents to be c o m pensated. It achieves the transition to the m i n i m a l state w i t h o u t having to c o n f r o n t the p r o b l e m of disagreement, simply because there is none. W h i l e such a hypothetical story w o u l d lead, unanimously, to the m i n i m a l state, there is no reason for that story to h o l d any m o r a l relevance for us. It is delegitimated as a moral example for us because i t depends on preferences and choices that are determ i n e d by i n d o c t r i n a t i o n . For a merely hypothetical story to m a i n tain m o r a l relevance, the choice needs to be v o l u n t a r y ; i t needs to be free of coercive m a n i p u l a t i o n . W i t h o u t i n d o c t r i n a t i o n , we can see f r o m figure 4 that N o z i c k ' s scenario leads to indeterminate results. W i t h i n d o c t r i n a t i o n , on the other hand, it leads to results that lack any m o r a l relevance as an example for us. W i t h o u t i n d o c t r i n a t i o n , the scenario violates either criterion l a or criteria l b or 2; w i t h i n d o c t r i n a t i o n , the scenario obviously violates c r i t e r i o n 4.

The i n d o c t r i n a t i o n example also hints at another major problem. H y p o t h e t i c a l histories have a different claim on us than do real histories. Once we get into the business of creating h y p o t h e t i cal stories, their relevance for us must rest on some other c l a i m than that they actually happened. The indoctrinated-hypothetical scenario has clearly lost all moral relevance for us. This is a crucial objection to brute-hypothetical scenarios. However, even if one constructed a scenario that had a greater c l a i m of moral relevance, it w o u l d still face the p r o b l e m of satisfying c r i t e r i o n 3, the j u r i s d i c t i o n p r o b l e m .
17

It w o u l d still have to establish that its

claim to m o r a ! relevance could not be matched by rival theories m a k i n g the same fundamental claim to constitute an appropriate basis for m o r a l choice. Because this j u r i s d i c t i o n p r o b l e m is the central issue i n category 3 theories, I w i l l put it off until the next section. It Is w o r t h n o t i n g , however, that the same issue arises for category 2 o n l y the latter category's responses are c o m p l i cated by the a d d i t i o n a l , delegitimating hurdle of i n d o c t r i n a t i o n problems.

2.6 Category

3: Impartial

Decision

Procedures

Theories i n category 3 of figure 2 combine a hypothetical situat i o n w i t h an e x p l i c i t e f f o r t to refine the preferences or motivations that bear o n the choice of p r i n c i p l e s t o refine them so as to eliminate the biases that m i g h t otherwise deflect the choice t h r o u g h morally irrelevant factors. Such refinement mechanisms clearly provide a response to the i n d o c t r i n a t i o n problems that bedevil categories 1 and 2. Category 3 has p r o v i d e d the basis for the resuscitation of systematic liberal theory over the last t w o decades. One basic idea is at the core of this strategy: the definition of an appropriately unbiased m o r a l perspective or decision situation for the selection of first principles that are to have p r i o r i t y i n a liberal state (at least under ideal conditions). Rawls's " o r i g i n a l p o s i t i o n , " Ackerman's n o t i o n of " n e u t r a l dialogue," D w o r k i n ' s "equal concern and respect," and Peter Singer's reconstruction of the perfectly sympa-

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81

thetic spectator of the classical utilitarians all have this character. Each defines a perspective of impartiality a t i o n of relevant claims or interests.

cisely s y m m e t r i c a l claims: each can derive first principles f r o m his o w n preferred account of the m o r a l point of view. The basis f o r any particular principle supported in this way is open to reasonable disagreement precisely because the rival procedures embody slightly different rival conceptions of m o r a l reasonableness, each m a k i n g the same fundamental c l a i m . Fully specifying the procedure does not evade the jurisdiction p r o b l e m . Rather, it dramatizes and clarifies i t . Once we specify a variety of these procedures, the conclusions f r o m any p a r t i c u lar version of the strategy are too easy to evadeeven for liberal theorists c o m m i t t e d to the same general strategy of arguing f r o m the i m p a r t i a l consideration of interests. We need some basis for differentiating conclusions (for criteria that select a subclass of most-preferred alternatives) w h i c h i t w o u l d be difficult for any recognizable version of liberal theory to evade. Because even slight variations i n the account of i m p a r t i a l i t y or of interests yield r a d i cally different p o l i t i c a l conclusions, any proposed response to c r i terion I is subject to j u r i s d i c t i o n a l challengewhen supported in this way. A n y viable version of category 3 must specify h o w relevant claims or interests are g o i n g to be considered in an i m p a r t i a l or appropriately unbiased way in the hypothetical situation. As 1 noted earlier, the initial p r o b l e m w i t h hypothetical situations is that we can see that proponents of rival principles can devise rival stories designed, in t u r n , to support their respective principles. The central question about the strategy is: Can some characterization of the factors in such a hypothetical situation be immune f r o m j u r i s d i c t i o n a l challenge by other theories advocating other factors? Unless there is some such characterization, the jurisdiction p r o b l e m is inescapable for any version of this k i n d of theory. Fhe quest is f o r a characterization of factors in the decision situation that is so neutral about the controversies i n question that i t is above reasonable challenge. Can a theory achieve strict neutrality and at the same time offer substantive conclusions? To illustrate the general p r o b l e m , let tis turn to the t w o most

for the equal consider-

M o r a l decision procedures such as the Golden Rule or Kant's Categorical Imperative have long played a role in ethical debate. I he obvious difficulty has been that these procedures have been specified loosely enough that it is easy for proponents of rival substantive conclusions to cite their preferred outcomes as the result of the same procedure.' By contrast, the procedures in category 3 attempt to c o n t r o l the factors that may be b r o u g h t to bear o n the decision by m a k i n g the deliberations h y p o t h e t i c a l . The opportunities for c o n t a m i n a t ing the argument w i t h irrelevant factors are controlled by t a k i n g the deliberations to a hypothetical situation i n w h i c h the factors at play are fully specified and sealed off f r o m real-life biases and contingencies. A t first glance, this strategy seems to have a great deal of m e r i t . If each step i n the procedure is specified sufficiently, then it s h o u l d be possible to b r i n g proponents of rival principles e m p l o y i n g the same procedure to the same ultimate conclusions. Yet f r o m this general idea, we can conclude virtually n o t h i n g about which particular fully specified strategy should have supremacy. Even slight variations in the account of i m p a r t i a l i t y or of interests i n a fully specified m o r a l decision procedure can p r o duce radically different first p r i n c i p l e s a fact dramatized by the dispute between Rawls and Harsanyi over interpretations of the o r i g i n a l p o s i t i o n that yield principles as different as m a x i m i n and average utility." M a n y procedural devices seem to embody a k i n d
5

of i m p a r t i a l i t y or equal consideration. " E q u a l c o u n t i n g , " the " v e i l of ignorance," and " m o r a l musical c h a i r s " are a few of the recent contenders.' Similarly, many r i v a l conceptions of interests m i g h t
1

be considered i m p a r t i a l l y by such a procedure. Rawlsian p r i m a r y goods, A c k e r m a n i a n " m a n n a , " and u t i l i t y in one sense or another are the proposals most p r o m i n e n t i n recent debates.
5

The difficulty is that proponents of each procedure (specifying a n o t i o n of i m p a r t i a l i t y and a n o t i o n of interests} can make pre-

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a m b i t i o u s versions of a category 3 theory i n recent years, Rawls's /\ Theory of Justice and Ackerman's Social justice in the Liberal State. I n discussing Rawls, Thomas Nagel cogently states the strategy at the core of b o t h theories: " A theory of the g o o d is presupposed, but it is ostensibly conceptions. neutral between divergent particular . . . It is a fundamental feature of Rawls's conception

['i^ure 5- Options for Hypothetical-Choice Theories HYPOTHETICAL-CHOICHTHiiOKIt-S Brute (indoctrination problems) Strictly neutral (vacuous) Want-regarding Not strictly neutral Ideal-regarding (paternalism) Refined

of the fairness of the o r i g i n a l position that it should not p e r m i t the choice of principles of justice to depend o n a particular conception of the g o o d over w h i c h the parties may d i f f e r . " '
1

Is it possible to develop a viable but neutral theory of relevant claims o r interests that m i g h t i m m u n i z e substantive conclusions f r o m j u r i s d i c t i o n a l challenge? A neutral theory w o u l d d r a m a t i cally reduce the r o o m f o r reasonable disagreement; it holds o u t the promise of a f i r m basis for whatever principles result f r o m the i m p a r t i a l consideration of everyone's relevant claims or interests. If a theory is beyond reasonable challenge in its c l a i m to neutrality, it trumps the conclusions of r i v a l , less neutral theories. H o w e v e r , t o the extent that this promise is directed t o w a r d satisfying our criteria, i t is, I w i l l argue, chimerical. To situate the argument, b o t h Rawls and A c k e r m a n offer us imaginary-choice theories: the m o r a l p o i n t of view is formalized by a h y p o t h e t i c a l but m o r a l l y relevant decision situation w h i c h is constructed so as to perfectly insulate its results f r o m contamination by irrelevant factors.' I n constructing these imaginary situations, we are n o t l i m i t e d by practical constraints. It is not an argument against one of these decision situations that its defining conditions w o u l d be impossible to realize. The m o r a l relevance of the imaginary t h o u g h t experiment ties i n the c l a i m that if we could realize those c o n d i t i o n s , then our conclusions w o u l d be completely u n c o n t a m i nated by m o r a l l y irrelevant factors. Provided that we can coherently and plausibly w o r k t h r o u g h w h a t w o u l d be arrived at under the appropriate imaginary conditions, we have a strategy f o r supp o r t i n g the resulting p r i n c i p l e : i t is the one that w o u l d be chosen under the admittedly imaginary but allegedly perfect conditions for m a k i n g such a choice.

Selective

Nonselective (interpersonal comparisons, indoctrinated preferences) Nou-Paretian (interpersonal comparisons)

Paretian (triviality)

O f course, any particular version of such an imaginary-choice theory must offer its o w n account of w h a t factors are m o r a l l y relevant or irrelevant and of what gets i m p a r t i a l l y considered. It is in c o n f r o n t i n g the latter task that the neutrality issue arises. As figure 5 shows, some versions aspire to strict neutrality i n their consideration of relevant claims or interests, w h i l e others do not. M y basic line of argument w i l l be that strict neutrality, i f taken seriously, blocks the road to any differentiating conclusions (prescriptions that m i g h t satisfy criterion .1). But once neutrality is loosened, then the basis for differentiating conclusions has been lost and the controversies a p p l y i n g to either w a n t - r e g a r d i n g or ideal-regarding theories of interests (or other relevant claims) p r o vide ample r o o m for reasonable disagreement and ample grounds for j u r i s d i c t i o n a l challenges among competing thought experiments ( v i o l a t i n g c r i t e r i o n 3). Let us begin w i t h the aspiration for strict neutrality. I n Rawls's

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case, this aspiration is expressed by his use of the " t h i n theory of the g o o d . " We are told that " t h e theory of the g o o d used i n arguing for the principles of justice is restricted to the bare essent i a l s . " We must use the t h i n theory because we cannot do w i t h o u t a theory of the g o o d altogether: " T o establish these principles i t is necessary to rely on some n o t i o n of goodness, for we need assumptions about the parties' motives in the o r i g i n a l p o s i t i o n . " * But these motives cannot be influenced by the particular conceptions of the g o o d we happen to have acquired i n actual life. As Rawls notes in a later article, " T h a t we have one conception of the g o o d rather than another is not relevant f r o m a m o r a l standpoint. In a c q u i r i n g it we are influenced by the same sort of contingencies that lead us to rule out a knowledge of our sex and class."
y

want regardless of whatever else he turns out to w a n t . In this way, he may supposedly choose moral principles out of self-interest while k n o w i n g n o t h i n g about himself that does not apply equally to everyone else. N o t e that this account of a person's true interests based o n his " r a t i o n a l p l a n " does not depend in the slightest o n any tendency of persons in real life (or in the ideal just society) to " p l a n " their lives w i t h any coherence or even i n any consciously formulated way. Rather, "a rational plan is one that w o u l d be selected if certain conditions were fulfilled. The c r i t e r i o n of the good is hypothetical in a way similar to the c r i t e r i o n of j u s t i c e . "
10

These r a t i o n a l plans are distinguished f r o m other plans of life, first, i n that they c o n f o r m to certain "principles of r a t i o n a l choice," and second, in that they w o u l d be chosen by the person w i t h " f u l l deliberative r a t i o n a l i t y . " The principles of rational choice are neutral w i t h respect to particular substantive aims. They "define r a t i o n a l i t y as preferring, other things equal, the greater means for realizing our aims, and the development of wider and more varied interests assuming that these aspirations can be carried t h r o u g h . " The concept of deliberative r a t i o n a l i t y is s i m i l a r l y n o n c o m m i t t a l w i t h respect to particular substantive aims. It specifies as " r a t i o n a l " whatever plan we w o u l d choose " w i t h full awareness of the relevant facts and after a careful consideration of the consequences."
11

Rawls

m i g h t have added that if we were each to i m p o r t our o w n p a r t i c u lar conceptions of the g o o d i n t o the original p o s i t i o n , the basis f o r any unanimous agreement w o u l d have been lost. N o single result w o u l d rest on a firm basis because conscientious proponents o f rival principles could each take their case to a version of the o r i g i n a l p o s i t i o n e m p l o y i n g their o w n notions of the g o o d . Jurisd i c t i o n problems w o u l d then bedevil these rival interpretations of the o r i g i n a l p o s i t i o n e a c h challenged by other versions that e m p l o y their favorite conceptions of interests to yield different conclusions. R a w l s , of course, does not take this route. H i s proposal is that, regardless of our actual notions of our interests, we should all rely o n the same " t h i n theory." But h o w can we judge the selfinterest of individuals w i t h o u t k n o w i n g a n y t h i n g i n particular about them-anything that does not apply equally to everyone else? The t h i n theory leads f r o m the " d o c t r i n e of rational plans of l i f e " to the " d o c t r i n e of p r i m a r y g o o d s " ; the latter is to guide the choice of principles of justice. Rawls argues that an agent i n the original position may f u r t h e r his o w n particular rational plan of life (whatever that may t u r n o u t to be once the veil of ignorance is removed) by m a x i m i z i n g his share of " p r i m a r y g o o d s " g o o d s that it is rational for h i m to

Plans are thus rational to the

degree that they involve an effective consideration of means for realizing our aims and a choice of aims made w i t h f u l l knowledge of conditions and consequences. It should be evident that a w i d e variety of plans r e q u i r i n g a w i d e variety of conditions for their fulfillment m i g h t well satisfy these c o n d i t i o n s . A n y plan that anyone w o u l d choose for himself w i t h full awareness in the " d e l i b e r a t i v e " sense and according to these principles o f rational choice thus qualifies as rational. I n principle, there are few limits on the variety that rational plans may assume. As Rawls admits, " F r o m the d e f i n i t i o n alone very little can be said about the content of a rational p l a n , or the par-

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ticular activities that comprise i t . " Consider Rawls's example of the grass-counter: " I m a g i n e someone whose only pleasure is to count blades of grass in various geometrically shaped areas such as park squares and w e l l - t r i m m e d lawns. He is otherwise intelligent and actually possesses unusual skills, since he manages to survive by solving difficult mathematical problems for a fee. T h e d e f i n i t i o n of the g o o d forces us to admit that the good for this m a n is indeed c o u n t i n g blades of grass, or more accurately, his g o o d is determined by a plan that gives an especially p r o m i n e n t place to this a c t i v i t y . "
12

The c o u n t i n g principles in c o n d i t i o n 1 are purely i n s t r u m e n t a l ; c o n d i t i o n 2 is purely f o r m a l . It specifies only that the plan is the one that the person himself w o u l d choose under conditions of ftiil awareness. H o w is this thin theory supposed to support the calculations of self-interest (behind the veil of ignorance) that yield the general and special conceptions of justice?
!fi

W i t h o u t pursu-

ing the issue i n great detail, the basic point is that the t h i n theory is supposed to provide " t h e qualitative structure of the possible gains and losses i n relation to one's conception of the g o o d . "
1

Despite the dizzying variety of life plans that m i g h t

This qualitative structure is supposed to yield the "'three chief features" that make m a x i m i n ( m a x i m i z i n g the m i n i m u m share) the rational choice for the general conception of justice (and for the d i s t r i b u t i o n of income and wealth in the special conception). The first feature is that "the situation is one i n w h i c h a knowledge of likelihoods is impossible, or at best extremely insecure." The argument turns o n the second and t h i r d features; The person choosing has a conception of the good such that he cares very little, if anything, for what he might gain above the minimum stipend that he can, in fact, be sure of by following the maximin rule [second feature). It is not worthwhile for him to take a chance for the sake of a further advantage, especially when it may turn out that he loses much that is important to him. This last provision brings in the third feature, namely, that the rejected alternatives have outcomes that one can hardly accept. The situation involves grave risks.'
8

q u a l i f y as rational once the veil of ignorance is removed, Rawls believes that there is a sufficient basis for the choice of substantive principles in the original p o s i t i o n . Guided by self-interest even t h o u g h we k n o w n o t h i n g in particular about ourselves, we w o u l d choose, Rawls believes, to maximize the m i n i m u m share of p r i mary goods (the " m a x i m i n " n o t i o n of the "general of justice}.
11

conception"

Furthermore, once we take account of the compara-

tive w o r t h of the various p r i m a r y goods, we w o u l d also specify the p r i o r i t y rankings of the "special c o n c e p t i o n " (liberty, then fair equality of o p p o r t u n i t y , and then the m a x i m i n d i s t r i b u t i o n o f income and w e a l t h ) .
|:i

The key p o i n t f o r our purposes is that Rawls cannot get such ambitious substantive conclusions f r o m the thin theory of the g o o d and at the same time maintain its " t h i n n e s s " i t s n e u t r a l i t y between particular, controversial " f u l l e r " theories. The thinness of the t h i n theory derives f r o m the purely procedural and i n s t r u mental account of its component parts. The necessary and sufficient conditions for a rational life plan are defined in procedural and instrumental terms: " A person's plan of life is rational if, and only if, ( i ) it is one of the plans that is consistent w i t h the principles of rational choice w h e n these are applied to all the relevant features of his s i t u a t i o n , and (2) it is that plan among those meeting this c o n d i t i o n w h i c h w o u l d be chosen by h i m w i t h f u l l deliberative rationality, that is, w i t h full awareness of the relevant facts and after a careful consideration of the consequences."
t 5

These assumptions

are not sufficient to support so strong a

conclusion as m a x i m i n . To illustrate the slippage, consider the d i s t r i b u t i o n p r o b l e m for a society of t w o persons. I n figures 6 8, the shares of p r i m a r y goods to persons A and B are pictured o n the vertical and h o r i z o n t a l axes, respectively. '' Let us suppose
1

that there is some amount of p r i m a r y goods that satisfies the seco n d and t h i r d features assumed by Rawls i n the above passage. Let us call that amount " Z " p r i m a r y goods. A n y t h i n g less than 7, is a disaster; and compared to the prospect of getting less than Z , we care " l i t t l e if a n y t h i n g " to gamble for more, Rawls's p r o -

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Figure fi. Maximin with a Guaranteed Minimum Z A

Figure 7. Utilitarianism with a Guaranteed Minimum Z A

B posed " m a x i m i n " s o l u t i o n is represented by the series o f L-shaped indifference curves in figure 6. However, any d i s t r i b u t i o n in the quadrants northeast of Z in any of the three charts satisfies the three features fully as m u c h as does m a x i m i n . After we p r o v i d e everyone w i t h Z p r i m a r y goods, we could m a x i m i z e the t o t a l , as i n figure 7, or we could maximize equality, as indicated by the 45-degree line in figure 8, or we could fill out the quadrantnortheast of Z in any other conceivable way. A l l of these options satisfy the three features as much as does m a x i m i n . To require that the q u a d r a n t northeast of Z be filled out as in figure 6 is t o o s t r o n g a conclusion to d r a w f r o m the assumptions available i n the o r i g i n a l p o s i t i o n . F u r t h e r m o r e , it is a conclusion that w o u l d force us to c o n t i n u a l l y prefer increases in the m i n i m u m over other c o m p e t i n g claimseven w h e n those other competing claims were very significant and the increases in the m i n i m u m were very small indeed.
20

A guaranteed m i n i m u m is a far weaker and less controversial conclusion than a m i n i m u m that must be m a x i m i z e d . Fhe latter p r i n c i p l e can require great sacrifice f r o m all other strata for the sake of t i n y increases at the bottomincreases that m i g h t be above an already acceptable threshold. Suppose four Rawlsian p r i m a r y goods is our definition of such a threshold. Nevertheless, m a x i m i n w o u l d tell us that d i s t r i b u t i o n Y is preferable to distribution X: X 4 15 20 50 Y 4.01 4.01 4.01 4.01

So long as we give at least Z p r i m a r y goods to everyone, w e have satisfied the security level assumed i n the three features. I t is an open question w h a t we should do after that. The three features i m p l y only a guaranteed m i n i m u m , not a m i n i m u m that continues to rise so far as possible.

G i v e n the meager i n f o r m a t i o n about his self-interest available to an agent i n the o r i g i n a l p o s i t i o n , w o u l d it be rational to decide o n m a x i m i n w h e n another choice strategy that is conservative in its a t t i t u d e t o w a r d r i s k t h e guaranteed m i n i m u m e n s u r e s all that was c l a i m e d for m a x i m i n (it satisfies the second and t h i r d

S t r a t e g i e s }

Usmmtrutfim
Minimum

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H g u r e 8. E q u a l i t y w i t h a Guaranteed

then rests o n a particular controversial theory of the g o o d and the d o o r has been opened to other controversial theories that can provide an equivalent basis for rival principles. It is then open to j u r i s d i c t i o n a l challenge by the full range of rival theories because it no longer has a plausible claim of strict neutrality w i t h w h i c h to defend itself against charges of bias. The d i l e m m a , i n other w o r d s , amounts to a h a r d choice between the v i o l a t i o n of criterion 1(a) and the v i o l a t i o n of criterion 3. The m i n i m a l interpretation of the threshold maintains a c l a i m to n e u t r a l i t y (but at the cost of radical incompleteness) because it m i g h t seem reasonable, if we have no idea of our particular rational life plan to calculate that the brute "necessaries (to use
,,

z A I

A d a m Smith's phrase) required for survival and bare membership in the society c o n f o r m to the security level stated in the three features/ C o m p a r e d to the risk of falling below such a subsistence
2

m i n i m u m , we m i g h t indeed "care very little, if a n y t h i n g " for increfeatures), w i t h o u t c o m m i t t i n g itself to a host of a d d i t i o n a l and d i s t u r b i n g implications? After a l l , once the veil of ignorance is rem o v e d , we m i g h t be i n one of the higher strata decimated by the choice of Y rather than X . A n d if we are at the the b o t t o m , the tiny increment we get tinder Y counts f o r nothing, by hypothesis, since we are already above the threshold. Suppose we arc right i n c l a i m i n g that it is possible to get a partial substantive conclusion out of Rawls's three features i n I believe Rawls faces the f o l l o w i n g the o r i g i n a l p o s i t i o n . Does this partial conclusion offer any hope of satisfying our criteria? d i l e m m a : O n the one hand, i f the threshold defined by the three features is interpreted m i n i m a l l y , a plausible case can be made f o r neutrality, but at the cost of such radical incompleteness that the resulting principle is nearly t r i v i a l in its implications. It is so m i n i m a l i n its demands that v i r t u a l l y any modern state satisfies it (or c o u l d easily satisfy i t ) . Hence the theory, on this i n t e r p r e t a t i o n , w o u l d violate our nonvacuousness requirement (criterion l [ a j ) . O n the other hand, if the threshold is interpreted ambitiously, then its pretensions to neutrality can no longer be s u p p o r t e d .
21

ments above i t . W h y gamble on w i n n i n g the jackpot introduced by great inequality if the possibility of such payoffs introduced the risk o f starvation or other comparable disasters? In this way, Rawls's second and t h i r d features can be given a plausible interp r e t a t i o n that seems to be neutral between particular life plans and substantive aims. N o t k n o w i n g w h a t m y life plan w i l l t u r n out to be, I must, nevertheless, secure certain subsistence conditions necessary for pursuing any rational life plan at all. But such a m i n i m a l safety net w o u l d be endorsed by v i r t u a l l y every developed country, capitalist or socialist. G i v i n g everyone at least subsistence leaves almost everything after that an open question. For example, should we strive to increase equality, total o u t p u t , or the m i n i m u m level after everyone has been given at least subsistence? W h a t should our priorities be within defined by Z i n figures 6-8? the quadrant Rawls's assumptions are sufficient to

get us into the quadrant, but they are insufficient to direct us after that. T h e d i f f i c u l t y is that this is where serious debate begins, not where it ends. T h e basic p o i n t is that when the security level is set so l o w

It

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that i t plausibly corresponds to the three features, it leaves almost everything unsettled. M o s t i m p o r t a n t for our purposes, the req u i r e m e n t that such a m i n i m a l safety net be satisfied w o u l d be v i r tually useless in satisfying c r i t e r i o n 1(a) (nonvacuousness). H o w ever, it is only the m i n i m a l interpretation of Z , the security level, that can m a i n t a i n a plausible c l a i m to neutrality. O n the other hand, if we were to set Z ambitiouslysay, t w o cars and a home of one's o w n w e w o u l d be positing a c o n t r o versial theory of the g o o d for everyone. The t h i r d feature requires that we regard a n y t h i n g less than the threshold as an unacceptable disaster, w h i l e the second feature requires that we not be interested i n g a m b l i n g for a n y t h i n g m o r e a t least relative to the risk o f f a l l i n g below i t . " H a v i n g (at the time of this w r i t i n g ) one car but not t w o , I can, personally, quite easily imagine a plan of life where I w o u l d prefer (a) the chance of becoming a m i l l i o n a i r e i n t r o duced by tolerating inequalities to (b) strict equality but w i t h the guarantee of a second car. The p o i n t is that an ambitious interpret a t i o n of the threshold w i l t depend on a controversial theory of the g o o d o n e that conforms to some rational life plans but clearly not to others, particularly in its attitude t o w a r d risk. For such a theory of the g o o d , a n y t h i n g less than the second car (or whatever else is demanded of the ambitious threshold) must be absolutely unacceptable. A n d compared to the risk of not getting the second car, the prospect of g a m b l i n g to get H o w a r d Flughes's f o r t u n e must mean n o t h i n g . Because the ambitious threshold clearly v i o lates neutrality, it opens the door to other controversial theories o f the g o o d as the basis for competing principles. A s i m i l a r difficulty arises w i t h the p r i o r i t y rankings embodied in the special conception. Once we take account of the qualitative differences among the various p r i m a r y goods, we are supposed to value liberty, fair equality of o p p o r t u n i t y , and income and w e a l t h in lexical order (meaning that no amount, however great, of a l o w e r - r a n k e d value is w o r t h any sacrifice, however s m a l l , in a higher-ranked value). W i t h o u t g o i n g into all the details of this w e l l - k n o w n controversy, it is w o r t h n o t i n g that the same basic d i f -

ficulty arises w i t h the special conception: a neutral interpretation, a really " t h i n " theory, does not support these significant substantive results; to get the latter, a particular, controversial theory of the g o o d must be assumed. "
2 1

Recall that the doctrine of rational life plans could m a i n t a i n its c l a i m to n e u t r a l i t y only by being purely procedural and i n s t r u mental. M y r a t i o n a l plan of life is supposed to be the one I w o u l d choose for myself w i t h full knowledge of conditions and consequences and in accordance w i t h the rational means/ends relations determined by the various counting p r i n c i p l e s .
25

K n o w i n g only

this m u c h i n the o r i g i n a l p o s i t i o n , there is no basis for the strong p r i o r i t y relations expressed by lexical order. I m i g h t be an aspiring capitalist whose life plan is not furthered i n the least by the c i v i l liberties to w h i c h Rawls gives first p r i o r i t y . As such a capitalist, i m i g h t prefer to give first p r i o r i t y to the income and wealth Rawls places last. O r m y rational plan of life m i g h t be more directly furthered by placing fair equality of o p p o r t u n i t y first. Perhaps I am a member of a racial or sexual m i n o r i t y whose members place highest p r i o r i t y on equal o p p o r t u n i t y - - e v e n above liberty of conscience and political expression (although we m i g h t value these h i g h l y as well). M y rational plan of life, in Rawls's precise sense, m i g h t be far more effectively furthered by i n v e r t i n g one or another of these p r i o r i t y rankings. F r o m the o r i g i n a l p o s i t i o n , 1 simply cannot k n o w whether or not this is the case. T h e p o i n t is that the " t h i n theory of the g o o d " i f it remains t r u l y t h i n p r o v i d e s no basis for d e t e r m i n i n g these rankings, one way or the other. So long as we consider life plans in a purely procedural and instrumental way, a plausible c l a i m to neutrality can be m a i n t a i n e d , but only at the cost of leaving the comparative value of the various " p r i m a r y goods" indeterminate. O n the other hand, if we i m p o r t into the o r i g i n a l position a more f u l l - b o d i e d conception of the g o o d o n e that includes particular substantive a i m s t h e n the claim to neutrality among substantive aims is lost. Rawls has suggested this last possible line of revision in more recent articles, where he proposes that a pacticu-

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lar " m o d e l conception o a m o r a l p e r s o n " should be assumed i n order to o b t a i n his proposed conclusions/
6

sibility are needed to give scope to various self-governing and social capacities of the self. (iv) Income and w e a l t h , understood broadly as they must be, are all-purpose means (having an exchange value) for achieving directly or indirectly almost any of our ends, whatever they happen to be. (v) T h e social bases of self-respect are those aspects of basic institutions w h i c h are n o r m a l l y essential if individuals are to have a lively sense of their o w n w o r t h as m o r a l persons and to be able to realize their higher-order interests and advance their ends w i t h zest and self-confidence. *
2

A c c o r d i n g to this model conception, " w e take moral persons to be characterized by t w o m o r a l powers and by t w o corresponding highest-order interests i n realizing and exercising these p o w e r s . " T h e t w o m o r a l powers are "the capacity for an effective sense o f justice" and the "capacity to f o r m , to revise, and rationally to pursue a conception of the g o o d . " The key p o i n t is that in the o r i g i n a l p o s i t i o n the agents are to assume that they have "highest-order interests" i n securing the conditions necessary for the exercise o f these t w o m o r a l powers: " C o r r e s p o n d i n g to the m o r a l powers, m o r a l persons are said to be moved by t w o highest order interests to realize and exercise these powers. By calling these interests 'highest o r d e r interests, I mean that, as the model-conception o f
1

Because o f o u r " h i g h e s t - o r d e r " interests in securing the cond i t i o n s for the exercise of the t w o m o r a l powers, we are, supposedly, to adopt the principles of the special conception. Once again, the same issue arises. W h y is it rational to accept these very s t r o n g p r i o r i t y rankings? W h y are we to accept the p r i m a r y goods in the order enumerated, where the slightest sacrifice i n l i b e r t y is n o t w o r t h the greatest possible increase i n equal opport u n i t y , and where the slightest sacrifice in equal o p p o r t u n i t y is not w o r t h the greatest possible increase in income and wealth? Rawls makes clear that he still adheres to the p r i o r i t y rankings. "'
2

a m o r a l person is specified, these interests are supremely regulative as well as effective. This implies that, whenever circumstances are relevant to their f u l f i l l m e n t , these interests govern deliberation and c o n d u c t . " '
2

W i t h these m o r a l powers and their corresponding interests i n m i n d , Rawls believes that we can get the p r i o r i t y relations i n the special conception. H e summarizes this construction of the argument as f o l l o w s : (:) The basic liberties (freedom of thought and liberty of conscience, etc.) are the background institutions necessary f o r the development and exercise of the capacity to decide u p o n and revise, and rationally to pursue, a conception of the g o o d . Similarly, these liberties a l l o w for the development and exercise of the sense of right and justice under social conditions that arc free, (ii) Freedom of movement and free choice of occupation against a background of diverse opportunities are req u i r e d for the pursuit of final ends, as well as to give effect to a decision to revise and change them, if one so desires, (iii) Powers and prerogatives of offices and positions of respon-

In any case, w i t h o u t the p r i o r i t y rankings, the theory w o u l d fall into intuitionism. T o preserve the p r i o r i t y rankings, Rawls w o u l d have us assume that o u r interest i n l i b e r t y comes first, because the highest-order interests i n o u r m o r a l powers are served first by l i b e r t y ; equal o p p o r t u n i t y is second because our next-highest-order interests i n our m o r a l powers are served by equal o p p o r t u n i t y , and so o n . Clearly, the c l a i m to neutrality has been greatly weakened by the i n t r o d u c t i o n of these assumptions. We are being asked to baseprinciples of justice on a particular controversial theory of the g o o d or, if y o u w i l l , a particular model conception of a m o r a l person, w h e n other variations w o u l d clearly lead to different p r i o r i t y rankings and different principles. Once these moves are made,

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the strictly neutral strategy for avoiding jurisdiction problems has been abandoned. W h e n we employ such a controversial theory of the g o o d , we can get substantive results, but they can be matched p o i n t by p o i n t by rival t h o u g h t experiments employing rival theories o f the g o o d whose neutrality is similarly at issue. f o c l a r i f y the general issue, it is w o r t h considering a second example of a theory aspiring to strict n e u t r a l i t y . N e u t r a l i t y plays
10

you are, therefore, I should get at least as m u c h . " The difficulty is that neutrality, on the strict interpretation, does not p e r m i t any definite answer to the further question, A t least as m u c h what? A particular, inevitably controversial theory of the g o o d is required to answer that question; but that is precisely w h a t is barred by neutrality. The strict interpretation is clearest i n Ackerman's attempt to rule out u t i l i t a r i a n i s m . We are presented w i t h a dialogue between " M a n i c " ( w h o likes mountaineering) and "Depressive" ( w h o likes p h i l o s o p h i z i n g ) . The former claims he should get more " m a n n a " because he w i l l derive more u t i l i t y f r o m i t :
DEPRESSIVE:

an even more e x p l i c i t role in Ackerman's Social Justice

in the

Lib-

eral State probably the one contemporary effort to reconstruct liberal theory that rivals Rawis's in its a m b i t i o n and systematic character. N e u t r a l i t y is one of three assumptions that are meant, together, to constrain l e g i t i m a t i n g conversations about d i s t r i b u tive justice. However, the other t w o assumptions, r a t i o n a l i t y and consistency, w i l l p e r m i t an enormous range of possible d i s t r i b u tions to survive e l i m i n a t i o n .
11

How, then, is the utility number relevant to our discus-

sion?
MANK;:

But once neutrality is i n t r o d u c e d ,

A c k e r m a n argues, only his o w n proposal survives. He defines it as f o l l o w s : " N e u t r a l t t y : N o reason is a g o o d reason if it requires the power/holder to assert: (a) that his conception of the g o o d is better than that asserted by any of his fellow citizens, or (b) that, regardless of his conception of the g o o d , he is intrinsically superior to one or more of his fellow c i t i z e n s . "
12

It translates the value of philosophizing and mountaineering into a common yardstick: subjective satisfaction. D E P R E S S I V E : But surely there are other possible yardsticks. Why can't I , for example, construct a calculus that ranks all conceptions of the good in terms of the amount of philosophic wisdom they produce and instruct the computer to tell us how much of that good each of us will produce with the manna, (He does so.)
COMPUTER:

Depressive scores one hundred units on the wisdom index; Why, then, is your yardstick better than mine?
15

For our purposes, the difficulty w i t h this innovative and appealing proposal is that i f it is interpreted strictly, the resulting conclusions are emptied of substantive content. O n the other hand, if it were to be interpreted more loosely, then no particular p r i n c i p l e resulting f r o m it w o u l d rest on firm g r o u n d . Rival positions c o u l d then invoke rival l e g i t i m a t i n g dialogues and the same p l u r a l i s m w o u l d result as that w h i c h f o l l o w e d when Rawls suggested weakening n e u t r a l i t y .
11

Manic scores 10 units.

DEPRESSIVE: MANIC:

Do i have to answer that?

M a n i c cannot answer the question w i t h o u t v i o l a t i n g neutrality w h e n interpreted strictly. As the Commander in Ackerman's dialogue concludes: " W e are reaching a dead-end, my friends. We search i n v a i n for a neutral yardstick for measuring the 'real' value of different conceptions of the g o o d . To justify one yardstick over all the other possible ways of r a n k i n g values w i l l require utterances that are inconsistent w i t h at least some of the ideals affirmed by some of your fellow citizens." Hence the objection to u t i l i t a r i a n i s m : " T h e problem w i t h u t i l i t a r i a n i s m is its teleological character, its e f f o r t to evaluate d i s t r i b u t i o n rules by h o w much ' g o o d ' they produce. Any such effort requires a specification of

In our terms, the options boil d o w n to a hard

choice between violations of c r i t e r i o n I (the emptiness of s t r i c t neutrality prevents any selection of a few most preferred states) and violations of c r i t e r i o n 3, the j u r i s d i c t i o n p r o b l e m . Let us focus on the strict interpretation of neutrality. The argument that passes neutrality is supposed to sanction equality. *' The
3

one successful move in the dialogues is " F i n at least as g o o d as

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the g o o d that w i l l he contested by some citizens w h o insist o n measuring their g o o d by a different yardstick, one that gives t h e m more manna than their competitors."16

that I a m " i n t r i n s i c a l l y superior" to my competitors. * O n l y if

1

equal amounts of manna were assumed at the outset to be the app r o p r i a t e c r i t e r i o n for j u d g i n g that persons are equally well-off, w o u l d it f o l l o w that d i f f e r i n g distributions y i e l d i n g equal utilities were a slight to some conceptions of the g o o d . Yet this w o u l d be to assume, a r b i t r a r i l y , a particular and contested solution to the fundamental issue: w h a t allotments are to be regarded as superior or inferior? T h e case against equal satisfaction w o u l d appear to rest on the passages q u o t e d above objecting to u t i l i t y as a yardstick. But it is successful, I believe, only if interpreted so strictly that any substantive content to a yardstick can be ruled out because it " w i l l be contested by some citizens w h o insist on measuring their g o o d by a different y a r d s t i c k . "
y >

W h i l e successful in r u l i n g out u t i l i t a r i a n i s m , this conception of neutrality is so strict that it can be employed, w i t h equally devastating results, against the yardsticks Ackerman eventually uses himself to settle the d i s t r i b u t i o n p r o b l e m . He later permits Depressive to argue, supposedly consistent w i t h neutrality, ' i f I ' m at least as g o o d as M a n i c , I should get at least as much of this stuff that b o t h of us d e s i r e . "
17

T h i s simple argument yields the

conclusion of equal i n i t i a l shares of m a n n a a n argument that is later broadened to include b i r t h r i g h t s , education, rights to free exchange, and obligations to future generations. Yet any particular yardstick for d e t e r m i n i n g "as m u c h " i n this dialogue can be subjected to the same basic critique that Ackerman levels against u t i l i t a r i a n i s m . Even for the simplified d i s t r i b u t i o n p r o b l e m e m p l o y i n g the imaginary substance manna, a variety o f yardsticks m i g h t be devised under w h i c h some persons w o u l d d o far better and others far worse, depending upon their p a r t i c u lar conceptions of the g o o d . Some obvious possibilities include equal o p p o r t u n i t i e s (or time shares) for employing as much of the manna as one m i g h t like at a given time or equal chances at l o t tery tickets for r i c h payoffs, or equal life-support payments doled out i n increments for as long as one m i g h t live. There is no reason to regard identical physical chunks of manna as a yardstick i m mune f r o m controversy, w h i l e every other possible specification o f content for equality is regarded as nonncutral. F u r t h e r m o r e , w h y should equal physical quantities of manna be compatible w i t h neutrality w h e n equal satisfaction is ruled out as a neutral solution? If I c l a i m only that 1 should be as satisfied w i t h my share as y o u are w i t h yours, it is hard to see h o w that amounts to c l a i m i n g that m y "conception of the g o o d is b e t t e r " f o r I am proposing, i n a sense, to treat our d i f f e r i n g conceptions equally. Similarly, I may propose such equal treatment without claiming "unconditional superiority," without claiming

Some citizens, in other w o r d s , can always

be expected to disagree about a yardstick for d i s t r i b u t i o n a l questions because they w i l l do better according to some other possible yardstick for evaluating everyone's shares. If any yardstick contested i n this w a y by some citizen is ruled out by neutrality, then no yardstick w i t h substantive implications can ever be arrived
a

t c o n s i s t e n t w i t h this demanding conception of neutrality. The d o o r is opened even more widely to such controversies

once the debate moves beyond the simplified manna p r o b l e m to the full question of d i s t r i b u t i o n under ideal conditions. Here it is not manna but income and wealth that count as material equality. F u r t h e r m o r e , the argument ranges over genetics, education, and obligations to future generations. I n each of these cases, any choice of a p a r t i c u l a r yardstick is open to controversy. A n y answer to the question A n equal share of what? w o u l d appear open to the same argument A c k e r m a n employs against u t i l i t a r i a n i s m : w h y one yardstick f o r measuring shares rather than another?'
10

Even the d i v i s i o n of the general d i s t r i b u t i o n p r o b l e m into a series of discrete power dimensions (genetics, education, p r o p e r t y rights, p o l i t i c a l power) is itself a step t o w a r d certain d i s t r i b u t i o n a l metrics compared w i t h a diversity of possible alternatives. Some theories m i g h t l u m p these all together and p e r m i t inequalities

1 I

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in one to compensate for inequalities in another. Other theories m i g h t add different dimensions. Degrees of liberty, social esteem, interpersonal power, job satisfaction, h e a l t h t h e list of possible elements of value in a d i s t r i b u t i o n a l theory is open-ended and c o n t r o v e r s i a l : " Since the r o o t n o t i o n of Ackcrman's strategy is that all exercises of " p o w e r " are to be subjected to the equalizing rule of neutral dialogue, it seems t o o much to expect that any particular conceptualization of these power relations, any p a r t i c u l a r d i s t r i b u t i o n a l yardstick, can plausibly be claimed as the uniquely uncontroversial s o l u t i o n , the uniquely neutral content for equal power relations.'
12

onlv get a guaranteed m i n i m u m interpreted so m i n i m a l l y that it was v i r t u a l l y useless as a basis for differentiating conclusions. A parallel difficulty emerges for A c k e r m a n . H i s b o o k has a " m a n t r a " that goes: " I ' m at least as good as you are, therefore, I should get at least as m u c h . " But this f o r m u l a cannot be filled out w i t h o u t an answer to the next question, A t least as much w h a t ? w i t h o u t an argument for one particular d i s t r i b u t i o n a l yardstick compared to the competing alternatives. T h i s is precisely the move f o r b i d d e n by strict neutrality (as we saw in the dialogue r u l i n g out u t i l i t a r i a n i s m ) . Since, as Ackerman's Commander concluded, " w e search in vain for a neutral yardstick," neutrality interpreted this strictly leads to an empty formalism, W i t h o u t some p a r t i c u lar content specified for w h a t is distributed equally, the resulting principle offers no hope of p r o v i d i n g the differentiating conclusions r e q u i r e d f o r c r i t e r i o n 1 .

Even if the case f o r equality were granted for purposes of argument, each of these conceptualizations of power relations c o u l d be employed to fill out a n o t i o n of equal d i s t r i b u t i o n w i t h d r a m a t i cally different substantive i m p l i c a t i o n s .
45

The dilemma should be

clear: o n the one hand, w i t h o u t a yardstick or metric, the theory is e m p t y ; but on the other hand, we cannot provide i t w i t h a m e t r i c or yardstick and at the same time remain neutral a m o n g substantive theories of the g o o d . Once the proposed d i f f e r e n t i a t i n g conclusions depend o n a particular substantive theory o f the g o o d , they can be avoided by rival theorists e m p l o y i n g r i v a l theories of the g o o d i n support of their o w n preferred ultimate principles. Once neutrality Is loosened, the basis for j u r i s d i c t i o n a l challenges arises, v i o l a t i n g our c r i t e r i o n 3. R e t u r n i n g to the t y p o l o g y i n figure 5, the difficulty w i t h the first o p t i o n i n t e r p r e t i n g interests and other relevant claims w i t h strict n e u t r a l i t y i s that it robs the resulting principle of significant substantive content. I n Rawls's case, when the t h i n theory o f the g o o d is interpreted neutrally, w h e n it is interpreted i n a purely procedural and instrumental w a y so as not to be biased t o w a r d any particular conception of the g o o d , no support can be f o u n d for any significant p r i o r i t y rankings among the so-called p r i m a r y goods. Similarly, w h e n we interpreted Rawls's proposed threshold in a manner that m i g h t seem compatible w i t h neutrality, we c o u l d 2.7 More on Category and the Good 3: Preference, Utility,

To give f u r t h e r content to the kinds of controversies that arise once the quest f o r strict neutrality is abandoned, let us t u r n to the r e m a i n i n g classifications i n figure 5. We are concerned here w i t h conceptions for assessing interests i n a theory that purports to assess everyone's interests i m p a r t i a l l y . I w i l l adapt some t e r m i n o l o g y f r o m Brian Barry by d i v i d i n g these theories into " w a n t - r e g a r d i n g " and " i d e a l - r e g a r d i n g " theories of the g o o d .
1

The w a n t - r e g a r d i n g versions c o n f o r m to citizen sovereignty, w h i l e the ideal-regarding ones do not. I w i l l say that a principle adheres to citizen sovereignty i f i t judges a person X to be better off if, are satisfied. and o n l y i f , at least some of X's actual preferences

The citizen is sovereign i n the sense that it is his or her preferences w h i c h must be satisfied if the theory is to assess that person as better off. W a n t - r e g a r d i n g and ideal-regarding theories each introduce

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distinctive sources of controversy. The regarding theories is which

first

issue for w a n t -

i n g that . . . cases that are never likely to be actually encountered d o n o t have to be squared w i t h the t h i n k i n g of the o r d i n a r y m a n , whose principles are not designed to cope w i t h such cases.'"
1

preferences of an i n d i v i d u a l ought to

count as defining his g o o d . Recent efforts w i t h i n utilitarianism t o wrestle w i t h this p r o b l e m can be used to illustrate the difficulty. hirst, some theories do not discriminate at all a m o n g preferences; they count all of t h e m . Consider, for example, Hare's attempt to reconstruct u t i l i t a r i a n i s m . Hare's theory, like other u t i l i t a r i a n theories in the t r a d i t i o n of the impartial spectator, is a hypothetical-choice version of the i m p a r t i a l i t y argument: " W h a t the p r i n c i p l e of u t i l i t y requires of me is to do for each man affected by m y actions w h a t I wish were done for me in the h y p o t h e t i cal circumstance that i were in precisely his s i t u a t i o n ; and, if m y actions affect more than one man (as they nearly always w i l l ) to d o w h a t I w i s h , all in a l l , to be done for me in the hypothetical circumstances that 1 occupied all their situations (not of course at the same time but, shall we say?, i n random o r d e r ) . " ests to m a x i m i z i n g aggregate fining
2

Are such cases of fanaticism as fantastic and hypothetical as H a r e claims? Perhaps he is right that it is difficult to imagine an individual N a z i whose preferences are so intense in favor of the H o l o c a u s t that they o u t w e i g h , in a strict u t i l i t a r i a n calculat i o n , all the misery they w o u l d require. But the p r o b l e m cannot be dispatched so easily. For one t h i n g , it does n o t require such a horrendous i n d i v i d u a l utility monster. The desires of numerous i n d i v i d u a l s must be taken into account. If there are enough Nazis w i t h hatred of even moderate intensity, a strict u t i l i t a r i a n c a l c u l a t i o n about total preference satisfaction in the society may conceivably s u p p o r t horrendous policies directed against Jews or other m i n o r i t y groupsonce the numbers and intensities on both sides are s u m m e d up t h r o u g h o u t the society/ Perhaps Flare's mistake, and that of many other utilitarians, is to a d m i t that satisfaction of preferences such as that of the Nazis t o w a r d the Jews ought to count as a f o r m of u t i l i t y i n the first place. A n alternative strategy, advocated by Ronald D w o r k i n , is to count only " p e r s o n a l " preferences (about one's o w n situation) and not " e x t e r n a l " or " p u b l i c - r e g a r d i n g " preferences (about the s i t u a t i o n of others). However, such a strategy w o u l d not only rule6

H a r e moves f r o m this equal consideration of everyone's interu t i l i t y by conceptualizing equal consideration as equal w e i g h i n g i n an overall sum, and by dei n d i v i d u a l interests according to the satisfaction of desire o r u t i l i t y - w i t h o u t i n t r o d u c i n g any distinctions among the preferences whose satisfaction is to count as desire or u t i l i t y . This failure to discriminate among preferences confronts h i m w i t h the p r o b l e m of " f a n a t i c a l " desires whose fulfillment requires h a r m to others: " F o r example, if the Nazi's desire not to have Jews a r o u n d is intense enough to o u t w e i g h all the sufferings caused to j e w s by arranging not to have them a r o u n d , then, on this version of u t i l i t a r i a n i s m , as on any theory w i t h the same f o r m a l structure, it o u g h t to be s a t i s f i e d . "
}

out nasty external preferences such as the N a z i ' s , but it w o u l d also rule out noble external preferences such as a l t r u i s m and d e v o t i o n to the g o o d o f m a n k i n d . Are we to count wants that support selfishness but not those that support self-sacrifice? We end up w i t h a severely truncated v i e w of the human good if w e l i m i t it to "pers o n a l " preferences (applying only to ourselves) and rule out all " e x t e r n a l " preferences (applying to others). W h y does D w o r k i n propose to rule out consideration of "extern a l " preferences, such as the Nazi's? The difficulty is that " p o l i t i cal preferences, like the Nazi's, are on the same l e v e l p u r p o r t to occupy the same spaceas the utilitarian theory itself." A suitably " r e s t r i c t e d , " defensible utilitarianism "cannot, w i t h o u t contradic-

i n c o r p o r a t i n g such fanatical preferences thus appears to p r o duce devastating consequences. It is w o r t h pausing to consider Hare's defense to such an obvious objection: " T h e p r o b l e m is to be overcome by, first, p o i n t i n g out that fanatics of this heroic stature are never likely to be encountered (that no actual Nazis had such intense desires is, I t h i n k , obvious); secondly, by remember-

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r i o n , be neutral between itself and N a z i s m , i t cannot accept at once a duty to defeat the false theory that some peoples prefer1

wilt come o u t . i t is a complex empirical question depending o n i n centive effects, d e c l i n i n g marginal u t i l i t y of income, the numbers affected o n each side, and the intensity w i t h w h i c h an ideology of p r o p e r t y entitlements is held m the p o p u l a t i o n . Setting aside the interpersonal-comparisons difficulties facing D w o r k i n ' s postulated " u t i l i t a r i a n computer," a utilitarian calculation w i l l sometimes favor r e d i s t r i b u t i o n , but it w i l l also sometimes oppose i t .
s

ences s h o u l d count for more than other peoples and a dtity to

1

strive as to fulfill the political preferences of those w h o passionately accept that false theory, as energetically as it strives for any other preferences. . . . If utilitarianism counts the fact of these preferences it has denied what it cannot deny, w h i c h is that justice requires i t to oppose t h e m . " '' W h i l e D w o r k i n has an easy target herefew w o u l d deny that justice and N a z i s m are absolutely i n c o m p a t i b l e w c need to probe further the grounds w i t h i n liberal theory for not c o u n t i n g N a z i preferences equally w i t h all others. We m i g h t distinguish the N a z i D w o r k i n i m a g i n e s w h o argues for the persecution of Jews on the grounds that Jewish preferences should count f o r l e s s f r o m the consistent u t i l i t a r i a n N a z i w h o bedeviled blare by c o u n t i n g all preferences equally. Such a consistent N a z i cannot be dismissed as advocating unequal counting. Rather, he just offers a different conception of w h a t should count e q u a l l y b u t in an e n v i r o n m e n t in w h i c h enough people have intense, nasty preferences that unconscionable results w o u l d f o l l o w f r o m c o u n t i n g them equally. F u r t h e r m o r e , note that D w o r k i n ' s explanation for w h y w c should rule out the Nazi's externa! preferencesthat N a z i s m and u t i l i t a r i a n i s m occupy the same theoretical "space"-would also rule out preferences for more plausible theories of justice w h i c h also occupy the same space i n that they are full-fledged rivals to u t i l i t a r i a n i s m . D w o r k i n can, of course, respond that these other full-fledged rivals are incorrect. But the difficulty is in d e t e r m i n ing, i n the first place, w h i c h is the correct theory of justice. It is far f r o m clear that a "restricted u t i l i t a r i a n i s m " (one w h i c h counts o n l y personal preferences) w i l l consistently yield plausible results i n terms of distributive justice. Suppose a prosperous maj o r i t y is faced w i t h demands for r e d i s t r i b u t i o n on behalf o f a dispossessed underclass. There w i l l be varying results as to h o w a strict u t i l i t a r i a n calculation i n v o l v i n g purely personal preferences

Even if strong altruistic sentiments among the prosperous maj o r i t y favor r e d i s t r i b u t i o n , those sentiments cannot be counted i n d e t e r m i n i n g w h a t justice is, if we f o l l o w D w o r k i n ' s argument, because those sentiments w o u l d be based on a theory that rivals restricted u t i l i t a r i a n i s m i n occupying the same theoretical "space." M o s t i m p o r t a n t , in some cases the u t i l i t y f r o m a l t r u i s m w o u l d tip the balance t o w a r d r e d i s t r i b u t i o n , but purely selfish "pers o n a l " preferences w o u l d support starvation among the underclass (in a calculation based on selfishness but not on malice)D w o r k i n w o u l d have us avoid counting the altruistic sentiments in d e t e r m i n i n g w h a t justice is because they are based, as the N a z i preferences were, o n a rival theory of justicea rival to restricted u t i l i t a r i a n i s m ( w h i c h counts only personal preferences). But this argument depends, crucially, o n restricted utilitarianism itself being a reliable guide to distributive justice. In this case, it does not appear to be. The sentiments D w o r k i n w o u l d have us discount s u p p o r t feeding the underclass, while selfish calculations w i l t , at least sometimes, support the opposite conclusion. We can make the p r o b l e m even worse by i m a g i n i n g a clever N a z i w h o has read D w o r k i n ' s theory and supports r e d i s t r i b u t i o n of Jewish p r o p e r t y to Aryans by plugging only personal u t i l i t y calculations i n t o the " u t i l i t a r i a n computer." if the society has a concentration o f prosperous Jews and a lot of poor Aryans w h o receive great u t i l i t y f r o m getting even a chance (or a lottery ticket) for the confiscated properties and businesses, it is quite possible that u t i l i t a r i a n calculations based purely on selfishness w i l l supp o r t confiscation and persecution. Furthermore, if such a society also has a l o t of altruistic sentiment, it could well be the

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case that counting externa! preferences w o u l d protect che Jews f r o m persecution, but counting only selfish preferences w o u l d not. D w o r k i n ' s strategy of r u l i n g out all external preferences depends absolutely on the p r i o r claim that u t i l i t a r i a n i s m restricted to personal u t i l i t y is a completely reliable guide to distributive justice. It is this crucial c l a i m w h i c h seems dubious in these examples. A different strategy is offered by John C. Harsanyi, w h o derives average u t i l i t y f r o m a variant of Rawls's original p o s i t i o n . He attempts, in effect, to rule out N a z i external preferences but not altruistic ones. H e proposes to exclude " a l l clearly antisocial preferences, such as sadism, envy, resentment, and malice." H a r s a n y i bases this exclusion on a conception of the dimensions of personality that are relevant to membership in w h a t he calls "a m o r a l c o m m u n i t y " : " U t i l i t a r i a n ethics makes all of us members of the same m o r a l c o m m u n i t y . A person displaying ill w i l l t o w a r d others does remain a member of this c o m m u n i t y , but not w i t h his w h o l e personality. T h a t part of his personality that harbours these hostile antisocial feelings must be excluded f r o m membership, and has no c l a i m for a hearing w h e n it comes to defining our concept of social u t i l i t y . "
9

as u t i l i t y , then it is difficult to see how a utilitarian theory can exclude some preferences entirely f r o m consideration and m a i n tain the basic c l a i m that all u t i l i t y and disutility experienced byeve ryone have been counted equally. N o t counting certain preferences brings i n t o question the claim to equal consideration at the foundations of any version of systematic u t i l i t a r i a n i s m . O n the other h a n d , c o u n t i n g all preferences, i n c l u d i n g " a n t i s o c i a l " ones, exposes the resulting theory to horrendous counterexamples, in Hare's N a z i p r o b l e m . It is w o r t h n o t i n g that Hare offers a second line of defense against the f a n a t i c - N a z i p r o b l e m t h a t "cases that are never likely to be actually encountered do not have to be squared w i t h the t h i n k i n g of the o r d i n a r y m a n . " However, once numbers are taken into account, it is not unrealistic to imagine such fanatical preferences directed at m i n o r i t y groups being supported on u t i l i t a r i a n grounds. C o n t i n u i n g religious and political conflicts i n Lebanon and N o r t h e r n Ireland, as well as a case I applied earlier to utilitarian t h e o r y - I d i A m i n ' s expulsion of the Asians f r o m Uganda illustrate that intense preferences of large numbers can be directed at the i m p o s i t i o n of severe deprivations on particular groups. T h e issue is not a purely imaginary one l i m i t e d to philosophical discussion. H a r e argues, however, that in e m p l o y i n g such counter-examples, we are confusing the "level 1 " t h i n k i n g of the o r d i n a r y reasoner w i t h w h a t he calls the "level 2 " t h i n k i n g of the abstract philosopher. It is only the level 2 t h i n k i n g of the philosopher that need h o l d p r o o f against every " f a n t a s t i c " counterexample we m i g h t imagine. Yet h o w w o u l d Hare's level 2 theory deal w i t h such a case? H a r e tries to avoid the problem by focusing o n the design of the appropriate level I principles to be " i m p l a n t e d " in the p o p u l a t i o n t h r o u g h m o r a l education. Yet the goal of this moral education is u l t i m a t e l y u t i l i t a r i a n and the p o i n t of these counterexamples is to show that such an ultimate a i m is inappropriate w h e n u t i l i t y is defined so as to be entirely indiscriminate about w h i c h preferences must be satisfied. as

If we are to pick and choose among the preferences to be satisfied, we need some justification for our selection apart f r o m the assumption that our operative theory of the good is preference satisfaction. Whatever we t h i n k of Harsanyi's n o t i o n of m o r a l c o m m u n i t y , it makes no pretense to being neutral among theories of the g o o d . Rather, it is a particular, controversial m o r a l i d e a l only one among the many that could be inserted into a m o d e l of i m p a r t i a l i t y . This exclusion of some preferences based on our m o r a l evaluation of their appropriateness represents a sharp departure f r o m the u t i l i t a r i a n t r a d i t i o n , w h i c h has generally avoided specifying the substantive content of preferences."' T h a t t r a d i t i o n has been preoccupied w i t h measuring the quantity and sometimes the q u a l i t y of preference satisfaction, but not its legitimacy or illegitimacy. If u t i l i t y is ultimately w h a t counts for a u t i l i t a r i a n , and if satisfaction of certain preferences is experienced by some persons

itrai&gies of

Mmmsfrntitm

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Want-regarding theories ail involve c o m m i t m e n t to one o r another controversial theory of the g o o d . Acketman's a n t i - u t i l i tarian dialogue quoted in section 2.6 above incisively made the p o i n t that preference satisfaction is, itself, not neutral a m o n g theories o f the g o o d . Rather, it is a specification of one p a r t i c u lar theory w i t h special controversies attached to i t . Clearly, the choice of w h i c h preferences are to be counted is a first major source o f controversy. A second notorious set of issues facing w a n t - r e g a r d i n g theories is the interpersonal comparison of w a n t satisfaction. Let us briefly explore this second major controversy before t y i n g the discussion back to our basic criteria f o r an acceptable theory. Ever since L o r d Robbins's influential article in 1938 expressing skepticism about the possibility of rigorous interpersonal c o m parisons,
12

scrutable to every other m i n d and no c o m m o n denominator of feeling is possible."

13

If we take this " i n s c r u t a b i l i t y " seriously, then want-regarding theories are l i m i t e d to an extremely n a r r o w range of j u d g m e n t . We can, of course, f o l l o w Pareto in a p p r o v i n g of changes that make some people better off and no one worse off. T h a t inference requires o n l y ( o r d i n a l ) intrapersonal comparisons. But almost every p o l i t i c a l choice of any significance in the real w o r l d w i l l make at least some people worse off, w h i l e perhaps m a k i n g others better off.
14

Provided we assume that any defensible w a n t - r e g a r d i n g

theory cannot be entirely insensitive to the question of h o w at least some of these losses compare to at least some of the gains, the basis f o r significant evaluation of policy alternatives is blocked once the " i n s c r u t a b i l i t y " claim is taken seriously. Significant policy choices w i l l require some m i x t u r e of gains and losses, placing them in the realm of w h a t the economists call the "Pareto noncomparable." The n o t o r i o u s attempts at an end run a r o u n d these difficulties (the K a l d o r - H i c k s and Scitovsky compensation tests) rest o n w h a t W i l l i a m J. Baumol called "a concealed interpersonal comparison o n a money basis."
l>

proponents of want-regarding theories such as u t i l i t a r i -

anism have faced the dilemma that they must either confine their judgments to strict Pareto improvements or they must face the q u a g m i r e of interpersonal comparisons. The former path leads to t r i v i a l i t y ; the latter inevitably produces controversy and indeterminacies. Once again, we are faced w i t h a choice between theories w h i c h either do not significantly differentiate, or do so based o n a controversial account of the g o o d whose usage opens the theory to j u r i s d i c t i o n a l challenges by other theories using rival c o n t r o versial accounts of the g o o d . Once again, we are faced, at b o t t o m , w i t h a choice between vacuousness (violating c r i t e r i o n 1 [a]) and j u r i s d i c t i o n problems ( v i o l a t i n g c r i t e r i o n 4). i n reacting to the story of an Indian Brahmin w h o regarded himself as " t e n times" as capable of satisfaction as a l o w l y U n touchable, Robbins w r o t e : " I c o u l d not escape the c o n v i c t i o n t h a t , if I chose to regard men as equally capable of satisfaction and he to regard them as d i f f e r i n g according to a hierarchical schedule, the difference between us was not one w h i c h could be resolved by the same methods of demonstration as were available i n other fields of social j u d g m e n t . " Robbins concluded: "Every m i n d is i n -

Using money as a place holder for

utilities requires the assumption that a p o u n d or a dollar "yields the same amount of satisfaction to whomever i t is given, rich or p o o r . " As Little concluded in his now-classic assessment of w e l fare economics, "Presumably, most people w o u l d agree that such an assumption is r i d i c u l o u s . " " O f course, the use of compensa1

t i o n tests to make evaluations beyond the l i m i t a t i o n s of the Pareto p r i n c i p l e can be m o d i f i e d to take account of differences between groups such as d e c l i n i n g marginal u t i l i t y of income. Cost-benefit analysis is often applied so as to incorporate such weights, but they can only be developed i n a rough fashion and there is w i d e r o o m for reasonable disagreement about any particular a p p l i c a t i o n . ' ' Hence, we can see that the basic difficulty for w a n t - r e g a r d i n g theories arising f r o m interpersonal comparisons is that, o n the one h a n d , s t i c k i n g w i t h i n the limits of the Pareto principle avoids the

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Strategies of Reconstruction

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p r o b l e m but at the cost of silence o n most issues of social i m p o r tance; o n the other hand, venturing beyond those limits c o m m i t s the resulting theory to interpersonal comparisons of want satisfact i o n i n t e r p e r s o n a l comparisons that are inevitably controversial and can only be accomplished in a rough fashion. T h e r e m a i n i n g o p t i o n in figure 5 raises difficulties of an entirely different k i n d . As we just saw, want-regarding theories must face b o t h (a) the p r o b l e m of d e t e r m i n i n g w h i c h preferences are relevant t o an individual's good and (b) the problem that m i g h t be summarized as the Pareto d i l e m m a : either stick to the l i m i t e d range of judgment sanctioned by the Pareto principle o r c o m m i t the theory to controversial and inevitably inconclusive claims about interpersonal comparisons of w a n t satisfaction. However, these difficulties can largely be avoided by the seco n d m a i n o p t i o n , ideal-regarding theories. These latter theories depart f r o m " c i t i z e n sovereignty": they support the conclusion that a person is better-off regardless of whether any of his actual preferences have been satisfied. T h e most p r o m i n e n t contemporary i l l u s t r a t i o n is Rawls's d o c t r i n e of p r i m a r y goods. W h i l e i t was useful, earlier, for us to use Rawls's t h i n theory of the g o o d as an i l l u s t r a t i o n of the attempt to achieve strict neutrality, the set of inferences the t h i n theory is supposed to s u p p o r t t h e doctrine of p r i m a r y goodscan be used to illustrate the problems o f ideal-regarding theory. T h e p o i n t is that in the o r i g i n a l position we make assumptions about our interests w h i c h are supposed t o h o l d regardless of w h a t our actual preferences t u r n out t o be, once the veil of ignorance is l i f t e d . For purposes of d i s t r i b u t i v e justice, we are supposed to value l i b e r t y first, equal o p p o r t u n i t y second, and income and wealth t h i r d . These conclusions are based o n a conception of o u r interests, regardless of whether, in actual life, our preferences bear any relation to these p r i o r i t i e s . For such ideal-regarding theo!S

the fact that a value o r a i m is among those actuailv accepted by an agent gives it no special status whatsoever in the d e t e r m i n a t i o n of that agent's g o o d . As a result, such ideal-regarding theories avoid the c o n u n d r u m s just mentioned about interpersonal comparisons of w a n t satisfaction. Degrees of want satisfaction play no role in this k i n d of theory. H o w e v e r , ideal-regarding theories avoid these t w o basic difficulties at a price, '['hey are committed to w h a t m i g h t be called inferences, such that an agent X must be better of X's o w n preferences w o u l d s u p p o r t such a strong paternalistic off even if none

conclusion. T h e paternalism problem challenging ideal-regarding theories shifts the burden of p r o o f ; it demands of tis a rationale for d i s c o u n t i n g X ' s o w n conceptions of his g o o d in evaluating X's o w n g o o d . T h i s v i e w w o u l d n o t , in the least, deny that there is r o o m for some paternalistic judgments; only that, when we set aside X's o w n views, some justification is r e q u i r e d .
17

Few w o u l d deny that i n at least some isolated cases, there are g o o d grounds for paternalistic inferences. Even strongly paternalistic inferenceswhere we conclude that an agent is better off even if none o f his o w n preferences support that conclusionare undeniably appropriate in special cases. Consider the person w h o suffers f r o m the delusion that he w i l l fly u p w a r d if he jumps o u t the w i n d o w . " If we restrain h i m so he never gets the chance t o
2

test his theory, o u r inferences about his welfare may, quite appropriately, be strongly paternalistic. M o r e generally, B a r r i n g t o n M o o r e has documented cases of injustice whose most shocking aspect is the acceptance by the victims of the ideology r a t i o n a l i z i n g their oppression. M o o r e ' s analysis ranges across Untouchables, ascetics, and even some concentration camp v i c t i m s .
21

But these

dramatic cases apply t o special circumstances.The problem facing ideal-regarding theories of the good is that they are n o t l i m i t e d t o such unusual and isolated cases. Rather, they apply generally t o w h o i e populations t o provide criteria to support a theory of dist r i b u t i v e justice o r a solution to our d i f f e r e n t i a t i o n c r i t e r i o n . This

ries, there is no p r o b l e m of p i c k i n g and choosing among actual preferences, accepting some w h i l e rejecting others. O n this view,

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ifrateg iss af Resflnstruition

^ r e f e r e s i s e , JStiiify, cmd t h e G e s d

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general range of application makes the burden of proof c o n f r o n t ing a strongly paternalistic theory more difficult. We may have to neglect the actual preferences of whole populations in our evaluat i o n o f their o w n g o o d . W h a t is it that disqualifies their o w n views f r o m having any weight i n , or bearing u p o n , this evaluation? I d o not mean to argue that this question poses an insurmountable obstacle. M y p o i n t is only that the special paternalistic burdens of ideal-regarding theories open up r o o m for controversy and reasonable disagreement that are fully comparable to the difficulties we encountered earlier w i t h want-regarding theories. I n b o t h cases, once the quest for a strictly neutral theory of the g o o d has been given up, no single canonical solution can dispatch its rivals w h i l e resting i m m u n e f r o m challenges by other controversial theories of the g o o d for w h i c h symmetrical claims can be made. A n y one of these non-neutral theories of the g o o d can be combined w i t h a n o t i o n of i m p a r t i a l i t y to support significant substantive conclusions. But such support is easily matched by e m p l o y i n g their o w n non-neutral rival theories that share the same basic strategy but apply it to s u p p o r t rival conclusionsby theories of the g o o d . As can be seen in figure .5, we face a choice between b u i l d i n g a firm basis for largely empty conclusions (the strictly neutral strategy) and b u i l d i n g an insecure basis for significant conclusions (the non-neutral strategies just discussed). By an insecure base, 1 mean one subject to jurisdictional challenge by rival procedures m a k i n g symmetrical claims. The strictly neut r a l strategy survives the j u r i s d i c t i o n problem only by failing to offer d i f f e r e n t i a t i n g conclusions. The non-strictly-neutral strategies w i l l sometimes offer differentiating conclusions (satisfying c r i t e r i o n I ) , only to fail the j u r i s d i c t i o n problem (criterion 3). These latter theories, by relying on some controversial theory o f the g o o d i n order to get substantive conclusions, become vulnerable t o j u r i s d i c t i o n a l challenge by rival theories d u n employ a rival controversial theory of the good to get comparably ambitious results. The basic dilemma for these hypothetical thought e x p e r i ments is that strictly neutral theories lead to substantively e m p t y

conclusions, v i o l a t i n g c r i t e r i o n 1, w h i l e iess-than-strictly neutral theories are subject to j u r i s d i c t i o n problems, v i o l a t i n g c r i t e r i o n 3. In neither case do we get a firm basis for significant our criteria for an acceptable theory. conclusions conclusions w i t h strong enough substantive implications to satisfy

The Ideal I a Self-Reflective Society

J . / Tot card

Reconstruction

As we saw i n parts i and 2, systematic versions of liberalism seem to require too m u c h . It may, nevertheless, be possible to develop an acceptable theory that satisfies the criteria specified in section 2 . 1 . Such a theory w o u l d distinguish among states: it w o u l d not be vacuous (satisfying criterion :t[aj) and i t w o u l d not produce b l i n d alleys (satisfying criterion l[b|). Furthermore, such a theory w o u l d provide a basis for its a u t h o r i t y that binds each citizen to the state (satisfying criterion 2}, that avoids jurisdiction problems f r o m rival theories (satisfying criterion 3), and that avoids delegitimating arguments f r o m i n d o c t r i n a t i o n problems (satisfying c r i t e r i o n 4). O u r survey of rival strategies i n part 2 shows h o w d i f f i c u l t it is to satisfy all of these criteria. If my claim is correct that at least one possibility plausibly does so, then the difficulties we have already encountered w i t h rival strategies establish the distinctive m e r i t of our proposal. For a theory to be individually b i n d i n g , it must justify the aut h o r i t y of the state and it must do so in a fairly demanding way. It must p r o v i d e an account of the state's a u t h o r i t y that is b o t h

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fi Se I f - S e l e c t i v e $ o i e y

The IfigHimaiy Prebwa

11?

universal (applying to everyone subject to that authority) and particular (applying to the relation between that state and its citizens, but not to other states and those same citizens). Thus, c r i t e r i o n 2 demands a great deal. Besides being a demanding requirement, it is also a p o w e r f u l one if we can satisfy i t . //' we can explain w h y everyone subject to the a u t h o r i t y of the state is individually bound to support i t , then we have explained, in an i m p o r t a n t sense, w h y the state is legitimate. A legitimate state, i n other w o r d s , is one that everyone (subject to its a u t h o r i t y ) is obligated to u p h o l d . This n o t i o n of legitimacy w i l l play a key role i n the argument as it unfolds. N o t e h o w difficult it w o u l d be to satisfy criterion 2 in the context of our other r e q u i r e m e n t s h o w difficult it is to establish an i n d i v i d u a l l y b i n d i n g connection that is also universal. As we saw w i t h actual-consent theory, interpreting consent or agreement strictly does a plausible job of satisfying criterion 2(b) (the i n d i v i d u a l l y b i n d i n g character of the o b l i g a t i o n ) , but at the cost of v i o l a t i n g c r i t e r i o n 2(a) (the universality requirement). Furtherm o r e , attempts to satisfy 2(a) only lead to b l i n d alleys ( v i o l a t i n g c r i t e r i o n t f h j ) because the requirement for universal consent in the strict sense leads, in effect, to anarchism. O n the other hand, interpreting consent or agreement loosely may satisfy b o t h parts of criterion 2, but at the cost of f a i l i n g c r i terion l a (the vacuousness test). Consent or agreement has to be defined so loosely in order to get everyone in a modern nationstate c o m m i t t e d that consent i n that loose sense could be claimed by an enormous variety of states. Suppose, however, that we consider consent i n a hypothetical rather than an actual f o r m . W i t h an imaginary thought experiment, as i n strategy 3 (see fig. 2), i t does seem possible to provide d i f f e r e n t i a t i n g conclusions. Various versions or reconstructions of i m p a r t i a l t h o u g h t experiments in the style of Rawls, A c k e r m a n , or the other cases of strategy 3 already discussed can be expected to yield results that satisfy our first t w o criteria.' However, to do so,

thev must open themselves up to jurisdiction problems ( v i o l a t i n g c r i t e r i o n 3). To get distinctive results, they cannot m a i n t a i n strict neutrality. A n d if they do not maintain strict neutrality, then they are open to j u r i s d i c t i o n a l challenge by rival accounts of relevant claims or interests that support rival principles. U w o u l d seem that our requirements for an acceptable theory, w h i l e less ambitious than the requirements for systematic theorydiscussed i n part 1, are, nevertheless, too demanding. Such a negative conclusion w o u l d , however, be premature at this p o i n t .

3,2 The Legitimacy

Problem prob-

The first issue of p o l i t i c a l philosophy is the legitimacy lem:

A r e any states m o r a l l y legitimate in that their a u t h o r i t y is

justified? I w i l l interpret the authority of the state as being justified w h e n all its members have a moral o b l i g a t i o n to obey its commands. Hence, the p r o b l e m of political o b l i g a t i o n (applied to all the citizens of the state) is ultimately equivalent, on this view, to the p r o b l e m of w h i c h states (if any) have solved the legitimacy p r o b l e m . O f course, in some cases obligations to the state may conflict or have to be overridden by other obligations, but that is an issue about the comparative strength of political obligations, not about whether they apply in the first place. This f o r m u l a t i o n of the legitimacy problem is rather demanding. To avoid c o m p l i c a t i n g issues, I w i l l say that (fully) solving the problem in this sense is sufficient for the state's legitimacy, but I w i l l leave open the question of whether it is necessary. For some purposes, it may well be useful to ignore the question of i n d i v i d u a l o b l i g a t i o n altogether and focus merely on w h i c h partially legitimate state is preferable to w h i c h other partially legitimate state. But my focus here is on ideal theory, on the question whether a theoretical solution satisfying all of our criteria is possible, at least under favorable conditions.' If we can answer this question affirmatively, then another stage in the development of liberal theory

lia

A SeJ-^elesivs

Stsiefy

The l e g r H r a s s y *mhtem

19

can focus o n the assessment of options for less favorable c o n d i t i o n s c o n d i t i o n s where the theoretical solution cannot be fully realized. States that justifiably determine political obligations for all of their members w i l l be regarded here as having solved the legitimacy p r o b l e m . Hence, the legitimacy problem poses an ethical issue and not merely a sociological one. Legitimate states are not merely those that the people in them happen to regard as legitimate. Nevertheless, the actual support of the p o p u l a t i o n w i l l play a crucial role i n my argument. Actual s u p p o r t u n d e r certain favorable and demanding c o n d i t i o n s w i l l determine solutions to the legitimacy p r o b l e m . It should not be surprising that the actual support of the m e m bers plays some role in d e t e r m i n i n g whether a state is legitimate. If our criteria ignored this factor entirely, then there m i g h t be cases where w e , as philosophers or theorists viewing the matter f r o m outside, held some state to be fully legitimate despite the active and c o n t i n u i n g dissent of most of the p o p u l a t i o n . The purely sociological c l a i m that the state lacked significant support w o u l d , by itself, block any c l a i m that a full solution to the legitimacy p r o b lem had been achieved. A c t u a l support seems to be necessary b u t not sufficient. Factors justifying that support are, of course, req u i r e d as w e l l . The legitimacy of the state poses a m o r a l p r o b l e m t h a t requires that we take account of both subjective and objective factors. We need to consider b o t h w h a t people actually do t h i n k or believe and some normative criteria that apply independently of those beliefs. Ideal theory pursues the question whether a solution to the legitimacy p r o b l e m is possible at a l l , given favorable conditions, i t does not directly prescribe w h a t we should do when those favorable conditions are not achievable. Yet I believe it w i l l be useful and c l a r i f y i n g to see whether we can develop a theory that satisfies our four basic c r i t e r i a , even under favorable conditions. If we can, then we w i l t have gotten a version of liberalism that coherently

clarifies its m o r a l priorities in a manner that is free of the decisive objections that apply to rival versions. W h y are category 3 theories (see fig. 2) subject to j u r i s d i c t i o n problems i n a w a y that my proposal, in category 4, is not? There is a difference, as Ronald D w o r k i n pointed out in discussing Rawls, between a hypothetical bet and a real one. If you really made a
2

bet under appropriate conditions, then you are n o w obligated. To argue that you m i g h t have rationally and under fair circumstances made one bet or another, and that now you should receive the proceeds f r o m this bet or that, seems irrelevant and u n c o n v i n c i n g . W h i c h imaginary bet should y o u collect on? There w i l l be c o m peting claims based on competing hypothetical constructions of w h a t y o u r a t i o n a l l y ought to have done. This is the j u r i s d i c t i o n p r o b l e m facing theories i n category 3. By contrast, there are some conditions under w h i c h we can t h i n k of w h o l e societies as, i n a sense, actually placing a bet o n Spheres a certain k i n d of shared understanding. It w o n ' t do to legitimate just any shared understanding, as Walzer does in his b o o k of Justice. Some bets, some choices or c o m m i t m e n t s , are coerced.

Some people have such defective knowledge or judgment that they should not be p e r m i t t e d to gamble. But if the clearly objectionable cases are r u l e d o u t , then the agreements that are actually made are not suspect. T h e difference between categories 3 and 4 is that theories i n category 3 w o u l d hold a society to a particular, purely hypothetical bet. M y proposal in category 4 w o u l d only h o l d a society to the one that has actually been placed under conditions where its collective ability to bet in the appropriate way has been guaranteed. We have not n o w placed our bets. I n that sense, m y argument is as hypothetical as any o f the others. But i f we d i d , the actual collective c o m m i t m e n t s w o u l d t r u m p any imaginary claims that under other conditions we m i g h t have done something else. The fact of actually m a k i n g the bet establishes a p r e s u m p t i o n that y o u are obligated to abide by the resultunless there is some

tamm

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basis for placing the action in the suspect category. In the same way, the fact of an actual consensus establishes a presumption that the consensus or shared understanding is authoritativeunless there is some basis for placing i t i n the suspect category. The beginning p o i n t of our argument, the legitimacy p r o b l e m , is unavoidable. Any satisfactory account of the fundamentals of liberal t h e o r y o r , indeed, any satisfactory account of p o l i t i c a l theory, whether w i t h i n or outside the liberal t r a d i t i o n w o u l d have to offer a response to the legitimacy p r o b l e m . States, by their very nature, demand the right to c o m m a n d the obedience of all their members, at least o n selected i m p o r t a n t matters. For an i n s t i t u t i o n to q u a l i f y as a state i n the first place, it must have a m o n o p o l y over the authoritative use of force i n the territory. If there are "independents" (to use N o z i c k ' s t e r m ) , then i n an i m p o r t a n t sense the conditions for having a state w i l l not have been f u l f i l l e d . Independents are persons in the t e r r i t o r y w h o , because they are i m m u n e f r o m the commands of the state, could c l a i m the same right to use force as does the state. Independents have no o b l i g a t i o n s to u p h o l d the state or its actions. I n that sense, they represent a challenge to the state's legitimacy and an obstacle to solutions o f the legitimacy p r o b l e m . W h a t does it mean to say that the state's use of force is " a u t h o r i t a t i v e " ? By this I mean (a) that the uses of force are backed by sufficient power to overcome any expected internal o p p o s i t i o n , and (b) that they are backed by norms of evaluation that are w i d e l y shared w i t h i n the society. The mere fact that o t h e r s f o r instance, c r i m i n a l s m a y use force successfully does not, by itself, mean that the m o n o p o l y claimed by the state no longer applies. C r i m i n a l s d o not exercise authoritative force; w h a t they do is n o t backed by the w i d e l y shared norms of evaluation i n the society. O r , if c r i m i n a l action is w i d e l y accepted in this way, we should question whether the essential conditions for having a state have begun to break d o w n . M o s t states exercise authoritative force. Some may succeed i n exercising justified authoritative force. To say that the a u t h o r i -

tativc force of the state is justified is to say that many or most citizens are obligated to u p h o l d the actions of the state. A minimal s o l u t i o n to the legitimacy problem has been achieved w h e n many or most members are obligated to obey. 1 w i l l say, h o w ever, that a full solution
3

has been achieved only w h e n

everyone

'all the members) has an o b l i g a t i o n to u p h o l d the state and its authoritative actions. O f course, most of the state's a u t h o r i t a t i v e actions do not actually involve force. Nevertheless, the threat o f authoritative force, if only i m p l i c i t , distinguishes the state f r o m most other institutions. A n d the ability to claim an a u t h o r i t a t i v e monopoly over the use of force in a given territory may be taken as a distinguishing feature of the state. Hence, a fully legitimate state does not merely c o m m a n d its members effectively. A l l its members also have a justified o b l i g a tion to u p h o l d its actions, including its authoritative commands. O f course, w h e t h e r members do have such an o b l i g a t i o n may depend o n w h a t is c o m m a n d e d . The basic character of the state may change if its policies change drastically enough. " U p h o l d i n g " the actions of the state does n o t , of course, mean agreeing w i t h those actions. U p h o l d i n g means l i v i n g up to the obligations of m e m bership (whether or not they are backed by force).'
1

Realistically,

we can expect disagreement wherever there is meaningful freed o m of t h o u g h t . Since meaningful freedom of thought w i l l t u r n out to be necessary for the ideal of the self-refiective society to be achieved, dissent and disagreement w i l l have to be compatible w i t h solutions to the legitimacy p r o b l e m , if the argument is to be successful. As a result, we w i l l have to grapple w i t h the same basic issue we saw i n our previous discussion of consent t h e o r y : F l o w is the a u t h o r i t y of the state to be justified over those w h o disagree or dissent, p a r t i c u l a r l y when dissent or disagreement is v i r t u a l l y inevitable under any acceptable account of realistic c o n d i t i o n s ? How
5

are we to get universal obligations to support the state

in a manner that satisfies our four criteria? If we rely on actual consent so as to get everyone bound to the state, we either get vacuous conclusions ( v i o l a t i n g c r i t e r i o n I [a]) or we get the b l i n d

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fi S e l f - S e f i e ' H v e Society

The l e g i t i m a c y

Problem

123

alley of anarchism { v i o l a t i n g c r i t e r i o n l l b j ) . We c o u l d , of course, weaken the requirement that we get everyone bound to the state, but then we w o u l d not solve the legitimacy problem in the sense just proposed. Furthermore, we w o u l d violate c r i t e r i o n 2 (the i n d i v i d u a l l y - b i n d i n g requirement). We m i g h t escape this p r o b l e m by f o r c i b l y i n d o c t r i n a t i n g everyone so as to achieve unanimous consent, but this w o u l d hardly satisfy any plausible account of voluntary consent. Furthermore, it w o u l d satisfy these criteria only at the cost o f obviously v i o l a t i n g c r i t e r i o n 4 t h e n o n i n d o c t r i n a t i o n requirement. Alternatively, if we were to take one of the strategies of h y p o thetical consent, we m i g h t satisfy our first t w o criteria (and perhaps the n o n i n d o c t r i n a t i o n c r i t e r i o n as well), but only at the cost of j u r i s d i c t i o n problems. As we saw earlier, hypothetical stories can indeed be constructed that w i l l yield distinctive results so as to differentiate among states. Furthermore, these distinctive results can be l i n k e d to each member t h r o u g h scenarios of h y p o t h e t i cal choice: the result can be presented as the choice we ourselves w o u l d make, to the extent that we were rational and under the app r o p r i a t e hypothetical conditions for m a k i n g the choice. Furthermore, i f the resulting principles were sufficiently demanding i n their requirements for liberty of political culture, they m i g h t satisfy the n o n i n d o c t r i n a t i o n c r i t e r i o n as w e l l . It is, in other w o r d s , conceivable that this sort of theory (category 3) m i g h t be developed so as to satisfy- three of our four criteria for success. The difficulty is that this strategy is inevitably vulnerable on our r e m a i n i n g c r i t e r i o n , j u r i s d i c t i o n problems. Rival imaginary t h o u g h t experiments all presume to be the appropriate t r i b u n a l for d e t e r m i n i n g the first principles of the liberal state. Each claims j u r i s d i c t i o n over the choice of ultimate principles. Slightlv different constructions of the appropriate hypothetical conditions yield drastically different outcomes. As we saw in detail earlier, a strictly neutral construction of relevant claims or interests m i g h t plausibly presume to override such jurisdictional challenges. B u t such a strictly neutral account of claims or interests w o u l d make

mv ambitious, substantive theory of justice impossible. Hence, if

W

e wish to get substantive results f r o m a hypothetical t h o u g h t exassumptions.

periment, we are left w i t h less-than-strictly-neutral

As a result, each of the rival theories is rendered dependent o n a controversial theory of the g o o d u n d e r conditions where adoption of one rival controversial theory rather than another w o u l d yield a significantly different outcome. Hence, rival h y p o t h e t i cal thought experiments do not settle m o r a l controversies about by political m o r a l i t y . Rather, they embody those controversies its rivals. Once strict neutrality is abandoned, the jurisdictional conflicts are interminable among rival hypothetical thought experiments. None of these hypothetical histories is our history. Each can be challenged by a rival imaginary story y i e l d i n g different conclusions and c l a i m i n g j u r i s d i c t i o n over the same issuethe first p r i n ciples of the liberal state, Clearly, if all four of our criteria are to be satisfied, a different strategy w i l l be necessary. M y strategy w i l l be to fill out category 4 rather than category 3. I claim that the ideal of a self-reflective society provides grounds for its o w n legitimacy. It purges itself of i n d o c t r i n a t i o n problems, so that its claims to a u t h o r i t y cannot be t r u m p e d by r i v a l , merely hypothetical scenarios. I n filling out category 4 , 1 propose to combine the refinement mechanisms of hypothetical history w i t h the b i n d i n g a u t h o r i t y of a legitimate, actual consensus. The p o l i t i c a l practices of any society, I assume, lay c l a i m to legitimacy. The values and other assumptions according to w h i c h they support that claim I w i l l refer to as the norms of internal to that political practice. evaluation It is, of course, theoretically pos-

m a k i n g s y m m e t r i c a l claims, each p u r p o r t i n g to have p r i o r i t y over

sible that the p o l i t i c a l practices of some society m i g h t not even lay c l a i m to legitimacy. For example, a state m i g h t attempt to support itself w i t h n o t h i n g but sheer force. I n that case, there w o u l d be no norms of evaluation internal to those practices. B u t that possibility does not offer a counterexample to my argument. M y claim w i l l be that there are certain conditions under w h i c h a f u l l

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A S e l f - R e f l e c t i v e Society

s o l u t i o n to the legitimacy problem w o u l d be possible. If a p o l i t i c a l system makes no effort even to claim legitimacy, that Is no bar to the thesis that, under some conditions, those systems that do lay c l a i m to legitimacy could be correct in that c l a i m . I propose that we consider four demanding conditions w h i c h , together, p u r p o r t to be sufficient for p o l i t i c a l practices justifiably to c l a i m obligations for s u p p o r t f r o m all their members. If alt members are obligated i n this way, then the legitimacy p r o b l e m has been solved and the practices justifiably define the appropriate norms of p o l i t i c a l evaluation for that society. These four conditions are: 1 . The practices must be consensual, that is, they must have in

c o n d i t i o n provides for the dialogue's self-critical capacities; its n o t i m a n i p u l a t i o n provisions are also necessary for the process to be voluntary. East, the consensus c o n d i t i o n defines the collective self-understanding that emerges f r o m the dialogue. These four conditions, together, specify the ideal of a self-reflective society. Each of these conditions w i l l require elaboration. The first three w i l l occupy us for the rest of this chapter. The self-reflective cond i t i o n w i l l require a chapter unto itself. First, however, it is w o r t h o u t l i n i n g h o w the basic strategy aspires to satisfy our four criteria for success. Suppose a society's political practices satisfied these four conditions. I am arguing that the m i n i m a l l y voluntary p r o v i sion of essential benefits through self-reflective practices produces obligations on the part of each member. If those conditions are satisfied for all the members, then they all have some o b l i g a t i o n to support the result (we set aside questions about the strength of that o b l i g a t i o n compared to other moral claims). Hence, such a system achieves a full s o l u t i o n to the legitimacy p r o b l e m because all its members are obligated to support i t . I w i l l interpret the ideal of a self-reflective society as c l a i m ing that w h e n the p o l i t i c a l practices of a society have fully solved the legitimacy p r o b l e m , then the norms of evaluation internal to those practices become the authoritative practices to apply to that society's p o l i t i c a l system. A t that point we can plausibly c l a i m that those norms of evaluation are immune f r o m the j u r i s d i c t i o n a l challenges of r i v a l theories precisely because it is those norms that everyone has an o b l i g a t i o n to support. The special merit of filling out b o x 4 rather than box 3 in figure 2 is that the actual acceptance of certain practiceswhen they are accepted and evaluated i n the required w a y t r u m p s jurisdictional challenges f r o m the unending variety of claims f r o m hypothetical thought experiments. W h e n those practices survive the rigorous conditions we w i l l define, they can presume to settle the basic questions about the p o l i t i c a l structure of that societyso long as the requisite conditions continue to be maintained. It is not m y p o s i t i o n that actual practices always override or

w i d e support t h r o u g h o u t the society. 2. T h e practices must be (at least m i n i m a l l y ) voluntary to leave. 3. I he practices must supply essential benefits. By this I mean basically 4. T h e practices must be self-reflective. that exit should be unimpeded for anyone w h o m i g h t w i s h

that they must be subjected to c o n t i n u i n g critical examin a t i o n t h r o u g h unmanipulated debate. As a result, I w i l l assume that over the long t e r m , the character of those practices (and the consensus about them) w i l l be decisively i n fluenced by the o n g o i n g process of "self-reflective" p o l i t i c a l dialogue. A society w h i c h is self-reflective in this sense w i l l have achieved w h a t we w i l l call a "self-reflective p o l i t i c a l culture." These conditions are all dialogic: they reflect the strategy of

f o u n d i n g legitimacy o n a voluntary, self-reflective, collective u n derstanding. They are the collective conditions for a p o l i t i c a l c u l ture to freely impose its authoritative practices on itself. Essential benefits define the m i n i m u m conditions for full membership i n the society. Hence, they are necessary for full p a r t i c i p a t i o n i n the collective dialogue. The exit c o n d i t i o n is necessary i f p a r t i c i p a t i o n is to be at least m i n i m a l l y voluntary. The self-reflective

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A S e l f - M l e s f i v e Satiety

Hie legitimacy Problem

crump the claims of philosophers a t t e m p t i n g to prescribe f r o m outside the consensus. But we can distinguish between forms o f consensus that are suspect, o n the one hand, and those that have a justified c l a i m to reasonableness and acceptability, on the other. T h e conditions proposed here are meant to clarify the latter poss i b i l i t y . W h e n a consensus is suspect, there are good grounds for p h i l o s o p h i c a l r e f o r m . But w h e n i t is b o t h reasonable and acceptable, then it defines the appropriate grounds for evaluating the regime. O f course, w i t h i n such a consensus there is always c o n t i n u i n g r o o m for p h i l o s o p h i c a l , m o r a l , legal, and political c r i t i c i s m of the most vigorous sort. I n fact, a c o n t i n u i n g openness to such c r i t i c i s m w i l l t u r n out to be a c o n d i t i o n for our being confident that a consensus should not be placed in the suspect category. A justifiable consensus does not preclude further debate because it is always appropriate to advocate a new consensusone that would, if generally accepted, satisfy the same conditions as d i d the previous one. N o t e that f o r any i n d i v i d u a l , this position leaves open many a p p r o p r i a t e possibilities for m o r a l conflict. First, we have left open the question of the strength of the o b l i g a t i o n to support the p o l i t i c a l practices of the legitimate state. Everyone is obligated to s u p p o r t t h e m , but in particular cases, individuals or groups may w e l l have c o n f l i c t i n g obligations that are o v e r r i d i n g . Yet, it m i g h t be asked, w h y does the theory say n o t h i n g about the sources of these other possible obligations? The theory of legitimacy p u t f o r w a r d here does not presume to settle every m o r a l question. L i k e most contemporary liberal theory, it remains agnostic about ultimate m o r a l and metaphysical questions outside of its chosen sphere (the p o l i t i c a l m o r a l i t y of the state)." Flence, there w o u l d remain many bases for m o r a l conflicts, sometimes o v e r r i d i n g ones, i n the other m o r a ! claims left entirely open by whatever consensus happened to satisfy all of our conditions, i n a d d i t i o n , there is plenty of r o o m for disagreement and m o r a l conflict in the advocacy of a change i n the consensus, even i f i t is achieved.

W o u l d a self-reflective p o l i t i c a l culture require that everyone in i t be self-reflective or self-critical i n some significant sense? M y argument does not require anything approaching such a Utopian aspiration. Effective voice could be given to interests across every significant cleavage w i t h o u t every individual choosing to exercise his or her self-reflective capacities. The f o r m a t i o n of public o p i n ion is a complex process i n v o l v i n g many levels and interactions among c o m p e t i n g elites. I t has been usefully described as a "cascade" w i t h many levels or pools that develop independently, but that also flow d o w n f r o m one to another, and sometimes bubble up as w e l l . ' W h a t we require for our argument is that the c o n t i n u i n g p o l i t i cal dialogue decisively influence the character of the overall consensus over the long t e r m . O f course, this w o u l d happen were everyone to pay attention all the time. But it could also happen just as effectively if o p i n i o n leaders influential at each level pay attention t o , and participate i n , the dialogue. If those w h o are attentive to the o n g o i n g self-reflective political culture are strategically placed in the f o r m a t i o n of the consensus, then the consensus could easily be the p r o d u c t of the self-reflective political culture over the long t e r m e v e n if many citizens choose, for some p e r i o d , not to participate actively. A related p o i n t w h i c h prevents the theory's requirements f r o m becoming Utopian is that whatever consensus is achieved need be only p r o c e d u r a l . It may be a consensus merely specifying agreement on h o w to disagreebut also h o w , given those disagreements, each side must be given an appropriate hearing to resolve disputes. There is no need for substantive agreement o n public policy or p o l i t i c a l philosophy. A purely procedural consensus w o u l d satisfy the demands of the argument. There is no need, in other w o r d s , that we settle the substantive issues c o n f r o n t i n g systematic theories that we confronted in the first t w o parts of this b o o k . If the ideal of a self-reflective society is fulfilled, there is a cleatbasis for satisfying all four of our criteria for an acceptable theory. First, given the d e m a n d i n g character of our proposed conditions,

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l e g i t i r j i s s y m

Obligation

129

w h e n taken together, it should be clear that c r i t e r i o n I is satisfied. T h e prescriptions of this theory are neither vacuous nor anarchic. They distinguish among most possible states so as to select a distinctive outcome. The conditions are demanding, but if a state satisfied t h e m , the result w o u l d not be anarchism, but a state w h i c h s i m p l y maintained some demanding requirements for freedom of p o l i t i c a l culture. Furthermore, such a state should satisfy the i n d i v i d u a l l y b i n d i n g requirement (criterion 2). M y argument is that social practices determine obligations for each member under the proposed conditions. Even those w h o dissent must satisfy the o b l i gations of membership so long as the various conditions a p p l y so l o n g as they receive essential benefits, so long as exit is u n i m peded, and so long as the practices are self-reflective and w i d e l y s u p p o r t e d . N o t e further h o w the o b l i g a t i o n resulting f r o m benefits under these conditions satisfies w h a t I referred to earlier as the p a r t i c u l a r i t y requirement: it is an o b l i g a t i o n w h i c h the m e m ber has to the particular state in question. It is not an o b l i g a t i o n w h i c h m i g h t h o l d , equally, between that citizen and other similar states. It is n o t , for example, an o b l i g a t i o n to u p h o l d just states i n general. Rather, it is an o b l i g a t i o n between that member and her state because it is that state w h i c h has supplied the benefits. In a d d i t i o n , the ideal of a self-reflective society satisfies the j u r i s d i c t i o n p r o b l e m because it requires adherence to an actual, o n g o i n g consensus. This consensus is authoritative, first, because it is w i d e l y shared and, second, because i t has survived the rigors of self-scrutiny required by a self-reflective political culture. There is a p r e s u m p t i o n i n favor of actual c o m m i t m e n t s , provided they are not delegitimated by charges of m a n i p u l a t i o n or i n d o c t r i n a tion. East, the ideal of a self-reflective society satisfies the n o n i n d o c t r i n a t i o n c r i t e r i o n precisely because its p o l i t i c a l practices are selfreflective. People are not indoctrinated to accept those practices. Rather, they are exposed to c o n t i n u i n g , unmanipulated debate about t h e m . A n y shared understandings that survive such quest i o n i n g take o n the character of a c o n t i n u i n g , rational consensus.

The basic idea is to take the self-purging aspirations of liberal ism not merely to the environments that citizens m i g h t imagine, but home to the environments i n w h i c h they actually live. The appropriate decision procedure is not in some imaginary place; it i an ongoing society that is t r u l y free and self-determining in the
s

core components of its p o l i t i c a l culture.

3.3 Legitimacy

and

Obligation

The ideal of a self-reflective society offers an account of h o w social practices could produce universal obligations to support the state under favorable conditions. The argument is l i m i t e d to ideal t h e o r y t o conditions where its demanding requirements could be f u l f i l l e d . However, it is w o r t h n o t i n g that the range of conditions under w h i c h we c o m m o n l y t h i n k social practices can produce obligations is far broader than the special conditions of ideal theory. I n those cases as w e l l , it is plausible to t h i n k of social practices as r e q u i r i n g a c o m b i n a t i o n of subjective and objective conditions i n order for t h e m justifiably to determine obligations. In this sense, the tack we have taken here should not be surprising. Consider the practice of promise-keeping. If I were to Find mvself i n a society or culture in w h i c h the practice of promisekeeping was u n k n o w n , others w o u l d not understand w h a t I was requesting were I to ask them to make, or abide by, a promise. Even if I explained the practice to them, unless it was w i d e l y accepted, it w o u l d be hard to h o l d members of that culture to any apparent obligations they m i g h t seem to incur. Even if the practice was k n o w n , if i t was not w i d e l y accepted-if, for example, i t was generally understood that promises were made to be b r o k e n then to h o l d someone to his or her explicit u n d e r t a k i n g w o u l d simply be to misunderstand the relevant practice. For the practice of promise-keeping justifiably to produce obligations, the practice must, among other things, have widespread acceptance. But developmental conditions also l i m i t the a p p l i c a t i o n of a given practice. Consider sat't, w h i c h was once widespread i n I n d i a :

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& $eif-8eileerive

Society

legitimacy and Obligation

131

the practice of w i d o w s v i e w i n g themselves as m o r a l l y required to sacrifice themselves on the b u r n i n g funeral pyres of their husbands.' Sati persisted for centuries before being widely questioned. W o m e n were indoctrinated to believe that their sacrifice was necessary. N o matter h o w widely accepted sati may have been, the
2

m a

' o r cleavage. We are, of course, t a l k i n g about s u p p o r t , not for

A r t i c u l a r policies but for the defining political practices of the society, for the general rules of the game, not the details of any particular play. ^ W i d e acceptance is not, by itself, sufficient to produce o b l i g a tions. A u t h o r i t a r i a n regimes that manage to achieve broad supp o r t for their p o l i t i c a l practices do not thereby produce o b l i g a tions on the part of their citizens. For the claims of my argument to be triggered, several other conditions w o u l d also have to apply. The political practices w o u l d have to be self-reflective by instituting rather demanding requirements for freedom of p o l i t i c a l culture; essential benefits w o u l d have to be p r o v i d e d universally; exit w o u l d have to be unimpeded. Absent these other c o n d i t i o n s , a consensus means n o t h i n g w i t h i n our f r a m e w o r k . Hence, the fact that Gorbachev claimed, i n his first s u m m i t w i t h Reagan, the same support f r o m his people that Reagan had f r o m his, w o u l d not (if the c l a i m were true) yield any conclusion that the Soviet U n i o n had solved the legitimacy problem in my sense. W i t h i n the g r o u n d rules of ideal theory, the U.S. has not achieved a f u l l solut i o n , either. But many of the principles we subscribe to are a k i n to principles that could provide the basis for a full s o l u t i o n . are, jointly, sufficient
5

fact that it lacked any c l a i m to being self-reflective

1

undermines

any c l a i m to legitimacy that m i g h t be mounted for it w i t h i n our f r a m e w o r k . A similar p o i n t might be made even if women explicitly p r o m i s e d in the marriage ceremony that they w o u l d immolate themselves if their husbands were to die first. In the context of such developmental conditions, promise-keeping w o u l d provide o n l y an equally suspect basis for such obligations. W h i l e it is not surprising to t h i n k of practices as p r o d u c i n g o b l i g a t i o n s , i t is equally unsurprising to require a c o m b i n a t i o n of subjective and objective conditions in order for those obligations to be justifiable. The obvious subjective c o n d i t i o n is whether the practice actually has widespread acceptance. The obvious objective c o n d i t i o n is whether that acceptance is suspect because o f i n d o c t r i n a t i o n problems. M y proposal that a practice be selfreflective is, obviously, an attempt to respond to the latter issue. The ideal of a self-reflective society requires a consensus o n its d e f i n i n g p o l i t i c a l practices. By '"consensus" I mean that there must be b r o a d support across all the major cleavages i n the society. By a cleavage, I mean a p o l a r i z a t i o n among self-identified that groups. Race, class, gender, and ethnicity are dimensions

M y claim is that the conditions of the self-reflective society for a f u l l solution to the legitimacy p r o b lem. In other w o r d s , if the p o l i t i c a l practices of a society f u l f i l l them for all members, then all members are obligated to s u p p o r t those political practices. T h e n , if a system lives up to the norms of evaluation internal to those practices, it has solved the legitimacy problem in our sense. To take a simple example, imagine a political system that employed the familiar institutions of Western constitutional democracy so as to satisfy our conditions. Liberty of p o l i t i c a l culture w o u l d have to be encouraged in a rather demanding way to satisfy the self-reflective c o n d i t i o n . Various scenarios for the universal provision of essential benefits m i g h t be devised. For the m o m e n t , let us assume that this is accomplished t h r o u g h a well-developed

c o m m o n l y define such cleavages. There may, of course, be differences that d o not define major cleavages. Eye color, for example, docs not define self-identified groups that have perceived r i v a l ries w i t h other self-identified groups. Blue-eyed people do not c o m m o n l y v i e w themselves as members of the g r o u p of blue-eyed persons whose interests are i n c o m p e t i t i o n w i t h members of, say, the b r o w n - e y e d g r o u p . But members of a given race, class, o r
4

gender c o m m o n l y do t h i n k of themselves i n this way. i f they d o , then a consensus, in my sense, w i l l require that there be substantial s u p p o r t f o r the p o l i t i c a l practices i n question across any such

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welfare state apparatus. E x i t is unimpeded and the political system, despite significant dissent, continues to enjoy broad support. The p o l i t i c a l practices defining the state w o u l d then produce u n i versal obligations for all members receiving the essential benefits. Because everyone w o u l d then be obligated to support those practices, the state, i f it c o n f o r m e d to them, w o u l d be legitimate. W h a t we have been calling a full s o l u t i o n to the legitimacy p r o b l e m w o u l d have been achieved because all the members w o u l d be o b l i gated to s u p p o r t the p o l i t i c a l system as i t was then constituted. M o r e specifically, if the p o l i t i c a l practices in this constitutional democracy included elections, then there w o u l d be certain norms of evaluation attached to the conduct of those elections. It w o u l d not be enough for the regime to claim that it c o n f o r m e d to the accepted practices. For example, if i t had secretly stolen the election and the election system continued to enjoy broad support (in p a r t because no one realized i t } , then a f u l l solution to the legitimacy p r o b l e m w o u l d n o t have been achieved because the regime w o u l d fail to c o n f o r m to the norms of evaluation internal to the practices that w o u l d , indeed, have legitimacy i n that societythe practices of the election system the public w o u l d t h i n k it is e m p l o y i n g . Suppose, however, that voter fraud was well k n o w n to be c o m m o n . I am assuming that where stealing elections is a w e l l - k n o w n practice, it is not publicly accepted as a justifiable practice. Internal to the norms of evaluation that constitute election practices, at least in p a r t , are norms c o n d e m n i n g the stealing of elections. But w e m i g h t imagine another practice w h i c h was more or less like the elections we are familiar w i t h , but in w h i c h it was p u b licly acknowledged that the r u l i n g elites w o u l d steal the election whenever, i n their great w i s d o m , they considered i t to be in the national interest. To distinguish this practice f r o m elections as w e k n o w t h e m , let us call this the practice of Stealelections. C o u l d Stealelections m a i n t a i n itself as one of the practices of a legitimate state i n my sense? It is most unlikely that such a practice c o u l d w i t h s t a n d the glare of publicity, dissent, and c r i t i c i s m required i n a self-reflective p o l i t i c a l culture. Stealelections has a

n o r m that is self-delegitimating. It claims to count the votes i n .-j fair and objective way, and then it w i l l announce either true or false results, depending o n w h i c h necessary for an outcome chosen i n an entirely different way. We could reasonably expect such practices to lose their support when their true character is k n o w n a s w o u l d be required i n a self-reflective p o l i t i c a l culture. The example also raises the question of h o w varied w i l l be the range of practices that satisfy our c o n d i t i o n i n various social contexts. Practices that are not self-delegitimating and that do survive self-reflective questioning may differ quite a l o t i n other respects. The difference between p r o p o r t i o n a l representation and majority rule i n single-member districts, for example, is not one that w o u l d be settled by any of the criteria developed here. If either system became the accepted practice in a state that f u l filled all of our conditions, then the norms of evaluation internal to that set of election practices w o u l d be the appropriate ones to apply i n that p o l i t i c a l system. A similar p o i n t m i g h t be made about bicameral versus unicameral legislatures and, more broadly, about American-style presidential systems versus European-style parliamentary systems. W i t h i n the position developed here, many questions must be settled contextually: they must be settled w i t h i n the confines of ongoing practices. I t is an illusion of systematic theory to t h i n k that an entire b l u e p r i n t of the just society can be created f r o m scratch, regardless of social context and regardless of the social norms w i d e l y shared in the society. I n considering the difference between p r o p o r t i o n a l representation and single-member districts, I mentioned cases of relatively familiar democratic practice. Suppose, however, 1 had mentioned political practices practices outside our familiar democratic consensus, i n v o l v i n g the systematic exclusion of some racial or

ethnic group t h r o u g h d i s c r i m i n a t i o n or " w h i t e supremacy."'' As an empirical matter, such practices are unlikely to satisfy our consensus c o n d i t i o n ( w h i c h w o u l d require a preponderance of support f r o m those excluded as well as f r o m those included).

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But suppose that through a successful apparatus of a consensus throughout the repression

repression,

background in section

conditionssocial 3.5.

practices that w o u l d p e r m i t the

the society were maintained. Obviously^

ideal to be fulfilled, These background conditions w i l l occupy us O f course, racially d i s c r i m i n a t o r y systems are also likely to fail our c o n d i t i o n of p r o v i d i n g "essential benefits" to all members. Under realistic conditions, such systems can be expected to deny w h a t A d a m Smith called " t h e necessaries" to many members of the subordinate g r o u p . Smith's discussion offers a starting p o i n t for c l a r i f y i n g w h a t we mean by "essential benefits." Flis proposal, however, does not go far enough for our purposes. In a classic discussion, Smith explained: By necessaries I understand, not only the commodities which are indispensably necessary for the support of life, but whatever the custom of the country renders it indecent for creditable people, even of the lowest order, to be without. A linen shirt, for example is, strictly speaking, not a necessary of life. The Greeks and Romans lived, I suppose, very comfortably, though they had no linen. But in the present times, through the greater part of Furope, a creditable day-labourer would be ashamed to appear in public without a linen shirt. Smith went o n to make the same p o i n t about leather shoes in his own time.
8

necessary to maintain such a consensus w o u l d

violate the demanding requirements of liberty for a self-reflective p o l i t i c a l culture. Acts of repression often break a consensus because they become issues in themselves. Regardless of whether they have this a d d i t i o n a l effect, they w o u l d count, as we shall see, as crucial violations of one of our conditions. Suppose, however, that the subordinate g r o u p , for reasons deeply buried i n its history and distinctive culture, remains q u i escent, w i t h o u t the d o m i n a n t group having to exercise any overt acts of repression. For example, the great masses of legal ex7

Untouchables i n India are said to live in "psychological cages" that f o r a long time stifled effective expression of their interests. As we w i l l see later, for a p o l i t i c a l culture to be "self-reflective"

it must give unimpeded and effective voice to the interests across every significant cleavage in the society. W h e n voices are f o r c i b l y silenced t h r o u g h familiar forms of repression, i t is obvious h o w this c o n d i t i o n is violated. But when the p r o b l e m is simply that a subordinate group has developed a distinctive culture of s i l e n c e so that it refuses to voice its intereststhen ing our conditions? W h i t e supremacy, or any similar practice of racial or ethnic s u b o r d i n a t i o n fas in a caste system), w i l l , i n itself, constitute a barrier to f u l f i l l i n g the ideal of a self-reflective society. For such practices r o b members of a relevant group (a group across one o f the society's significant cleavages) of the ability to get an effective hearing for their interests. The fact that the practice m i g h t conceivably be so successful that it robs the subordinate group of any desire to voice its interests is only an indication of h o w d r a m a t i c a l l y our conditions are violated. I he remedies for such a situation are not obvious. The state cannot simply command people to give voice to their interests. H o w e v e r , the difficulty can be dealt w i t h , indirectly, by specifying can a consensus of racial and/or ethnic s u b o r d i n a t i o n m a i n t a i n itself w i t h o u t violat-

M a r x also included social and moral elements i n his n o t i o n of the subsistence needs of the w o r k e r : " T h e number and extent of his so-called necessary requirements, as also the manner i n w h i c h they are satisfied, are themselves products of history, and depend therefore to a great extent on the level of c i v i l i z a t i o n attained by a c o u n t r y ; i n particular they depend on the conditions in w h i c h , and consequently o n the habits and expectations w i t h w h i c h , the class of free w o r k e r s has been f o r m e d . " " These t w o famous discussions suggest that it is reasonable to include relativistic elements in a definition of essential benefits. B o t h Smith and M a r x also grant that there is an obvious objective element, as w e l l : that there are m i n i m u m physical requirements for s u r v i v a l . However, as in the other components of our argu-

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merit, w e w i l l also specify an objective developmental

condition.

For the account of essential benefits to satisfy o u r argument, i t w i l l have to be the one that is b o t h seif-reftective and w i d e l y shared, i n a self-reflective p o l i t i c a l culture, a l l the significant p o l i t i c a l practices w i l l be the subject of c o n t i n u i n g , unmanipulated debate. O b v i o u s l y , the essential benefits p r o v i d e d for every member w i l l count as one o f the society's significant p o l i t i c a l practices. Hence, the character o f those benefits must be part of the l e g i t i m a t i n g consensus and i t must be open to c o n t i n u i n g debate and c r i t i c i s m . Even so, w e cannot mean by "essential benefits" exactly w h a t S m i t h meant by the "necessaries"even w h e n we a d d the requirements t h a t the conventional element be b o t h self-reflective and consensual. O r , i f we were to l i m i t the account i n that way, it w o u l d be subject to disturbing objections. Recall Smith's form u l a : " w h a t e v e r the custom of the c o u n t r y renders i t indecent for creditable people, even o f the lowest order, to be w i t h o u t . " T h e examples o f racial o r ethnic s u b o r d i n a t i o n already m e n t i o n e d make i t obvious that the disparities between " o r d e r s " of people may be so great that t o require only w h a t is necessary f o r decent members o f the lowest order may be t o o little for o u r purposes. If the lowest order is the lowest i n a caste system or a system of racial d o m i n a t i o n , its essentials may be so meager that receiving such benefits w o u l d n o t serve o u r argument. For one t h i n g , mere receipt o f such benefits w o u l d n o t plausibly produce obligations. M o s t i m p o r t a n t , a g r o u p maintained i n such s u b o r d i n a t i o n w o u l d be subjected to a c o n t i n u i n g , coercive structure of d o m i n a t i o n a k i n d o f d o m i n a t i o n that w o u l d effectively shut them out of the p o l i t i c a l dialogue. As w e shall see i n o u r discussion of the backg r o u n d c o n d i t i o n s f o r a self-reflective p o l i t i c a l c u l t u r e , i f a g r o u p is m a i n t a i n e d m such conditions, one of the central requiements of the argument has been v i o l a t e d . Consider this description of the Untouchables: In earlier times Untouchables over many parts of India could noc enter streets and lanes used by caste Hindus. If they did, they had to carry brooms to brush away their footprints in the dirt behmd them. I n

other places, Untouchables could not contaminate the earth with their spittle, but had to carry a box around their necks to keep pure the ground reserved tor the spittle of caste Hindus. In still other parts ot India an Untouchable had to shout warnings before entering a street so that the purer rolk could get out of the way of his contaminating shadow.
10

O f course, we have already specified the requirement that the account o f essential benefits be b o t h self-reflective and consensual. The caste system appears to have been w i d e l y accepted for l o n g p e r i o d s . I t is, however, d o u b t f u l that the consensus o n these
11

practices c o u l d have survived our self-reflective c o n d i t i o n . H o w ever, suppose f o r a moment that I am mistaken i n this e m p i r i c a l speculation. Imagine that the members of a subordinate g r o u p w h e t h e r I n d i a n Untouchables, blacks i n an apartheid system, or w o m e n i n an extreme patriarchal societyaccept the practices w h i c h keep t h e m i n their places, even w h e n those practices are subject to c o n t i n u i n g c r i t i c i s m i n a self-reflective p o l i t i c a l culture. I n the argument we are developing, receipt of essential benefits w i l l constitute a basis f o r o b l i g a t i o n . Is i t plausible to regard such meager benefits as p r o d u c i n g an o b l i g a t i o n to support such an objectionable system? Smith's f o r m u l a r e q u i r e d , roughly, whatever was necessary to be a " c r e d i t a b l e " member of the lowest order. O u r p r o b l e m is that the gap between orders may be so great that creditable m e m bers of the lowest order may lack the self-esteem and m u t u a l respect necessary for p a r t i c i p a t i o n i n a self-reflective p o l i t i c a l cult u r e w h e r e they have to voice their interests to members of other orders. Hence, I w i l l amend Smith's f o r m u l a to require the social conditions f o r w h a t I w i l l call " f u l l m e m b e r s h i p " i n a selfreflective society, even f o r persons o f the lowest order. I w i l l interpret the social conditions f o r f u l l membership as i n c l u d i n g w h a t is necessary f o r equal consideration of one's claims or interests i n the p u b l i c dialogue i n such a culture. By equal consideration, I d o n o t mean t h a t your claims are considered by an equal n u m b e r of people or t h a t they are given an equal amount of television t i m e . I

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mean o n l y that they are treated as deserving equal consideration o n their m e r i t s ; they are not discounted because of the identities of the people involved (either i n v o i c i n g the claim or i n a p p l y i n g i t ) , i t is p u b l i c l y acceptedby b o t h speakers and listenersthat such claims deserve the same serious hearing given to the interests o f other groups. T h e social conditions for f u l l membership thus entail b o t h self-esteem and m u t u a l respect, i n that sense, they i n clude n o t o n l y Smith's "necessaries" but a d d i t i o n a l requirements as w e l l .
1 2

esteem. L e t us call this g r o u p the Unappreciated. N o t e t h a t i f the Unappreciated are c l a i m i n g t h a t they should get diamonds and B M W s as "essential benefits " then those benefits w o u l d have to be p r o v i d e d to everyone. W o u l d they be w i l l i n g to pay their share of such an enormous public expenditure? C o u l d such a proposal ever achieve the required consensus? Clearly, w e can expect the answer to b o t h questions to be negative, i n a d d i t i o n , l u x u r y goods are not plausible candidates for essential benefits i n our sense because those benefits are defined w i t h reference t o members o f the lowest order. They specify w h a t w o u l d be necessary f o r members of the lowest order to achieve f u l l membership i n a self-reflective political culture. U p p e r - m i d d l e class people feeling deprived w i t h o u t further l u x u r y goods are not members of the lowest order. B u t suppose they c l a i m to be. T h e y present us w i t h eloquent testimony of h o w oppressed they feel. T o give such a c l a i m plausibility, w e can specify that they w o u l d have to be w i l l i n g to trade places w i t h members o f the g r o u p generally recognized to be the lowest o r d e r p e r h a p s the ghetto underclass. T h e Unappreciated d o n o t plausibly define a lowest o r d e r and therefore, pose no counterargument to o u r account of essential benefits. B u t w h y focus o n a lowest order? As in Smith's account, w e are t r y i n g to specify w h a t is t r u l y essential f o r a k i n d o f creditable membership in the society. Because the essentials m u s t be p r o v i d e d to everyone, the focus must be on a m i n i m u m account that serves the purposes o f the argument. O t h e r w i s e , the entire scheme w o u l d be patently impractical. N o t e that i f , for some reason, there were n o significant inequalities i n the society, then any order o r g r o u p c o u l d be picked at r a n d o m . But every k n o w n developed society, capitalist or socialist, has substantial inequalities, as these m i g h t be judged along any plausible dimension proposed as an answer t o o u r o r i g i n a l p r o b l e m of value (income and w e a l t h , prestige, rights and liberties, p r i m a r y goods, and so o n ) . Hence, we can assume that there w i l l be inequalities along significant dimensions and the t h e o r y must be designed to deal w i t h t h a t fact.

Clearly, the Untouchables described above were denied those c o n d i t i o n s . T h e y w o u l d not voice their interests, nor w o u l d they be listened to i f they t r i e d . They lacked the social prerequisites for enough self-esteem even to c l a i m equal consideration i n the public dialogue. Systems of racial or ethnic s u b o r d i n a t i o n , i f their practices are consensual, r o b the subordinate group of the self-esteem necessary f o r f u l l membership. O f course* i f their practices are n o t consensual, such systems have no c l a i m to legitimacy w i t h i n m y f r a m e w o r k . B u t i f they are consensual, even w i t h i n the s u b o r d i nate g r o u p , then their failure is i n the provision o f the essential benefit of f u l l membership to a l l . By specifying "social conditions for f u l l m e m b e r s h i p " I mean t o r e q u i r e w h a t is generally necessary f o r self-esteem and m u t u a l respect. T h e r e w i l l always be members i n a given g r o u p w i t h special psychologies o r idiosyncrasies that, despite every advantage, deprive t h e m of self-esteem. Rodney Dangerfield may achieve enormous success and still lack self-esteem. I n d e t e r m i n i n g w h e ther his receipt o f the benefits o f f u l l membership produces any o b l i g a t i o n s o n his p a r t , we need only consider the social c o n d i tions t h a t generally produce self-esteem and m u t u a l respect, If o b l i g a t i o n s f o l l o w f r o m the receipt of benefits, my position w i l l be that the vagaries o f his psychology d o not relieve h i m of those obligations. Suppose, however, that the Rodney Dangerfields of this w o r l d organize, c l a i m i n g t h a t if they are n o t p r o v i d e d w i t h further l u x u r y goods at p u b l i c expense, t h e n they w i l l continue to lack self-

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The general outlines of our strategy should n o w be clear. If a p o l i t i c a l system provides essential benefitsthe social conditions f o r f u l l m e m b e r s h i p t o all members, then all members acquire an o b l i g a t i o n to s u p p o r t the system (provided that i t also meets our other conditions). I f all members are obligated to support a given p o l i t i c a l system, then its practices have become authoritative i n that society. T o the extent that the system lives up to its o w n a u t h o r i t a t i v e practices, it then achieves a f u l l s o l u t i o n to the legitimacy p r o b l e m . Clearly, a crucial move i n the argument is the inference that f r o m the receipt of essential benefits under these conditions, one can acquire an o b l i g a t i o n . This issue has been a notable subject of debate and deserves extended discussion. Readers f a m i l i a r w i t h H . L . A . H a r t ' s argument f r o m fairness w i l l find n o t h i n g surprising in the n o t i o n that one can acquire an o b l i g a t i o n t h r o u g h the receipt of benefits. H a r t proposed: ' ' W h e n a n u m b e r of persons conduct any j o i n t enterprise according to rules and thus restrict their l i b e r t y , those w h o have submitted to these restrictions w h e n required have a r i g h t to a similar submission f r o m those w h o have benefited by their s u b m i s s i o n . "
0

h o l d the practices. T h e Hart/Rawls principle of fairness w o u l d attribute obligations to individuals under the special conditions covered by my proposal, but i t w o u l d also d o so under a far w i d e r range o f c o n d i t i o n s . These other cases are N o z i c k ' s target i n his provocative assault o n the p r i n c i p l e . N o z i c k ' s argument is w o r t h discussing i n o r d e r to c l a r i f y the differences: Suppose some of the people in your neighborhood (there are 364 other adults) have found a public address system and decide to institute a system of public entertainment. They post a list of names, one for each day, yours among them. On his assigned day (one can easily switch days) a person is to run the public address system, play records over it, give news bulletins, tell amusing stories he has heard, and so on. After 138 days on which each person has done his part, your day arrives. Are you obligated to take your turn? You have benefited from it, occasionally opening your window to listen, enjoying some music or chuckling at someone's funny story. The other people have put themselves out. But must vou answer the call when it is your turn to do so? As it stands, surely not. Though you benefit from the arrangement, you may know all along that 364 days of entertainment supplied by others w i l l not be worth your giving up one day. You would rather not have any of it and not give up a day than have it all and spend one of your days at i t .
! 6

The

r i g h t o f those s u b m i t t i n g to the rules yields a correlative d u t y o f the others t o obey, and this d u t y should be enforceable by public officials according to rules. Rawls later proposed a similar p r i n c i p l e , calling It the " p r i n ciple of f a i r p l a y , " b u t added the proviso that the scheme o f social c o o p e r a t i o n had to be " j u s t . " I n that w a y he left the o b l i g a t i o n t o u p h o l d such schemes dependent o n a more general theory o f justice.
14

N o z i c k continues this line of argument w i t h other examples: " I f each day a different person o n your street sweeps the entire street, must y o u d o so w h e n your time comes?" O r i f you d o n ' t , then should y o u " i m a g i n e d i r t as y o u traverse the street, so as n o t to benefit as a free r i d e r ? " H e also asks us to imagine a b o o k thruster, someone w h o tosses books i n t o yards and then demands payment f o r t h e m . These examples p r o m p t his general conclusion that the p r i n c i p l e o f fairness is mistaken: " O n e cannot, whatever one's purposes, just act so as to give people benefits a n d then demand (or seize) p a y m e n t . "
i T

T h e p r i n c i p l e o f fair play understood i n the H a r t / R a w l s sense is far m o r e general i n its a p p l i c a t i o n than our proposal. T h e ideal o f a self-reflective society requires that the benefits p r o v i d e d be essential, that exit be u n i m p e d e d , that the practices be self-reflective, and t h a t a consensus about t h e m be maintained. 1 1

O n l y w h e n a l l o f these conditions apply am I c l a i m i n g that the i n d i v i d u a l s receiving the essential benefits incur obligations to u p -

N o z i c k ' s attack, w h i l e c o m p e l l i n g o n its chosen g r o u n d , is overly b r o a d i f i t is extended to our argument. These examples

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dramatize the d i f f i c u l t y of ascribing obligations w h e n one or more o f o u r conditions are absent. But they do not establish that o b l i gations never f o l l o w f r o m the receipt of benefits,
,!f

defines. The debate about the practice has been self-reflective, but the consensus about its appropriateness or legitimacy survives, nevertheless. I n this case, i t seems c o m p e l l i n g to conclude t h a t members w h o receive these crucial benefits are obligated, so long as they stay, to live up to the p u b l i c l y accepted obligations of membership. The alternative w o u l d be to c l a i m that they w o u l d be v i o l a t i n g no m o r a l requirements were they to choose to be free-riders. If the benefits p r o v i d e d were frivolous or t r i v i a l , then members c o u l d , in general, do w i t h o u t t h e m . B u t if the benefits are a m o n g the essential conditions of f u l l m e m b e r s h i p a n d this conclusion is supported by a self-reflective consensusthen o b t a i n i n g those benefits for each member is a matter of the most urgent p r i o r i t y . In this case, the benefit i n question is survival, b o t h i n d i v i d u a l and collective. I f there are social practices that provide f o r y o u r survival t h r o u g h other members l i v i n g up to their acknowledged o b l i gations (the obligations that are consensually and self-reflectively accepted as the obligations of membership}, does it n o t seem plausible t o a t t r i b u t e a similar o b l i g a t i o n to y o u s o l o n g as you continue, w i t h the unimpeded o p t i o n of e x i t , to be I n the p o s i t i o n of receiving the crucial benefits? Practices that f u l f i l l o u r conditions have the unique m e r i t of being collectively self-imposed i n a rational manner. T h e practices that survive se If-reflective scrutiny w i t h a consensus of support are collectively self-imposed i n the sense that they have the requisite acceptance, and they are rational i n the sense that they are self-reflective. N o t e that, u n l i k e some other efforts to reconstruct the fairness argument, o u r conditions do not require that the practices provide net benefits to each member (when compared w i t h the costs of membership). R i c h a r d Arneson, f o r example, has proposed such a requirement.
20

N o t e that our conditions w o u l d not determine obligations for any o f N o z i c k ' s cases. N o t only are the practices i n question not selt-retlective, but the benefits p r o v i d e d are not essential. These practices offer entertainment or other m i n o r benefits, rather than p r o t e c t i o n o f some recognized, crucial interest. M y c l a i m is only that w h e n a l l four o f my proposed conditions are satisfied, i t is plausible t o a t t r i b u t e obligations to all those w h o receive the essential benefits. N o z i c k wishes to rebut the c l a i m that obligations result f r o m the receipt o f benefits under a far broader range o f c o n d i t i o n s c o n d i t i o n s that d o not affect my proposal one way or another. T o see the contrast posed by m y proposal, consider this variat i o n o n N o z i c k ' s example suggested by one of m y students w h o h a d recently returned f r o m the M i d d l e East. '' Suppose you are i n
1

an isolated settlement under constant threat o f attack. There are 3 6 4 other adults. Each person is expected, f o r one day, to man an early w a r n i n g system to sound the alarm m case of real danger. A f t e r 138 days o n w h i c h other persons have done their part, your day arrives. A r e y o u obligated to take your turn? Let us suppose f u r t h e r that the settlement meets our other cond i t i o n s . Its practices are se If-re lective. They are subject to cont i n u i n g , u n m a n i p u l a t e d critical e x a m i n a t i o n . This is i m p o r t a n t , because i f there were really no need f o r the early w a r n i n g syst e m , o u r e v a l u a t i o n m i g h t be quite different. If the enemies were entirely f i c t i o n a l or hallucinatory, then the case f o r each member being obligated w o u l d vanish. A l s o , let us assume that exit is u n i m p e d e d . I t y o u d o n ' t w a n t to man the system, you d o n ' t have to stay. T h e settlement has not made y o u a prisoner to its scheme o f collective benefits. But i f y o u d o stay, y o u must either contribute w h a t is expected o f members or become a free-rider. A n d , in keepi n g w i t h one o f o u r remaining conditions, let us assume that there is a consensus on this practice and the o b l i g a t i o n for members it

If our other conditions are all satisfied, such a

proviso w o u l d l i m i t , u n d u l y , the range o f permissible practices. For example, suppose t h a t a fully developed welfare state were to meet all of o u r provisions. Furthermore, suppose that to support

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the p r o v i s i o n of essential benefits to all members, i t t u r n e d out t h a t the r i c h had to be taxed i n such a way that i t was plausible to conclude that they p a i d m o r e than the essential benefits they received. They c o u l d survive nicely w i t h o u t welfare, f o o d stamps, o r subsidized medical care. Even l a w and order m i g h t be p r o v i d e d f o r t h e m o n competitive terms by private security forces. It m i g h t w e l l be the case t h a t their net costs of membership outweighed their net benefits. Still, I w o u l d argue that if such a welfare state satisfied ail o f our other conditions, i t w o u l d then define the set o f p o l i t i c a l practices that were collectively self-imposed i n a selfc r i t i c a l manner. W e a l t h y members w o u l d then be obligated t o pay taxes at the levels decided by the legitimate p o l i t i c a l institutions even i f i t c o u l d be argued that, f o r t h e m , the burdens of m e m bership o u t w e i g h e d the benefits. O f course, the wealthy have a b u i l t - i n source o f p r o t e c t i o n i n our scheme i n t h a t , to m a i n t a i n ail of our legitimacy conditions, there must be c o n t i n u i n g supp o r t f o r the system, o n balance, across all the significant cleavages o f the society. T h e cleavage between r i c h and poor w o u l d surely be such a significant cleavage, and i f the tax rates become t o o burdensome, the requisite consensus o n the overall p o l i t i c a l syst e m c o u l d disappear. Despite this l i m i t a t i o n , the possibility f o r significant r e d i s t r i b u t i o n remainsa possibility that Arneson's
21

but is part of the actual o n g o i n g lives of people i n the system. O n my p r o p o s a l , this refinement mechanism consists i n certain demanding conditions for liberty of p o l i t i c a l culture. W h a t f o r m w o u l d liberty of p o l i t i c a l culture have t o take in order to avoid i n d o c t r i n a t i o n problems? First, note that our concern is w i t h l i b e r t y of political culture. Under this heading I association.
1

include l i b e r t y of p o l i t i c a l expression, belief, and preted broadly to include:

" P o l i t i c a l " i n this d e f i n i t i o n of p o l i t i c a l culture should be inter-

1 . evaluations o f actual public policies and proposed alternatives; 2. evaluations of issues that one believes o u g h t t o be taken up by public p o l i c y ; 3. evaluations of any possible alternative forms o f governmental o r g a n i z a t i o n ; 4. n o r m a t i v e bases f o r any of the above i n other realms of conscientious belief (such as r e l i g i o n ) ; 5. factual findings (historical o r t u r r e n t ) sincerely beiieved to be crucial t o any of the above. I n this k i n d o f liberal state, members w o u l d be free to openly debate government policy, to advocate alternative policies or, i n deed, alternative f o r m s o f government; they w o u l d also be free to j o i n together i n groups for these purposes w i t h o u t fear of persecution o r reprisal. L i b e r t y of p o l i t i c a l culture i n this sense defines the least controversial and essential core o f libera! theory. A t the
2

m o r e restrictive proviso w o u l d rule out entirely.

3 . 4 Liberty

of Political

Culture

T h e ideal o f a self-reflective society is proposed here as a w a y o f f i l l i n g o u t b o x 4 i n figure 2. It is meant to give substance t o the n o t i o n o f a refined-actual decision s i t u a t i o n . O u r previous objections a p p l i e d to boxes 1-3, the brute-actual, b r u t e - h y p o t h e t i c a l , a n d refined-hypothetical alternatives. M y strategy is to propose a p a r t i c u l a r w a y of filling out this r e m a i n i n g category that aspires to satisfy our f o u r criteria for an acceptable theory. T o fit i n b o x 4 , a theory has to specify a refinement mechan i s m f o r preference development that is n o t merely imaginary,

outset, I have given this core a quite m i n i m a l i n t e r p r e t a t i o n . As we proceed, i w i l l argue that t a k i n g these liberties seriously is more demanding t h a n at first appears. We have already seen some of the reasons w h y the basis f o r this p r i n c i p l e is, at present, problematic. The most ambitious recent argument e x p l i c i t l y s u p p o r t i n g l i b e r t y R a w l s ' s argument f o r its " p r i o r i t y " r e q u i r e s a particular controversial theory of the g o o d , one that is n o t sustainable by his o w n assumptions about the restrictions o n choice i n the o r i g i n a l p o s i t i o n . As we

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saw earlier, i f the t h i n theory of the g o o d s really t h i n , i t cannot s u p p o r t such strong conclusions. B u t i f thicker theories are admissible, t h e n the d o o r has been opened to a variety of controversial, substantive theories, no one o f w h i c h , by itself, can be relied o n to p r o v i d e a firm basis f o r significant substantive principles. Scanion's argument f o r freedom of expression was s i m i l a r l y based o n a p a r t i c u l a r controversial ideal of i n d i v i d u a l development (aut o n o m y ) , one that he later abandoned f o r a balancing-of-nterests approach.-' Isaiah Berlin's fallibilist argument f o r liberty requires, f o r its defense, an explanation o f w h y our evaluation o f l i b e r t y is n o t equally fallible itself.
4

that w i e l d significant p o w e r i n the society (such as corporations, unions, and even universities) under the authoritative p r o t e c t i o n of the state (hence, the M a f i a , even i f p o w e r f u l , w o u l d n o t norm a l l y be one of the society's regulative institutions i n this sense). W h a t d o I mean by " u n m a n i p u l a t e d dialogue"? D i a l o g u e is reasoned debate designed to persuade o n grounds conscientiously believed by the participants to be valid and appropriate. For an act o f expression to contribute to p o l i t i c a l dialogue, its crucial normative and e m p i r i c a l premises must (a) be held w i t h c o n v i c t i o n by the actors and (b) be sufficiently exposed or open to analysis that they can be c r i t i c a l l y examined and debated by others. To merely defer to the judgment of Wise M a n X does n o t contribute to p o l i t i c a l dialogue, but rather forecloses i t . O n the other hand, to argue t h a t W i s e M a n X should be deferred to may be a c o n t r i b u t i o n i f its u n d e r l y i n g premises are exposed f o r debate and held w i t h conviction. C o n t r i b u t i o n s to p o l i t i c a l dialogue are not l i m i t e d to discursive prose. Conscientious p o l i t i c a l views can also be expressed effectively i n a r t , poetry, drama, and fictional w o r k s of various sorts. I n fact, such w o r k s may have a far greater effect o n their audiences t h a n conventional p o l i t i c a l debate. M a r k 1 w a i n ' s journalistic w r i t i n g s about racism were either censored o r i g n o r e d , but his novel Huckleberry Finn employed i r o n y to attack racism far m o r e p r o f o u n d l y . Similarly, John Dos Passos's journalistic w o r k o n the Sacco and Vanzetti case had little impact compared t o that of his novel U.S.A. (a far more searching argument that Sacco and
8

M o s t i m p o r t a n t . M i l l ' s theory is susceptible to v a r y i n g interpretations, each e x e m p l i f y i n g one of the approaches just m e n t i o n e d . " I n d i v i d u a l i t y " s a particular, controversial ideal o f h u m a n development, as is the " a u t o n o m y " that some commentators have f o u n d at the r o o t of M i l l ' s p o s i t i o n . O r is M i l l ' s ultimate
5

p r i n c i p l e u t i l i t a r i a n i s m , n w h i c h case the basis f o r l i b e r t y w o u l d seem t o be rendered insecure by the balancing of interests req u i r e d f o r consequentalist calculations? O r , i f the argument for l i b e r t y is the f a l l i b i l i s t one, as some passages suggest, w h y is i t not self-referential?
6

T h e issue can also be brought f u l l circle. I f the argument for l i b e r t y is that i t serves t r u t h , there is no reason offered for liberal states t o value t r u t h except that t r u t h , i n t u r n , serves u t i l i t y . H o w ever, this connection is n o t o n l y dubious n i m p o r t a n t cases, but i t aiso presupposes a p r i o r c o m m i t m e n t to u t i l i t a r i a n i s m w h i c h , especially i n M i l l ' s " d e a l " version, is an eminently avoidable u l t i mate c o m m i t m e n t f o r liberal theorists.
7

Vanzetti c o u l d n o t have received a fair t r i a l ) . I n these cases and countless others, a w o r k o f i m a g i n a t i o n can embody and express a p o l i t i c a l argument as f u l l y developed as any we m i g h t see i n conventional debate, but f o r m u l a t e d so as to have a greater i m p a c t o n the reader,
9

M y strategy w i l l be to recast the p r o b l e m i n terms of a selfreflective p o l i t i c a l culture: one that is significantly a result of unmanipulated dialogue. self-critical as A p o l i t i c a l culture is " s i g n i f i -

cantly s e l f - c r i t i c a l " w h e n the social practices defining its regulative i n s t i t u t i o n s are consistently subjected to widespread and conscientious c r i t i c i s m . By "regulative i n s t i t u t i o n s , " I mean the state (its components and representatives) and other institutions

I n the sphere of culture, this argument o n l y provides clear p r o tection f o r literature and art that is f o r m u l a t e d so as to contribute to p o l i t i c a l dialogue (in the b r o a d sense of " p o l i t i c a l " defined earlier). T h i s is, of course, a m a j o r l i m i t a t i o n . However, this essay

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secular-liberal

one k n o w s (or has g o o d reason to believe) that they are false, do not fail w i t h i n this argument, i t is an open question at this p o i n t whether o r n o t the state m i g h t impose penalties ( t h r o u g h , for example, the libel laws) to discourage such acts of expressionso long as they clearly fall outside the area o f protection for conscientious p o l i t i c a l v i e w s . ' Furthermore, by "conscientious v i e w s " 1
1

theory for f r e e d o m of p o l i t i c a l culture, i t remains an open quest i o n h o w the state should treat other creations of culture that have n o plausible p o l i t i c a l dimensions. However, because o f the potent i a l f o r abuse b u i l t i n t o any f o r m of censorship, once the case for f r e e d o m of political culture is granted, a basic p r e s u m p t i o n against other uses of censorship or p r i o r restraint should f o l l o w . We s h o u l d be skeptical of any i n s t i t u t i o n a l arrangements t h a t w o u l d p e r m i t government officials to determine whether w o r k s of art or literature contain the redeeming social content characteristic o f p o l i t i c a l dialogue. H o w e v e r , i t is undeniably the case that some i n f e r i o r w o r k s w h i c h are clearly p o l i t i c a l w i l l have a fundamental basis for p r o t e c t i o n w i t h i n this argument, w h i l e some other w o r k s o f " g r e a t " literature w i l l n o t . M a n y aesthetic criteria have n o t h i n g to do w i t h p o l i t i c a l culture, even w h e n this n o t i o n is interpreted broadly. I acknowledge this l i m i t a t i o n . M y a m b i t i o n here is to clarify a basis for the core of l i b e r t y ; other issues, undoubtedly i m p o r t a n t , w i l l have to a w a i t other efforts, perhaps e m p l o y i n g different strategies. R e t u r n i n g t o the central argument, w h a t do we mean by "tinm a n i p u l a t e d " dialogue? I w i l l approach this issue by defining t w o f o r m s of strong manipulation, one explicit, the other structural. Political dialogue w i l l be considered " u n r n a n i p u l a t e d " w h e n i t is n o t strongly manipulated i n either the e x p l i c i t o r the structural sense. T h e idea is t h a t dialogue should not be subjected t o s t r o n g m a n i p u l a t i o n w i t h i n the broad area of 'political" culture defined earlier. By e x p l i c i t m a n i p u l a t i o n , I mean the i m p o s i t i o n o f penalties because o f the content (actual or prescribed) of one's conscientious p o l i t i c a l views, whether held privately o r expressed p u b l i c l y (and w h e t h e r the f o r m o f expression, o r the manner of h o l d i n g the belief, be i n d i v i d u a l or i n association w i t h others).
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mean those f o r m u l a t e d so that they contribute (or w o u l d c o n t r i b ute i f expressed) t o p o l i t i c a l dialogue. W h a t does i t mean t o say penalties are imposed "because of the content (actual o r prescribed) of one's conscientious p o l i t i cal views"? mean ''actual or prescribed" f r o m the perspective of the state o r o f any other manipulator (as the m a n i p u l a t o r attempts t o determine w h a t one's actual views are o r o u g h t to be). So i f the state (or some other m a n i p u l a t o r ) concludes t h a t my views are objectionable and subjects me to penalties as a result, I have suffered f r o m explicit m a n i p u l a t i o n e v e n i f its conclusions about w h a t m y views happen to be should t u r n o u t to be incorrect. T h e attempt at m a n i p u l a t i o n is not removed f r o m the objectionable category merely because the state is incompetent i n d e t e r m i n i n g the true character of m y beliefs. Similarly, I include " p r e s c r i b e d " views w i t h i n " e x p l i c i t m a n i p u l a t i o n " because there are cases where the state (or some other m a n i p u l a t o r ) m i g h t be satisfied i f i t succeeded i n f o r c i n g insincere expressions of one's apparently conscientious p o l i t i c a l views (regardless o f any f u r t h e r investigations i n t o one's real views). If I face punishment unless I mislead others about m y real views, then the expression of my p o l i t i c a l views has also been subjected t o e x p l i c i t m a n i p u l a t i o n . Whether or n o t the state succeeds i n altering the real character of my conscientious beliefs, i f i t succeeds i n f o r c i n g me to misrepresent t h e m , i t has distorted the character of public debate available to us a l l . By the " i m p o s i t i o n " of penalties, I mean that penalties are b r o u g h t about (or are credibly threatened) i n v o l u n t a r i l y and/or coerciveiy. They are b r o u g h t about against one's w i l l and, i f necessary, t h r o u g h the use of force. By "penalties," I mean consequences

a m focusing o n

attempts to manipulate "conscientious p o l i t i c a l v i e w s " because i t is one's conscientious views o n public matters w h i c h contribute to p o l i t i c a l dialogue. M a l i c i o u s statements, offered v o l u n t a r i l y w h e n

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clearly and significantly adverse to one's interests as these can he determined w i t h respect t o the status quo to w h i c h one is entitled according to the relevant legitimate practices. Practices can be considered legitimate either because they satisfy all the conditions o f our argument o r because they are held to be legitimate, i n t u r n , by i n s t i t u t i o n s o r practices that d o satisfy our conditions. So, for example, the practices d e t e r m i n i n g relevant entitlements m i g h t be specified by the p o l i t i c a l system, and that system, i n t u r n , m i g h t be legitimated by o u r argument; or the relevant entitlements m i g h t be legitimated by the market and the market m i g h t be legitimated by the p o l i t i c a l system. Legitimate social practices define norms o f evaluation f o r act i o n i n p a r t i c u l a r cases, according to w h i c h some factors are relevant and others are irrelevant, i f one's conscientious views (includi n g one's views about one's o w n actions) are considered irrelevant t o the d e t e r m i n a t i o n o f outcomes according to a legitimate social practice, then the benchmark for d e t e r m i n i n g penalties or d a m ages to one's interests should also consider t h e m irrelevant. Let us begin w i t h a simple case of explicit m a n i p u l a t i o n . I f i a m jailed because of the content o f m y p o l i t i c a l opinions (or f o r associating w i t h others w h o h o l d similar opinions), then 1 have clearly been subjected to the k i n d of explicit m a n i p u l a t i o n that is unacceptable according to this argument. However, the issue o f d e t e r m i n i n g the appropriate status quo needs to be considered before we can k n o w w h a t counts as a " p e n a l t y . " T o take a t r i v i a l example, i f I express myself badly i n a debate tournament and for t h a t reason d o n o t w i n , I am worse off, but not worse off than I a m e n t i t l e d t o be (under the familiar practices defining w h a t we mean by a debate tournament}. N o t w i n n i n g the debate tournam e n t (or a prize o r a fellowship) because o f the w a y I express myself (orally o r i n w r i t i n g ) is not a " p e n a l t y " i f i t makes me no worse o f f than I a m entitled to be (as determined by the relevant legitimate practices). H o w e v e r , If I were really entitled to w i n but d i d n o t because o f a personal h i s t o r y of p o l i t i c a l views irrelevant t o the debate, then I w o u l d have been exposed, i n v o l u n t a r i l y , to

an unacceptable penalty resulting f r o m p o l i t i c a l discrimination.' O f course, i n particular, idiosyncratic cases, these factual issues are v i r t u a l l y impossible to investigate. This does n o t , however, undermine the general p r i n c i p l e . If content-related penalties are imposed o n conscientious opinions w i t h i n the realm of p o l i t i c a l culture, then that realm has been explicitly m a n i p u l a t e d . I specified earlier that if one's conscientious views are considered irrelevant to the determination of outcomes according t o a legitimate social practice, then the benchmark f o r d e t e r m i n i n g harms should also consider them irrelevant. Consider a Jewish merchant i n a largely Christian c o m m u n i t y faced w i t h an organized e f f o r t , directed at his particular business, for citizens to patronize o n l y " C h r i s t i a n " businesses. W h i l e we n o r m a l l y believe people can shop where they like, the practices defining market relations d o n o t regard private convictions o n religious or p o l i t i cal matters as relevant to d e t e r m i n i n g one's market entitlements o r one's o p p o r t u n i t i e s to compete i n the market. The merchant's business is m o r a l l y entitled t o equal consideration i n the marketplace regardless o f his private, conscientious views. I f the e f f o r t is sufficiently w e l l organized that his business suffers substantially as a result, then his conscientious views have been subjected to the penalties of e x p l i c i t m a n i p u l a t i o n . But this result should not
15

be surprising. O n the argument proposed here, a l l conscientious views i n the b r o a d sphere of p o l i t i c a l culture are protected f r o m e x p l i c i t m a n i p u l a t i o n . The only question arises i n d e t e r m i n i n g w h a t counts as a penalty. If we accept the interpretation of market entitlements suggested by these examples, then people and i n s t i t u t i o n s , i n c l u d i n g corporations, are entitled to equal consideration in the m a r k e t regardless of private convictions (of the i n d i v i d u a l s involved) w h i c h are irrelevant to their roles i n the market, i f t h a t is the case, t h e n b o y c o t t i n g t h e m f o r those private convictions must count as e x p l i c i t m a n i p u l a t i o n , regardless of h o w objectionable those convictions may be. O f course, o n l y an organized e f f o r t w i t h an e x p l i c i t target c o u l d be expected to have the significant effects w e are a t t r i b u t i n g to

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m a r k e t boycotts. M e r e advocacy

of the general benefits ( w h a t -

It is not all f o r m s of speech per se that we propose to protect under the banner of l i b e r t y of political culture. Rather, i t is cont r i b u t i o n s a c t u a l or p o t e n t i a l t o p o l i t i c a l dialogue. Freedom of p o l i t i c a l culture protects conscientious views and sincere, reasoned efforts to persuade others about them so long as they fall w i t h i n the sphere of the " p o l i t i c a l " defined earlier,
15

ever these m i g h t be presumed to be) of having only '"Christians" as merchants w o u l d not count as explicit m a n i p u l a t i o n . W h e n f o r m u l a t e d as a c o n t r i b u t i o n to p o l i t i c a l dialogue, such advocacy w o u l d , m fact, be protected by liberty of political culture. By contrast, the organized e f f o r t to punish the Jewish merchant f o r his private religious a f f i l i a t i o n w o u l d not have this p r o t e c t i o n (because i t w o u l d itself constitute e x p l i c i t m a n i p u l a t i o n ) , despite the fact t h a t speech w o u l d inevitably be a part of the behavior necessary to carry o u t such boycotts. N o t e t h a t this discussion applies to boycotts directed against i n d i v i d u a l s because o f their private convictions. T h e idea is that the practices defining the market entitle merchants to equal consideration i n the market regardless of their religious convictions. O n the other hand, those practices w o u l d not entitle corporations (or i n d i v i d u a l s ) t o equal consideration regardless of their in the market. activities If people object to an i n d i v i d u a l ' s or a corpora-

I t also p r o -

tects individuals j o i n i n g together to express themselvesto add voices to the p o l i t i c a l dialogue that m i g h t never get a hearing i f expressed by isolated individuals. But j o i n i n g together to c o n t r i b ute to p o l i t i c a l d i a l o g u e t o reasoned, conscientious debate on matters o f p u b l i c p o l i c y i s quite different f r o m j o i n i n g together to impose penalties o n identifiable individuals or groups merely because o f their conscientious views. 1'he freedom of the latter to remain free o f e x p l i c i t m a n i p u l a t i o n can be maintained w i t h out i n f r i n g i n g o n the freedom of the former to engage in p o l i t i c a l dialogue. B l a c k m a i l , larceny, and bank robbery d o not fall under the u m brella o f p r o t e c t i o n for l i b e r t y o f p o l i t i c a l culture, even though they may a l l require acts o f c o m m u n i c a t i o n . However, to say that various speech acts fall outside the area of required p r o t e c t i o n leaves it an open question whether the state should employ legal penalties ( c r i m i n a l or c i v i l ) to discourage them. [ d o not propose to develop a general theory of legal coercion and the c r i m i n a l law. M y argument i n this essay is l i m i t e d to the question of defining the sphere w i t h i n w h i c h a self-reflective p o l i t i c a l culture m i g h t flourish. One f u r t h e r c o m p l e x i t y should be noted. I defined " e x p l i c i t m a n i p u l a t i o n " as a p p l y i n g t o the i m p o s i t i o n of penalties f o r the content of one's conscientious p o l i t i c a l views " w h e t h e r the f o r m of expression or the manner of h o l d i n g the belief be i n d i v i d u a l or m association w i t h others." Thus far, we have focused p r i marily o n isolated i n d i v i d u a l s . But the freedom to associate can be equally i m p o r t a n t . First, groups and institutions can have an impact o n public debate far greater than w o u l d be possible for most isolated i n d i v i d u a l s . If such voluntarily organized, collective efforts were p r o h i b i t e d , some voices w o u l d be effectively silenced.

tion's market activities, a boycott does not violate our c r i t e r i a . M a r k e t activities, as opposed to private religious convictions, are n o t irrelevant to market activities. Hence, the Nestl boycott was sparked by the health effects o f that firm's m a r k e t i n g strategy tor i n f a n t f o r m u l a . O n this analysis, a f i r m is not entitled to equal consideration of its products i n the m a r k e t , regardless of its market activities. A boycott that d i d n o t violate any other rights w o u l d be entirely compatible w i t h our f r a m e w o r k . T h e l i m i t s o f e x p l i c i t m a n i p u l a t i o n are far f r o m obvious. For example, the mere fact of speech, even w h e n p o l i t i c a l l y relevant, does n o t b r i n g behavior w i t h i n the realm of freedom of p o l i t i c a l culture as defined here. As Kent Greenawalt notes: " B l a c k m a i l , e x t o r t i o n , and c r i m i n a l coercion . . . usually involve communicat i o n . C o m m u n i c a t i o n is a necessary or an almost inevitable element . . . i n p e r j u r y , i n larceny that depends o n t r i c k or f r a u d , and i n s o l i c i t a t i o n ; and i t usually plays a part i n armed robbery. Punishment f o r these activities has not been thought to raise serious c o n s t i t u t i o n a l difficulties. Yet, if a n y t h i n g constitutes speech, i t is e x p l i c i t verbal and w r i t t e n c o m m u n i c a t i o n s . "
14

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Second, the freedom to associate is crucial for the transmission o f conscientious views over t i m e p a r t i c u l a r l y f r o m one generation to the next. W i t h o u t i t , there are some forms of e x p l i c i t m a n i p u l a t i o n w h i c h may he resisted successfully by isolated i n d i v i d u a l s in the short t e r m , but w h i c h may w i n out over the long t e r m . I n the f o r m e r Soviet U n i o n , religious sects such as the Pentecostahsts suffered greatly f r o m the fact that their c h i l d r e n were effectively taken away f r o m t h e m .
16

T h r o u g h o u t h u m a n history, states have engaged i n e x p l i c i t man i p u l a t i o n . One o f the earliest systematic cases comes to us f r o m C h i n a , f r o m a h i s t o r i a n w r i t i n g t w o m i l l e n n i a ago about the first edict of the Q u i n ( C h ' i n ) emperor i n the t h i r d century B . C . : Ail books in the imperial archives except for the records of Quin should be burned; all persons under heaven, except learned scholars in the Academy, in possession of the B O O K O F O D E S , the B O O K O F H I S T O R Y and essays of the hundred schools of philosophers should take them to the magistrates and be burned; those who dare to talk to each other about the B O O K O F O D E S and the B O O K O F H I S T O R Y should he executed and their bodies exposed m the market; those who refer to the past to criticize the present should be, w i t h members of their families, put to death; officials who knowingly failed to report are guilty of the same crime; after thirty days from, time of issuing the decree, those who have not destroyed their books are to be branded and sent to build city walls; books not to be destroyed are those on medicine, pharmacy, divination, agriculture and horticulture; those who want to study edicts should be taught by officials.
18

Even if individuals resist repression o f

their conscientious beliefs i n their o w n lifetimes, i f the values for w h i c h they stand cannot be passed o n , groups e m b o d y i n g those values i n their ways of life may die o u t . I n that way, e x p l i c i t man i p u l a t i o n can have drastic effects over the long t e r m w h e n i t is directed at v o l u n t a r y efforts at association w i t h l i k e - m i n d e d persons to produce and influence the socialization o f the n e x t generation. F o r this reason, i interpret freedom of association to include the f r e e d o m to v o l u n t a r i l y f o r m and m a i n t a i n families and t o have substantial influence over the socialization o f o f f s p r i n g i n those families. T h i s does n o t , of course, make the families i m m u n e f r o m a l l forms o f coercive interference. First, w h e n the v o l u n t a r y a n d consensual character of a f a m i l y breaks d o w n , there may be grounds f o r interference by the state (or others) to p r o tect the rights or interests of some members. I t is the m u t u a l l y v o l u n t a r y f o r m a t i o n and maintenance of families that deserves p r o t e c t i o n w i t h i n freedom o f association. Second, I specified o n l y that families have a "substantial influence" over the socialization o f their o f f s p r i n g . W i t h i n this f r a m e w o r k , there is certainly r o o m f o r states t o intervene w h e n families monopolize the determinants o f socialization i n ways that d o serious h a r m to the c h i l d o r t h a t prevent the c h i l d f r o m being capable of assuming responsibilities i n a d u l t society. Hence, the state c o u l d certainly intervene i f a c h i l d were denied appropriate n u t r i t i o n o r medical care, o r the essential educational prerequisites f o r p a r t i c i p a t i o n i n the p o l i t i c a l and economic life o f a d u l t society.
17

T h e Q u i n dynasty, despite its b r u t a l suppression o f all o p p o s i t i o n , lasted o n l y fourteen years. Its most notable m a r k i n h i s t o r y was n o t the b u i l d i n g of the Great W a l l , b u t the attempt to erase all history, a l l freedom of t h o u g h t . O u r knowledge o f these distant events comes f r o m the great Chinese h i s t o r i a n Ssu-ma C h ' i e n (SiM a - Q u i a n ) , w h o was himself castrated f o r c o n t r a d i c t i n g a later emperor ( H a n W u - D i ) . I t was surely this k i n d of c o n t r o l over freedom of t h o u g h t that led John Stuart M i l l , i n the essay On Liberty, t o conclude t h a t " w e have a w a r n i n g example i n C h i n a " about the social consequences of suppressing intellectual f r e e d o m : " T h e y have become stationaryhave remained so for thousands of years . . . . They have succeeded beyond a l l hope . . . i n m a k i n g a people a l l alike, all governing their thoughts and conduct by the same m a x i m s and rules; and these are the f r u i t s . "
1 9

These l i m i t a t i o n s are modest

E x p l i c i t m a n i p u l a t i o n imposes penalties, n o t o n l y o n particular i n d i v i d u a l s , b u t also, w h e n carried out systematically, o n entire societies, i n the interests o f m a i n t a i n i n g those i n power, such s o d -

e n o u g h , however, to leave w i d e l a t i t u d e f o r families to t r a n s m i t their conscientious views f r o m one generation to the next.

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eties b l i n d themselves to the possibility of self-improvement or self-reflective re-examination. W i t h i n our f r a m e w o r k , their practices cannot satisfy the conditions f o r solving the legitimacy p r o b lem because any consensus s u p p o r t i n g t h e m must be suspect. A n y such consensus has n o t passed the test of se If-reflective p o l i t i cal dialogue, a test that c o u l d give us confidence i n the k i n d of scrutiny i t has survived. T h u s far, we have focused only on e x p l i c i t m a n i p u l a t i o n . H o w ever, public dialogue can be subjected to strong m a n i p u l a t i o n w i t h o u t any recourse to coercion or penalties. Crucial voices may f a i l t o achieve an effective hearing w i t h o u t i t being necessary f o r any voices t o be silenced. The same result may f o l l o w w i t h o u t anyone being penalized f o r speaking: i f the relevant voices d o not w i s h t o speak, i f they d o n o t have an o p p o r t u n i t y to be heard, o r i f the relevant audiences have learned not to listen. I n these three m a i n ways, effects s i m i l a r to those o f e x p l i c i t m a n i p u l a t i o n may be achieved w i t h o u t any penalties actually being imposed or threatened against anyone w i t h i n the sphere o f p o l i t i c a l c u l ture. I n this sense, a v o i d i n g e x p l i c i t m a n i p u l a t i o n is n o t enough to guarantee meaningful freedom of p o l i t i c a l culture. T o cover these cases, a second f o r m of strong m a n i p u l a t i o n needs t o be specified. Because i t concerns the structure o f c o m m u n i c a t i o n , rather than e x p l i c i t acts of m a n i p u l a t i o n , I w i l l call i t structural manipulation. I n some ways i t may seem misleading to call i t m a n i p u l a t i o n at a l l , since i t may w e l l occur w i t h o u t a n y b o d y consciously p l a y i n g the role o f manipulator. B u t just as some situations may be structured i n a coercive manner w i t h o u t a n y b o d y consciously p l a y i n g the role of coercer, " some situations
2

structural m a n i p u l a t i o n . A n effective voice is one that is w i d e l y disseminated and t h a t people are prepared t o , and capable of, substantially evaluating o n its merits (rather than merely o n the basis of the source).
21

T h e difficulty, o f course, is t h a t i t is n o t clear, at

least at first glance, h o w such an effective voice can be guaranteed. N o t e , first, that whatever the difficulties of i m p l e m e n t a t i o n , the c r i t e r i o n at least gives us a n o t i o n o f w h a t voices are crucial to the dialogue's being self-reflective rather than suspect. Second, the strategy f o r achieving a self-reflective p o l i t i c a l culture w i l l often be indirect. I t w i l l focus o n altering background conditions for the development o f practices and preferences. I t need n o t be the direct result of p o l i c y choice. Clearly, i n this case, structural man i p u l a t i o n w i l l only be avoided w h e n the background conditions are adjusted, i n an o n g o i n g society, so that a culture of patory civility particihas been achieved. I n such a culture, people w i l l

participate and listen (and be capable of listening) o n the merits. Setting aside, f o r the m o m e n t , the issue o f background c o n d i tions, let us consider the dangers of strong m a n i p u l a t i o n . M a n i p u lated debate i n either of our t w o senses deserves to be distrusted. W h a t confidence can we have i n any p o l i t i c a l p r o p o s i t i o n w h e n critics o f i t have been silenced? O r w h e n crucial interests, reflecting any o f the m a i n cleavages i n the society, have been shut out? Ef there is a consensus, under such conditions o f m a n i p u l a t i o n , it must be suspect. It is suspect because we cannot k n o w h o w it w o u l d generally be evaluated if the challenging voices had not been suppressed. W h e n crucial interests or contrary voices are suppressed, the c l a i m o f p o l i t i c a l institutions to make rational demands u p o n us has been c o m p r o m i s e d . It is compromised because, w i t h i n our f r a m e w o r k , the c l a i m to r a t i o n a l i t y depends u p o n those i n s t i t u tions and practices being supported by a consensus that survives unmanipulated self-scrutiny. We cannot k n o w h o w a consensus w o u l d survive contrary voices i f there are none. We cannot k n o w whether, i f some crucial interest had been given effective voice, s u p p o r t across a m a i n cleavage m i g h t have disappeared. We can-

m a y be structured i n a manner that has the effect of m a n i p u l a t i o n , w i t h o u t anyone consciously p l a y i n g the role of m a n i p u l a t o r . W i t h this t e r m i n o l o g i c a l caveat i n m i n d , we can define structural manipulation. T h e basic idea is t h a t effective across every significant voice must be given to interests cleavage in the society. W h e n this effective

voice is denied, then the p o l i t i c a l dialogue has been subjected to

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n o t k n o w the degree to w h i c h acts of m a n i p u l a t i o n (or the tolerat i o n o f structural m a n i p u l a t i o n ) are self-serving. T h e capacity of the system (and those acting w i t h i n it) to evaluate itself has been severely i m p a i r e d . T h e c l a i m o f the p o l i t i c a l practices to survive rational evaluat i o n is o n l y vindicated w h e n threatening voices and crucial interests o b t a i n the requisite hearing. A f t e r such a hearing, i f we should conclude t h a t the contrary arguments are mistaken, or even r i d i c u lous, w e are likely to have benefited f r o m t h e m , nonetheless. We w o u l d then get w h a t M i l l called " t h e clearer perception and livelier impression o f t r u t h , produced by its collision w i t h e r r o r . "
2 2

tre arguing t h a t l i b e r t y of political culture is necessary if we are to have any confidence i n certain particular p o l i t i c a l " t r u t h s , " and that h a v i n g confidence i n just those particular p o l i t i c a l " t r u t h s " is part of the s o l u t i o n to the legitimacy p r o b l e m . As I noted earlier, p o l i t i c a l practices that can justifiably determine obligations o f all members provide a basis f o r solving the legitimacy p r o b l e m . But members are obligated t o s u p p o r t p o l i t i cal practices o n l y if they are of a k i n d that i t is reasonable for t h e m to accept. I a m t a k i n g the p o s i t i o n here that, at least w i t h i n ideal theory, i t is reasonable t o accept only political practices that have passed a certain test of r a t i o n a l i t y o f self-critical ree x a m i n a t i o n . T h a t test is that the consensus about t h e m must survive the self-reflective scrutiny of w h a t we have been calling unmanipulated debate. Once the debate is m a n i p u l a t e d , then the political practices protected by such m a n i p u l a t i o n are suspect i n their r a t i o n a l i t y . If the practices are suspect, then i t is no longer reasonable i n the same w a y for us to accept them. As a matter of expediency, under less-than-ideal conditions, we may w e l l be forced t o accept them. But the c l a i m of the system to p r o v i d e a f u l l solution t o the legitimacy p r o b l e m w o u l d have been undermined. A c c o r d i n g to the ideal proposed here, a political culture is "self-reflective" w h e n i t provides the collective conditions f o r its o w n rational self-evaluation. We should be suspicious of the selfevaluation o f any other f o r m of political culture. The h a n d of the state is heavy o n most citizensdemanding m o r a l deference i n the name of allegiance and p a t r i o t i s m . The latter qualities may be admirable, even i n a self-reflective p o l i t i c a l c u l t u r e b u t only w h e n care is taken to separate t h e m f r o m u n t h i n k i n g obedience and f r o m the surrendering of self-critical capacities. ''
2

M o s t i m p o r t a n t , i f the dialogue takes place free o f s t r o n g m a n i p u l a t i o n , any consensus that survives has a basis f o r m a k i n g a r a t i o n a l c l a i m u p o n us. Strong m a n i p u l a t i o n w o u l d rob us o f one of the necessary conditions f o r reasonably having confidence i n those propositions. W h i l e M i l l ' s argument was o n l y f o r m u l a t e d to deal w i t h w h a t we have called e x p l i c i t m a n i p u l a t i o n , his general p o i n t is relevant: " T h e r e is the greatest difference between p r e s u m i n g an o p i n i o n to be true, because, w i t h every o p p o r t u n i t y f o r contesting i t , i t has n o t been refuted, and assuming its t r u t h f o r the purpose o f n o t p e r m i t t i n g its refutation. Complete l i b e r t y o f c o n t r a d i c t i n g and d i s p r o v i n g our o p i n i o n is the very c o n d i t i o n w h i c h justifies us i n assuming its t r u t h f o r purposes o f a c t i o n ; and o n n o other terms can a being w i t h h u m a n faculties have any r a t i o n a l assurance of being r i g h t . "
2 3

i w i l l rely o n this basic insight o f M i l l ' s i n the argument f o r l i b e r t y o f p o l i t i c a l culture. H o w e v e r , by the "complete l i b e r t y o f c o n t r a d i c t i n g and d i s p r o v i n g our o p i n i o n , " we mean something more d e m a n d i n g than the liberties of t h o u g h t and discussion defended i n M i l l ' s essay.
24

A self-reflective

p o l i t i c a l culture defines certain

far-reaching

Nevertheless, M i l l ' s insight here is central and far-reaching. I t p e r m i t s a different slant than the one c o m m o n l y taken o n w h a t we have been calling the legitimacy p r o b l e m . Instead of arguing t h a t l i b e r t y o f t h o u g h t and discussion are instrumental to t r u t h , i n general, and that t r u t h , i n general, is instrumental to u t i l i t y ,
25

conditions o f l i b e r t y , conditions under w h i c h a society's members are free f r o m a l l forms o f strong m a n i p u l a t i o n of their conscientious p o l i t i c a l views. T h a t this requirement is distinctive can be seen f r o m c o m p a r i n g i t to the most c o m m o n f o r m u l a t i o n of liberty o f p o l i t i c a l t h o u g h t and discussion. Consider w h a t m i g h t

we

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be called a m i n i m a l , or laissez-faire, c o n s t r u c t i o n : no significant coercive interference w i t h the liberty of individuals to express p o l i t i c a l o p i n i o n s , h o l d p o l i t i c a l beliefs, or associate v o l u n t a r i l y together for those same purposes. By " n o significant" coercive interference, I do n o t mean t o rule out time, place, and manner restrictions used sparingly enough so as not to affect the basic character o f p o l i t i c a l debate. T h e laissez-faire v i e w is a close cousin to the one developed here. T h e most obvious connection is that coercive interferences w i t h p o l i t i c a l expression, belief, or association w i l l count as exp l i c i t m a n i p u l a t i o n s o f the p o l i t i c a l culture i n the sense defined earlier. Penalties imposed o n people (individually or collectively) for expressing or h o l d i n g certain beliefs w i l l either silence voices i n the debate t h r o u g h sheer coercion or silence t h e m t h r o u g h i n t i m i d a t i o n and self-censorship (conducted under threat o f coerc i o n ) . T h e requirement that a self-reflective p o l i t i c a l culture f o r g o e x p l i c i t m a n i p u l a t i o n is sufficient, by itself, to yield significant liberties.
27

people are i n d o c t r i n a t e d to demand . . . to buy and to vote f o r . . . n o t h i n g other than w h a t a decision-making elite is already disposed to grant t h e m . T h e volitions that are supposed t o guide leaders are f o r m e d by the same leaders." The key to w h a t L i n d b l o m calls " i n d o c t r i n a t i o n " is its " l o p s i d e d " character. It is " n o t the m u t u a l persuasion of liberal democratic aspiration b u t a l o p sided, sometimes nearly unilateral persuasion by business, governmental and p o l i t i c a l leadership directed at o r d i n a r y citizens w h o do n o t themselves easily c o m m a n d , as leaders d o , the services of p r i n t i n g and b r o a d c a s t i n g . " '
21

There is no need for us here to enter the fierce empirical debate about the extent to w h i c h this k i n d of c i r c u l a r i t y applies to the U.S. or to any other m a j o r Western democracy. ' A t the very least,
3 1

it is, theoretically, a t r o u b l i n g possibility, one that is clearly c o m patible w i t h the m i n i m a l , laissez-faire construction of p o l i t i c a l liberties. W i t h o u t any resort to coercive interference i n p o l i t i c a l expression, belief, or association, it is possible for some groups to speak, as i t were, so l o u d l y and so m u c h as to deny an effective hearing to contrary voices. Hence, the negative guarantees embodied i n the m i n i m a l , laissez-faire conception d o n o t , by any means, ensure the c o n d i tions for a self-reflective p o l i t i c a l culture. They do block the coercive interference that c o u l d be achieved by e x p l i c i t m a n i p u l a t i o n . However, those guarantees d o n o t h i n g to prevent the other f o r m of s t r o n g m a n i p u l a t i o n discussed above: they d o n o t h i n g t o ensure an effective hearing f o r other crucial voices, voices representing interests across the m a i n cleavages i n the society. Somehow, the possibility of structural m a n i p u l a t i o n has t o be ruled o u t w i t h o u t the remedy itself t a k i n g the objectionable f o r m of strong m a n i p u l a t i o n . The k i n d of l i b e r t y guaranteed by the laissez-faire v i e w w o u l d protect i n d i v i d u a l s , groups, o r institutions acting v o l u n t a r i l y , but i n concert, so as to d r o w n o u t a l l o p posing voices. Instead of e m p l o y i n g the b l u n t t o o l o f coercion to silence voices i n the chorus that w o u l d otherwise predominate, the state should attempt to create forums and positive incentives for

O f course, i t is not enough that the state r e f r a i n f r o m acts of coercion intended to silence people. If the state fails to protect i n d i v i d u a l s o r groups f r o m t h i r d - p a r t y efforts to i n t i m i d a t e or silence p o l i t i c a l expression or the h o l d i n g of certain p o l i t i c a l beliefs, the same p r o b l e m of e x p l i c i t m a n i p u l a t i o n arises. V i g i l a n t e groups may silence u n p o p u l a r views as effectively as may official a c t i o n . Less obviously, job d i s c r i m i n a t i o n based o n p o l i t i c a l belief or p o l i t i c a l expression may have equally devastating effects. I f I a m threatened w i t h f i r i n g , or i f i am denied the equal considera t i o n i a m entitled to i n the job market because my ideological v i e w s (irrelevant to the job at issue) p r o m p t employment d i s c r i m i n a t i o n , m y l i b e r t y to express and/or h o l d p o l i t i c a l opinions has been interfered w i t h , coercively.
28

H o w e v e r , this m i n i m a l , or laissez-faire, construction is clearly insufficient to b r i n g about a self-reflective p o l i t i c a l culture. C o n sider the possibility raised forcefully by C. E. L i n d b l o m t h a t d e m o cratic systems are vulnerable to " c i r c u l a r i t y " : " I t may be that

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p o l i t i c a l d i a l o g u e p a r t i c u l a r l y for crucial interests that w o u l d n o t otherwise achieve an effective hearing. I n this sense, a more activist l i b e r t y o f p o l i t i c a l culture is required. But is n o t intervening actively i n this way itself a f o r m of m a n i p u l a t i o n by the state? W h i l e i t m i g h t be labeled m a n i p u l a t i o n by some, it is n o t a f o r m of strong m a n i p u l a t i o n i n the sense defined here. N o voices are suppressed, no crucial interests are shut out of the dialogue. If the state intervenes to create forums or positive i n centives f o r the expression o f opposing views, it is not a t t e m p t i n g to manufacture consensus a r o u n d a preferred conclusion. Rather, it is preventing us f r o m a d o p t i n g views prematurely, before there has been an a i r i n g of contrasting voices and o f crucial interests. T h e t e r m intervention should not be misunderstood. I use i t only t o distinguish the activist conception f r o m the merely laissezfaire, o r m i n i m a l , conception o f liberty o f p o l i t i c a l culture. It does n o t i m p l y t h a t the government should f o l l o w every debate and intervene directly to balance o u t the dialogue based o n its j u d g ment o f p r e d o m i n a n t messages about any particular issue. N o t o n l y is such a system n o t required; it w o u l d be extremely u n likely to operate w e l l or to facilitate the goal of a self-reflective p o l i t i c a l culture. The very fact that public debate was k n o w n to be under official scrutiny, f o r whatever putative reasons, w o u l d likely have a c h i l l i n g effect o n the more extreme f o r m s o f dissent o r c r i t i c i s m . As a matter of i n s t i t u t i o n a l design, we should distrust efforts by public officials to e x p l i c i t l y manage o r c o n t r o l the content o f p o l i t i c a l dialogue. O n any realistic construction, they have t o o m u c h at stake for their self-interest not to affect the results, covertly if n o t insidiously. T h i s caution should be applied even if their mandate were to free dialogue f r o m all forms of s t r o n g m a n i p u l a t i o n , b o t h e x p l i c i t and s t r u c t u r a l . Rather, the strategy should be to create certain general practices i n the operation o f the media and of the public spaces open f o r p o l i t i c a l debate. O v e r the l o n g t e r m , these practices should be designed to facilitate the openness o f f o r u m s and positive incentives i n those f o r u m s f o r o p p o s i n g views a n d f o r the representation of crucial interests.

But w h y l i m i t these general interventions to positive incentives and other adjustments m background conditions? If a selfreflective p o l i t i c a l culture is so i m p o r t a n t , w h y n o t just threaten or coerce everyone t o participate so as to produce one? There are t w o obvious objections. First, we cannot expect to achieve a f o r m of p o l i t i c a l culture untarnished by strong m a n i p u l a t i o n by threatening people w i t h coercive penalties whose a p p l i c a t i o n , i n many cases, w i l l constitute strong m a n i p u l a t i o n in the e x p l i c i t sense. Second, our goal is a p o l i t i c a l culture that is self-reflective i n its political dialogue. By " d i a l o g u e " I mean the expression of conscientious, reasoned debate o n grounds sincerely believed to be valid and appropriate by its participants. As a matter of i n s t i t u t i o n a l design, i t is unrealistic to expect coercion, threats, and i n t i m i d a t i o n t o produce m u c h conscientious debate i n this sense. A p a r t f r o m some p r i n c i p l e d resistance, this k i n d o f brute interference is likely to produce only cynical or self-serving efforts to avoid whatever penalties are feared. Let us attempt to f o r m u l a t e , i n greater detail, w h a t is distinctive about the activist conception of liberty of p o l i t i c a l culture. U n l i k e the laissez-faire conception, the activist conception is not merely negative. It does not consist entirely i n p r o h i b i t i o n s o n interferences w i t h the h o l d i n g o r expressing of p o l i t i c a l beliefs for of people associating together f o r either purpose). W h i l e the activist conception gives a major role to such guarantees, sole reliance o n t h e m w o u l d leave the system vulnerable to " c i r c u l a r i t y , " indoct r i n a t i o n , and patterns by w h i c h the interests o f certain groups o r institutions p r o m p t t h e m to d r o w n out their o p p o s i t i o n , effectively s h u t t i n g crucial interests out of the c o n t i n u i n g dialogue. For this reason, I have posited the need f o r incentives, f o r u m s , and forms of access f o r p o l i t i c a l dissent if a self-reflective p o l i t i c a l c u l ture is t o be achievedif, i n other w o r d s , the p o l i t i c a l culture is to become significantly self-critical as a result of unmanipulated debate. O f course, this goal may strike some people, at the outset, as bizarre. W h y should critics even be p e r m i t t e d , m u c h less encour-

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aged, by official design? A c o m m o n v i e w is that the state can pursue its goals more efficiently i f meddlesome critics are o u t of the w a y . B u t w i t h o u t c r i t i c s a n d the self-reflective p o l i t i c a l c u l ture they help createone must be suspicious of the state's goals and o f the processes by w h i c h those goals have been d e t e r m i n e d in the first place. O f course, agonized self-reflection is no substitute for a c t i o n . B u t the p r e s c r i p t i o n f o r a self-reflective political culture does n o t preclude a design f o r p o l i t i c a l institutions p e r m i t t i n g s w i f t a c t i o n w h e n circumstances require i t . O f necessity, c r i t i c i s m w i l l o f t e n be retrospective rather than prospective, i n any case, we have said very little thus far about the structure of p o l i t i c a l decision m a k i n g . T h e self-reflective argument is n o t intended to produce a b l u e p r i n t f o r the best l i b e r a l institutions. Rather, i t is meant to single o u t certain distinctive features o f an ideal liberal statefeatures that w o u l d p e r m i t a f u l l s o l u t i o n to the legitimacy p r o b l e m . Suppose, however, that a l l forms of strong m a n i p u l a t i o n are e l i m i n a t e d but no criticisms o f the system result. Political theorists and social planners finally t h i n k up the perfect system and get i t a d o p t e d . O u r d e f i n i t i o n of a self-reflective p o l i t i c a l culture requires t h a t i t be consistently self-critical t h r o u g h u n m a n i p u l a t e d debate. Suppose that u n m a n i p u l a t e d debate produces no c r i t i cism. A r e we then i n the p o s i t i o n of c l a i m i n g that such a system must be worse precisely because i t is so perfect as to be beyond criticism? W i t h M i l l , I assume that the e m p i r i c a l concomitant of significant freedom o f t h o u g h t is diversity of o p i n i o n o n the f u l l range o f questions t o u c h i n g o n o u r d e f i n i t i o n of the p o l i t i c a l . Hence, perfect agreement t h a t a system was beyond c r i t i c i s m w o u l d i n itself constitute p o w e r f u l evidence that meaningful freedom o f t h o u g h t had n o t been achieved. Hence, w i t h o u t suppression of freedom o f t h o u g h t , we can assume t h a t there w i l l always be c r i t i c a l voices w h i c h c o u l d be given an o p p o r t u n i t y t o contribute to self-reflective dialogue, to the system's capacity to examine itself. If we do away w i t h b o t h forms o f

s t r o n g m a n i p u l a t i o n , then these conscientious criticisms can get aired. If the consensus s u p p o r t i n g the system's p o l i t i c a l practices can m a i n t a i n itself i n the face of the resulting self-critical examin a t i o n , t h e n that consensus has a reasonable c l a i m to a u t h o r i t y over us.

3.5 The Conditions

of Activist

Liberty

In A n t h o n y Trollope's novel Phineas Finn, the protagonist, w h o has spent his p o l i t i c a l career arguing for greater democracy, is put up as the candidate for L o u g h t o n , a rotten b o r o u g h controlled by the E a r l of B r e n t f o r d . T r o l l o p e describes his first visit to the borough: Each individual man of Loughton then present took an opportunity during the meeting of whispering into M r . Finn's ear a word or two to show that he also was admitted to the secret councils of the borough,that he too could see the inside of the arrangement. " O f course we must support the Earl," one said. "Never mind what you hear about a Tory candidate, M r . Finn," whispered a second; "the Earl can do what he pleases here." And it seemed to Phineas that it was thought by them all to be rather a fine thing to be thus held in the hand by an English nobleman. Phineas could not but reflect upon this as he lay in his bed at the Loughton inn. The great political question on which the political world was engrossed up m London was the enfranchisement of Englishmen,of Englishmen down to the rank of artisans and laborers;and yet when he found himself in contact w i t h individual Englishmen, with men even very much above the artisan and the labourer, he found that they rather liked being bound hand and foot, and being kept as tools in the political pocket of a rich man. Every one of those Loughton tradesmen was proud of his own personal subjection to the Earl!
1

W h e n Phineas later remarks, " T h e y a l l seemed to be very o b l i g i n g , " the earl replies: "Yes they are. There isn't a house i n the t o w n , y o u k n o w , let for longer than seven years, and most of them merely f r o m year to year. A n d , do you k n o w , I haven't a farmer o n

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the p r o p e r t y w i t h a lease,not one; and they d o n ' t w a n t leases. They k n o w they're safe. But i d o like the people r o u n d me to be of the same way of t h i n k i n g as myself about p o l i t i c s . " ' T h e a w k w a r d situation i n w h i c h Phineas finds himself is e m blematic of a challenge facing us at this stage i n o u r argument. T r o l l o p e confronts us w i t h a p o l i t i c a l culture distorted by client a l i s m a n d deference. N o m i n a l l y equal liberties arc e m p t i e d of any m e a n i n g f u l content by the spillover effects of economic and social inequalities. Yet the participants in this drama enjoy, f o r the most part, f o r m a l rights to legal and p o l i t i c a l e q u a l i t y r i g h t s that are clearly insufficient to yield a self-reflective p o l i t i c a l c u l ture i n o u r sense. O u r p r o b l e m is to determine w h a t a d d i t i o n a l adjustments i n b a c k g r o u n d conditions w o u l d be necessary to banish the specter of the E a r l o f B r e n t w o o d f r o m liberal-democratic institutions. T h e earl's remarks suggest the beginnings of a response t o this challenge. Using an economic threat directed at his tenants' votes w o u l d constitute e x p l i c i t m a n i p u l a t i o n i n our sense, j u s t as the " B u y C h r i s t i a n " boycott against the Jewish merchant i n o u r earlier example employed coercive penalties against conscientious religious views, the threat o f eviction i f one docs not vote accordi n g to the earl's preferences w o u l d constitute a similar i n t r u s i o n o f p o l i t i c a l m a n i p u l a t i o n o n t o market relations, i n b o t h cases, the status q u o against w h i c h penalties are to be judged s h o u l d be defined independently o f one's conscientious views. Once the p o w e r o f e x p l i c i t m a n i p u l a t i o n is removed, it is an open question h o w l o n g the p o l i t i c a l culture o f the borough can be d o m i n a t e d so easily. A number o f other factors i n the design of b a c k g r o u n d c o n d i t i o n s can be specified that, together, w o u l d encourage diversity and m e a n i n g f u l p a r t i c i p a t i o n . O r , at least, o u r task i n this section is to explore adjustments i n background conditions that, together, make i t reasonable t o assume that this sort of counterexample w o u l d be ruled out. B u t the example also poses a challenge of a second k i n d . M y c o n t e n t i o n that the earl's behavior constitutes e x p l i c i t m a n i p u l a t i o n depends o n an i n t e r p r e t a t i o n of market relations that holds

p o l i t i c a l beliefs to be irrelevant. People have a r i g h t to be treated i n the market i n a manner that is independent of their conscientious beliefs i n the sphere of p o l i t i c a l culture. H o w e v e r , suppose that the right of the earl to dictate politics in the b o r o u g h was w i d e l y accepted- and, f u r t h e r m o r e , that s i m i lar prerogatives o f noblemen were the generally accepted practice t h r o u g h o u t the society. W o u l d that legitimate the practice, accordi n g to o u r proposal? O r , at least, w o u l d i t not vitiate m y c l a i m that the a p p r o p r i a t e benchmark f o r j u d g i n g a penalty was defined by market relations as they w o u l d exist w i t h o u t any reference to politics? T h e answer to the first question is clearly no. For the ideal of a self-reflective society to legitimate a given social practice, many c o n d i t i o n s i n a d d i t i o n to its being w i d e l y accepted must be satisfied. A m o n g other factors, it should be obvious that our self-reflective c o n d i t i o n w o u l d pose a major obstacle. Even i f such a practice were w i d e l y accepted, there is no reason t o believe i t w o u l d m a i n t a i n its legitimacy i n the face of the k i n d o f u n m a n i p u lated, c r i t i c a l scrutiny required by our argument. B u t there is a second reason for believing that such a pract i c e l e t us call i t p o l i t i c a l c l i e n t a l i s m c o u l d n o t be legitimated by a self-reflective p o l i t i c a l culture. N o t o n l y is i t n o t likely to be accepted after being subjected to t h o r o u g h g o i n g c r i t i c i s m of the k i n d r e q u i r e d for a self-reflective p o l i t i c a l culture. I t is incompatible w i t h the k i n d of u n m a n i p u l a t e d , critical dialogue required to produce a self-reflective political culture i n the first place. T h e i n c o m p a t i b i l i t y stems f r o m the fact that i f clientalism were established as an accepted practice, i t w o u l d institutionalize s t r o n g m a n i p u l a t i o n i n our second sense. I t w o u l d freeze out any effective voice f o r the interests at stake i n the d i v i s i o n between p a t r o n and clients. W i t h such a practice i n place, people w o u l d not be prepared to speak, and those few w h o w o u l d speak w o u l d find that their p o t e n t i a l audience had learned not t o listen. I n either case, clientalism w o u l d prevent the interests of the subordinate groups f r o m g e t t i n g an effective hearing. Hence, i f clientalism were institutionalized, it m i g h t prevent us

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f r o m classifying its practices as explicit m a n i p u l a t i o n (because the practices i n question w o u l d no longer regard p o l i t i c a l o p i n i o n s as irrelevant to the d e t e r m i n a t i o n of benchmarks against w h i c h changes w o u l d constitute penalties), but those practices w o u l d , nevertheless, count as strong m a n i p u l a t i o n i n our second sense of structural manipulation. T h i s dramatic but a d m i t t e d l y isolated case brings i n t o relief the fact that, at this stage i n the argument, we need to focus o n choices a m o n g alternative possible practices that m i g h t facilitate a self-reflective p o l i t i c a l culture. We cannot rest content w i t h merely r u l i n g out certain forms of coercion or interference if we are to give content and plausibility to the n o t i o n of a self-reflective p o l i t i c a l culture. Isaiah Berlin's d i s t i n c t i o n between positive and negative l i b e r t y , w h i l e i n some respects a s i m p l i f i c a t i o n , helps us focus o n the difference between w h a t m i g h t be called the laissezfaire and the activist conceptions of liberty.- T h e laissez-faire con!

t i c i p a t i o n . By background conditions, I mean the basic social practices m the society d e t e r m i n i n g the d i s t r i b u t i o n of valued goods or characteristics. O n this b r o a d d e f i n i t i o n , background c o n d i tions i n c o n t e m p o r a r y A m e r i c a n society w o u l d include market relations, patterns o f f a m i l y relations, the educational svstem, and the system of entitlements and obligations (affecting alt three of the above) characterizing the m o d e r n welfare state. The system of c r i m i n a l justice, and the practices governing access to the p o l i t i cal system and to the mass media, w o u l d also q u a l i f y as backg r o u n d c o n d i t i o n s . They are alt social practices that determine the d i s t r i b u t i o n of valued goods or characteristics (jail sentences, p o l i t i c a l power, social esteem, money, and so o n ) . For our pur5

poses, we need n o t develop an exhaustive list o f the basic social practices d e f i n i n g background conditions; we need o n l y focus o n those b a c k g r o u n d conditions that m i g h t plausibly play a role i n i m p l e m e n t i n g the activist conception. T h e activist conception of liberty requires that background conditions be adjusted n o n m a n i p u la lively to ensure widespread, m e a n i n g f u l p a r t i c i p a t i o n i n the process of p o l i t i c a l dialogue and t o ensure freedom f r o m strong m a n i p u l a t i o n (in either sense). By " n o n m a n i p u l a t i v e l y , " I mean the adjustments should proceed w i t h o u t e m p l o y i n g strong m a n i p u l a t i o n . O u r task at this p o i n t is n o t t o provide a b l u e p r i n t for the selfreflective society. Rather, i t is to address a p r i o r issue; whether the ideal of a self-reflective society is hopelessly Utopian, or whether it m i g h t be achievable under conditions that are realistic f o r a m o d e r n , developed society, at least under favorable conditions. D e f e n d i n g the latter possibility is the main task r e m a i n i n g to us. I propose to d o so by o u t l i n i n g a general strategy for implementat i o n and by i n t r o d u c i n g t w o examples of the k i n d of i n s t i t u t i o n a l i n n o v a t i o n that w o u l d be necessary: the representation voucher and the deliberative o p i n i o n p o l l . M y suggestions constitute a research agenda rather than a b l u e p r i n t , but I hope to demonstrate t h a t the u l t i m a t e goal is a reasonable aspiration. W e need to establish t h a t i t m i g h t be possible to achieve mass

ception is negative i n that i t offers freedom from

certain k i n d s

o f i n t e n t i o n a l interference w i t h p o l i t i c a l d i a l o g u e f r e e d o m f r o m the i m p o s i t i o n of penalties t h r o u g h w h a t we have been c a l l i n g explicit manipulation. H o w e v e r , w i t h o u t e x p l i c i t m a n i p u l a t i o n , a p o l i t i c a l culture may fail to be "self-reflective" i n various ways. I m p o r t a n t groups or crucial interests may lack the self-esteem, the resources, the i n c l i n a t i o n , or the o p p o r t u n i t y to voice their interests. The activist conception proposes to attack these problems obliquely adjustments i n b a c k g r o u n d conditions. One reason f o r attacking these problems obliquely is that i t w o u l d be v i r t u a l l y impossible to attack t h e m directly w i t h o u t emp l o y i n g some f o r m of s t r o n g m a n i p u l a t i o n . Even then, we should be skeptical about w h a t w o u l d be achieved by such an e f f o r t . As noted earlier, we must be d i s t r u s t f u l of government officials r e g u l a t i n g c o m m u n i c a t i o n according to its contenteven if their announced mandate is to produce a more self-critical d i a l o g u e .
4

through

T h e o b l i q u e strategy of the activist conception is to ensure t h a t b a c k g r o u n d conditions encourage widespread, meaningful par-

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engagement w i t h a self-reflecttve p o l i t i c a l dialogue, one that gives effective voice to interests across all the m a m cleavages in the society, For o u r purposes, the crucial issue is not the level of mass p o l i t i c a l p a r t i c i p a t i o n , but whether there is mass engagement w i t h a se If-reflective p o l i t i c a l dialogue, one that avoids m a n i p u l a t i o n in the senses we have defined. T h e required adjustments m background conditions can be considered under three headings: capacities, portunities. incentives, and opUnder the first heading, I w i l l argue that the social

and k n o w l e d g e of social conventions. T h e latter is interpreted b r o a d l y to mclutle knowledge of the prerequisites for participat i o n and e v a l u a t i o n , b o t h in f o r m a l p o l i t i c a l processes and i n the i n f o r m a l practices available to citizens.
7

Hence, the entire system of s o c i a l i z a t i o n w i t h i n w h i c h I i n clude families, school systems, the mass media, and private v o l u n t a r y organizations (ranging f r o m churches to the Boy S c o u t s ) must be assessed according to h o w w e l l i t ensures these capacities t h r o u g h o u t the p o p u l a t i o n . W h e n there is evidence that c h i l d r e n are n o t b e m g p r o v i d e d w i t h the essential capacitiesliteracy, language skills, knowledge of social conventions necessary for part i c i p a t i o n and e v a l u a t i o n t h e n i t is appropriate f o r the state to intervene by causing some adjustment i n the relevant background practices, p r o v i d e d that its interventions d o not themselves constitute s t r o n g m a n i p u l a t i o n .
8

c o n d i t i o n s tor certain essential capacities arc required as part of the "essential benefits" {guaranteeing the social conditions of f u l l m e m b e r s h i p ) . Under the second and t h i r d headings, I w i l l argue t h a t certain incentives and o p p o r t u n i t i e s are required if m a n i p u l a t i o n , e x p l i c i t or s t r u c t u r a l , is to be avoided. If background c o n d i tions are adjusted under a l l three headings, then i t may be possible to f u l f i l l the activist conception of liberty of p o l i t i c a l culture. First, citizens generally should have the capacity to receive and express p o l i t i c a l views, b o t h factual and evaluative, o n any issues they find salient w i t h i n the b r o a d d o m a i n of " p o l i t i c a l " culture defined earlier. These capacities obviously include whatever l i t 6

T h i s result s h o u l d be neither controversial nor surprising. For example, accepted notions of f a m i l y autonomy leave ample r o o m for the state t o intervene i n the "best interests of the c h i l d . ' " ' W h i l e these n o t i o n s leave families w i d e latitude to influence the development o f their c h i l d r e n , i t is still appropriate f o r the state to ensure that, somehow, the c h i l d is prepared for adult roles by a c q u i r i n g the basic capacities necessary for citizenship. S i m i l a r l y , whatever else we m i g h t expect of our school systems, ensuring these basic capacities w o u l d seem central to their mission. B u t can the state adjust background conditions that determine capacities w i t h o u t engaging i n explicit manipulation? First, i t s h o u l d be n o t e d that the state can have a considerable impact w i t h o u t e m p l o y i n g coercive penalties. For example, the state can set standards f o r schools to ensure that the basic capacities are developed i n students, and then i t can offer m a t c h i n g funds o r grants to schools t h a t meet its requirements. Alternatively, i t can offer vouchers directly to s t u d e n t s p r o v i d e d t h a t the vouchers are used at schools or at preschool programs meeting standards t h a t ensure a c q u i s i t i o n of the required capacities. i t is also w o r t h n o t i n g that some of the most dramatic i m p r o v e -

eracy and language skills are necessary for p a r t i c i p a t i o n i n the shared social space o f the p o l i t i c a l culture. They also include w h a t ever k n o w l e d g e o f social conventions and institutions constitutes a m i n i m u m prerequisite for p o l i t i c a l p a r t i c i p a t i o n . I n this country, if I d o n o t understand the role of Congress, or of parties and elections, m y ignorance is likely to cut me o f f f r o m many effective acts o f p o l i t i c a l expression and p a r t i c i p a t i o n ( w r i t i n g m y congressman, h e l p i n g m campaigns, m a k i n g c o n t r i b u t i o n s , and so f o r t h ) . I n a d d i t i o n , one must be knowledgeable about the shared social conventions o f evaluation regarded as appropriate for p u b lic policy. T h i s does not mean that one must ultimately subscribe to those conventions. B u t one must understand w h a t they are m order t o receive (and interpret w h a t one receives) and/or t r a n s m i t (in appropriate f o r m ) any response one m i g h t be moved to p u t f o r w a r d . Hence, by "capacities" we mean literacy, language skills,

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merits i n the cognitive development of children f r o m disadvantaged families have resulted f r o m educational efforts i n the home designed to affect patterns o f parent-child interaction so as t o encourage the early acquisition of various cognitive s k i l l s .
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ents to be p e r m i t t e d to deny their children the essential capacities t o participate i n adult society (and eventually to make their o w n decisions about their respective conscientious beliefs) is to i m pose a penalty o n t h e m . We can consider the essential capacities f o r adult p a r t i c i p a t i o n something t o w h i c h everyone is entitled (or t o w h i c h every n o r m a l c h i l d capable of a c q u i r i n g t h e m is ent i t l e d ) . W i t h i n o u r f r a m e w o r k , they should be considered part of
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Such

efforts require the v o l u n t a r y p a r t i c i p a t i o n of parents; government s u p p o r t to make such assistance available could do a great deal to ensure t h a t c h i l d r e n f r o m the "underclass" do n o t end up effectively disenfranchised as adults f o r lack o f basic s k i l l s . " A second p o i n t is that even w h e n the state employs coercive penalties, i t need not employ them based o n the content of conscientious p o l i t i c a l views. I n t h a t way, i t can avoid e x p l i c i t man i p u l a t i o n . T h e required literacy, language skills, and k n o w l e d g e o f social conventions are all defined independently o f the i n d i vidual's conscientious p o l i t i c a l views. T o a large extent, people m a y believe w h a t they l i k e but still acquire the capacity to e m p l o y certain skills and to understand the social conventions necessary f o r f u l l membership i n the society. There is no p r e s u m p t i o n t h a t they w i l l subscribe t o the v i e w that these conventions or skills are a p p r o p r i a t e , but o n l y that they w i l l have sufficient f a m i l i a r i t y w i t h those skills and conventions t o be able to employ t h e m i f they w i s h . Suppose, however, t h a t someone resists as a matter o f p r i n c i p l e . She m i g h t , f o r example, believe that m o d e r n i t y is simply evil and t h a t to acquire the capacities even to understand i t is to o p e n herself up to f o r b i d d e n influences and temptations. T o p e r m i t her to resist a c q u i r i n g the skills necessary for p a r t i c i p a t i o n is t o p e r m i t her, effectively, to disenfranchise herself f r o m active membership i n the p o l i t i c a l culture. T h e difficult issue is that the state has to ensure, at some p o i n t , that she has the capacities necessary to be able t o make the decision (to o p t out) competently. T h i s w i l l req u i r e t h a t at some stage i n her life she be given enough f a m i l i a r i t y w i t h the culture to be able to evaluate i t . As a result, some exposure t o m o d e r n i t y w i l l be unavoidable. A f t e r that, i f she opts o u t v o l u n t a r i l y , there is n o reason w h y i t must be a concern of the state's. W i t h c h i l d r e n , however, the matter is a bit different. For par-

the "essential benefits" of f u l l membership. Hence, if parents deny their c h i l d r e n the conditions necessary to acquire those capacities, they are penalizing their children based o n their notions of w h a t the conscientious beliefs of their c h i l d r e n eventually ought to be. T h e i r a c t i o n fits the definition o f e x p l i c i t m a n i p u l a t i o n offered earlier. F o r the state to intervene i n families merely t o ensure t h a t children acquire these essential capacities, one w a y or another, is to intervene so as to prevent strong m a n i p u l a t i o n by the parents. To require the p r o v i s i o n of essential capacities for all future members o f the society is not t o single o u t the c h i l d r e n of any particular g r o u p . O f course, i f parents object n o t to their c h i l d r e n a c q u i r i n g the essential capacities, but t o one particular manner of acquisitionsay, school attendance rather than home instruct i o n t h e n the state m i g h t w e l l have to accommodate alternative methods. T h e parents w o u l d have a c o m p e l l i n g case w h e n there was a p r a c t i c a l , alternative strategy for f u l f i l l i n g the same purpose t h a t c o u l d be made available to t h e m w i t h o u t i m p o s i n g a penalty o n t h e m (and w i t h o u t i m p o s i n g a significant penalty on anyone else). T u r n i n g to o u r second heading, citizens should generally have incentives to exercise the capacities just enumerated. T w o kinds of incentives need discussion: negative and positive. By negative incentives, i mean the penalties ruled out by the p r o h i b i t i o n o n explicit m a n i p u l a t i o n . This p r o h i b i t i o n prevents negative incentives f r o m being imposed (or credibly threatened) because of the content {actual o r prescribed) o f conscientious p o l i t i c a l views {to the extent t h a t these are f o r m u l a t e d as c o n t r i b u t i o n s to p o l i t i c a l dialogue). B u t the mere absence of negative incentives cannot be expected

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to guarantee p a r t i c i p a t i o n . We need positive incentives, b o t h f o r engagement and for p a r t i c i p a t i o n . Unless citizens are generally engaged by the process of p o l i t i c a l dialogue, unless they have an interest i n conscientiously e m p l o y i n g their capacities, the c o n t r i butions of others effectively w i l l f a l l o n deaf ears. W h i l e some apathy and disinterest is inevitable, a self-reflective p o l i t i c a l c u l ture w o u i d be impossible unless there were mass receptiveness to the dialogue. T h e first step, but only a m i n i m a l one, i n p r o v i d i n g an incentive f o r mass engagement i n the p o l i t i c a l culture is to make p u b l i c o p i n i o n consequential. If we institutionalize a regular connection between p u b l i c o p i n i o n and p u b l i c p o l i c y i n short, i f w e establish some f o r m of democracythen public opinion on political matters is, by that fact alone, rendered consequential. I t is d i f ferentiated f r o m o p i n i o n s about fashion o r the weather o r the u p c o m i n g f o o t b a l l season. O f course, i n large-scale i n s t i t u t i o n s or groups, i n d i v i d u a l incentives t o participate i n the p r o v i s i o n o f p u b l i c goods may be so small as to be nearly negligible. Those concerned merely w i t h the benefits f l o w i n g f r o m policy decisions w i l l o f t e n find i t r a t i o n a l ( i n a n a r r o w , instrumental sense o f r a t i o n a l i t y ) t o be free-riders. They can get the benefits of a p u b l i c g o o d w i t h o u t g o i n g t o the t r o u b l e o f c o n t r i b u t i n g to its p r o v i s i o n . T o take the classic example, w h y should i vote (or otherwise participate) i n the politics of a large-scale nation-state? M y vote w i l l n o t , o n any reasonable expectation, make any difference t o the outcome and whatever benefits result f r o m public decisions are benefits I w i l l receive anyway. Even i f m y reasons are n o t selfinterested b u t I a m evaluating the consequences of an election o n a l t r u i s t i c or ethical grounds, those consequences w i l l result m any case, and m y vote is u n l i k e l y to make any difference.
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izing democracy m i g h t , by itself, provide an incentive for people to become engaged by their p o l i t i c a l culture i n general, and by the process o f p o l i t i c a l dialogue i n particular. If the n o t i o n is that m y o p i n i o n matters because my vote matters (and I cannot responsibly decide h o w to vote unless I am engaged by p u b l i c debate), then this strategy for adjusting b a c k g r o u n d conditions w o u l d clearly be undermined i f i t were r a t i o n a l to conclude that my vote, o n any reasonable analysis, simply does n o t matter. H a r d - h e a d e d analysts of p r o b a b i l i t y have f o u n d the prospects o f i n d i v i d u a l influence so small that they have o n l y managed to rescue the r a t i o n a l i t y of v o t i n g by positing voter satisfaction w i t h the " e t h i c " o f v o t i n g , ' But t h a t ethic, conceived i n terms of its
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consequences, i n t u r n supports the conclusion that i t is i r r a t i o n a l to vote, given even t r i v i a l costs and the clearly minuscule p r o b a b i l i t y o f h a v i n g any i n d i v i d u a l effect. Positing satisfaction w i t h the ethic o f v o t i n g does not save i n d i v i d u a l p a r t i c i p a t i o n f r o m the charge o f i r r a t i o n a l i t y because i t relies o n individuals being irrat i o n a l , n o t i n their calculation of costs and benefits, but i n their i n c l u s i o n , w i t h i n the benefits, of a d u t y that is i r r a t i o n a l o n its o w n terms. O f course, f o r our purposes i t w o u l d not be devastating if i n d i v i d u a l p a r t i c i p a t i o n were i r r a t i o n a l p r o v i d e d that we c o u l d count o n i t i n any case. A t this p o i n t m o u r general argument, we are concerned w i t h the adjustment of b a c k g r o u n d conditions so as t o p r o v i d e incentives guaranteeing enough p a r t i c i p a t i o n , or at least mass engagement, to produce a self-reflective p o l i t i c a l culture. I f p a r t i c i p a t i o n is i r r a t i o n a l but w e can count o n i t i n any case, t h e n , i n some sense, the task has been accomplished. The d i f f i c u l t y is t h a t i n a self-reflective p o l i t i c a l culture w e c o u l d n o t count o n people c o n t i n u i n g to accept an ethic that was i r r a t i o n a l o n its o w n terms, because of mere h a b i t o r lack of analysis. The forces o f i n c u l c a t i o n that m i g h t p e r m i t such an ethic t o be w i d e l y m a i n t a i n e d i n some societies w o u l d n o t operate as effectively i n one t h a t achieved the level of conscientious and c o n t i n u i n g selfe x a m i n a t i o n w e are positing here. T h i s conclusion about the irrationality o f the d u t y follows most

A similar

p o i n t can be made about most other forms of p o l i t i c a l p a r t i c i p a t i o n available t o me i n the large-scale n a t i o n - s t a t e m a k i n g small c a m p a i g n c o n t r i b u t i o n s , signing petitions, canvassing i n elections, m a n n i n g the phone banks, and so f o r t h . i t is w o r t h pausing for a m o m e n t to consider this f a m i l i a r line of argument, for i t undermines the c l a i m that i n s t i t u t i o n a l -

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clearly w h e n the issue is posed i n a c t - u t i l i t a r i a n terms or i n terms of any other clear-headed evaluation of the consequences o f the isolated decision to vote (even w h e n the consequences t h a t are valued may be completely independent of u t i l i t y or preference satisfaction). H o w e v e r , some other m a i n approaches that depart f r o m this assumption d o n o t , thereby, produce more satisfactory results. O n e approach is to conceive o f political p a r t i c i p a t i o n n o t i n terms o f its consequences f o r the state o f the w o r l d , but i n terms of its expressive f u n c t i o n for the i n d i v i d u a l agent. Just as may w i s h to express myself, regardless of whether I influence the o p i n i o n s o f anyone else, may w i s h to vote, regardless of whether I have any effect o n the outcome. H o w e v e r , w h i l e v o t i n g is u n d o u b t e d l y a f o r m of expression, its anonymous and r o u t i n i z e d character i n the m o d e r n nation-state renders this dimension of the act extremely t h i n . T h i s approach does not seem plausible f o r a generalized r e h a b i l i t a t i o n o f the r a t i o n a l i t y o f v o t i n g i n n a t i o n a l elections. M a n y other forms o f expression w i l l better c o m m u n i cate t o others, w i l l be more i n t r i n s i c a l l y satisfying, and w i l l i n volve less inconvenience. C a r r y i n g a placard outside the p o l l i n g b o o t h w i l l better communicate the content of m y views t o others t h a n w i l l f i l l i n g o u t a secret b a l l o t inside. As for satisfaction, even singing p o l i t i c a l songs i n the bath is likely to be more satisfying t h a n p u l l i n g a lever o n a v o t i n g m a c h i n e .
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microscope. ' i t is indiscriminate. W h i l e i t succeeds i n m a g n i f y i n g the t r i v i a l effects o f m y vote to a level o f m o r a l significance, it also magnifies a host of other t r i v i a l effects, e n d o w i n g them a l l w i t h m o r a l significance. Broad's example was that p l u c k i n g one ear o f c o r n f r o m a field w o u l d lead us to imagine a m i l l i o n people d o i n g likewise. P l u c k i n g one ear w o u l d n o t d o any h a r m w o r t h considering, B r o a d concluded, even t h o u g h a m i l l i o n similar acts w o u l d have a devastating effect.'
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Clearly, this argument gets at the free-rider. S h i r k i n g his p a r t i n the collective e f f o r t w i l l not by itself d o any h a r m , b u t " e v e r y o n e " (or large numbers of others) d o i n g the same w i l l prevent the public g o o d f r o m being p r o v i d e d . But this argument also gets at far m o r e than the free-rider. W h a t t r i v i a ! act i n your life or mine w o u l d resist enlargement to a level of m o r a l significance t h r o u g h h y p o thetical generalizations envisaging the consequences of everyone d o i n g the same? A f t e r finishing this paragraph, should I go to the l i b r a r y t o check out some books? If " e v e r y o n e " went t o the l i b r a r y , the b u i l d i n g w o u l d p r o b a b l y collapse; and i f it d i d not collapse, the l i b r a r y w o u l d be emptied at a stroke by countless others d o i n g " t h e same." Perhaps some l i m i t a t i o n of the generalized-consequences p r i n ciple c o u l d be designed so as to l i m i t its indiscriminate m a g n i f i cations, so as t o l i m i t the range, so to speak, of the " m o r a l m i c r o scope."
1 7

A n o t h e r approach to r e h a b i l i t a t i n g the r a t i o n a l i t y o f v o t i n g and other f o r m s of p a r t i c i p a t i o n i n the large-scale nation-state w o u l d rely o n a p r i n c i p l e of hypothetical generalization. L i k e the expressive-function argument, this approach departs f r o m the ass u m p t i o n t h a t the act of p a r t i c i p a t i o n is to be evaluated i n terms o f its (actual) i n d i v i d u a l consequences. We are to argue instead f r o m a p r i n c i p l e of false universalization: w h a t i f everyone d i d the same? 1 s h o u l d vote because i f everyone failed to vote (or if everyone o n m y side failed to vote), the results w o u l d be disastrous f o r the i n s t i t u t i o n s o f democracy (or for m y p a r t i c u l a r issue). H o w e v e r , as C. D . B r o a d demonstrated i n a classic article, this p r i n c i p l e o f hypothetical generalization functions as a " m o r a l

H o w e v e r , there is no reason for us to require t h a t the

m o t i v a t i o n s f o r p o l i t i c a l p a r t i c i p a t i o n depend o n any particular controversial line o f revision f o r the p r o b l e m of the isolated voter i n the large-scale nation-state. Instead, w i l l focus o n adjustments in the b a c k g r o u n d conditions w h i c h alter the situation a n d , i n that w a y , reduce the v u l n e r a b i l i t y of i n d i v i d u a l p a r t i c i p a t i o n t o charges o f i r r a t i o n a l i t y . One reason f o r this focus is t h a t the p r o b l e m of adjusting backg r o u n d c o n d i t i o n s is not p r i m a r i l y a m o r a l p r o b l e m , but rather one o f i n s t i t u t i o n a l design. I t is a matter of i n s t i t u t i o n a l i z i n g social practices that w i l l effectively motivate people, collectively, to create a self-reflective political culture. M o r a l i t y is only one m o t i -

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va tor, and n o t necessarily the most effective one. I n any case, i t is arguable that our f r a m e w o r k already supplies an answer to the specifically m o r a l p r o b l e m w h y should people participate p o l i t i c a l l y i n the large-scale nation-state? A c c o r d i n g to the ideal o f a self-reflective society, if citizens receive the benefits of f u l l membership under a l l of o u r conditions (where exit is u n i m p e d e d , w h e r e the practices are self-reflective, where there is a consensus s u p p o r t i n g the relevant practices, and so o n ) , then they are o b l i gated to live up to the duties of f u l l membership. O u r v a r i a n t o f the fairness argument can be viewed as a response to the pure p r o b l e m o f p o l i t i c a l o b l i g a t i o n . H o w e v e r , this pure p r o b l e m t h e ethical issue o f w h y I s h o u l d vote or i n any other w a y participate i n the politics of the nation-stateis only a part o f the p r o b l e m o f effectively m o t i v a t i n g people to participate to the extent required tor a self-reflective p o l i t i c a l culture. T h e argument f o r p o l i t i c a l p a r t i c i p a t i o n in the nation-state being i r r a t i o n a l depends o n g r o u p size, o n the absence of selective incentives that apply just to those w h o participate, and o n the costs o f p a r t i c i p a t i o n . B a c k g r o u n d conditions can be adjusted substantially o n a l l o f these counts to encourage b o t h engagement and p a r t i c i p a t i o n . T h e charge of i r r a t i o n a l i t y acquires plausibility f r o m a picture o f isolated voters i n mass society motivated to o b t a i n benefits f r o m collective decisions about the provision o t p u b l i c goods (or m o t i v a t e d to produce consequences they approve of by such decisions, w h e t h e r or n o t those consequences benefit t h e m i n any egoistic sense). Public goods i n the technical sense are available to a l l members of a given g r o u p i f they are available to any. T h e basic i n t u i t i o n , made famous by Mancuc O l s o n , is that i t w o u l d seem r a t i o n a l n o t to undertake the costs of p a r t i c i p a t i o n w h e n the same benefits can be expected i n any case. I n very large groups, one's o w n p a r t i c i p a t i o n w i l l n o t make any difference to the o u t come. Hence, i f the public g o o d is to be p r o v i d e d , one w i l l receive it as a tree-nder w i t h o u t h a v i n g to share i n the costs. A n i m p o r -

tant premise ot the argument is that p a r t i c i p a t i o n , rather than being valued t o r its o w n sake, is valued only instrument-ally tor Its effect o n the decision to provide the public g o o d . H o w e v e r , some f o r m s of p a r t i c i p a t i o n may be valued f o r their o w n sake. O l s o n can assimilate t h e m to his argument by saying that they provide 'selective incentives" (incentives specific to those w h o p a r t i c i pate). If adjustments i n background conditions provide selective incentives o r i f they affect the g r o u p size relevant to particular forms of p a r t i c i p a t i o n , the r a t i o n a l i t y of p o l i t i c a l p a r t i c i p a t i o n can be rehabilitated. T h e other side o f the argument attacking the r a t i o n a l i t y of p a r t i c i p a t i o n i n large groups is the a f f i r m a t i o n of the rationality of p a r t i c i p a t i o n i n smaller groups and institutions. There, i t is reasonable for each i n d i v i d u a l to conclude that he is far more likely to make a difference. For that reason, the strategies of decentralization and organizational p l u r a l i s m should b o t h w e i g h heavily i n the adjustment of background conditions. Decentralization provides arenas smaller than the large-scale nation-state where a n i n d i v i d u a l can have a far greater effect. O r g a n i z a t i o n a l p l u r a l i s m means that there are many arenas i n a d d i t i o n to the f o r m a l governmental apparatus i n w h i c h the p o l i t i c a l culture can flourish and i n w h i c h individuals may participate and influence each other o n p u b l i c issues. This p o i n t encompasses the full range o f v o l u n t a r y organizations, f r o m those w h i c h are e x p l i c i t l y p o l i t i cal to those w h i c h usually attempt to distance themselves from partisan p o l i t i c s (such as civic groups, religious organizations, and trade and professional associations)* I n all o f these arenas, p a r t i c i p a t i o n i n the p o l i t i c a l culture can be b o t h i n s t r u m e n t a l ^ effective and i n t r i n s i c a l l y appealing.
lfi

The latter p o i n t puts the issue of selective incentives i n a different l i g h t . If one has the capacity to participate i n the p o l i t i c a l culture, and if the forms of p a r t i c i p a t i o n are not l i m i t e d to the mass-anonymous variety (such as voting i n national elections), then i t may become plausible t o regard politics itself as a selective

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incentive. Participation comes to be valued not merely for w h a t it produces, but also f o r w h a t i t means. F o r m u l a t i n g , h o l d i n g , and expressing p o l i t i c a l opinions become parts of a w a y of life, A related factor encouraging p a r t i c i p a t i o n m i g h t be termed the d i s t r i b u t i o n of self-esteem. O f course, " d i s t r i b u t i o n ' is misleading
1

needs by the medical care system w o u l d be another. W h e n these liberal process equalities are implemented, they encourage a measure o f self-esteem and m u t u a l respect t h r o u g h o u t alt sectors o f the society.
10

O f course, people can have the same r i g h t to equal considera t i o n of their capacities m the job market, the same right to equal consideration o f their votes i n the electoral system, and the same right to equal consideration of their relevant claims by the legal or health care systems, but stilt lack the self-esteem t o assert or exercise those rights. T h e difficulty is that self-esteem cannot be distributed d i r e c t l y by government hand-out i n the w a y that f o o d or money can be. Over t i m e , however, the appropriate background conditions can be expected to d o a great deal to encourage a sense of equal w o r t h and m u t u a l respect. W h e n the process equalities are c o m bined w i t h the exposure to diverse views and collective self-criticism t h a t characterize the activist conception of l i b e r t y , a basis w i l l be available f o r c r i t i c i z i n g any ideologies that undermine self-esteem. F u r t h e r m o r e , i t w i l t be available t o persons w h o are, themselves, guaranteed the essential capacities to engage i n t h a t k i n d of c r i t i c i s m . T h i s c o m b i n a t i o n of factors provides reasonable grounds f o r expecting that the self-esteem necessary tor p o l i t i c a l self-assertion and participation w i l l be w i d e l y available t h r o u g h o u t the society.
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if i t is taken to i m p l y a centralized o r unitary process o f decision. I t is, nevertheless, the case t h a t the structure o f b a c k g r o u n d practices can greatly affect whether self-esteem is so d i f f e r e n t i a l l y d i s t r i b u t e d that certain groups w o u l d be loath to participate i n the p o l i t i c a l culture i n any serious way. As Harrington M o o r e argues, the sanctions that once applied t o I n d i a n Untouchables served " t o prevent i n d i v i d u a l Untouchables f r o m a c q u i r i n g any sense o f selfesteem that could challenge the a u t h o r i t y of superior castes."
19

If the essential benefits of f u l l membership are to be p r o v i d e d f o r everyone, then the practices defining background conditions m u s t p r o v i d e a basis f o r self-esteem and mutual respect across all the m a j o r social and economic cleavages of the society. I n other w o r d s , regardless of one's f a m i l y b a c k g r o u n d , class p o s i t i o n , relig i o n , sex, o r ethnic g r o u p , i t should be reasonable and plausible t o regard one's o w n conscientious views as deserving o f a heari n g along w i t h those o f anyone else. Background conditions can encourage this goal by p r o m o t i n g b o t h (a) a variety o f f o r m a l liberal practices"process e q u a l i t i e s " e m b o d y i n g and a f f i r m i n g equal consideration, and fb) strategies for t a m i n g the effects o f economic inequalities o n the p o l i t i c a l culture. B e g i n n i n g w i t h fa}, I have argued, elsewhere, that the substantive i m p l i c a t i o n s of liberalism can be thought of as a series o f "process equalities"social practices i m p l e m e n t i n g equal c o n sideration of everyone's relevant claims or interests i n c r u c i a l , selected spheres of life. E q u a l i t y before the law, f o r m a l p o l i t i cal equality (one person, one vote and other f o r m a l requirements about the value of one's vote}, and f o r m a l equality of o p p o r t u n i t y (meritocratic, n o n d i s c r i m i n a t o r y practices of job assignment} are the most obvious. E q u a l i t y o f consideration o f one's essential

W h i l e there w i l t always be idiosyncratic-

individuals w h o lack self-esteem, i t should be possible to avoid gross m a l d i s t r i b u t i o n s of sett-esteem corresponding to identifiable cleavages i n the society. A v o i d i n g such m a l d i s t r i b u t i o n s w o u l d lend p l a u s i b i l i t y to the c l a i m that the social major cleavages. The process equalities just mentioned do n o t deal directly o r e x p l i c i t l y w i t h economic inequalities. They single o u t claims to equal consideration that are meant to apply, i n their essentials, regardless of economic differences. But there is no d o u b t that ecoconditions for selfesteem had been made generally available across the society's

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n o m i c differences themselves, w h e n sufficiently great, can so drastically affect the d i s t r i b u t i o n of self-esteem that some members can be effectively disenfranchised f r o m p a r t i c i p a t i o n . There are three obvious strategies for dealing w i t h this p r o b lem: i n s u l a t i o n , social m o b i l i t y , and r e d i s t r i b u t i o n . By i n s u l a t i o n 1 mean the strategy of preventing economic i n equalities f r o m affecting the d i s t r i b u t i o n of the g o o d i n question. T o some extent, the process equalities already mentioned serve this f u n c t i o n , i t is i m p o r t a n t for the society's social practices to a f f i r m that everyone has the same right to equal consideration of their relevant claims by the v o t i n g system, the legal system, and so f o r t h . I t is no small matter f o r state interventions to ensure the same r i g h t to an equal vote, to a fair t r i a l , to consideration of essential health needs, to consideration of one's relevant qualifications in the job m a r k e t a l l to be established regardless o f one's starting p o s i t i o n i n the economic hierarchy. If this processof insulating the process equalities f r o m giving greatly d i f f e r e n t i a l consideration to the w e a l t h y and powerfulsucceeds, then one o f the m a j o r threats posed by economic inequality w i l l have been defused. A first step i n this d i r e c t i o n is to focus o n floors rather than c e i l i n g s o n guarantees o f the m i n i m u m acceptable level f o r everyone. W h i l e anyone accused of a crime may not be guaranteed the most talented representation money can buy, he or she can be guaranteed representation at an adequate level of competence. Similar requirements c o u l d be w o r k e d out f o r the other process equalities.
22

parent prospects f o r social m o b i l i t y are based o n n o t h i n g more than false consciousness or class m y s t i f i c a t i o n , then these soothing psychological effects cannot be counted o n i n a self-reflective p o l i t i c a l c u l t u r e . They w i l l likely be revealed as shams serving an ideological f u n c t i o n k e e p i n g the lower orders i n their places. Rather, w e w o u l d require the reality and not merely the appearance of social m o b i l i t y i n order to make this strategy w o r k . I n this society the m a i n p r o b l e m area w o u l d be the u r b a n " u n d e r class" t h a t has faced enormous difficulties, f r o m one generation to the n e x t , b r e a k i n g i n t o the mainstream economy. A concerted policy e f f o r t w o u l d have to be mounted to improve skill acquis i t i o n , i n i t i a l entrance i n t o the job market, access to capital, and o p p o r t u n i t i e s for entrepreneurship.
23

A n o t h e r i m p o r t a n t factor

w o u l d be to foster conditions for f a m i l y f o r m a t i o n so as to better provide f o r the next generation. Substantial prospects f o r social m o b i l i t y f r o m all sectors of the society are n o t a Utopian requirem e n t , b u t they m i g h t be an expensive one, p a r t i c u l a r l y w h e n one considers t h a t many o f the programs we now conventionally i d e n t i f y w i t h the welfare state benefit the m i d d l e classes far more t h a n the very p o o r . instead o f a m e l i o r a t i n g or insulating the effects of economic inequality, one c o u l d attack the problem d i r e c t l y by a t t e m p t i n g to e l i m i n a t e o r decrease i t . A n y plausible theory o f d i s t r i b u t i v e justice w i l l , no d o u b t , require a substantial degree o f r e d i s t r i b u t i o n . H o w e v e r , o u r concern here is n o t the development of a f u l l b o d i e d t h e o r y o f d i s t r i b u t i v e justice. Rather, it is the m u c h narr o w e r question of w h a t background conditions w o u l d facilitate a self-reflective p o l i t i c a l culture. Assuming that some m i n i m u m floor has been guaranteed by the essential benefits of f u l l m e m bership, the issue o f economic inequalities arises at t w o p o i n t s : one is the effect o n self-esteem ( w h i c h affects the m o t i v a t i o n s for, and character of, p a r t i c i p a t i o n ) , and the other is the d i s t r i b u t i o n of o p p o r t u n i t i e s f o r p a r t i c i p a t i o n . There is no d o u b t that some degrees o f economic inequality can have a very substantial effect on self-esteem. Is this effect so great as to prevent p o l i t i c a l par-

We w i l l r e t u r n to i n s u l a t i o n strategics i n discussing the d i s t r i b u t i o n of o p p o r t u n i t i e s f o r expression and p a r t i c i p a t i o n . For the m o m e n t , i t is w o r t h n o t i n g t w o other strategies for a m e l i o r a t i n g the effect of economic inequalities o n self-esteem: social m o b i l i t y and r e d i s t r i b u t i o n . Even i f the economic inequalities are great, i f have substantial prospects (and if m y c h i l d r e n have them as well) o f reaching some o f the m o r e h i g h l y valued positions, then I can t h i n k i n terms o f my future p o s i t i o n as w e l l as my present one. H o w e v e r , i f m y ap-

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ticipation? T h i s is a complex e m p i r i c a l question that raises issues of i n s t i t u t i o n a l design. am already assuming that the essential benefits of f u l l m e m bership w o u l d require some socially agreed d e t e r m i n a t i o n of a m i n i m u m acceptable level of economic w e l l - b e i n g . N o t o n l y w o u l d such a floor be required by the n o t i o n o f essential benefits, i t w o u l d also be a plausible component of the background cond i t i o n s necessary f o r a self-reflective p o l i t i c a l culture. Those w h o are o n the margins o f survival are more easily subjected to s t r o n g m a n i p u l a t i o n . They are t o o busy attempting t o survive, and they have t o o few of the relevant organizational resources, f o r their interests t o o b t a i n an effective hearing. U n d o u b t e d l y , some m i n i m a l economic prerequisites m u s t be satisfied i f people generally are to have a sense o f independent selfw o r t h . If I face a c o n t i n u i n g threat of starvation, i may n o t feel secure i n asserting m y opinions and may feel i t necessary to defer to those w h o have economic p o w e r over m y very s u r v i v a l . For this reason, enough r e d i s t r i b u t i o n t o ensure an economic safety net, an insurance level for everyone, is the least that is required, h i a d d i t i o n , as M i c h a e l Walzer has argued, many developed societies have economic prerequisites f o r a f u l l sense of membership i n the p o l i t i c a l culture, i f one lacks access to television or a telephone, or to newspapers, r a d i o , o r the postal system, one is effectively disenfranchised f r o m the mainstream p o l i t i c a l culture of a m o d e r n society. T h i s k i n d o f access is useful not only because it facilitates p a r t i c i p a t i o n , but also because i t encourages a sense o f f u l l m e m bership i n the p o l i t i c a l culture (particularly w h e n combined w i t h the process equalities mentioned earlier). is n o d o u b t t h a t the relative
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less of social s t r a t u m . Rawls, w h i l e not f a v o r i n g r e d i s t r i b u t i o n for its o w n sake, argues that at some p o i n t , i f economic i n e q u a l i ties become great enough, envy becomes "excusable" because o f the effect o f those inequalities o n self-esteem,
26

Accepting this

p o i n t provides independent grounds for l i m i t i n g the most extreme economic inequalities (through redistribution) regardless o f the success o f the other strategies (insulation and social m o b i l i t y ) f o r ensuring a universal basis for self-esteem and m u t u a l respect. N o t e that our focus here is o n adjustments i n the background conditions t h a t w o u l d be necessary f o r l i b e r t y of p o l i t i c a l culture in the activist sense. I n such a society, the o p t i o n o f more redist r i b u t i o n w o u l d remain open, depending o n h o w other issues of p o l i t i c a l and economic structure were decided. M y contention is that f r o m the premise t h a t we must solve the legitimacy p r o b l e m for ideal theory, we can get distinctive and demanding criteria for l i b e r t y of p o l i t i c a l culture. These criteria tell us a great deal about the m o r a l l y preferred state, but they do n o t , i n a contextindependent manner, tell u s c v e r y t h i n g . H o w e v e r , i f a self-reflective society were achieved, the i n s t i t u tions and practices s o l v i n g the legitimacy p r o b l e m c o u l d d o a great deal t o complete the argument. For example, the n o r m s of evaluat i o n i n t e r n a l to the welfare state, to the m a r k e t , and to p o l i t i c a l democracy w o u l d , i f legitimated by this k i n d of argument, give substance to the conflict of principles i n particular p o l i c y cases and i n s t i t u t i o n a l decisions. W i t h o u t a systematic theory, a basis for the system's p a r t i c u l a r decisions w o u l d f o l l o w f r o m this theory o f legitimacy. W h a t I a m p r o p o s i n g is a theory of f u l l y legitimate p o l i t i c a l systems, n o t a systematic theory o f justice. If a f u l l y legitimate p o l i t i cal system m a i n t a i n e d its consensus, remained self-reflective i n its evaluation o f its o w n political practices, and satisfied o u r other conditions, then c o n f o r m i n g to the norms of evaluation i n t e r n a l to those legitimate practices w o u l d determine specific d i s t r i b u t i o n a l questions as they arose. A f t e r we have specified background conditions f o r the system to f u l f i l l our legitimacy requirements,

Regardless o f the prerequisites p r o v i d e d at the b o t t o m , there standing of various strata can have
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an independent effect o n self-esteem.

However, w i t h process

equalities, social m o b i l i t y , and the safety net a l l i n place, it is an open question h o w m u c h a d d i t i o n a l r e d i s t r i b u t i o n m i g h t be req u i r e d a t least for the l i m i t e d purpose of ensuring the universal prerequisites f o r p o l i t i c a l engagement and p a r t i c i p a t i o n regard-

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many details w o u l d still r e m a i n open to the p o l i t i c a l determinations of such a system. I t is i n t h a t sense that our prescriptions are context-dependent, rather than context-independent i n the m a n ner o f m o r e systematic theories. T h e effects o n self-esteem are n o t the only peril posed by the market economy to the development of a self-reflective p o l i t i c a l c u l t u r e . We m i g h t imagine commercial messages so d o m i n a t i n g mass c o m m u n i c a t i o n s that, i n effect, the entire p o l i t i c a l dialogue is d r o w n e d o u t and its audience dulled or deadened to i t . O n this scenario, structural m a n i p u l a t i o n t h r o u g h mass advertising and the encouragement of single-minded consumerism succeeds by completely d i v e r t i n g the citizenry f r o m paying any serious att e n t i o n to the issues posed f o r t h e m by p o l i t i c a l dialogue. Some accounts of advertising contend that this h y p o t h e t i c a l p i c t u r e correctly applies to o u r society at present.
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society, t h a t w o u l d not touch the issue o f h o w advertising w o u l d compete f o r people's attention i n a society w h i c h instituted the rest of o u r b a c k g r o u n d c o n d i t i o n s w h i c h generally p r o v i d e d the capacities, incentives, and opportunities f o r mass p o l i t i c a l engagement. Even if one t h o u g h t that advertising succeeded so overw h e l m i n g l y i n c o m p e t i t i o n w i t h our present, attenuated p o l i t i c a l culture, i t w o u l d still be a completely open question h o w i t w o u l d compete once the conditions for a more robust, self-reflective version was i n place. If advertising played the role assigned t o i t by the w o r s t case even under the best conditions of ideal t h e o r y t h e n some restrictions o r modifications o f i n s t i t u t i o n a l design c o u l d be devised. Presumably, c o m m e r c i a l television advertising and the consumerism i t fosters, t o the extent that they f u n c t i o n as diversions f r o m p o l i t i c a l dialogue, are not themselves c o n t r i b u t i o n s to i t . Therefore, they have no basis for p r o t e c t i o n at any fundamental level w i t h i n this theory. Perhaps restrictions as to sheer v o l u m e w o u l d be i n order. A l t e r n a t i v e financing schemes f o r broadcast television m i g h t have to be devised. Entities like the B r i t i s h Broadcasting C o r p o r a t i o n , w h i c h preserve substantial independence f r o m b o t h government and the private sector, provide one useful m o d e l . A greatly strengthened Public Broadcasting Servicecombined w i t h strategies f o r more effectively insulating i t f r o m b o t h government and the private s e c t o r w o u l d be w o r t h e x p l o r i n g . Cable television, video cassette recorders, and other technological developments render this an area of r a p i d change i n any case.
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O t h e r studies

argue that this picture is grossly overstated and the effects of advertising overestimated, i n p a r t because consumers k n o w that advertising is " p r o p a g a n d a " and they learn, accordingly, t o tune it o u t or pay i t little a t t e n t i o n .
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w i l l not presume to resolve e m p i r i c a l controversies o f this k i n d about contemporary A m e r i c a n society. N o t e that, f o r m y argument, consumerism does n o t in itself pose a decisive i m p e d i ment. There is no requirement t h a t individuals be self-reflective i n their choice o f life-style, o n l y that the system's collective process of self-examination be effectively applied to its p o l i t i c a l practices. So l o n g as the system is successful i n encouraging widespread engagement i n the p o l i t i c a l sphere, there is r o o m for a mass consumer c u l t u r e , just as there is r o o m for a host of other personal preo c c u p a t i o n s o r g a n i z e d r e l i g i o n , the cult of se I f - i m p r o v e m e n t , the quest f o r salvation, a d u l t education, hobbies, sports, v o l u n t a r y organizations, and any manner o f Hfe-styles. T h e special danger posed by advertising is that its ever-present messages m i g h t d r o w n out the p o l i t i c a l dialogue and d u l l the sensibilities o f its audience. H o w e v e r , even if one accepted the most extreme account of advertising's role i n contemporary A m e r i c a n

The

i m p o r t a n t p o i n t is that w e s h o u l d not expect advertising to pose an insuperable obstacle to mass engagement i n p o l i t i c a l dialogue under conditions o f ideal theory. A n d to the extent that w e are mistaken i n this hypothesis, restrictions, modifications, o r alternatives t o o u r present scheme of commercial broadcasting could be d e v i s e d .
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Thus far, w e have focused o n incentives for engagement and p a r t i c i p a t i o n at the mass level. H o w e v e r , i n a large-scale n a t i o n state, there w i l l inevitably be a great deal o f specialization. We

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can expect t h a t many o f the burdens of political dialogue w i l l be carried by c o m p e t i n g specialized elites of one sort or another, p a r t i c u l a r l y public officials, leaders of groups and organizations, intellectuals, reporters, and decision makers i n the media. O b v i ously, the incentives f o r conscientious political dialogue by occupants o f these specialized roles w i l l n o t be the same as for o r d i n a r y citizens. Some a d d i t i o n a l adjustments i n background conditions w i l l be required i f they are to have the appropriate incentives. A p r o m i s i n g strategy for i m p l e m e n t i n g a self-reflective p o l i t i cal culture at the elite level is t o attempt to harness the forces of p o l i t i c a l , i n s t i t u t i o n a l , and economic c o m p e t i t i o n so as t o encourage serious and c r i t i c a l political debate. If we accept the argument offered earlier f o r political equality and some f o r m o f democracy at the mass level, then we already w i l l have p r o v i d e d for significant incentives at the elite level. Electoral c o m p e t i t i o n f o r public office creates an incentive f o r issue entrepreneurship so t h a t a candidate f o r public office can make a name f o r herself as the standard bearer f o r the preferred side o n some policy problem.32 51

;
;

| g | f e s or costly settlements of suits), o n the state's broadcast

e f l e y :;

f ' l i c e n s i n g provisions ( w h i c h may either encourage serious public f ; | affairs p r o g r a m m i n g o r introduce the threat of nonrenewal for certain k i n d s o f broadcasts), and o n the state's telecommunications policies o n new technologies (cable, satellite, videotext, and many other innovations that potentially offer greater diversity and access). | I i|f-: v
;

\y/e can d i v i d e the question of opportunities i n t o occasions f o r receiving and f o r expressing conscientious political v i e w s w i t h or w i t h o u t a m p l i f i c a t i o n . I n discussing b o t h , I w i l l focus o n access to messages t h a t are amplified to a large-scale or mass audience, xhe ban o n e x p l i c i t m a n i p u l a t i o n applied to acts of expression o r association already does a great deal to protect interpersonal access to messages between individuals or small groups. O f course, even s m a l l - g r o u p interaction can be facilitated, p a r t i c u l a r l y over significant distances, t h r o u g h policies affecting technological con; ; ;

f i f

nections, such as computer n e t w o r k s , videotext a n d , access to . (and privacy of) telephones. The problematical issues, however, arise f o r larger audiences. Some o f the requirements already mentioned should facili-

H o w e v e r , the same forces of c o m p e t i t i o n also create incentives for evasion and a m b i g u i t y . Nevertheless, adjustments m backg r o u n d conditions can d o a great deal t o encourage m o r e serious p u b l i c dialogue. W h e n m a j o r news organizations compete w i t h teams of investigative reporters p o t e n t i a l l y critical o f government policy, w h e n m a j o r research institutes compete to produce findings relevant to p u b l i c policy, w h e n n o n p r o f i t organizations and public interest groups e m p l o y experts to s u p p o r t their respective causes, then the forces o f i n s t i t u t i o n a l and economic c o m p e t i t i o n have been harnessed i n the service o f a more self-reflective political culture. A l l o f these activities are susceptible to incentives that can be adjusted by the state to encourage o r discourage this k i n d o f behavior. M u c h depends o n the state's tax incentives (for the f o r m a t i o n and s u p p o r t o f n o n p r o f i t organizations and f o u n d a t i o n s interested i n s u p p o r t i n g research and public debate}, o n the state's libel laws ( w h i c h may i n t r o d u c e the risk for the media o f large ms-^; !.*:.; f\K; v,
f

tate o p p o r t u n i t i e s f o r diverse messages to achieve an effective hearing. T h e capacities we specified earlier f o r universal development require that people be literate and have a knowledge of the social conventions necessary to evaluate p o l i t i c a l messages, F u r t h e r m o r e , i n s t i t u t i o n a l i z i n g some f o r m o f democracy provides an incentive f o r those people t o be reached. To the extent that c o m p e t i t i o n a m o n g candidates and parties can be intensified or made m o r e widespread, the incentives to communicate competing . messages t o v i r t u a l l y every constituency w i l l also be increased. I have argued that, i n the contemporary social context, access to television, r a d i o , the postal service, telephones, and newspapers should count as p a r t o f the required m i n i m u m resources necessary for a sense o f f u l l membership i n the political culture. Furthermore, p u b l i c policies can increase the significance of this k i n d o f access. W h e n C-Span broadcasts congressional hearings, w h e n

t^,/. ici;<; i>:^

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cable television in Canada broadcasts the daily Question Period in the Canadian House of C o m m o n s , when postai subsidies f a c i l i tate delivery o f newspapers and magazines, then access to serious p o l i t i c a l dialogue has been significantly increased. Public policies encouraging or f a c i l i t a t i n g these innovations can d o a great deal to increase o p p o r t u n i t i e s at the mass level to receive p o l i t i c a l l y relevant messages." However, i m p r o v i n g access is n o t , by itself, sufficient to effectively motivate engagement. I n considering adjustments to background conditions, we s h o u l d aspire to a culture of participatory c i v i l i t y a p o l i t i c a l culture where people learn to listen and respond o n the merits i n a n atmosphere o f m u t u a l respect. Participatory encouraged by patterns of mutual voluntariness civility can be (a) i n speaker-

media). T h e effect w o u l d be objectionable because i t w o u l d effectively shut o u t certain groups f r o m the p o l i t i c a l dialogue and thus amount t o s t r u c t u r a l m a n i p u l a t i o n . M u t u a l voluntariness, w h e n applied t o speaker-audience interaction, is i n t e n d e d , first, to p e r m i t those w h o w i s h to hear (or see or experience) a given message to d o so, and second, t o p e r m i t those w h o w i s h t o a v o i d a given message to do so. W h e n speaker and audience b o t h w i s h to interact, we should aspire to facilitate that connection. But w h e n either wishes to avoid the other, then the interaction is not m u t u a l l y voluntary. This does n o t mean, of course, t h a t those w h o w i s h n o t to hear a message should have a veto on the r i g h t o f others to express i t or to hear i t . B u t i t does mean that some weight should be given to the p l i g h t of captive audiences w h o may intensely w i s h to a v o i d receiving messages o f a certain k i n d o r f r o m certain speakers. For example, Joel Feinberg has catalogued three dozen disgusting acts t h a t he imagines people d o i n g o n a bus. M a n y o f these acts arc n o t likely t o be construed as acts o f expression, or at least as acts o f expression intended t o contribute to p o l i t i c a l dialogue (copulation and the eating o f p i c k l e d sex organs of various animals w o u l d seem to be i n this c a t e g o r y ) .
14

audience interaction and (b) i n choices of preferred f o r m s o f expression (for a given c o n t r i b u t i o n to political dialogue). By "speaker," I mean the person expressing a message, whether i t is spoken o r w r i t t e n and whether i t is p r i m a r i l y verbal or n o n v e r b a l . I n the interest o f facilitating mutual voluntariness, there w o u l d be grounds, o n occasion, f o r restricting the time, place, o r manner o f expression, p r o v i d e d that the restrictions d i d n o t themselves constitute s t r o n g m a n i p u l a t i o n . As a matter o f general social practice, t w o caveats seem advisable. First, time, place, o r manner restrictions should be applied i n a content-neutral manner whenever they m i g h t impinge o n contributions to p o l i t i c a l d i a logue. I n that way, e x p l i c i t m a n i p u l a t i o n can be avoided. Hence, if a p u b l i c p a r k is opened to private groups f o r the display of religious symbols, i t should be open to any groups w h o m i g h t w i s h t o m o u n t such displays, but the p a r k m question c o u l d also, i n a content-neutral manner, be closed to all public displays. Seco n d , care should be taken that such restrictions do not have the c u m u l a t i v e impact of effectively silencing a particular o p i n i o n or v i e w p o i n t . Hence, to take an extreme case, i f a l l public places were closed to expression i n a content-neutral manner, then many dissenting voices and fringe o p i n i o n s m i g h t be silenced entirely ( w h i l e more mainstream opinions could still rely o n the mass

There is n o difficulty about restricting such

acts before captive audiences because they d o n o t fall directly w i t h i n our argument, since they d o not constitute c o n t r i b u t i o n s to p o l i t i c a l dialogue. H o w e v e r , we m i g h t imagine a countercultural theatrical t r o u p e that performs a variety of acts i n public considered disgusting by the mainstream societyand t h a t articulates a p o l i t i c a l message according to w h i c h those apparently disgusting acts can be considered symbolic contributions to p o l i t i c a l dialogue. T h e y are even w i l l i n g , m the m i d s t of their disgusting acts, to hand o u t l o n g and b o r i n g pamphlets e x p l a i n i n g the p o l i t i c a l significance they attribute to their performances. I assume t h a t every act of expression w h i c h can be considered a c o n t r i b u t i o n to p o l i t i c a l dialogue has attached to i t some actual o r possible verbal f o r m u l a t i o n of that c o n t r i b u t i o n . T h e most effective strategics of c o m m u n i c a t i o n w i l l , however, some-

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times be " s y m b o l i c " or even completely n o n v e r b a l .

Ji

I n a given

given a hearing, even i f it is only t h r o u g h the purely verbal expression of o p p o s i t i o n (or t h r o u g h some choice of tactics along a whole range of tamer acts). The basic p o i n t is that practices facilitating m u t u a l v o l u n t a r i ness should serve, i n the long t e r m , to moderate the intensity o f conflicts and cleavages and to facilitate m u t u a l t o l e r a t i o n . For that reason, they may help a self-reflective p o l i t i c a l culture to m a i n t a i n itself so as to b r i n g the argument w i t h i n the feasible set, at least for ideal theory. Just as freedom o f association o n the interpersonal or smallgroup level s h o u l d be conceived as m u t u a l l y v o l u n t a r y (to be forced t o attend a meeting I disapprove o f is to have a penalty i m posed o n me), so should communications at the mass level aspire to the same m o d e l of m u t u a l voluntariness. If I d o not l i k e the messages o n channel X , I can t u r n the d i a l ; i f I am offended by certain v i d e o tapes, I a m under no compulsion to play t h e m i n my h o m e ; i f I d o n o t like materials I receive i n the m a i l , I can t h r o w t h e m away o r request that I be removed f r o m certain m a i l i n g lists; i f I d o n o t like a telephone solicitation, I can hang u p or even request an unlisted number. I n all of these cases, I cannot be protected f r o m the bare knowledge that messages or materials I object to exist. B u t that bare knowledge is necessary f o r the m o d e l of m u t u a l l y v o l u n t a r y association; it is necessary f o r me to be able to decide whether or n o t 1 w i s h to be o n the receiving end. For that reason, bare knowledge should not by itself be considered a penalty. I n all o f these cases, there is a t w o f o l d reason to be solicitous about captive audiences. First, d o i n g so c o n f o r m s to the model of m u t u a l voluntariness; departures f r o m t h a t model risk exposing people to penalties because of their views and, hence, t o e x p l i c i t m a n i p u l a t i o n . Second, consideration for captive audiences helps to c o n t r i b u t e t o an atmosphere o f toleration and m u t u a l respect. B o t h are relevant because they facilitate an effective hearing for divergent views and also strengthen the system's capacity to survive the rigors o f self-critical debate. For all of these reasons, those

context, acts that may not o r d i n a r i l y be considered p o l i t i c a l at all may carry a meaning w h i c h dramatizes a given c o n t r i b u t i o n to p o l i t i c a l dialogue, a c o n t r i b u t i o n w h i c h m i g h t otherwise have far less e m o t i o n a l or intellectual effect on others. For example, blacks asking to be served coffee at segregated lunch counters had far m o r e effect at the t i m e than any number of speeches. G r a n t i n g t h a t many i m p o r t a n t c o n t r i b u t i o n s to p o l i t i c a l dialogue may be largely nonverbal and, i n that sense, " s y m b o l i c " does n o t mean t h a t people should have an inviolable right to select their preferred f o r m o f expression w i t h o u t considering the effects on others. T h e system should be constructed so as to give weight to their preferences, but also to the rights and reactions of others. Even w h e n the countercultural theater t r o u p e ciothes its performance i n the garb of p o l i t i c a l dialogue, i t does n o t have the right to unilaterally determine t h a t its preferred f o r m of expression be imposed o n captive audiences. M u t u a l voluntariness w o u l d p e r m i t some m o d i f i c a t i o n i n the f o r m of expression w h e n its i n v o l u n t a r y recipients object strongly. Presumably, sites can be arranged f o r v o l u n t a r y v i e w i n g . Less offensive forms of expression f o r essentially the same message m i g h t be arranged f o r captive audiences ( p o l i t i cal pamphlets being d i s t r i b u t e d is one t h i n g , public c o p u l a t i o n i n the interests o f p o l i t i c a l theater is another). B u r n i n g a d r a f t card and assassinating a public official m i g h t b o t h be considered acts of symbolic political expression, i n cert a i n contexts. The f o r m e r involves quite m i n o r effects o n others, w h i l e the latter involves grave effects that should be considered intolerable under most conceivable conditions. The latter w o u l d itself be an act of e x p l i c i t m a n i p u l a t i o n . T h e system should operate so as to give some w e i g h t t o the speaker's preferred f o r m o f expression, but this can easily be o u t w e i g h e d , as i n the p o l i t i c a l assassination case, by the grave interests and rights of others. Presumably, o p p o s i t i o n to the target and to the regime can be expressed i n many other ways, so that the basic message o f a given c o n t r i b u t i o n to political dialogue can be

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w h o w i s h t o avoid messages they find strongly offensive should have the o p p o r t u n i t y to d o so.-^ T h u s far, we have focused o n opportunities to receive but n o t t o express p o l i t i c a l messages. O p p o r t u n i t i e s for expression can be considered at three levels: interpersonal, small-group, and largeg r o u p o r mass-audience. The ban o n e x p l i c i t m a n i p u l a t i o n a p p l i e d to beliefs o r v o l u n t a r y associations already provides p r o t e c t i o n for expression at the first t w o levels. T h e difficulties arise w i t h the t h i r d . I n a technologically complex society, significant speech is seldom exemplified by the isolated m a n on a soap b o x , the p a m phlet d i s t r i b u t e d d o o r to door, or the citizen speaking up at a t o w n meeting. A l l o f these activities are i m p o r t a n t . But they are r o u t i n e l y d w a r f e d i n their influence by television news programs a n d documentaries, p o l i t i c a l advertising campaigns, mass c i r c u l a t i o n newspapers, magazines, and journals of o p i n i o n , and cable television channels. T h e d i f f i c u l t y is t h a t p o l i t i c a l dialogue can be subjected to structural m a n i p u l a t i o n depending o n access to mass o r largescale a m p l i f i c a t i o n . I f we can a l l speak, but some speak w i t h a m p l i f i e d voices, those w h o consistently speak w i t h o u t a m p l i f i c a t i o n can be effectively silenced. The difficulty can be ameliorated somew h a t by a decentralization o f arenas for speech. Local meetings, local organizations, local access to cable television stations, r a d i o t a l k shows, local newspapers w i l l i n g to a m p l i f y the views o f small g r o u p s a l l can make a c o n t r i b u t i o n . Nevertheless, access t o a m p l i f i c a t i o n to mass audiences remains a crucial issue, p a r t i c u l a r l y for the character of national p o l i t i c a l dialogue. Organizations and institutions that have the a b i l i t y to reach mass audiences can all be considered amplifiers of p o l i t i c a l d i a logue. A m p l i f i e r s w i l l differ i n their magnitude and degree of partisanship ( p r o m o t i n g an acknowledged p o i n t of view) o r n o n partisanship (attempting t o be neutral a m o n g v i e w p o i n t s i n p o l i t i cal dialogue). B o t h of the latter classifications are simplifications. T h e nonpartisan amplifiers w i l l have i m p l i c i t value c o m m i t m e n t s e m b o d i e d i n their patterns o f e d i t o r i a l decision m a k i n g ; the p a r t i -

san amplifiers w i l l often, as an i n s t i t u t i o n a l matter, be more open to t r a n s m i t t i n g diverse materials than a single label w o u l d suggest (consider, for example, the diversity of material broadcast by the C h r i s t i a n Broadcast N e t w o r k ) , Decisions about amplification should be diverse and competing, and they should be institutionalized so as t o represent conscientious judgments about the m e r i t , newsworthiness, or i m p o r tance of the materials a m p l i f i e d . Partisan amplifiers should be balanced by a diversity of competing channels. N e w technologies, p a r t i c u l a r l y cable, satellite transmission, v i d e o , and videotext, offer the promise o f greater diversity and easier access.
3

It

is i m p o r t a n t t h a t no g r o u p w i t h a significant o r intense f o l l o w i n g that attempts to participate i n conscientious dialogue should continually lack access t o a m p l i f i c a t i o n . Given the diversity of channels, b o t h broadcast and p r i n t , this is not an overly demanding requirement. I n the present A m e r i c a n context, p o l i t i c a l action committees pose a p r o b l e m . As organizations designed to aggregate small cont r i b u t i o n s , PACs d o n o t threaten to overamplify a few i n d i v i d u a l l y wealthy patrons. B u t the p r o l i f e r a t i o n of committees representing certain ideologies and interests poses a threat not o n l y t o the terms of p o l i t i c a l c o m p e t i t i o n , but also to the prospects t h a t groups w i t h o u t such massive resources can o b t a i n a hearing at a l l .
3 8

If

background c o n d i t i o n s c o u l d be adjusted to greatly increase the diversity and ideological balance of PACs, this danger c o u l d be averted. A n o t h e r s o l u t i o n w o u l d be to reimpose c o n t r i b u t i o n and expenditure l i m i t a t i o n s of the k i n d the U.S. Supreme C o u r t has o v e r t u r n e d . * W h i l e this w o u l d place a l i m i t o n access to a m p l i f i 3

cation (and i n t h a t sense constitute a sacrifice i n free expression), if i t were imposed i n a content-neutral manner, i t w o u l d n o t constitute e x p l i c i t m a n i p u l a t i o n i n our sense. Hence, i t w o u l d not constitute a sacrifice i n the dimensions of l i b e r t y as defended here. In fact, to the extent t h a t such l i m i t a t i o n s w o u l d effectively p r o tect p o l i t i c a l dialogue f r o m structural m a n i p u l a t i o n , they w o u l d . be justified by the principles developed here.

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H o w e v e r , we need to t h i n k more creatively about adjustments i n b a c k g r o u n d conditions that m i g h t energize c o m p e t i t i o n a m o n g groups, i n s t i t u t i o n s , and issue entrepreneurs so as to give voice to the interests of groups that m i g h t otherwise be left out of the dialogue. One focus for such i n n o v a t i o n is government itself. I n s t i t u t i o n a l incentives can be created t o get government to speak i n c r i t i cism o f itself and o n behalf o f v i e w p o i n t s or interests that m i g h t otherwise be left o u t . As Charles A . Reich noted in the 1960s: Perhaps the most interesting and significant innovation m dealing with freedom of expression is the possibility that government itself can be structured so as to foster differences. A government department could have i n it a unit designed to represent a particular point ot view, such as a consumers bureau in the Agriculture Department, or a bureau of natural beauty in the highway department. Some of the communityaction programs connected w i t h the poverty program find themselves promoting opposition to the policies of other public agencies; thus diversification may grow up naturally within the seeming monolith of government."
1

dialogue o f organized and competing voices in the p o l i t i c a l w o r l d at large. T o create such a dialogue, broader changes w i l t have to be made i n the d i s t r i b u t i o n of resources and of incentives for political o r g a n i z i n g . We t u r n to t w o such proposals i n the next section.

3.6 Representation Deliberative

Vouchers Opinion

and

Polls

Representation vouchers offer an i n n o v a t i o n addressed to the p r o b l e m of h o w resources for political organization are d i s t r i b uted, i have already mentioned the role vouchers c o u l d play i n education.' Philippe Schmitter and others have proposed that they be applied to the general p r o b l e m of p o l i t i c a l representation." W h i l e Schmitter's theoretical preoccupations are different f r o m mine, his proposal adds plausibility to the n o t i o n that b a c k g r o u n d conditions c o u l d be adjusted to facilitate a self-reflective p o l i t i c a l culture. Suppose every member of society is given a voucher to represent her chosen interests. T h e voucher must be substantial enough that organizations w i l l w a n t t o compete f o r each voucher. The vouchers can o n l y be cashed i n , say, once a year by organizations that satisfy some m i n i m u m regulatory requirements ensuring that the organizations are not fraudulent, that they are n o t - f o r - p r o f i t , and that they act appropriately to represent the interests they c l a i m t o represent. If every member has a voucher, then there w i l l be incentives f o r organizations to compete w i t h each other to speak f o r the interests of all those w h o are n o w unorganized, including the underclass, the dispossessed, the invisible, the q u i escent. Some organizations may w e l l be created just to m o n i t o r other organizations. Provided that the barriers to entry i n this c o m p e t i t i o n are kept l o w , there w i l l be a c o n t i n u a l d y n a m i s m i n the creation of organizations and, hence, i n the creation of effective voices, w h e r e before there were only silence and indifference. Even n o w , there is e x t r a o r d i n a r y diversity i n the organizations

O p p o s i n g voices can be created w i t h i n government itself. For example, a government bureau o r agency could be charged w i t h m o n i t o r i n g the c o n d i t i o n o f the homeless or the hungry, o r w i t h m o n i t o r i n g and r e p o r t i n g o n d i s c r i m i n a t i o n against homosexuals. Such arms of government m i g h t routinely end up c r i t i c i z i n g other parts of government. If they spoke o n behalf of groups or interests that m i g h t otherwise lack an effective hearing, such innovations c o u l d c o n t r i b u t e to the prevention of structural m a n i p u l a t i o n . H o w e v e r , the success o f such innovations w o u l d depend o n the broader political environment. We need to t h i n k about incentives for creating voices and organizational resources for those same g r o u p s outside government. W i t h o u t attention to the broader env i r o n m e n t of interest groups and p o l i t i c a l incentives, there is the danger that new offices o r agencies w i l l simply be captured by those they are meant to m o n i t o r o r criticize. C o m p e t i t i v e voices i n government are likely t o thrive only i f they are part of a broader

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that presume to speak knowledgeably tor the interests of A m e r i cans: the N a t i o n a l O r g a n i z a t i o n ot W o m e n , the Sierra C l u b , C o m m o n Cause, the N a t i o n a l U r b a n C o a l i t i o n , the A F L - C I O , the A m e r i c a n Enterprise Institute, the Heritage F o u n d a t i o n , People f o r the A m e r i c a n Way, the Jefferson Institute, the C o a l i t i o n f o r the Homeless, the N a t i o n a l R i g h t to Lite C o m m i t t e e , Beyond War, and the R o c k f o r d Institute are only an eclectic list. Even n o w , some o f these attempt to get a hearing f o r those w h o lack resources or even self-consciousness. T h i n k h o w neglected, or merely latent, coalitions c o u l d be m o b i l i z e d by the c o m p e t i t i o n for vouchers. l b create a self-reflective p o l i t i c a l culture, w e w o u l d have t o overcome several problems. First, the collective action p r o b l e m stands as an i m p e d i m e n t to i n d i v i d u a l p a r t i c i p a t i o n . Second, scarcity and m a l d i s t r i b u t i o n ot organizational resources make i t d i f ficult f o r some groups to engage m the dialogue because they must compete f o r expertise and an effective hearing. T h i r d , some ' " g r o u p s " may never get to the point where they constitute t h e m selves as groups. They lack the resources and infrastructure to organize; they may lack the collective consciousness even to realize the need. I t is plausible that representation vouchers, w h e n a p p l i e d i n c o n j u n c t i o n w i t h a l l o f the other adjustments i n b a c k g r o u n d cond i t i o n s I have specified, w o u l d d o a great deal to respond to these three basic problems over the l o n g t e r m . I do not propose representation vouchers as a panacea, but as an example o t the k i n d of i n s t i t u t i o n a l i n n o v a t i o n that could b r i n g about the conditions f o r a self-reflective society. T h e central challenge is o v e r c o m i n g the p r o b l e m o f s t r u c t u r a l m a n i p u l a t i o n , o t g i v i n g effective voice t o the interests across every significant cleavage m the society. Vouchers w o u l d give organizations incentives to take seriously the interests o f those w h o are n o w left out of the dialogue. O r , if established organizations failed to adjust, issue entrepreneurs w o u l d have a s t r o n g incentive to fill the gap. Correspondingly, i n d i v i d u als w o u l d have no incentive to be tree-riders, because the cost o f p a r t i c i p a t i o n is merely the assignment of a voucher that cannot be

spent o n a n y t h i n g else. I n tact, if computerized records were kept about w h o has assigned her voucher, the system could be organized so that the cost o t f a i l i n g to participate w o u l d be the possible inconvenience o f c o n t i n u e d solicitations and c o m p e t i t i o n f o r representation. People w o u l d have a strong incentive to t h i n k about the p r o b l e m and to make a decision. A t t e m p t i n g to be a tree-rider ( m the sense of d o i n g nothing) m i g h t w e l l be more costly t h a n p a r t i c i p a t i n g . N o n p a r t i c i p a t i o n w o u l d produce its o w n negative incentive, its o w n m o t i v a t i o n to overcome apathy. M o s t i m p o r t a n t , representation vouchers w o u l d alter the present scarcity o f organizational resources, a scarcity n o w skewed i n favor o t those w h o have other resources. Just as class action suits and p u b l i c interest research organizations have partially opened up the representation and advocacy of interests that were p r e v i ously u n v o i c e d , representation vouchers w o u l d create incentives f o r the c o n t i n u a l , competitive creation o t new organizations. Representation vouchers focus o n the p o l i t i c a l e n v i r o n m e n t w i t h i n w h i c h politicians operate. W h a t about the political process itself? I have already mentioned the general argument tor democr a c y t h a t by m a k i n g public o p i n i o n consequential, democracy creates incentives f o r interests to be given voice and f o r people to voice their interests. B u t I have not said m u c h about the structure of democratic i n s t i t u t i o n s . One reason f o r not being more specific is that, o n m y argument, the a p p r o p r i a t e structure w i l l be the one that comes to be accepted self-reflectively according to all of our conditions. Ffence, many precise details cannot be determined i n advance. H o w e v e r , our task here is to approach a different question: W h a t i n s t i t u t i o n a l i n n o v a t i o n s w o u l d facilitate the development of a self-reflective p o l i t i c a l c u l t u r e i n the first place? Representation vouchers w o u l d create incentives for interests to be voiced that m i g h t otherwise be left out o t the dialogue. Institutionalizing public self-criticism w i t h i n the government itself blunts the force w i t h w h i c h a gove r n m e n t m i g h t otherwise, m o n o h t h i c a l l y , i m p r i n t its doctrines o n citizens. Yet I have said n o t h i n g about innovations within the p r o -

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cess o f campaigns and elections, innovations that m i g h t give m o r e effective voice t o interests across a i l the major cleavages of t h e society. T o make the issue m o r e concrete, let us consider a specific b u t far-reaching i n n o v a t i o n t h e possibility o f inserting deliberative o p i n i o n polls i n t o the presidential n o m i n a t i n g process as well as i n t o the n o m i n a t i n g process o f offices at other levels. A n o r d i n a r y o p i n i o n p o l l models w h a t the p u b l i c t h i n k s , given h o w little it k n o w s o r pays a t t e n t i o n . A deliberative p o l l models w h a t the p u b l i c would t h i n k i f i t had a more adequate chance to assess the questions at issue. Imagine a new start to o u r season of presidential selection. T a k e a n a t i o n a l r a n d o m sample of the citizen voting-age p o p u l a t i o n a n d transport t h e m to a single site where they can interact i n person, over an extended p e r i o d , w i t h the candidates f o r presid e n t . Prepare the delegates beforehand w i t h briefing materials
3

our present m e t h o d of beginning the p r i m a r y season, the I o w a caucuses and N e w H a m p s h i r e p r i m a r y . Neither state is representative of the entire c o u n t r y ; b o t h states have far less m i n o r i t y and urban populations t h a n the country as a w h o l e . F u r t h e r m o r e , neither event is deliberative at present. They are d o m i n a t e d by repetitive s t u m p speeches, money, p o l i t i c a l organizations, s h r i n k ing sound-bites, and attack videos. G i v e n the demonstrated role of m o m e n t u m i n the presidential selection process, early victories and defeats are greatly magnified i n their effect o n the eventual outcome.
4

I f the first event were representative and deliberative,

many o f the irrationalities i n our present process could be avoided, even i f the rest of the process were to continue precisely as does the current system. The race f o r the presidency is n o w the major arena f o r issue entrepreneurship i n A m e r i c a n society, i f i t could be t u r n e d i n t o a deliberative process addressed t o interests across ait the major cleavages of the society, then many of the results of a self-reflective political culture c o u l d be a p p r o x i m a t e d . N e i t h e r the deliberative o p i n i o n p o l l nor the representation voucher is offered as a panacea f o r defects i n o u r present p o l i t i c a l culture. Rather, b o t h of these innovations exemplify the general strategy proposed here: the i n d i r e c t strategy o f changing incentives i n the b a c k g r o u n d conditions f o r p o l i t i c a l dialogue and p a r t i c i p a t i o n . These t w o i n n o v a tions, w h e n c o m b i n e d w i t h the adjustments i n b a c k g r o u n d c o n d i tions discussed earlier, give verisimilitude to my c l a i m that a selfreflective society is a feasible ideal for solutions t o the legitimacy p r o b l e m w i t h i n a m o d e r n large-scale nation-state.

o n the issues. Have the candidates respond to questions i n s m a l l g r o u p sessions b r o k e n d o w n by issue areas and p o l l the delegates about the merits o f the candidates, breaking o u t the results by p a r t y a f f i l i a t i o n (Democrats, Republicans, and independents). Such an event w o u l d t u r n the " i n v i s i b l e p r i m a r y , " the p e r i o d o f jockeying by the candidates before the first official events, i n t o a n a t i o n a l l y representative a n d deliberative event. Because i t is n a t i o n a l l y representative, i t w o u l d provide the candidates with incentives t o address the interests o f groups across a l l the major cleavages i n the country, f a c i l i t a t i n g o u r effective-voice c o n d i t i o n . Because i t is deliberative, its results m o d e l w h a t w o u l d be achieved, hypothetically, i f the entire society grappled t h o u g h t f u l l y w i t h the issues i n the campaign. W h i l e i t may be U t o p i a n t o expect an entire society, even under favorable conditions, t o be aroused t o active p o l i t i c a l p a r t i c i p a t i o n i n a large-scale n a t i o n state, i t is n o t Utopian f o r a representative sample to be sufficiently aroused so as t o m o d e l the conclusions the society's n a t i o n a l l y representative deliberations w o u l d come t o . Clearly, such an event w o u l d constitute an i m p r o v e m e n t over

3.7

Conclusion

My proposals are intended n o t t o offer a b l u e p r i n t , but t o dramatize the v i a b i l i t y of a general idea: that a freely self-examining p o l i t i c a l culture can provide the foundations f o r its o w n legitimacy. Such a p o l i t i c a l culture w o u l d be engaged i n a c o n t i n u i n g , collective process of self-criticism. Its practices w o u l d t h e n have

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a c l a i m t o reasonablenessa c l a i m defined by the fact t h a t its consensus, even i f i t is merely a procedural consensus o n p o l i t i c a l practices, has survived unmanipulated c r i t i c a l scrutiny. Such practices represent a self-reflective, collective determinat i o n o f the d i s t r i b u t i o n o f essential benefits and burdens. W i t h exit u n i m p e d e d as an o p t i o n , each member of the society w h o receives essential benefits incurs a m o r a l o b l i g a t i o n to live up to the requirements o f membership so l o n g as she remains a member. I f all those subject to the a u t h o r i t y of the state remain obligated i n this way, then the system is legitimate is o b l i g a t e d to s u p p o r t i t . A legitimate p o l i t i c a l system defines a range of practices for m a k i n g decisions i n various arenas of life. Some choices may be left to the m a r k e t , some to i n d i v i d u a l decision, some to a u t h o r i t a tive decision by one i n s t i t u t i o n or another. The general questions posed by the theory o f justice w i l l be decomposed i n t o many parts, and i n t h a t w a y relegated t o many decision makers i n many roles. T o the extent that their decisions correspond to the norms o f e v a l u a t i o n b u i l t i n t o the w i d e l y accepted legitimate practices, members of the society are obligated to u p h o l d t h e m . If m y argument has succeeded, then w e have f o u n d a w a y out o f the three false dilemmas w i t h w h i c h we started: absolutism versus r e l a t i v i s m , religion versus a m o r a l i s m , and systematic theory versus m t u i t i o n i s m . First, the argument f o r legitimacy developed here does n o t require the t r u t h o f absolutist claims o f natural rights, b u t neither does i t legitimate all w i d e l y accepted social practices i n the manner of sheer relativism. O n the contrary, its r e q u i r e d conditions f o r the self-reflective development o f p o l i t i c a l cultures w o u l d block the claims to legitimacy of many objectionable social practices. Second, i t does not i m p o r t religion i n t o o u r p u b l i c dialogue, but neither does i t leave us w i t h amoralism. O n the c o n t r a r y , i t w o u l d determine m o r a l obligations o f membership for us a l l (while leaving all of us free to pursue salvation i n diverse, private ways free of m a n i p u l a t i o n ) . T h i r d , i t does n o t live up t o the expectations o f systematic theory, but neither does i t in the sense that everyone

feave us w i t h sheer i n t u i t i o n i s m . O n the contrary, the many p u b l i c institutions of a legitimate p o l i t i c a l system w o u l d make specific determinations that we were all obligated t o u p h o l d . theory of legitimacy does not yield a systematic t h e o r y of justice. Instead, i t yields a theory o f the fully legitimate p o l i t i c a l system. Such a system, i n all its many parts, can produce justice defined i n a l l its concrete particularity. I t is the justice that comes f r o m people o p e r a t i n g i n roles whose norms have achieved selfreflective legitimacy. T h e result is the collective reasonableness of a p o l i t i c a l system e x a m i n i n g a n d accepting-itself t h r o u g h u n m a n i p u l a t e d dialogue.

Notes

i.i

Introduction

1 . See Citizens and Politics: The View from Main Street America (prepared for the Kettering Foundation by the Harwood Group, June 1991, Dayton, Ohio). 2. A good indicator of thje level of activity can be seen in the massive annotated bibliography about just one book, John Rawls's A Theory of Justice. See David T. Mason and j . H . Wellbank./o/w Rawls and His Critics (New York: Garland, 1982). 3. See Leo Strauss, Natural Right and History {Chicago: University of Chicago Press, 1953) and Allan Bloom, The Closing of the American Mind (New York: Simon and Schuster, 1987}. The cannibalism example is from Strauss, "Relativism," in Helmut Schoek and James W. Wiggins, eds., Relativism and the Study of Matt (Princeton; Van Nostrand, 1961). 4. For a modulated version of this argument (with an assessment of the more extreme versions), see Richard John Neuhaus, The Naked Public Square; Religion and Democracy in America (Grand Rapids, M i c h . : William B. Erdmans,1984). 5. The focus of part 2 w i l l be methodological in the sense that i t w i l l concern decision procedures for resolving subsfantive issues. 6. In essence, the priority problem concerns what principles should outrank other principles in determining the basic priorities of a just society. If more than one first principle is proposed, fundamental moral conflicts can be avoided through the device of "lexical" ranking. See John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), sections 7 and 8.

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Notes to Pages

10-13

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1.2 The Problem of Value 1. For more on justice between societies, see Charles R. Beitz, Political Philosophy and biternattonal Relations (Princeton: Princeton University Press, 1974) and Henry Shue, Baste Rights (Princeton: Princeton University Press, 1980). 2. Bruce A. Ackennan, Social lusttce in the Liberal State (New Haven and London; Yale University Press, 9 8 0 ) . 3. Or, as I note m section 2.7, these difficulties can be avoided tor want-regardmg criteria, bur at the cost of limiting judgments to those changes sanctioned bv the l'areto principle, ' i his latter restriction would entail silence on most issues of social importance (whenever some gain and some lose, the change would be considered Pareto-noncomparable). 4. E. L. Thorndike, Human Nature and the Social Order (New York: Macmillan, 1940), pp. 1 7 0 - 7 1 . f am indebted to Doug Rae for bringing Thorndike to mv attention. 5. See the more detailed discussion of "the calculus of pains, deprivations and frustrations" m Kdward L. Thorndike, "Valuations of Certain Pains, Deprivations and Frustrations," Journal of Genetic Psychology 51 (1937), pp. 2 2 7 - 3 9 . 6. See, for example, E. f. Mishan, hconotmcs for Social Decisions: Elements of Cost-Benefit Analysis (New York: Praeger, 1973). 7. See section 2.7 for more on this issue. 8. For a particularly clear-headed account, see Gerald Dworkin, "Paternalism," tn Peter Lasiett and James S. Fishkm, eds.. Philosophy, Politics, and Society, 5th series (New Haven and London: Yale University Press, 1979}. I take the terminology of "want-regarding" and "ideal-regarding" from Brian Barry's excellent discussion m Political Argument (London: Routledge and Kegan Paul, 1965). For more on these issues, see sections 2.6 and 2,7 below. 9. Appropriate judgment, but not in the sense ot systematic theory. The result w i l l , however, satisfy the criteria for an acceptable theory specified in section 2.1. 10. SeeBarrington Moore, j r . , Injustice: The Social Bases of Obedience and Revolt (White Plains, N.Y.: M . E. Sharpe, 1978).

of damages is compensatory. Damages are measured by comparing the condition plaintiff would have been m, had the defendants not been negligent, with plaintiffs impaired condition as a result of the negligence. The infant plaintiff would have us measure the difference between his lite with detects against the utter void ot non-existence, but it is impossible to make such a determination" (Gleitman v. Cosgrove[1967}, 111 A. 2d 689,692). 4. A possible exception would be cases ot disability so severe that one mieht claim such a hte is worse than nonexistence. The difficulty of dealing with this kmc! of counterfactual is dramatized bv a Yiddish saymg quoted by Nozick: -"Lite is so terrible; i t would be better never to have been conceived." "Yes, hut w h o is so fortunate? N o t one m a thousand." {Anarchy, State and Utopia [New York: Basic Books, 1974], p. 337) 5. This argument extends one i made m "Justice between Generations: The Dilemma ot Future Interests," Bowling Green Studies in Applied Philosophy 4 {1982), pp. 2 4 - 3 3 . Derek Parfit has developed a very fertile and original attack on the identity-specific view in his Reasons and Persons (Oxford: O x f o r d University Press, 1984). M y discussion here has benefited greatly trom reading Parfit's w o r k . In "justice between Generations" I offer a more extended critique of his advocacy ot what I call an identity-independent solution. 6. Thomas Schwartz, "Obligations to Posterity," in R. f. Sikora and Brian Barry, eds., Obligations to Puture Generations (Philadelphia: Temple UniversityPress, 1978), pp. 3-13, esp. p. 6. 7. See, for example, Curlender v. Bio-science Laboratories (1980), in which a limited claim for damages was granted on appeal: " I n essence, we construe the 'wrongful life' cause of action by the defective child as the right of such child to recover damages for the pam and suffering to be endured during the limited lite span available to such a child and any special pecuniary loss resulting trom the impaired condition" (165 Cal. Rptr. 477,489). T w o other notable cases are Turpm v. Sortini {[19821, 31 Cai. 3d 220) and Procanik by Vrocanik if. Cillo (New Jersey (1984j, 478 A. 2d 755). Note the argument for considering damages to the child rather than merely damages to the parents: "We believe it would be illogical and anomalous to permit only parents and not the child, to recover for the cost of the child's own medical care. It such a distinction were established, the afflicted child's receipt of necessary medical expenses might well depend on the wholly fortuitous circumstance of whether the parents are available to sue and recover such damages or whether the medical expenses are incurred at a time when the parents remain legally responsible for providing such care" {Turpm v. Sortmu 238). 8. We w i l l return to interpersonal comparisons in section 2.7. 9. See Parfit, Reasons and Persons, part 4.

1.3 Future

Generations

1. Below, I call the conceptions in question the identity-specific and the identityindependent conceptions of human interests. 2. This section draws on my contribution to Peter Lasiett and fames Fishkin, eds., justice between Age Groups and Generations, vol. f> of Philosophy, Politics, and Society (New Haven: Yale Umversitv Press, 1992). 3. As the majority in a major "wrongful life" case noted: "The normal measure

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Notes t o Pages 2 2 - 2 9

209

10. Arthur Koestler, Darkness at Noon, trans. Daphne Hardy (New York: Macmilian, 1941 j , pp. 161-62. 1 was reminded of Koestler's treatment of this issue by foel Feinberg's excellent essay "Rawls and Intuitiomsm" in Norman Daniels, ed., Reading Rawls: Critical Studies of "A Theory of Justice" (New York: Basic Books, 1975). 11. Peter Singer, Practical Ethics (Cambridge: Cambridge University Press, 1979}, pp. 8 0 - 8 1 . 12. For an extended discussion of the character and limitations of purely structural principles, see my Tyranny and Legitimacy (Baltimore and London: Johns Hopkins University Press, 1979}, chaps. 10 and 11. 13. Jonathan Bennett, " O n Maximizing Flappmess," in R. Sikora and B. Barry, eds., Obligations to puture Generations (Philadelphia: Temple University Press, 1978}, p. 62. 14. 1 take the term harm principle to refer to any of the standard variations on M i l l ' s "one very simple principle" that "the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection" {On Liberty, in Utilitarianism, On Liberty and Other Writings, edited with an introduction by Mary Warnock [ N e w York; New American Library, 1962], p. 135). For a systematic account of variations on the harm principle, see Joel Feinberg, The Moral Limits of the Criminal Late ( O x f o r d : Oxford University Press, 1985).

organ donation, see my "Justice versus Human Rights," Social Philosophy and Policy 1, no. 2 (Spring 1984), pp. 103-07. 7. Brian Barry, Political Argument (London: Rotitledge and Kegan Paul, 1965), p. 43. 8. See Laurence j . Lafleur, introduction to Jeremy Bentham's An p.
XI.

Introduction

to the Principles of Morals and Legislation (New York: Hainer Press, 1948), 9. See Amartya Sen, On Economic Inequality (New York: Norton, 1973). 10. The reference to Rawls is to A Theory of Justice (Cambridge: Harvard U n i versity Press, 1971).The delightful properties of: Ackermanian manna are discussed in Bruce A. Ackerman's Social Justice in the Liberal State (New Haven and London: Yale University Press, 1980). 11. For a more detailed argument to this effect, see my Beyond Sub/ective Morality (New Haven and London: Yale University Press, 1984). 12. Rae, " M a x i m m , " p. 640. 13. I t also violates the weaker and more general condition of acychcity (which rnies out cycles whether or not thev depend on the indifference relation). 14. This cycle should not be surprising to students of the classic voting paradox. In the table below, alternatives W , X, Y, Z can be thought of as chosen by people A, B, C, D or by principles A , B, C, D. Whether we think of them as people or as principles, we can. use the rankings at the left to get a cycle (the rankings can be thought of as utilities, with higher numbers being higher).

IA Structure 1. In this section i rely on arguments I developed in "The Complexity of Simple Justice," Ethics 98, no. 3 (April 1988), pp. 4 6 4 - 7 1 . 2. For more on the assignment problem, see section 1.5. 3. Douglas Rae, ''A Principle of Simple justice," in Peter Laslett and fames Fishk m , eds., Philosophy, Politics, and Society, 5th series (New Haven: Yale University Press, 1979). See also his " M a x i m m justice and an Alternative Principle of General Advantage," American Political Science Review 69 (fune 1975), pp. 6 3 0 - 4 7 , 4. H . L. A . Hart, "Between Utility and Rights," in Alan Ryan, ed., The Idea of Lreedom: Essays in Honor of Isaiah Berlin (Oxford: O x f o r d University Press, 1979), p. 77. 5. Ibid., p.78. 6. See, for example, Gilbert Harman, The Nature of Morality (New York: Oxford University Press, 1977), p. 3, and Judith jarvis Thomson, Rights, Restitution, and Risk (Cambridge: Harvard University Press, 1986), p. 95. See also Philippa Foot, "The Problems of Abortion and the Doctrine of the Double Effect," Oxford Review 5 (19671. For some other variations on involuntary It does not matter whether we are discussing people voting or the rankings determined by principles. Each of our minimum tests takes three of the principles together as sufficient tor an alternative to be morally preferred. On either interpretation, we can go from Z to Y, from Y to X, from X to W, and from W back to Z through support of three out of four in each case. We can move trom Z to Y (by principles A, C, D ) , from Y to X (by principles A, B, D ) , from X to W (by principles A , B, C}, and from W back to Z (by principles B, C, D}. 15. For more on this notion of "ideals without an ideal," see the concluding chap3 2 1 0 A W X Y Z B Z W X Y C Y Z W X D X Y Z W Rankings (or Utilities^ Principles (or People)

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211

ters of my Beyond Subjective Morality and Justice, Equal Opportunity, and the Family (New Haven and London: Yale University Press, 1983).

8 am assuming throughout this argument that there are background conditions of social and economic inequality m the adult generation. M v discussion focuses on equality ot opportunities, not equahtv ot outcomes. Equality of opportunities is a rationing ot chances to be unequal, It there were no inequalities of outcome, then equality ot opportunities would follow in an empty, merely torma! sense. 9 See, for example, Rawls's Ibeorv of lusttce. po. 3 4 - 4 0 . 10 See my justice. Equal Opportunity, section 4.5. Since we are tar from the possibility frontier in tnllv realizing any ot these three principles, there is clearly progress ot the first sort to be made. I he liberty to confer benefits within the family could certainly be increased by changing the incentives tor the formation ot two-parent (as opposed to single-parent) families. he welfare system, at present, provides an incentive tor the formation ot families that w i l l confer few benefits. Policies that would lessen minority teenage unemployment would also indirectly improve the incentive tor the formation ot two-parent families. In addition, more systematic and innovative proposals might be constructed that promote the hberrv to confer benefits within the tamilv bv providing the conditions for maximizing choice in the institutions to which children are subletted. Educational voucher systems might welt be developed to serve this end, so that choice of schools would be not merely a privilege of the advantaged, hut an opportunity spread throughout the society. 11, it is also clear that we sometimes sacrifice one of these principles without any corresponding gain in the others (or in additional factors that might be identified). Preferential treatment based merely on race, when it is applied in competitive meritocratic contexts, will sacrifice meritocratic assignment, but w i l l not significantly serve equality of life chances. When preferential treatment is applied to members of a minority group per se, an institutional incentive is created to accept or confer the benefit upon the most qualified members ot that group. They w i l l come, clearly, from the most advantaged members of the minority group. Hence the debate about mistargeting of preferential treatment, not to those who are actually disadvantaged, but to those who, symbolically, share racial, ethnic, or other characteristics w i t h those w h o are actually extremely disadvantaged. This objection applies to preferential treatment for minority groups per se, and not to preferential treatment when it is carefully targeted through income and other criteria to those who actually come from disadvantaged backgrounds. In that case, my objection no longer applies, because it may well be that the sacrifice in merit, real though it may be, is made up by an improvement in equality of life chances- On the other hand, when preferential treatment is applied to mere membership m the minority group, no gain in equal life chances can realistically be expected to follow.

1.5 Assignment 1, While it is true that we may expect systems of assignment to have complex empirical effects on the structure of distribution, it is nevertheless possible to match structurally identical states of affairs where in one sequence we have no objectionable assignment practices, and in the second we do. 2. I will deai with the assignment problem in this section in terms of equal opportunity, as that is the form the problem takes for the major issues of distributive justice affecting the basic structure of the society. The merit component of equal opportunity raises the issues of desert and of procedural fairness that are essential to any more genera! discussion of assignment, even for one appropriate to exotic situations such as the one posed in section 1.4 for the patient in room 306. Assignment raises the question: Why me? whether i t is for benefits or for burdens. A systematic theory of justice ought to aspire to answer that question for all the problems of distribution that might fit within this framework. For our purposes, it will be sufficient to expose the conundrums applying to the equal opportunity problem. That parr of the overall assignment problem is both crucial and inescapable. 3 . 1 have made this argument in greater detail i n Justice, Equal Opportunity, and the Family (New Haven and London: Yale University Press, 1983), 4. Bernard Williams, "The Idea of Equality," in Peter Lasictt and W. G. Runciman, eds Philosophy, Politics and Society, 2d series (Oxford: Basil Blackweli, 1962), pp. H O - 3 1 . 5. This is essentially the move John Rawls makes. See A Theory of Justice (Cambridge: Harvard University Press, 1971), pp, 7 2 - 7 4 , where he explains how "fair equality of opportunity" adds to merit ("careers open to talents") the additional requirement that "those with similar abilities and skills should have similar life chances." After adding some requirements for how abilities and skills are to be acquired, he admits: "The principle of fair opportunity can be only imperfectly carried out, at least as long as the institution of the family exists." He never explains, however, why the family should have the kind of independent moral weight that should stand against realization of one of the principles ranked in lexical order. 6. See, for example, Christopher Jencks, Who Gets Ahead? The Determinants of Economic Success in America (New York: Basic Books, 1979), pp. 82-83. 7. Bruce Ackerman's proposals for "liberal education" would go a long way toward fulfilling both of these functions. See his Social Justice in the Liberal State (New Haven and London: Yale University Press, 1980), chap. 5.

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12. The position I propose in this hook, whiie compatible with .some features of lntuitionism, has more precise implications, See part 3,

Obligation (Princeton: Princeton University Press, 1979!, For his definition ot the requirement, see p. 43. M y claim will be, contra Simmons, that mv proposal satisfies the particularity requirement.

1 .(-> Democracy and Progress 1. This account ot "Madsoman" democracy has obviously benefited greatly from Robert Dahl's A Preface to Democratic Theory (Chicago; University of Chicago Press, 1956). Furthermore, the majontanan dimension is roughly what he labels "popuhstic." i n labeling the northern dimension Madsoman, i do not. wish to limit Madsoman values to that dimension. For example, Madison would have been more sympathetic to the eastern, or representative, dimension of our scheme than to the western, or direct, dimension. 2. However, while impediments to new policies will prevent tyranny through commission, they will not prevent tyranny through omission. For an extended discussion, see my Tyranny and Legitimacy (Baltimore and London: Johns Hopkins University Press, 1979). For an identification of the verv idea ot democracy w i t h ' l i m i t e d maionty rule" (limited so as to protect minorities?, see Giovanni Sartori, The Theory of Democracy Revisited (Chatham, N . j . : Chatham House, 1987), section 2.4. Sarton's point is a usetul corrective to common usage. 3. D a h i , Preface, p. 132. 4. See Robert Paul Wolff, hi Defense of Anarchism (New York: Harper and Row, 1970). James Buchanan and Gordon'I ullock, in The Calculus of Consent (Ann A r b o r : University ot Michigan Press, 1971), also grant the unanimity rule a privileged status but, unlike Wolft, argue tor departures trom it based on decision costs. 5. See the discussion below, in section 2.6, ot the limitations of the unanimity rule. 6. For some creative proposals along these lines, see Benjamin Barber, Strong Democracy: Participatory Politics for a Netu Age (Berkeley and London: University of California Press, 1984), esp. chap. 10. 7. In terms of recent American experience, the movement of the Democratic party trom the McGovern reforms m the presidential selection system back to greater control by party notables is a movement roughly trom A to B and back againa movement supported by differing images ot democracy.

2 2 Beyond

lntuitionism

1 . Maurice Cranston, Freedom: A New Analysis (London: Longmans, 1953), p 6.5. For an incisive tour ot the many uses of the term liberalism, see Giovanni Sarton, Pbe Theory of Democracy Revisited (Chatham, N.J.: Chatham House, 1987), chap. 15. 2. Ronald D w o r k i n , "Liberalism," in Stuart Hampshire, ed.. Public and Private Morality (Cambridge: Cambridge University Press, 1978), p. 115. 3. "Government must treat people as equals" in the sense that " i t must impose no sacrifice or constraint on any citizen in virtue ot an argument that the citizen could not accept without abandoning his sense ot his equal w o r t h " (Ronald D w o r k i n , "Neutrality, Equahtv and Liberalism," m Douglas Macl.ean and Claudia Mills, eds.. Liberalism Reconsidered [ i b t o w a , N.J.: Rowman and Allanheld, 1983}, p. 3). 4. See Bruce Ackerman, Social Justice in the Liberal State (New Haven and London: Yale University Press, 1980), chap. 1. An excellent selection of writings on utilitarianism can be found in Amartya Sen and Bernard Williams, eds., Utilitariatttsm and Beyond (Cambridge: Cambridge University Press, 1982).
1

See also Peter Singer, Practical Ethics {Cambridge: Cambridge University Press, 1979). 5. See John Rawls, A Theory of justice (Cambridge; Harvard University Press, 1971), pp. 3440. Rawls's central ambition is, ot course, to develop a constructive alternative to mtuinomsm. 6. Brian Barry, Political Argument (London: Routiedge and Kegan Paul, 1965;, pp. 48, and Brian Barry and Douglas W. Rae, "Political Evaluation," in Ered I . Greenstem and Nelson Polsby, eds., Flandbook of Political Science (Reading, Mass.: Addison-Wesley, 1975), pp. 353-57. 7. See Alasdair MacSntyre, After Virtue (Notre Dame, Ind.: University of Notre Dame Press, 1981), p, 229, tor similar criticisms ot the "weighing" metaphor. 8. This claim applies to the production ot a tuli-fledged systematic alternative, but not to the strategy I w i l l develop tor a partial alternative m part 3. 9. Ackerman, Social justice, p. 14. 10. if the state ot theoretical debate is not actually robust, then the test becomes partially hypothetical: we have to ask whether a theory would differentiate in the required way among alternatives, if the state of debate permitted us to identify a broad range ot alternatives from which to choose.

2. / Criteria for an Acceptable Theory i. For an extended argument that no theory ot obligation can satisfy the particularity requirement, see A . John Simmons, Moral Principles and Political

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U . Rawls, Theory, pp. 8-9, 245-47, For further discussion of ideal versus nonldeal theory, see my Tyranny and Legitimacy: A Critique of Political Theories (Baltimore and London: Johns Hopkins University Press, 1979), chap. 7, 12. I wilt also follow Rawls in limiting ideal theory, at least initially, to the nationstate considered m isolation: " i shall be satisfied it it is possible to formulate a reasonable conception of justice for the basic structure of societv conceived as a closed system isolated from other societies" (Rawls, Theory, p. 8). External threats to the nation-state raise an issue for Rawls of nonideal or partial compliance theory. In applying our argument to the nonideal case, some exceptions for national security may thus he required. For some useful observations on how to draw these narrowly, see Thomas I . Emerson, The System of Freedom of Expression (New York: Random Fiouse, 1970), chap. 4. 13. [ take the term moderate scarcity from Rawls, who explains it thus: "Natural and other resources are not so abundant that schemes of cooperation become superfluous, nor are conditions so harsh that fruitful ventures must inevitably break down. While mutually advantageous arrangements arc feasible, the benefits they vteld fall short of the demands men put forward" (ibid., p. 127}.

3, "The autonomous man, insofar as he is autonomous, is not subject to the wilt of another" (ibid., p, 14). 4. For further implications of the unanimity rule, see Douglas Rae, " 1 he Limits of Consensual Decision," American Political Science Review 69, no. 4 (December 1975), pp. 1270-94. See also my Tyranny and Legitimacy (Baltimore and London: fohns Hopkms University Press, 979), chap. 8. s\ Of course, sunset laws might to devised to limit some of these conflicts. H o w ever, given Wolff's complete prohibition on violations of autonomy, differences of degree or in the number of violations would not make any difference to the basic argument. 6. John Locke, Two Treatises of Government, ed. Peter Laslett (New York: N e w American Library, 19b5), p. 392. 7. Hanna Pitkin, "Obligation and Consent," in Peter Laslett et al-, eds.. Philosophy, Politics and Society, 4th senes ( O x f o r d : Basil Blackwell, 1974), p. 55. 8. say "some" grounds because the basis might, at best, be viewed as prima facie. Consider Hanna Pitkin's example of the minor official in Nazi Germany who has given his express consent by taking an oath of office ("Obligation and Consent," pp. 6 4 - 6 5 ) . 9. Wolff is at his best in his pungent critiques of the classical arguments for majority rule. See Defense, pp. 38-58. 10. See my Tyranny and Legitimacy, chaps. 1 , 2, and 8. 11. Joseph Tussman, Obligation and the Body Politic (New York: Oxford University Press, 1965), pp. 8, 21-22, 37. 12. As Dahl notes, the tyranny problem recurs "like a nagging tooth." See his A Preface to Democratic Theory (Chicago: University of Chicago Press, 1956), p. 124. 13. Of course, the unanimity rule, at the extreme, gives even one person a veto and so makes frustrating policy changes from the status quo easiest of all. 14. Later 1 wilt employ a solution to the problem of obligation to solve the legitimacy problem. However, my strategy wilt be very different from that of actualconsent theory, in the terminology just introduced, I w i l l employ a category 4 theory rather than a category 1 theory. 15. Michael Walzer, Spheres of Justice; A Defense of Pluralism and Equality (New York: Basic Books, 1983). 16. Consent and choice are here being used broadly enough to cover not only express acts, but also tacit or implicit acts of agreement to, or acknowledgment

2.3 Political Thought Experiments t . Ackerman's theory employs neutrality as a fitter. See the discussion below. 2. As we w i l l see in parts 2 and 3, the hypothetical category includes realistic thought experiments as well as purely imaginary cases (such as Rawls's original position). A realistic thought experiment, such as Nozick's argument from the state of nature to the minimal state, is hypothetical because the minimal state is being advocated for us based on the decisions of imaginary people. 3. A good account of these ambiguities, along with specimen illustrations, can he found in Hannah Pitkin, "Obligation and Consent," in Peter I.aslett et at., eds., Philosophy, Politics and Society, 4th series (Oxford: Basil Blackwell, 1974). 4. Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), p. 5. 5. See section 3.1 below. 6. I t is in this sense that the doctrine of primary goods is "ideal-regarding" as explained in section 1.2.

2.4 The Quest (or Consent 1. Robert Paul Wolff, In Defense of Anarchism (New York: Harper and Row, 1970S, p. 23. 2. Ibid., p p . 23 and 24.

of, a shared convention or belief. 17. Ibid., p. 9. IS. Ibid., pp. 312 and 29 (emphases added). 19. John Rawls, A Theory of fustice (Cambridge: Harvard University Press, 1971), pp. 3 0 2 - 0 3 .

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20. Harold Lass well and Abraham Kaplan, Power and Society (New Haven: Vale University Press, 1950), pp. 55-56. 2 LWahet, Spheres, p. ,11.1, 22. M v o w n proposal in part 3 clearly owes a debt to Walzer's book. But that debt takes the form of proposals which take the entire approach out of category i and into category 4. 23. Tyranny is defined as crossing the boundaries of the spheres as determined hy the shared understandings. See Walzer, Spheres, p. 20. 24. Barnngron Moore, j r . , In/ustice: The Social Bases of Obedience and trast to Walzer, rejects relativism (see chap. 13). Remit (White Plains, N.Y.: M . E, Sharpe, 1978), chap. 2. However, Moore, in con-

to be bevond the means ot almost everyone" (ibid., p. 68 L E here is the further issue ot "free-floating anxiety" tor which people could not be compensated. Nozick speculates that "market compensation" (what people would consent to, in advance, through negotiation) might be required instead ot merelv " f u l l compensation." ("Full compensation is an amount sufficient, but barelv so, to make the person afterwards say he's glad, not sorry, it happened" [ibid.].) While market compensation is more demanding, the difficulties I am discussing depend only on the weaker requirement ot full compensation. [ i . [ here is no provision for educational services in the minimal state as described in Nozick's book. We might, however, consider this an oversight and focus the argument on the extension of other services. 14. Nozick, Anarchy, p. 114. 15. Consider some ot the independent Alaskans depicted bv John McPhee playing this role m Nozick's scenario, 16- Nozick appears to flirt with this possibility in his discussion ot the epileptic driver who should be compensated tor being prohibited from driving only to the degree to which he is relevantly disadvantaged. Hence, if he were given taxi tare, and so was not really disadvantaged, he would not be able to claim a rights violation, even if he did not tike taxis (and hence was not on as high an indifference curve after compensation was paid). Perhaps if the epileptic driver had already been incorporated into the stateand thus had tost the right to self-help enforcementthere might be an argument tor less than full compensation (because the state had already been established as the final arbiter of when the epileptic's rights were violated). But for our problem, the independents, bv definition, retain the right to self-help enforcement. The very right that is being taken away is the right to fudge when and to what degree their rights have been violated. For the state to supplant the judgment ot the i n dependents with its o w n judgment about whether compensation is sufficient is to take awav the right to self-help enforcement m the determination ot the value of self-help enforcement. Anything less than full compensation should plausibly be interpreted as a rights violation on this issue. But full compensation leads to a more than minimal state. See Anarchy, pp. 79-87, for Nozick's discussion ot the epileptic driver case. 7. For an application of this general argument to another case in category 2, David Gauthier's Morals hy Agreement, see my "Bargaining, justice and Justification," Social Philosophy and Policy 5, no. 2 (Spring 1988), pp. 4 6 - 6 4 .

2.5 Realistic

Hypothettcals

1. I interpret a claim that X actually is on at least as high an indifference curve as she was previously as falling within this category of strict agreement. 2. Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), p. 5. 3. Ibid. 4. Ibid., pp. 58 and 33 1. 5. Ibid., p p . 3 0 - 3 3 . The ontv possibility tor exceptions to the side constraints that Nozick mentions is "the question . , . whether they may be violated in order to avoid catastrophic moral horror, and it the latter, what the resulting structure might look like." Rather than deciding this question, he says it is "one I hope largely to avoid" (p. 30, note). 6. Ibid., pp. 23, 117-18. 7. Ibid., pp. 110-14. 8. ' I he argument would then have about the same status as that suggested bv the Yiddish proverb " I f mv Grandmother had wheels, she'd be a trolley car." W i t h sufficiently implausible assumptions, we can find a basis for almost any conclusion. 9. Nozick, Anarchy, pp. 25, 113-15. 10. Actually paying compensation makes up for a rights violation. This kind of compensation requirement is, of course, quite different from the hypothetical compensation tests used tn cost-benefit analysis (Kaldor-Hicks, Scirovskv, etc.), whose ultimate point is utilitarian but for which the compensation does not have to be paid. For more on the latter, see 1. M . D , Little, A Critique of Welfare Economics, 2d ed. (Oxford: O x f o r d University Press, 1957). U . Nozick, Anarchy, p. 63, and also the definition on p. 57. 12. Ibid., p. 66. Suppose, however, that the eccentric attempted to compensate everyone w h o felt fear as a result of his actions. "T his would be so expensive as

2.6 impartial Decision Procedures 1. See section 2.7 below (tor a discussion ot Dworkm's notion) and Peter Singer, Practical hthics (Cambridge: Cambridge University Press, 1979), pp. 12-13.

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2. Excellent discussions of these ambiguities can be found m Alan Gewirth, "The Golden Rule Rationalized," Studies in Ethical Theory, vol. 3 of Midwest Studies in Philosophy (1978), pp. 133-47, and J. L. Mackie, Ethics: Inventing Right and Wrong (New York: Penguin, 1977), chap. 4. 3. John Rawls, A Theory of justice (Cambridge: Harvard University Press, 1971), pp. 154-56; John C. Harsanyi, " M o r a l i t y and the Theory of Rational Behaviour," t Amartya Sen and Bernard Williams, eds., Vttlitartamsm and Be~ yond (Cambridge: Cambridge University Press, 1982). Rawls also develops the average utility argument on pp. 164-65 of A Theory of Justice. 4. See Singer, Practical Ethics, chap. 1 ; Rawls, Theory, pp. 136-42; and Lawrence Kohlberg, "Justice as Reversibility," in Peter Lasiett and fames Fishkm, eds.. Philosophy, Politics, and Society, 5th series (New Haven: Yale University Press, 1979). 5. According to Rawls, the "social primary goods" that are "at the disposition of society" include "rights and liberties, powers and opportunities, income and w e a l t h " {Theory, p. 62). In Ackerman's thought experiment, "manna is infinitely divisible and malleable, capable of transformation into any physical object a person may desire" {Social Justice, p. 31). For a critique of Ackerman, see section 2.2 above. For a critique of utility, see section 2.7. 6. Thomas Nagel, "Rawls on justice," m Norman Daniels, ed., Reading Rawls: Critical Studies of "A Theory of Justice" (New York: Basic Books, 1975), p. 8 (emphasis added). 7. The moral point of view is formalized in the sense that the assumptions provided (or permitted by) the decision procedure are spelled out with sufficient rigor and clarity to determine a unique ultimate conclusion {or, at least, that is the aspiration). 8. Rawls, Theory, p. 395. 9. John Rawls, "Fairness to Goodness," Philosophical Review 84 1975), p. 537. 10. Rawls, Theory, p. 4 2 1 . 11. Ibid., pp. 413 and 408. See also pp. 4 1 6 - 1 7 . 12. Ibid., pp. 423 and 432. 13. The m a x i m i n formulation of the general conception appears in the final statement of the principle on p. 303 of A Theory of Justice. 14. Ibid., pp. 3 0 2 - 0 3 . 15. Ibid., p. 408. 16. H o w , m other words, is i t supposed to yield the maximin distribution of primary goods in the general conception and the lexical priority of liberty over equal opportunity over income and wealth in the special conception? 17. Rawls, Theory, p. 155. 18. I b i d . , p. 154. (October

t 9 . I used similar charts in appendix B of my Tyranny and Legitimacy to make a different argument. 20. For some of maximin's bizarre implications, see Douglas W. Rae, " A Principle of Simple Justice," in Lasiett and Fishkm, Philosophy, esp. pp. 150-52. 2 1 . See Brian Barry, The Liberal Theory of Justice (Oxford: O x f o r d University Press, 1973), chap. 9, where the ambitious interpretation of the threshold in terms of a satiation point for wealth is subjected to a sustained critique. 22. Adam Smith defined the "necessaries" as including "not only the commodities which are indispensably necessary for the support of lite, but whatever the custom of the country renders it indecent for creditable people, even of the lowest order, to be w i t h o u t " (emphasis added). Within the latter category, Smith i n cluded a linen shirt and leather shoes as necessary in his own time (because, for example, "a creditable day-labourer would be ashamed to appear in public without a linen shirt"). See Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (New York: Modern Library, 1937), book 5, chap. 2, pp. 821-22. For some of the difficulties in evaluating subsistence needs, see my Tyranny and Legitimacy, chap. 5. 2 3 . 1 believe this comparative view of the three features is the most sympathetic and plausible interpretation. In other words, from the original position, compared to the risk of falling below the threshold, we care little, if at a l l , for increases above it. This ime of reasoning naturally leads us to something close to subsistence and a tenable claim to neutrality. Unless this comparative view is adopted, i t seems implausible that the very same point at which we become satiated with wealth (not caring for further increments) is the point at which anything less is a disaster. For the satiation view, see Barry, Liberal Theory, chap. 9. 24. For Rawls on lexical priority, see Theory, pp. 4245 and 6065. For some excellent criticisms of Rawls's lexical rankings, see Daniels, Reading Rawls, esp. the articles by Daniels, Femberg, Scanlon, and Barber. 25. The counting principles require only that I choose effective means for realizing my aims, that 1 choose more inclusive plans, and that I take account of likelihoods (when I have appropriate information). See Rawls, Theory, pp. 411-13. 26. John Rawls, "Kantian Constructivism in Moral Theory: The Dewey Lectures 1980," Journal of Philosophy 77, no. 9 (September 1980), pp. 515-72. For a useful assessment of the shift, see William A . Galston, " M o r a l Personality and Liberal Theory: John Rawls's Dewey Lectures," Political Theory 10, no. 4 (November 1982). See also Rawls, "justice as Fairness: Political, N o t Metaphysical," Philosophy and Public Affairs 14, no. 3 (Summer 1985), pp. 223-51. 27. Rawls, "Kantian Constructivism," p. 524.

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28. Ibid., p. 526. 2V. Sec Rawls, "Justice as Fairness," pp. 22728. 30. In the argument that follows I expand on some points I made m "Can 1 here tie a Neutral Theory o l Justice?" Ethics 93, no. 2 (January 1983), pp. 348-56. 3 1 . "Rationality," m Ackerman's view, is merely the requirement that questioning not be suppressed and that "reasons" be given instead (see Social justice, p. 4). Ackerman later argues that "the reason advanced by a power wielder on one occasion must not be inconsistent with the reasons he advances to justify his other claims to power" (p. 7). 32. i b i d . , p. 11. 33. Once again, the basic difficulty is the dilemma between substantively significant conclusions that lack a firm basis and firm conclusions that tack substantive significance. 34. The general version of the argument yields initial equality of manna or material resources (Ackerman, Social justice, section 14). Once the full diversity of goods available for distribution over time is taken into account, a more complicated conception of "undommated equality" is reached. See Social justice, pp. 2 8 - 2 9 , tor a hill statement. 35. Ibid., p. 48. 3b. Ibid., pp. 4 8 - 4 9 (emphasis added). 37. Ibid., p. 56. 38. Recall that in this science fiction scenario, the measurement problems arising from interpersonal comparisons have been set aside m order to give the utilitarian the benefit of the doubt. See Ackerman, Social Justice, pp. 4 5 - 4 9 , 265. 39. Ibid., p. 49. 40. For a spirited defense of his basic claim that, at the very least, his o w n proposal clearly passes neutrality, see Ackerman, "What Is Neutral about Neutrality?" Ethics 93, no. 2 (January 1983), pp. 3 7 2 - 9 0 . '1 here, however, Ackerman does admit the theoretical possibility that his neutrality constraint might be compatible with radically different metrics for measuring outcomes. " I t may be possible to produce a nonpreclusive model [one that does not rule out, by definition, the power struggles characteristic of the w o r l d as we know it] that analyzed Everyman's power struggle in a radically different way-one that did not at all resemble the way I have used the basic descriptors in my model: "genes," "education," "manna," "transactional structure," "Everyman." The outcomes of neutral dialogue in such a world would doubtless yield a very different conception of undommated equalitythough it is hazardous to predict the differences until the rival model is produced" (p. 383, emphasis added). The argument developed here offers no obiection to Ackerman's vision of the liberal state (or to Rawls's) once it is considered as part of such a family of liberal first principleseach of which makes symmetrical claims trom its o w n

variant ot a fundamental thought experiment. 1 he difficulty tor our purposes is that when Ackerman's vision is taken in this pluralistic spirit, the basis it might offer tor solving the jurisdiction problem will have been lost, its prescriptions can then be evaded by rival theorists employing the same basic strategy (appeal ro an impartial thought experiment), To the extent thev provide us with substantive conclusions, Rawls and Ackerman are not alone m reaching this result. I have, however, concentrated on them here because they represent, in my view, the most powerful attempts to employ this strategy ot combining an impartial thought experiment with the neutral consideration of interests. 41 For a discussion ot justice in the distribution of esteem, see William f. Goode, The Celebration of Throes: Prestige as a Control System ^Berkeley: University of California Press, 1978), esp. chaps. 13 and 14. 42. Ackerman, Social Justice, pp. 3 - 4 . For a catalogue ot contested kinds of power relations, see Robert E. Gooden, Manipulatory Politics (New Flaven and London: Yale University Press, 1980). 43. See Douglas Rae et al., Equalities (Cambridge: Harvard University Press, 1981), for a sustained demonstration ot the many substantive inequalities compatible with the abstract idea ot equality.

2-7 Preference, Utility, and the Good t . Brian Barry, Political Argument {London: Routledgc and Kegan Paul, 1965), pp. 3 8 - 4 1 . See also my Tyranny and Legitimacy {Baltimore and London: Johns Flopkins University Press, 1979), chap. 3, where I borrow [his distinction from Barrv but develop i t m a slightly different way. 2. R. M . Hare, " E t h i c a l ! heory and Utilitarianism," in Amarrya Sen and Bernard Williams, eds., Utilitarianism and Beyond (Cambridge: Cambridge University Press, i982), p. 26. O n the tradition of the impartial spectator, see Adam Smith, TheTheoryof Moral Sentiments (Indianapolis: Liberty Classics, 1969), pp. 22, 3 1 - 3 8 , 4 1 , 7 1 , 161-62, 2 4 7 - 4 9 . See also fohn Rawls, A Theory of justice (Cambridge: Fiarvard University Press, 1971), pp. 183-92. 3. Flare, "Ethical Theory," p. 30. For more on Hare's grappling with the fanatic, see his Ireedom and Reason ( O x f o r d : Oxford University Press, 1963), chap. 9. 4. Hare, "Ethical Theory," p. 30. In his Moral Thinking { O x f o r d : Clarendon Press, 1981), chap. 10, Hare claims that pure fanatical preferences such as the Nazi's w i l l necessarily disappear through the process ot moral umversahzation. The Nazi, if he imagines himself in the place ot jews, will necessarily lose his pure tanatical Nazi preferences. This strong claim is a sharp departure from the position Hare took in Ereedom and Reason. For an incisive critique of this last strategy, see Bernard Williams, Ethics and the Limits of Philosophy (Cambridge: Harvard University Press, 1985), pp. 82- >2.
l

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5. For more on this kind of counterexample directed at utilitarianism {and rival theories that share certain of its features), see my Tyranny and Legitimacy, esp. chaps. 1 , 2, 10, and 11. 6. Ronald D w o r k i n , Taking Rights Seriously (Cambridge: Ftarvard University Press, 1977), esp. chap. 9. For comparable efforts to distinguish private- and public-regarding preferences, see Brian Barry, Political Argument, pp. 63 64, and my Tyranny and Legitimacy, pp. 2 6 - 2 8 . For a critique of Dworkin's strategy to rehabilitate utilitarianism, see Fi. L. A Hart, "Between Utility and Rights," in Alan Ryan, ed., The Idea of Freedom ( O x f o r d : O x f o r d University Press, 1979), pp. 7 7 - 9 8 . 7. Ronald D w o r k i n , " A Reply," in Marshall Cohen, ed., Ronald Dworkin and Contemporary Jurisprudence (Totowa, N.J.: Rowman and Altanheld, 1983), p. 284. 8. Ibid., p. 286. 9. John C. Harsanyi, " M o r a l i t y and the Theory of Rational Behaviour," in Amartya Sen and Bernard Williams, cds., Utilitarianism and Beyond (Cambridge: Cambridge University Press, 1982), p. 56. 10. For some further arguments that utilitarianism cannot consistently be selective among preferences, see Bernard Williams, " A Critique of Utilitarianism," in j . J . C . Smart, Utilitarianism: For and Against (Cambridge: Cambridge University Press, 1973), pp. 77-150; see esp. section 6. 11. See my Tyranny and Legitimacy, chap. I , 12. Lionel Robbins, "Interpersonal Comparisons of Utility: A Comment," Economic Journal 48, no. 192 (1938), pp. 6 3 5 - 4 1 . 13. [hid., pp. 636 and 637. Robbins is quoting a remark of Jevons. 14. As I. M . D . Little notes in discussing these Paretian limitations, " I f the actual compensation of all losers is required before any economic change can be said to be good, then probably no good economic changes can occur. N o change of any significance in the real w o r l d could ever be made without harming some people" (A Critique of Welfare Economics, 2d ed. [Oxford: O x f o r d University Press, 1957j, p. 120). 15. W i l l i a m j . Baumol, EconomicThcory 16. Little, Critique, p. 87. 17. For an example of distributional weights, see Burton Weisbrod, "Income Redistribution Effects and Benefit-Cost Analysis," in Samuel Chase, Jr., ed., Problems in Public Expenditure Analysis (Washington, D , C ; Brookings Institution, 1976), pp. 177-213. For some difficulties in these economic applications of utilitarianism, see the articles by J. A, Mirrlees and Peter Hammond in Sen and Williams, Utilitarianism and Beyond. 18. For a critique of Rawls's doctrine of primary goods along these lines, see and Operations Analysis,Mhtd. (Engtew o o d Cliffs, N.J.: Prentice-Hall, 1977), p. 530.

i v "Justice and Rationality: Some Objections to the Central Argument m

Rawls's Theory," American Political Science Review 69, no. 2 (June 1975/, pp. 615-29. Brian Barry (who, as noted earlier, originated the want-regarding/ ideal-regarding distinction) applies it to Rawls in A somewhat different way, classifying Rawls's doctrine of primary goods as a want-regarding conception at one remove" (The Liberal Theory of Justice [Oxford: O x f o r d University press, 1973|, p. 22). Here draw the line diflerentlv so as to place primary goods in the ideal category. Rawls classifies his own argument this way, as Barry notes (p. 23). 19. See Gerald D w o r k i n , "Paternalism," in Peter Lasiett and ames S. Fishkm, cds., P/)i/osopijy. Politics, and Society, 5th senes (New Haven and London: Yale University Press, 1979), pp. 7 8 - 9 6 , for persuasive arguments m favor of some weak paternalistic judgments. 20. A n example attributed to Robert Nozick in D w o r k m , "Paternalism," p. 92. 2 1 . Barrington Moore, Jr., Injustice: The Social Bases of Obedience and Revolt (White Plains, N . Y . : M . E . Sharpe, 1978).

3. J Toward

Reconstruction

1. I set aside the issue whether such strategies can solve the particularity requirementwhether, for example, they lead to an obligation to support a particular just society, or just societies in general.

3.2 The Legitimacy Problem 1. I rake the term ideal theory from Rawls; see the discussion below. 2. Ronald D w o r k i n , "The Original Position," in Norman Daniels, ed., Reading Rawls: Critical Studies of "A Theory of Justice" (New York: Basic Books, 1975). 3. Everyone may have an obligation without the strength of that obligation always being overriding. Same members may, of course, have even stronger conflicting obligations in special cases. A state may be legitmate and still provide some members with grounds for justified civil disobedience. 4. Note to Wollheim's paradox and to the discussion of it m John Rawls, "Legal Obligation and the Duty of Fair Play," in Sidney Fiook, ed.. Law and Philosophy {New York: New York University Press, 1964), pp. 6-8. 5. I say "acceptable account" because it might be possible to do awav with all dissent and disagreement under realistic conditions, but only at a cost in what we termed indoctrination problems. 6. See, for example, John Rawls, "Justice as Fairness: Political, N o t Metaphysical," Philosophy and Public Affairs 14, no. 3 {Summer 1985), pp. 2 2 3 - 5 1 .

Notes t o Pages 1 2 7 - 1 4 0

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225

7. See Giovanni Sarton, The Theory of Democracy Revisited (Chatham, N.J.: Chatham House, 1987), section 5.4. See also Kar! Deutsch, The Analysis of International Relations (Englewood Cliffs, N.J.: Prentice-Hall, 1968), pp 101-10.

14. John Rawls, "Legal Obligation and the Dutv of Fair Plav," in Sidney H o o k , ed., Law and Philosophy (New York: New York University Press, 1964). Rawls defines his principle of fair play on pp.9-10. 15. Additional benefits can, of course, be provided, but the obligation to support the practices in question follows from the receipt of essential benefits (provided our other conditions apply as well). 16. Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), p. 93 17. Ibid., pp. 94 and 95. 18. For a subtle and insightful attempt to reconstruct the fairness argument, see Richard Arneson, "The Principle of Fairness and Free-Rider Problems," Ethics 92 (July 1982), pp. 6 1 6 - 3 3 . Ffowever, Arneson would require that the collective benefit be " w o r t h its cost to each recipient" (p, 623), a position that w i l l dispute below. 19. M y thanks to Lauren Rosenbloom for suggesting this example in class discussion at the University of Texas.! later encountered an Israeli example applied to these questions in George Klosko, "Presumptive Benefit, Fairness and Political Obligation," Philosophy and Public Affairs 16, no. 3 (Summer 1987), pp. 241-59. 20. See note 18 above. 2 ! . Note that the basic character of our argument would not be changed if Arneson's proviso were added. Such a move would simply restrict the range of alternative practices that were both acceptable and feasible.

3.3 Legitimacy and Obligation 1. "The living cremation of the satt was always m theory voluntary, but if we are to judge from later analogy, social and family pressure made i t virtually obligatory on some high-caste widows, especially those of the warrior class" (A. L. Bashara, The Wonder That Was India [London: Sidgwick and Jackson, 1954J, p. 188). 2. "Some medieval writers roundly declare that the sati, by her self-immolation, expunges both her own and her husband's sins, and that the two enjoy together 35 million years of bliss in heaven" (ibid,). 3. In addition, it must be asked whether such a practice could he characterized as providing essential benefits. 4. For an illuminating discussion, see Richard Wasserstrom, "Racism and Sexi s m " in Philosophy and Social Issues: five Studies (Notre Dame: University of Notre Dame Press, 1980). 5. See the discussion of background conditions in section 3.5. 6. See, for example, George Frednckson, White Supremacy: A Comparative Study in American and South African History (New York: O x f o r d University Press, 1981). 7. See Barrington Moore, Jr., Injustice: The Social Bases of Obedience and Revolt (White Plains, N . Y . : M . E. Sharpe, 1978), p. 6 1 . 8. Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (New Y o r k : Modern Library, 1937), book 5, chap. 2, pp. 821-22. 9. Karl M a r x , Capital, vol. 1 (New York: Vintage Books, 1977), p. 275 (book 1, part 1 , chap. 6). 10. Moore, Injustice, p. 59. 11. Moore concludes: " I t was a system of rights and duties that was regarded as legitimate by its victims." H e also singles out the "Untouchable caste councils which punished individual Untouchables who failed to live up to their obligations under their o w n systems" (ibid., p. 60). 12. For a penetrating and ambitious attempt to provide an account'of " m i n i m u m standards of provision" that is very close in spirit to the notion of "essential benefits" offered here, see David Braybrooke's Meeting Needs (Princeton: Princeton University Press, 1987). 13. H . L A . Hart, " A r e There Any Natural Rights?" Philosophical Review 64 (April 1955), p. 185.

3.4 Liberty of Political Culture 1.1 mean "political" to apply to all three areasexpression, belief, and association. Ffowever, the modifier is interpreted according to the broad definition in the next paragraph. 2. For an argument that places simitar emphasis on freedom of political expression and association as constituting a core value m the liberal-democratic tradition, see Alexander Meiktejohn, Political Freedom {New York: Harper and Brothers, 1948; repr. 1979). 3. Thomas Scanlon, " A Theory of Freedom of Expression," Philosophy and Public Affairs I , no. 2 (Winter 1972), pp. 2 0 4 - 2 6 , and "Freedom of Expression and Categories of Expression," University of Pittsburgh Law Review 40, no. 4 (Summer 1979), pp. 519-50. For Scanton's criticism of his o w n previous position, see pp. 5 3 2 - 3 4 of the latter article. In his new position, the "ultimate sources of justification relevant to . . . expression are the relevant participant, audience and bystander interests and requirements of distributive justice applicable to their satisfaction" (p. 535).

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227

4. Berlin only needs to respond to this issue to the extent that his argument is, irt tact, a defense ot a particular conception of liberty, in revisions ot that argument, he qualified the sense in which it could be taken as a defense of liberty. Rather, the argument is really a defense of value pluralism. In a note to the introduction to Four Essays, he explains: " i have therefore revised the text to make it clear that [ am not offering a blank endorsement of the negative concept as opposed to its positive twin brother, since this would itself constitute precisely the kind ot intolerant monism against which the entire argument is directed" {Four Essays on Liberty [New York: O x f o r d University Press, 1970}, p. Ivni). For Berlin's combination of "pluralism" and faliibihsm, see " T w o Concepts of Liberty," ibid., pp. 167-72. For a greatly overstated version ot this problem m Berlin, see Leo Strauss, "Relativism," m Helmut Schoek and James W. Wiggins, eds.. Relativism and the Study of Man (Princeton, N.J.: Van Nostrand, 1961). 5. For some general issues confronting the strategy of founding liberty on an idea! of human development, see Frederick Schauer, Free Speech: A Philosophical Enquiry (Cambridge: Cambridge University Press, 1982), chaps. 4 and 5. On "autonomy," see John Gray, Mill on Liberty: A Defence (London: Routledge and Kegan Paul, 1983), pp. 54-56 and 7 3 - 8 1 ; and Fred R. Berger, Happiness, justice and Freedom (Berkeley and London: University of California Press, 1984), pp. 2 3 2 - 3 9 . Both, however, incorporate autonomy into a theory that depends on the evaluation of states of affairs. O n Grav's version of M i l l , this evaluation is ultimately utilitarian; on Berger's, it is fundamentally a theorv of justice. 6. See the picture of M i l l that Berlin emphasizes in "John Stuart M i l l and the Ends of L i f e " (Four Essays}. 7. Ibsen's plays are full of compelling cases where truth conflicts with utility and/ or justice. See, for example, The Wild Duck and An Enemy of the People. 8. These observations on Twain and Dos Passos derive from Shelley Fisher Fishkin, From Fact to Fiction: Journalism and Imaginative Writing in America (Baltimore and London: Johns Hopkins University Press, 1985). 9. See Cohen v. California, where First Amendment protections were extended to the "emotive" as well as purely "cognitive" functions of linguistic expression because, as justice John Marshall Harlan noted, it is the "emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated" (403 U.S. 15 [1971}, at 26). 10. Hence modest time, place, and manner restrictions do not constitute explicit manipulation provided that (a) they are employed in a content-neutral manner and (b) they do not operate so as to effectively silence an opinion. 11. However, this analysis would certainly support the famous view of Justice

W i l l i a m Brennan in blew York Times v. Sullivan that the libel laws need to be evaluated "against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wideopen, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." From our standpoint, that decision was important for the "breathing space" which the libel laws had to leave for political dialogue. See Neiv York Times v. Sullivan, 376 U.S. 254 (1964), at 270 and 272. 12. See Murray Schumach, The Face on the Cutting Room Floor (New York: M o r r o w , 1964), chap. 4, for some interesting and sometimes bizarre cases ot political blacklisting in Hollywood, 13. One of the key demands in the boycott bv blacks ot white merchants in iV.A.A.C.P. v. Claiborne Hardware Co. (a boycott which was granted First Amendment protection for its nonviolent aspects) was that the merchants end job discrimination. Consumers should be tree to pursue such an effort because the merchants are not entitled to equal consideration independent from such issues arising from their role m the marketplace. Suppose, however, that the white merchants w h o are the subject of the boycott do not practice discrimination hut are the target of the boycott because it is believed that their personal views are racist. If those alleged racist views do not lead to actions that are the subject of protest, then our analysis could, admittedly, result m protecting the merchants from penalties imposed because of their private racist views, just as we would protect the Jewish merchant from penalties imposed because of his private religious views. 14. Kent Greenawalt, "Criminal Coercion and Freedom of Speech," Northwestern University Law Review 78, no. 5 (December 1983), p. 1084. 15. Of course, as in much political debate (and in many works of artistic expression), the reasons may be implicit or oblique, but there must be a basis in the work for uncovering them. 16. t am indebted to James Billington for bringing this phenomenon and its implications to my attention. 17. This argument and its connections to what I call the "private sphere of libe r t y " are developed in some detail in my Justice, Equal Opportunity, and the Family (New Haven and London: Yale University Press, 1983), section 2.4. 18. 1 am greatly indebted to Zhengyuan Fu of the Chinese Academy of Sciences for bringing this to my attention and for providing me with this translation. The quotation is from Ssu-ma Ch'ien's Historical Records. However, the standard two-volume English translation by Burton Watson (New York: Columbia University Press, 1961) begins w i t h the later Han dynasty and thus does not include this edict from the Quin dynasty. For a statement from one of the em-

228

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Notes t o Pages 1 6 9 - 1 7 6

229

peror's advisers that matches this edict almost verbatim, see Win, Theodore de Barv, Wmg-tsit Chan, and Burton Watson, eds., Sources of Chinese Tradition, vol. 1 (New York: Columbia University Press, I960), p, 141. 19. John Stuart M i l ) , On Liberty, m Utilitarianism, On Liberty and Other Writings, edited with an introduction bv Mary Warnock (New York: New American Library, 1962), p. 202. 20. For an extended argument to this ettect, see my "Bargaining, Justice and |ustification," Social Philosophy and Policy 5, no. 2 (Spring 1988), pp. 4 6 - 6 4 . 2 1 . They do not, i n other words, dismiss claims from particular groups merely because of the source. 22. M i l l , On Liberty, p. 143. 23. Ibid., p. 145. 24. See section 3.5 below. 25. This is, of course, one of the mam strands of argument m On Liberty, especially chapter 2. 26. For an incisive critique of the claim that "authority" requires a "surrender" ot judgment from those subject to it, see Richard E. Flathman, The Practice of Political Authority (Chicago: University ot Chicago Press, 1980), chap. s. 27. For the tortuous history in America ot the achievement ot liberty in the laissezfaire view (treated as freedom of the press in the "libertarian" sense), see Leonard W. Levy, Emergence of a Lree Press (New York: Oxford University Press, 1985). 28. For more on nondiscriminatory meritocratic assignment, see my Justice, Equal Opportunity, and the family, sections 2.2, 4 . 1 , and 5 . 1 . 29. Charles E. Lmdblom, Politics and Markets (New York: Basic Books, 1977), p. 202. 30. The attacks on Lmdblom concerning this issue are gathered in Robert Hessen, ed., Does Big Business Rule America? (Washington, D . C . : Ethics and Public Policy Center, 1981).

not be sett-reflective (the definition includes the requirement that it be unmanipulated). 5 . 1 his notion is meant to apply regardless of whether the goods or characteristics are valued ncgativelv or positively. See sections 2.2 and 2.3 above tor a discussion ot many ot the difficult issues in conceptualizing these values. 6 By "receive," 1 mean process forms of expression offered bv others so as to facilitate successful communication, whether oral or in writing, through standard languages or new artistic forms. 7. This knowledge should be interpreted to include not only the capacity to understand, but also the capacity to employ the relevant conventions. 8. For a further argument to this ettect, see my Justice, Equal Opportunity, and the Family (New Haven and London: Yale University Press, 1983), sections 2.4 and 3.6. 9. See Joseph Goldstein, Anna Freud, and Albert J. Soinit, Beyond the Best Interests of the Child (New York: Free Press, 1973) and Before the Best Interests of the Child (New York: Free Press, 1979} for some influential work on both the dangers ot and appropriate grounds tor state intervention. 10. See Une Brontenbrenner, A Report on Longitudinal Evaluations of Preschool Programs: Is Early Intervention Effective? vol. 2 (Washington, D.C.: Office ot Child Development, 1974) and P. Lcvcnstein, "Cognitive Growth in Preschoolers through Verbal Intervention with Mothers," American Journal of Orthopsychiatry 40 (1970), pp. 4 2 6 - 3 2 . H . I take the term underclass from Ken Autetta's vivid portrait Fhe Underclass (New York: Vintage Books, 1983). 12. See my Justice, sections 2.4 and 3.6, 13. For a provocative application to voting in national elections, see Paul E. Mechl, "The Selfish Voter Paradox and the Thrown-Away Vote Argument," American Political Science Review 7 1 , no. 1 (March 1977), pp. U - 3 0 . T h e general theoretical issue was, ot course, made famous by Mancur Olson, Ihe Logic, of Collective Action (New York: Sbocken Books, 1968), chaps. 1 and 2. For some crucial ambiguities m the notion of group size, see Russell Hardin, Collective Action (Baltimore and London: Johns Hopkins University Press, 1982), chap.3. 14. See, for example, William H . Riker and Peter C. Ordeshook, " A Theory of the Calculus ot Voting," American Political Science Review 62, no. 1 (March 1968), pp. 2 5 - 4 2 . 15. Stanley!. Benn offered an account of "political activity as a torm of moral selfexpression" and used as one of his examples "singing political songs i n the bath." See his "The Problematic Rationality ot Political Participation," in Peter Laslett and James S. Fishkm, eds.. Philosophy, Politics, and Society, 5th series

3.5 The Conditions of Activist Liberty 1. Anthony Trollope, Pbmeas Finn, vol. 1 (London: Oxford University Press, 1949), p. 297. 2. Ibid,, p. 312. 3. Isaiah Berlin, " T w o Concepts of Liberty," m Four Essays on Liberty (New York: O x f o r d University Press, 1970). See Gerald C. MacCaltum, Jr., "Negative and Positive Freedom," in Peter l.aslett et al., eds., Philosophy, Politics andSouety, 4th series (Oxford: Basil Blackwell, 1974). 4. i say "self-critical" because, by tnv proposed definition, such a dialogue could

230

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Notes t o P a g e s 1 8 6 - 1 9 5

231

(New Haven: Yale University Press, 1979;, esp. p. 3 10. Benn's notion ot moral self-ex press ion cannot, it seems to me, admit considerations ot effectiveness m expression any more than it can admit considerations of consequences. It is more a matter of consistency with fundamental beliefs or, one might sav, a matter ot integrity. 16. C. D . Broad, " O n the Function of False Hypotheses m Ethics," international Journal of Ethics 26 (1915-161 pp. 377-97. 17. For a discussion ot various efforts to deal with this' problem, see my Limits of Obligation (New Haven and London: Yale University Press, 1982), part 2, sections 13-18. 18. These points about organizational pluralism and decentralization have benefited trom Robert A . Dahl, Dilemmas of Pluralist Democracy: Autonomy vs. Control (New Haven and London: Yale University Press, 1982). 19. Barrmgton Moore, Jr., Injustice: The Social Bases of Obedience and Revolt (White Plains, N.Y.: M . E. Sharpe, 1978), p. 58. 20. See my Justice, section 5 . 1 , for a further account of these process equalities. 2 1 . 1 have been focusing here on how the tack ot self-esteem may form an impediment to participation. It is also true, of course, that actual engagement in participation can be expected, m turn, to contribute to self-esteem and to the civic education of citizensfacilitating the development of the necessary capacities. M i l l made strong claims about the educative functions of participation. For an assessment, see Dennis F. Thompson, fohn Stuart Mill and Representative Government (Princeton: Princeton University Press, 1976), chaps, i , 2, and Conclusion. 22. For each of these process equalities, leveling up tor the bottom is a necessary first step, but one that inevitably falls far short of equalization. Further efforts at equalization must inevitably conflict with important liberties ot the better-off strata. H o w these value conflicts are to be assessed remains a serious controversy. See my justice, section 5 . 1 . 23. Fora penetrating assessment, see William Julius Wilson, The Truly Disadvantaged: The Inner City, the Underclass, and Public Policy (Chicago: University ot Chicago Press, 1987). 24. Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983), chap. 4. 25. Although W. G. Runciman argues that this factor w i l l be greatly ameliorated by restrictions in the range of social vision ot the worse-ott (postal workers comparing themselves to other postal workers, but not to the very rich). See Runciman, Relative Deprivation and Social Justice (Berkeley: University of California Press, 1966). 26. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), p. 534.

27. For a historical account of our consumer culture along these general lines, see Stuart Ewen, Captains of Consciousness (New York: McGraw-Fiill, 1976). 28. For a careful assessment, see Michael Schudson, Advertising, the Uneasy Persuasion (New York: Basic Books, 1984). 29. See Ithiel de Sola Pool, Technologies of freedom (Cambridge: Harvard University Press, 1983) tor a useful survey of new technologies of mass communication and their promise, 30. For some inventive but speculative proposals for limiting the influence of commercial advertisers, see Charles A . Reich, " M a k i n g Free Speech Audible," The Nation, Feb. 8,1965, pp. 138-41. 31. See David R. Mayhew, Congress: The Electoral Connection (New Haven and London: Yale University Press, 1974), pp. 6 7 - 6 9 . See also John W. Kingdon, Agendas, Alternatives and Public Policies (Boston: Little, Brown, 1984), chap. 8, for a detailed discussion of policy entrepreneurs and their relation to windows of opportunity. 32. See Benjamin L Page, "The Theory of Political Ambiguity," American Political Science Review 70, no. 3 (September 1976), pp. 742-52. 33. in this same spirit, see Benjamin Barber's proposals for a "Civic Communications Cooperative" to harness new technologies for democratic political dialogue and a "Civic Videotext Service" to increase citizen access to information (Strong Democracy: Participatory Politics for a New Age [Berkeley: University of California Press, 1984j, chap. 10). 34. Joel Feinberg, Offense to Others, vol. 2 of The Moral Limits of the Criminal Law (New York: O x f o r d University Press, 1985), pp. 10-13. 35. For a strong argument that symbolic speech should be accorded equal status w i t h verbal speech under the First Amendment, see Melville B. Nimmer, "The Meaning ot Symbolic Speech under the First Amendment," UCLA Law Review 2 1 , no. 1 (1973), pp. 2 9 - 6 2 . 3 6 . 1 am referring to the full experience of such messages, not the bare knowledge of them. 37. For more on this promise, see Pool, Technologies. For example: " W i t h the new technologies, the w o r l d is s h r i n k i n g . . . . There will be less cost constraint to do business, consult, debate, and socialize within one's own region only. There w i l l be more freedom to do so with anyone anywhere w i t h w h o m one finds affinity. This development, along with the development of multiple technologies ot communication and of cheap microprocessors, w i l l toster a trend toward pluralistic and competitive communications systems. W i t h hundredchannel cable systems, videocassettes, videodisks, ISDNs, and network links to thousands of on-line information services, there should be a diversity of voices far beyond anything known today" (p. 229).

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38. For an assessment, sec Larrv ] . Sabato PAL Power: Inside the World of Political Action Committees (New York: N o r t o n , 1984). 39. Buckley u, Valeo, 424 U.S. t (1976). See aiso First National Bank v. Bellotti, 435 U.S. 7 6 5 ( 1 9 7 8 ) . 40. Reich, M a k i n g Free Speech Audible," p. 141.
1

Vouchers and Opinion Polls 1. See the discussion ot capacities in section 3.5 above. 2. i participated w i t h Schmitter, Ciaus Otte, lerrv Karl, and others in a working group focused o n representation vouchers at the Center tor Advanced Studv in the Behavioral Sciences in 1987-88. in what follows, 1 do not presume to present Schmitter's proposal, as it differs from the sketch suggested here in many particulars. I am, however, grateful to all the participants in this group tor some extremely insightful discussions. E heir own respective versions ot the idea w i l l , I am sure, be presented in various works. 3. I served as chief academic adviser to station WET A in Washington, D.C., tor an effort bv PBS to mount a version ot the deliberative opinion poll m the 1992 presidential campaign, i'undmg difficulties forced the event to be canceled, but the proposal has been adopted tor 1996 bv all ten of the nation's presidential libraries. I he event w i l l be held at the Lvndon Baines lohnson Library and Museum m Austin, Texas, and is expected to be broadcast nationally. Eor more details on the possible role ot deliberative opinion polls, see mv Democracy and Deliberation; New Directions for Democratic Reform (New Haven and London: Yale University Press, 1991). 4. For a general account ot momentum in the presidential selection process, see Larrv M . Barrels, Presidential Primaries and the Dynamics of Public Lboice (Princeton: Princeton University Press, 1988). Absolutism versus relativism, 2, 202 Ackerman, Bruce A., 2 0 6 2 , 2 0 9 f 0 , 2 S 3 K 4, 220>;.iS, 221 4 2 ; on manna, 6 , 5 ! , 80, 9 8 - 9 9 , 2 1 8 5 ; on "neutral dialogue," 4 6 , 5 ! , 56, 79; hypothetical-choice theory in Social Justice in the Libera! State, 48, 82, 9 6 - S O I ; on neutrality, 5 1 , 9 6 - 9 7 , 100,101, 2 2 0 - 2 1 x 4 0 ; objection to utilitarianism by, 97 98, 108; on equality, 9 8 - 1 0 0 ; distribution theory i n , 99-100, 101; on liberal education, 2f0/r7; on rationality, 220rt.il Activist liberty: conception of, 163 64; conditions of, 165-97; capacities and, 170-73; incentives and, 173-89; opportunities and, 189 97 Actual-consent theory, 5 0 - 5 2 , 56, 59-63,68 Acyclicity, 2 0 9 f.j Agreement. See Consent Amoralism, religion versus, 2, 202 Anarchism, 42, 51, 52,57, 69, 77, 128 Background conditions: and activist conception of liberty, 16869; definition of, 169; capacities, 170-73; incentives, 173-89; opportunities, 189-97 Barber, Benjamin, 2\2n6, 23 1x33 Barry, Brian, 22, 4 6 - 4 7 , 101. 206xS, 209x7,213x6,219x2/.221x/, 222x6, 223x/tf Barrels, Larry M . , 232x4 Basham, A . L 2 2 4 x / Baumol, W i l l i a m ] . , 109,222x15 Anarchy, State and Utopia (Nozick), 51 A meson, Richard, 143, HSn2l Assignment problem: structure problem and, 22; definition of, 29: equal opportunity and, 29-35, 2 1 0 2 ; merit and, 3 1-32, 33; liberty and, 3 3 - 3 4 Authority. See Legitimacy problem Autonomy, 146, 2 15x3, 226 X 5 33; equality of life chances and, 32 llSnU,

234

Index

Index

235

Beitz, Charles R., 206/ Benefits: legitimacy problem and, 124, 128; essential benefits, 1.3537, 139-44, 2 2 4 i 2 2 2 5 / 5 ; " m i n i 1

Compensation, 68, 71-77, 2 i 6 i ( i , 2 l 7 i 2 , 2 l 7 x / 6 . 222/4 Consensus: legitimate versus suspect forms of, 8, 6 5 - 6 6 ; in a self-reflective society, 124, I2f> 27; cleavages and, 130-31, 134, 156-58; definition of, 130 Consent: actual-consent theory, 50, 5 1 , 5 2 , 5 6 , 5 9 - 6 3 ; hypothetical contract theories, 52; nonunanimous consent, 5 2 , 5 9 - 6 3 ; tacit consent, 5 2 , 5 7 - 5 8 , 6 1 , f->9; unanimity rule for, 5 2 , 5 6 - 5 7 , 5 8 - 5 9 , 6 1 ; quest for, 5 3 - 6 7 ; options on, 54; "unanimous direct democracy," 5 4 - 5 5 ; hypothetical-choice theories, 55-56; "voluntary organization" model and, 59-bO; majority rule and, 60; hypothetical consent, 62; shared understanding and, 6 3 - 6 5 ; good-faith disagreements and, 6 4 - 6 5 ; manipulated or indoctrinated consensus, 6 5 - 6 6 ; transcultural criteria for, 67; strict versus loose interpretation of, 68 69, 11617; legitimacy problem and, 121-22; jurisdiction problem and, 122-23; definition of, 2 1 5 x i 6 Context-independent versus contextdependent solutions, 3, 4 Cost-benefit analysis, 109, 2 ibnlO Cranston, Maurice, 45, 2 1 3 x i Dahl, Robert A., 36, 2 1 2 f , 215x/2, 230IS Daniels, Norman, 218x6, 2 1 9 2 4 , 2232 Darkness at Noon (Koestler), 14 Decision procedures. See Impartial decision procedures

Deliberative opinion polls, 2 0 0 - 2 0 1 , 232x3 Democracy; forms of, 3 5 - 3 7 ; " M a d i soman" versus "majontarian," 35-36, 37, 212/; indirect versus direct, 36, 37; cycles m, 3739; unanimous direct democracv, 37, 54-55; limited liberalism model and, 39; practices of constitutional democracy, 13 i32; elections m, 132-33, 2 0 0 - 2 0 1 ; proportional representation and majority rule in, 3 3 ; vulnerability to "circularity," 6 0 - 6 ; public opinion and, 174,199; incentives and, 199; structure of, 199; with "limited ma|ontv rule," 2122 Dialogue: neutral dialogue, 4 6 , 5 1 , 5 6 , 79; and legitimacy problem, 124 25; "unmampulated dialogue" and, 146-48; creative works and, 147-48; definition ot, 147, 163; freedom ot contributions to political dialogue, 153-54; ot interests across cleavages m society, 156 58; participatory civility and, 157; and opportunities tor expression, 189-97; amplifiers ot political dialogue, 194-95; structural manipulation ot political dialogue, 194 Discrimination, 133-38. See also Equal opportunity Distribution: structure problem and, 2 2 - 2 3 ; Ackerman on, 99-100, 101 ; o t self-esteem, 180-85 Distributive justice: issues m, 5 - 9 ; democracy and, 35; and neutrality, rationality, and consistency, 96; preferences based on, 110 1

D w o r k i n , Gerald, 2 0 6 ^ , 2 2 3 x x ( 9 20 D w o r k i n , Ronald, 213x2, 222xx6-~7, 2 2 3 2 ; on equality, 45, 79, 213x3; on "personal" preferences, 103 06; on Rawts, 119

mum standards ot provision," 2 2 4 i 2 ; collective benefit, 215n 17 Benn, Stanley I . , 2 2 9 - 3 0 / 5 Bennett, Jonathan, 15, 17, 2 0 8 O Bentham, fcremv, 23, 2 0 9 S Berger, Fred R., 226x5 Berlin, Isaiah, 146, 2 2 6 4 , 2 2 6 6 , 228x3 Bilhngton, James, 227nl4 Blackmail, 152, 153 Blind-alley theories, 4 1 - 4 2 , 48,52, 54,57, U5 Bloom, Allan, 2, 2 0 5 3 Boycotts. See Market boycotts Brainwashing, 55, 66 Braybrooke, David, 2 2 4 i 2 Brennan, William, 116-27n11 Broad, C. D 176-77, 230wf6 Brontenbrenner, Une, 229 nW Buchanan, fames, 212x4 Cable television, 187, 190, 195, 23137 Captive audiences, 191, 193-94 Categorical Imperative, 80 Children, 154, 171-73 China, 155 Choice. See Consent "Circularity," ot democracies, 160-61 Citizen sovereignty, 101, 110 Cleavages, 130, 134, 156-58 Chentahsm, political, 167-68 Cohen, Marshall, 2 2 2 7 Collective benefit, 2 2 5 7 Communications technology, 186-90, 194,195,231x37

Economic inequalities, 18184 Economic prerequisites, minimal, 184-85 Education, 171-72, 2E07, 217x f i Educational voucher systems, 21 In 10 Elections, H 2 - H , 2 0 0 - 2 0 1 , See also Voting Equal opportunity: assignment problem and, 2 9 - 3 5 ; merit and, 3 1-32, 33, 210x2; trilemma of, 3 1 - 3 5 ; equality of lite chances and, 32 33; liberty and, 3 3 - 3 4 ; "reverse discrimination," 34; Rawls on, 95, 2 1 0 5 ; distributive justice and, 110-11; definition o f , 2 1 1 x i i ; versus equal outcomes, 211X; and preferential treatment tor minority groups, 2 1 1 f / Equahtv; definition of, 23; maxmim violating, 24, 2 5 - 2 6 ; total welfare violating, 2425; numbers criterion violating, 26; of lite chances, 3 2 - 3 3 ; R, D w o r k i n on, 45, 79, 213x3; liberalism and, 4 5 - 4 6 ; neutrality and, 9 6 - 9 7 ; background conditions and, 180 8 1 ; process equalities, 180-82, 2 3 0 2 2 ; economic inequalities, 181-84; government's rote m, 2 1 3 3 ; "undominated equality," 22034 Ewen, Stuart, 231x27

236

Index

Index

237

Explicit manipulation, 148-56, 160, 165-67,22610 1 xpression, opportunities tor, 1S9-97 Expressive-function argument of voting, 1/6 hiimess, 1 4 0 - 4 1 , 143, 2 10 i , 225/7 Feinbcrg, Joel, 191, 208fO, 2 0 8 i 4 , 23 I34 Fislikm, Shellev 1'isher, 2 2 6 S Hathman, Richard E 2 2 8 2 6 Foot, Phihppa, 2 0 8 6 Frednckson, George, 224ft Freedom. See Liberty Freedom of association, 154, 193, 225x2 freedom ot political expression, 146, 153-54, 156-58, 172, 189-97, 2 25 2 Freedom ot thought, 121, 164-65 Future generations, and problem of value, 9-19 Galston, W i l l i a m A., 2192fo Gauthier, David, 217/7 General welfare, and structure problem, 22-23 Generalized-consequences principle of voting, 176-77 Gewirtb, Alan,2182 Golden Rule, 80 Goldstein, Joseph, 2 2 9 9 Good: Rawls's " t h m theory ot the good," 8 3 - 9 6 , 100-101, 110, 146; Rawls's model conception of a moral person, 9 4 - 9 5 ; idealregarding theories of, 101-02, 110-12, 2 2 3 f # ; want-regarding theories of, 101-02, 108, 109 10, 2 2 3 / i ; neutral theory of.

I t 0 - 1 3 ; jurisdiction problem and, H2-13 Goode, William J., 221x4/ Gooden, Robert E., 221x42 Crav, John, 2 2 6 5 Greenawalt, Kent, 152, 2 2 7 14 Greenstem, t-red I . . 111x6

State, 82, 9 6 - 1 0 1 ; in Rawls's .4 Theory of justice, 8 2 - 9 6 impartiality, 50-52 Incentives: negative incentives, 173; and importance ot public opinion, 174; tor political participation, 7 4 - 8 0 , 199; positive incentives, 174; decentralization and, 179; selective incentives, 179-80; distribution of selt-esteem and, 180-85; economic inequalities and, 181-84; minimal economic prerequisites and, 184-85; advertising and, 186-87; tor specialized elites, 188-89; tor competitive voices m government, 196-97; representation vouchers as, 198 99; tor formation ot two-parent families, 2 l l x f 0 India, 129-30, 2 2 4 f indifference curves, 4 6 - 4 7 , 7 3 - 7 4 , 76, 216x/ Individual-choice problem, of political obligation, 61-63 Indoctrinated consensus, 65-66 Indoctrination problem: liberal theory and, 4 3 - 4 4 ; political thought experiments and, 52; consent and, 53-54, 6 5 - 6 7 ; self-reflective society and, 115; and legitimacy problem, 122, 128; liberty and, 145; and dissent and disagreement, 223 5 Inequalities. See Economic inequalities; Equal opportunity Insulation strategies, and economic inequalities, 182 Interests. See Preferences Interpersonal comparison of want satisfaction, 108-10 Intuitionism: versus systematic theory.

2, 4, 2 0 2 - 0 3 ; definition of, 34, 46; systematic versus unsystematic, 4 6 - 4 8 ; Rawls's alternative to, 213x5 Jencks, Christopher, 210x6 jurisdiction problem: libera! theory and, 43; political thought experiments and, 52; impartial decision procedures and, 8 1 - 8 2 ; on the good, 112-13; self-reflective society and, 115, 128; Rawlsand, 119; legitimacy problem and, 122-23,128 justice: pure problem of, 19-20, 2 1 ; "simple justice," 20; Rawls s
!

Hardin, Russell, 2 2 9 i3 Hare, R. M 102-03, 2 2 1 x 2 - 4 H a r m , identitv-specitic notion of, 9-H) Harm principle, 18-19, 208x/4 Flarman, Gilbert, 2 1 , 208x6 Flarsanvi, John C., 80, 106, 218x3, 222x9 Hart, H . L. A., 20, 140-41, 208x4, 222x6,22413 Hook, Sidnev, 2 2 3 4 , 2 2 5 14 FIvpothetical-choice theories, 55-56, 68,82-83 Ffvpothetical-contract theories, 52 Ffvpotheticais. See Realistic hypotheticals

theory of, 4 5 - 4 6 , 51, 62, 8 2 - 9 6 ; social meanings and, 64; Walzer's theory of, 64, 65, 66; Ackerman's theory of, 82, 9 6 - 1 0 1 . See also Distributive justice; Systematic justice Kaldor-Hicks compensation test, 109 Kant, immanuel, 80 Kaplan, Abraham, 2 16x20 Karl, Terry, 232x2 Kingdon. j o b n W., 231x3/ Klosko, George, 225/S Koestier, Arthur, 14, 208xO Kohlberg, Lawrence, 218x4 Laissez-faire construction of liberty, 160-62,168 Lasiett, Peter, 206x2, 2 0 6 , 208x3, 2 1 0 x 4 , 2 1 4 3 , 2 1 5 x 7 , 218x4, 223x/9, 228x3, 229/5 Lasswell, Harold, 64, 2 1 6 2 0 Legitimacy problem; obligation and, 5 , 4 2 - 4 3 , 129-45, 2 1 5 i 4 ; authority of the state and, 115-29;

Idea I-regarding theories of good, (01-02, 110-12, 223x/.V Identity-independent theories: problem ot value and, 13-15; replaceabilitvaiul, 13-17; procreational liberty and, 18-19 klentitv-specific notion of harm, 9-10 Identity-specific theories, and procreational liberty, 18-19 Impartial decision procedures: as basis for systematic liberalism, 79-80-, examples of, 7 9 - 8 0 ; versus notion of interests, 8 0 - 8 1 ; jurisdiction problem and, 8 1 - 8 2 ; in Ackerman's Social justice in the Liberal

23

Index

Index

239

Legitimacy problem (continued) ideal theory and, 117-19; as ethical issue, 118: as sociological issue, 118; and state's use o l authoritative torce, 1 2 0 - 2 1 ; consent theory and, 121-22; full versus minimal solution to, 121; indoctrination and, Ml, 128; jurisdiction problem and, 122-23, 128; and norms ot evaluation internal to that political practice, 12 3-25; and supplv ot essential benefits, 124, 128; conditions tor, 124 25; consensual practices and, 124, 126-27; dialogic nature ot conditions for, 124-25; minimally voluntary provision and. 124, 125; self-reflective practices and, 124, 2 7 , 129-44; and criteria for acceptable theory, 127-28; liberty and, 185-86; self-reflective society and,201-03 Levenstcin. P., 2 2 9 i t i L e w , Leonard W . , 2 2 8 2 7 Liberal education, 210x7 Liberalism: false dilemmas o n , 1 2; limited liberalism model, 4, 39; criteria tor acceptable theory ot, 4 1 - 4 5 , 127-29; differentiating anions; alternatives, 4 1 - 4 2 , 45-50; as individually binding, 4 2 - 4 3 ; failure to be prescriptive and, 42, 45-50; indoctrination problem and, 4 3 - 4 4 ; jurisdiction problem and, 43, 44; individuatversus social-choice question o n , 44; definition of, 4 5 - 4 6 ; systematic intuitiomsm and, 4647; unsystematic intuitiomsm and, 4 7 - 4 8 ; moral priorities and, 49 50; political thought experiments

and, 5 0 - 5 3 ; quest tor consent and, 53-6/; and impartial decision procedures, 7 9 - 8 0 ; hypotheticalchoice theories ot, 8 2 - 8 ; process equalities and, 180-8 I Liberty: problem ot assignment and, 3 3 - 3 4 ; Rawls o n , >4-9 .1, ( 4 5 - 4 6 ;
v

MacLean, Douglas, 213x3 Madison, James, 60 "Madisonian" versus "majoritarian" democracy, 3 5 - 3 6 , 3 7 , 212/ Mafia, 147 " M a j o r i t a r i a n " versus "Madisonian" democracy, 3 5 - 3 6 , 37, 212x/ Majority rule, 60, 133, 215x9 Manipulation: of consensus, 6 5 - 6 6 ; versus "unmanipulated dialogue," 146-48; explicit manipulation, 148-56,160, 165-67, 2 2 6 x ( 0 ; strong manipulation, 156-58, 164-65; structural manipulation, 156-57, 161, 194 Market boycotts, 151-52, 166, 227x13 M a r x , K a r l , 135, 224x9 Mason, David T., 2 0 5 2 Mass communication. See Communications technology Maximin, 23-26 " M a x i m u m " notion of the general conception of justice, 8 6 - 9 0 Mayhew, David R., 23 l x / Meehl, Paul E., 229x13 Mciklejohn, Alexander, 225x2 M e r i t : assignment problem and, 3 1 32, 3 3 ; equal opportunity and, 31-32,33,210x2 M i l l , John Stuart, 60, 146, 155, 158, 164,208/4, 228f9 M i n i m a l state, 68-78, 214x2 M i n i m u m : guaranteed minimum, 88 89; Rawls o n , 8 8 - 9 2 ; " m i n i m u m standards of provision," 2 2 4 f 2 Mirrlees, j . A . , 2 2 2 J 7 Mishan, E.J., 206x6 Moore, Barrington, Jr., 66, t U , 1 8 0 , 2 0 6 M I 0 , 2 1 6 2 4 , 223x2/, 2 2 4 7 , 2 2 4 i f , 230x19 *

M o r a l self-expression, 2 2 9 - 3 0 IS Morality. See Good; Value problem Motivation, See incentives M u t u a l voluntariness, 190-93 Nagel, Thomas, 82, 2 I 8 6 Natural rights, 2, 202 Negative incentives, 173 Neuhaus, Richard, 205x4 Neutral dialogue, 46,5 i , 56, 79 Neutrality: options for hypotheticalchoice theories, 8 2 - 8 3 ; in Rawls's " t h i n theory of the good," 83-84, 8 6 , 9 1 , 9 3 , 9 5 - 9 6 , 110; Ackerman on, 9 6 - 9 7 , 100. 101; definition of, 96; equality and, 9 6 - 9 7 ; in theories of the good, 110-13; of claims or interests, 12223. See also Impartial decision procedures Nonunanimous-actual consent, 59, 63, 68 Nozick, Robert, 2 0 7 4 , 2 1 4 4 , 2 1 6 1 7 2 - / 6 , 223x20, 115nl6\ on the minimal state, 5 1 , 68 78, 214x2; and doctrine of full compensation, 6.8, 7177; unanimous acceptability in argument of, 6 8 - 6 9 ; on "independents," 7 2 - 7 3 , 7 5 , 120, 2 1 7 6 ; on protection services versus "self-help enforcement," 7 2 - 7 4 , 217x16; and indoctrination for preference formation, 141-42 Numbers criterion, 2 4 - 2 6 Obligation: legitimacy and, 5, 42 4 3 129-45, 215x14; "voluntary
;

distributive justice and, 110-1J ; ot political culture, 144-65; selfreflective society and, 144-65; indoctrination problem and,, 145; Berlin o n , 146; M i l l o n , 146, 158, 164; Scanlon o n , 146; "urrnampulated dialogue'' and, 4 6 - 4 8 ; utilitarianism and, 146; explicit manipulation and, 4 8 - 5 6 , 160; cleavages and, 156-58; freedom ot expression and, 156-58; strong manipulation and, 156-58; structural manipulation and, 1 .16 -57, 161; and political "truths," 158 .19; laissez-faire construction ot, 160-62, 168; intervention and, 162- 63; activist conception ot, 163- 97; political chentahsm and, 6 7 - 6 S ; capacities and, 170-73; incentives and, 7 3 - 8 9 ; legitimacy problem and, 185-86; opportunities and, 189-97; tor conterruit', benefits w i t h i n the family, 2n/0. See also headings beginning w i t h freedom Limited liberalism, 4, 39 Lmdhlom, Charles t . , 1 6 0 - 6 1 , 2 2,8 uni 9-30 Little, L M . D . , 109,222nJ4 Locke, John, 5 7 - 5 8 , 6 1 , 69, 215x6 MacCallum, Gerald C , j r . , 2 2 8 3 Macfntyre, Alasdair, 213x7 Mackie,J. L , 218x2

7 8 - 7 9 ; on obligation,

organization" model and, 59 60; individual-choice problem of, 6 1 - 6 3 ; promise keeping and,

240

Index

Index

241

Obligation (continued; 129-30; selt'-refiective practices and, 129-44; justifiable nature of, 130; authoritarian regimes and, 131; and essential benefits, 135 37, 139-44; fairness and, 1 4 0 - 4 1 ; strength of, 2 2 3 3 Otfe, Claus, 2 3 2 2 Olson, Mancur, 178-79, 229 11 On Liberty ( M i l l ) , 155 Opinion polls, deliberative, 2 0 0 - 2 0 1 , 232x3 Opportunities: for receiving conscientious political views, i 8 9 - 9 1 ; mutual voluntariness and, 190 93; tor expressing conscientious political views, 194-97 Ordeshook, Peter C , 2 2 9 1 4 Page, Benjamin I . , 231x32 Pareto noncomparahle, 109, 20iix i Pareto principle, 7, 108, 109, 110, 206.? Parh't, Derek, 13,207x5 Participation: capacities tor, 170; incentives tor, 174-80, 199; irrationality of, S75-76,17K-79; and principle of hypothetical generalization, 176-77; expressivctunction argument of, 176; generalized-consequences principle ot, 176-77; motivations tor, 177-78; group size and, 178-79; distribution of self-esteem and, 180-85, 2 3 0 2 i ; economic i n equalities and, 181-84; advertising and,186-87 Participatory civihtv, 157, 190 Particularity requirement, 43, 223/ Paternalism,8,111-12,223x19 Phmens hum i Frollope), 165-67

Pitkm, Hanna..S8, 214x3, 2 5 x 7 , 2 15M Political, dehtution of, 145, 225/ Political chentahsm, 167-68 Political thought experiments, 50-53 Polsbv, Nelson, 213x6 Pool, Ithiel de Sola, 231x29, 2 3 t x 3 7 Population problems, 10-11, 15, 17 Positive incentives, 174 "Preference" utilitarianism, 15-16 Preferences: value problem and, 7 8; indoctrination tor preference formation, 78-79; and theories ot the good, S01-02; fanaticism and, 102-03, 107; personal preferences versus external or public-regarding preferences, 105-04; utilitarian approach to, 106-07; and interpersonal comparison of want satisfaction, S08-I0; choice ot which are to he counted, 108; based on distributive justice, 1 0 - 1 1 ; neutrality and, 122-23 Preferential treatment tor minority groups, 21 biJ J Presidential selection, 2 0 0 - 2 0 ! Primary goods, 80, 84- ><>, 1 i n ,
l

Rawls, John, 4, 2 0 5 . 2 0 9 , 2 1 3 - 1 5 , 218-21,223, 225, 230; on the priority problem, 3, 28; on primary goods, 6 , 8 0 , 8 4 - 9 0 , 92, 93, 1 1 0 , 2 1 8 x 5 , 2 2 2 - 2 3 / ; argument against equality, 24; theory of justice, 4 5 - 4 6 , 5 1 , 62, 8 2 - 9 6 ; '"original position" of, 56, 79,80, 214w2; hypothetical-choice theory m A Theory of justice, 8 2 - 9 6 , 1 0 0 - 1 0 1 ; neutrality in, 83-84, 86, 9 1 , 93, 9 5 - 9 6 , 110; on the " t h i n theory of the good," 8 3 - 9 6 , 1 0 0 - 1 0 1 , U 0 , 146; on rational lite plans, 8 4 - 8 6 , 93; on " n i a x i m m " notion ot the general conception of justice, 8 6 - 9 0 ; on income and wealth, 8 7 , 9 2 , 95; on the special conception, 87, 9 2 - 9 3 ; on guaranteed minimum, 8 8 - 8 9 ; on model conception ot moral person, 94 95; on fairness, 1 4 0 - 4 1 , 210x5; on liberty, 145-46; on economic redistribution, 185; development of alternative to intuitiomsm by, 213x5; on moderate scarcity, 214x/3; on ideal theory, 214x12, 223x/; on social primary goods, 218x5 Realistic hypotheticals: example of, 5 1 ; unanimity and, 6 7 - 6 9 ; Nozick's argument tor the minimal state, 68-78 Redistribution, and economic inequalities, 183-85 Reich, Charles A . , 196, 23 3 0 Relativism, 2, 6 5 - 6 6 , 202 Religion versus amoralism, 2, 202 Replaceabihty, and identityindependent theories, 13-17 Representation vouchers, 197-99

"Restricted utilitarianism," 103-06 Riker, W i l l i a m H . , 229x14 Robbins, Lionel,7, 1 0 8 - 0 9 , 2 2 2 x x / 2 3 Roscnbloom, Lauren, UStilH Runciman, W. C , 2 1 0 4 , 2 3 0 2 5 Ryan, Alan, 222x6 Sabato, Larry j . . 2 3 2 3 S Sartori, Giovanni, 212x2, 2 K i w i , 224 7 Sati. 2 9 - 3 0 , 2 2 4 x l - 2 Scanlon, Thomas, 146, 225n3 Schauer, Frederick, 2 2 6 5 Schmitter, Philippe, 197, 232x2 Schudsou, Michael, 231x28 Schwartz, Ihomas, 11, 2 0 7 6 Scitovsky compensation test, 109 Second Treatise (Locke), 57-58 Selective incentives, 179-80 Self-critical political culture, 146-47. See also Self-reflective society Self-esteem, 1 3 8 - 3 9 , 1 8 0 - 8 5 , 2 3 0 2 i Selt-reflective society: compared with systematic justice, 5; moral conflicts and, 9; criteria tor, 115-17, 12728; legitimacy problem and, 117-29, 2 0 1 - 0 3 ; and provision ot essential benefits, 124, 128, 3 5 37, 139-44; consensual practices and, 124,126-27; minimally voluntary condition for, 124, 125; self-reflective condition ot, 124, 127, 129-44, 5 9 , 160, 164; and differentiation among alternatives, 127-28; and individually binding requirement, 128; jurisdiction problem and, 128; nonmdoctrination criterion and, 128; social conditions tor lull membership i n , 137-39; self-esteem and, 138-

218x5,218i6, 222-23/ Priority problem, 3, 28, 205x6 Process equalities, 180-82, 230x22 Procreatioual liberty, 18-19 Promise keeping, 129-30 Public opinion, 127, 174, 199 Racial or ethnic discrimination, 133 38 Rae, Douglas W,, 20, 25, 206//4, 208x3, 213x6, 2 1 5 4 , 2 1 9 2 0 , 221x43 Rational life plans, 8 4 - 8 6 , 93 Rationality, 220x3/

242

Index

Index

243

Self-reflective society (continued) 39; and liberty of political culture, 1 4 4 - 6 5 ; and activist conception or liberty, 163-64; conditions ot activist liberty and, 165-97; background conditions and, 168 97; viability ot, 169-70, 2 0 1 - 0 3 ; capacities and, 170-73; incentives and, 173-89; opportunities and, 189-97; and competitive voices tn government, 196-97; and representation vouchers, 197-99 Selt-respect, Rawls on, 95. See also belt-esteem Sen, Amartva, 23, 2 0 9 , 2 U 4 , 2183,221x2,222x9.222x17 Shared understanding, and consent, 63-65 Shue, Henry, 2 0 6 ! Simmons, John, 2 1 2 - 1 3 / Singer, Peter, 15-16,79-80, 208x1/, 213x4,217x1,218x4 Smart, j . J. C , 222x10 Smith, Adam, 9 1 , 135-39, 2 1 9 2 2 , 2212,224x# Social justice in the Liberal State (AckermanS, 82, 96-101 Social mobility, and economic inequalities, 182-83 Special conception, 87, 92-93 Spheres of Justice (Walzer), 63 64, 119 Strauss, Leo, 2, 2 0 5 x 3 , 2 2 6 4 Strong manipulation, 156-58, 164-65 Structural manipulation, 156-57, 161,194 Structure problem: pure problem of justice and, 19-20, 2 1 ; utilitarianism and, 2 0 - 2 2 ; assignment problem and, 22; distribution and, 22-13; general welfare and, 21-13; cases concerning, 2 4 - 2 8 ;

four minimum tests of, 2 7 - 2 9 ; transitivity and, 28-29 Subsistence needs, 219x22 Systematic justice: limits of, 1-39; impediments to, 2 - 4 ; contextindependent solutions and, 3, 4 ; definition ot, 3; moral progress and, 3, 4 ; "priority problem" and, 3; compared with selt-rettective society, 5; issues in distributive justice, 5 - 6 ; value problem in terms ot immediate difficulty, 6 - 9 ; value problem and future generations, 9 19; structure problem and, 19-29; assignment problem and, 29 35; democracy and progress and, 35-39 Systematic theory: versus intuitionism, 2, 4, 202-03; and impartial decision procedures, 79-80 Systematic versus unsystematic mtultiomsm, 4 6 - 4 8 Tacit consent, 5 2 , 5 7 - 5 8 , 6 1 , 69 Iheory of justice, A (Rawls), 8 2 - 9 6 , 100-101 " T h i n theory ot the good," 83-96, 100-101,146 Thompson, Dennis E, 230x2/ 'ihomson, Judith Jarvis, 2 1 , 208x6 Thorndike, E. L., 7, 2 0 6 x x 4 - 5 Tocqueville, Alexis de, 60 lotal welfare: violating maximin, equality, and the numbers criterion, 2 4 - 2 5 ; maximm violating, 2 5 - 2 6 ; numbers criterion violating, 26 Transitivity, and structure problem, 28-29 " T n l e m m a " ot equal opportunity, 31-35 LYollope, Anthony, 165-67, 228/

"Rillock, Gordon, 2 1 2 4 Tussman, Joseph. 5 9 - 6 0 , 215/1 T w a i n , M a r k , 147, 2 2 6 Tyranny, 60, 63, 66, 215x12, 216x23 Unanimity, and realistic hypothcticals, 67-69 Unanimity rule, 5 6 - 5 9 , 6 1 , 212x4, 215x13 Unanimous direct democracy, 37, 54-55 "Undommated equality," 120n34 Universal consent, 52 "Unmanipulated dialogue," 146-48 Unsystematic versus systematic intuitiomsm, 4 6 - 4 8 Utilitarianism: value problem and, 12-19; replaceabihty and, 13 17; "preference" utilitarianism, 15-16; vulnerability ot, 16-17; arguments aga-mst, 2 0 - 2 2 , 9 7 98, 108; distributive objection to, 2 4 - 2 5 ; equality and, 46; classical utilitarianism, 51-52, 7 9 - 8 0 ; Singer's reconstruction of, 79-80; Ackerman's objection to, 9 7 - 9 8 , 108; Hare's theorv of, 102; "restricted utilitarianism," 103-06; preferences and, 106-07; Pareto principle and, 108; liberty and, 146 Vacuous theories, 4 1 - 4 2 , 4 8 , 5 2 , 57, 115 Value problem-, immediate difficulty and, 6 - 9 ; want-regarding criteria and, 6 - 7 ; preference satisfaction and, 7 - 8 ; paternalism and, 8; and future generations, 9 - 1 9 ; contextdependent strategy and, 910; identity-specific notion ot harm and, 9 - 1 0 ; laissez-faire and, 11; restriction and. I t ; utilitarianism

and, 12-19; identity-independent theories and, 1315; "'preference" utilitarianism and, 15-16; harm principle and, 18-19 Veto. See Unanimity rule Victimhood, acceptance of, 6 6 , 111, 134,224x1/ "Voluntary organization" model, 59-60 Voting; incentives for, 174-80; "ethic" ot, 175; and principle ot hypothetical generalization, 176 77; expressive-tunction argument of, 176; classic voting paradox, 209x14. See also Participation Walzer, Michael, 6 3 - 6 6 , 78, 119, 184, 215x/5, 2 1 6 2 2 , 2 3 0 2 4 Want-regarding criteria, and value problem, 67 Want-regardmg theories ot the good, 1 0 1 - 0 2 , 1 0 8 , 1 0 9 - 1 0 , 2231S Warner-Amex Qube system, 3 6 - 3 7 Wasserstrom, Richard, 2 2 4 4 Wealth; Rawls on, 87, 92, 95; Ackerman on, 99; distributive justice and,110-11 Weisbrod, Burton, 222x17 Welfare economics, 109, 144 W e t l b a n k J . H . , 205x2 White supremacy, 133-35 Whitman, Walt, 16 Wiggins, fames W., 226x4 Williams, Bernard, 3 1 , 2 1 0 4 , 2 I 3 4 , 2 1 8 x 3 , 2 2 1 2 , 221x4, 2 2 2 x 9 ~ i 0 , 222x17 Wilson, William fulius, 230*23 Wolff, Robert Paul, 3 7 , 5 2 , 5 4 - 5 7 , 6 1 , 2 1 2 4 , 2 1 4 x 1 , 2 1 5 x 5 , 215x9 wbiiheim's paradox, 223x4 Wrongful lite lawsuits, 12, 2 0 6 - 0 7 x 3 , 207x7