This chapter contains sections titled: Introduction: Rawls Against Capitalism Rawls's Critique of “Welfare State Capitalism” Rawls (and Meade) on the Aims and Features of “Property‐Owning Democracy” Putting the Democracy into Property‐Owning Democracy: POD and the Fair Value of the Political Liberties Power, Opportunity, and Control of Capital: POD and Fair Equality of Opportunity Power, Status, and Self‐Respect: POD, the Difference Principle, and the Value of Equality Welfare State Capitalism and Property‐Owning Democracy: Ideal Types, Public Policy, and Real (...) Politics Conclusion ‐ Liberty, Equality, and Property‐Owning Democracy References. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Why Political Liberalism? On John Rawls’s Political Turn by Paul WeithmanMatthew ArboWhy Political Liberalism? On John Rawls’s Political Turn Paul Weithman New York: Oxford University Press, 2010. 379 pp. $65.00In Why Political Liberalism? Paul Weithman takes a bifocal look at political liberalism in the Rawlsian tradition. First he interrogates the rationale for John Rawls’s “political turn” from A Theory of Justice to Political Liberalism. Second, he explores the (...) viability of political liberalism in contemporary Western societies. The soundness of the former—the logic of Rawls’s argument, that is—validates the workability of the latter. Weithman argues that the monumental turn in Rawls’s thought is based first on his dissatisfaction with how Theory of [End Page 203] Justice treated the principle of stability, failing as it did to show that “members of a [well-ordered society] would all judge it good to preserve their ‘firm good will’” (369). Liberalism emerged as a potential answer to the question of stability by further elaborating the criteria for fairness and reasonableness in a civil society composed of citizens desirous of justice and who maintain for themselves a “sense” of justice. Weithman affirms Rawls’s explanation of how the virtue of justice is displayed in fairness and reasonableness. Just how monumental this shift turns out to be, however, depends a great deal on how compelling one finds “justice as fairness” to be.In recent decades, reasonable doubts have been expressed over the viability of Rawls’s liberal dictum: whether liberty and equality are mutually reinforcing or parasitic, or whether fairness is too morally opaque to shoot for as a political ideal. Weithman seems to believe the principle sound; it is, after all, merely a descriptive explanation of how justice is upheld politically, not a prescriptive project. Rawls concerned himself with the stability and endurance of political liberalism and with how to achieve fair and rational equilibrium. Why Weithman believes the project of Rawlsian liberalism to be fruitful, or at least philosophically successful, is due at least in part to its repeated appeal to reasonableness—that is, the rational promotion of equal liberty for all citizens. Political liberalism, as a theory, affirms and encourages all that the West values in civil society: We must desire and actively support justice for it to be preserved.This book is intended primarily for Rawls scholars. Weithman assumes his reader to have “fairly sophisticated” acquaintance with Rawls’s major theories and texts, and thus also assumes proficiency in symbolic logic and analytic methods. Weithman furnishes a way around this demand for analytic aptitude from all readers, however, by inviting those “uninterested in textual exegesis” and “content with a general understanding” of why Rawls made his turn to “read selectively” from chapters 3 through 9 (15). Be that as it may, all eleven chapters of this text are dense, rigorous, and tightly argued—standard industry practice in contemporary analytic philosophy. If one can also forebear the methodological vices of analytic philosophy, its propensity for tedious detail and narrowness, then one will eventually enjoy unexpected clarity on the subject under consideration. It will be of value to scholars with interests in the development of Rawlsian thought, the conditions for the possibility of political liberalism, and theories of justice Rawls’s account of liberalism seeks to elucidate.I doubt one unconvinced by Rawls’s political vision will undergo intellectual conversion upon reading Weithman’s Why Political Liberalism?, but that is not the point. His aim is to defend Rawls’s political turn and the project of political liberalism broadly construed. Defense of the former is done rather successfully; defense of the latter may require more voices than Weithman’s. [End Page 204]Matthew ArboUniversity of EdinburghCopyright © 2013 Society of Christian Ethics... (shrink)

In Justice as Fairness, Rawls presents a case for property-owning democracy (POD) which heavily depends on a favourable comparison with welfare state capitalism (WSC). He argues that WSC, but not POD, fails to realise ‘all the main political values expressed by the two principles of justice’. This article argues that Rawls’s case for POD is incomplete. He does not show that POD is superior to other conceivable forms of WSC. In order to present a serious contender, I sketch what I (...) call a realistically utopian welfare state (RUWS) that (a) guarantees the fair equality of political liberties and opportunity and that (b) maximises the situation of the worst.-off via a kind of participation income. The main aim of the article is to give credibility to the claim that RUWS is not obviously worse than POD by Rawlsian standards and therefore deserves a fair hearing in further research. (shrink)

Despite the vast literature on Rawls's work, few have discussed his arguments for the value of democracy. When his arguments have been discussed, they have received staunch criticism. Some critics have charged that Rawls's arguments are not deeply democratic. Others have gone further, claiming that Rawls's arguments denigrate democracy. These criticisms are unsurprising, since Rawls's arguments, as arguments that the principle of equal basic liberty needs to include democratic liberties, are incomplete. In contrast to his (...) trenchant remarks about core civil liberties, Rawls does not say much about the inclusion of political liberties of a democratic sort – such as the right to vote – among the basic liberties. -/- In this paper, I complete some of Rawls's arguments and show that he has grounds for including political liberties, particularly those of a democratic nature, in the principle of equal basic liberty. In doing so, I make some beginning steps toward illustrating the genuinely democratic nature of Rawls's arguments. Rawls believes that a few different arguments can be given for democratic institutions and that these arguments work together to support the value of democracy. In this paper, I focus on Rawls's arguments relating to self-respect. I focus on this set of arguments because they are among the strongest of Rawls's arguments for equal political liberty and its fair value. (shrink)

With the publication of A Theory of Justice in 1971, John Rawls not only rejuvenated contemporary political philosophy but also defended a Kantian form of Enlightenment liberalism called “justice as fairness.” Enlightenment liberalism stresses the development and exercise of our capacity for autonomy, while Reformation liberalism emphasizes diversity and the toleration that encourages it. These two strands of liberalism are often mutually supporting, but they conflict in a surprising number of cases, whether over the accommodation of group difference, (...) the design of civic education, or the promotion of liberal values internationally. During the 1980’s, however, Rawls began to jettison key Kantian characteristics of his theory, a process culminating in the 1993 release of Political Liberalism and completing the transformation of justice as fairness into a Reformation liberalism. -/- Reconstructing Rawls argues that this transformation was a tragic mistake because it jeopardized the most important features of his theory, viz. the lexical priorities of right, liberty, and fair equality of opportunity as well as the difference principle. Controversially, this book contends that Rawls’s so-called “political turn,” motivated by a newfound interest in diversity and the accommodation of difference, has been unhealthy for autonomy-based liberalism and has pushed liberalism more broadly towards cultural relativism, be it in the guise of liberal multiculturalism or critiques of cosmopolitan distributive-justice theories. The book then demonstrates that the central elements of justice as fairness can only be defended within the context of a Kantian Enlightenment liberalism and that Rawls’s hope for a more pluralistic grounding for his theory, endorsed by a wide variety of belief systems present in modern democratic societies, is illusory. -/- Reconstructing Rawls is the first book to systematically compare Rawls’s and Kant’s theories and the first to offer an internal critique and reconstruction of justice as fairness, reconceiving it as a comprehensive, universalistic Kantian liberalism. By doing so, it gives us both the vision of a liberal world order—“a republicanism of all states, together and separately,” as Kant put it—and a mode of justification addressed to all men and women, not as members of particular nations, races, and faiths, but as human beings, as citizens of the world. In short, it reclaims Rawls for the Enlightenment. (shrink)

This article re-examines the distinction between the libertarian approach and the egalitarian approach to the regulation of campaign finance. The conventional approach (as exemplified by the work of Owen Fiss and Ronald Dworkin) is to reconcile the competing values of liberty and equality. By contrast, this article advances the normative claim that democracies should seek to incorporate both the libertarian and the egalitarian approaches within constitutional law. I argue that instead of emphasizing one value over the other, (...) the ideal position is one that simultaneously recognizes the values of liberty and equality despite the irreconcilable tension between them. Rather than choosing one value over the other, or reconciling these values by redefining them, I claim that it is vital to maintain the tension between liberty and equality by instantiating the conflict in law. Democracy is better served when the law contains an explicit tension between these foundational values.After setting forth this normative framework, I then apply it to the campaign finance decisions of the Supreme Courts of the United States and Canada, respectively. I make two main claims. First, I argue that although the libertarian/egalitarian distinction is usually presented as a binary choice, the laws of a given jurisdiction often simultaneously display both libertarian and egalitarian characteristics. For this reason, I claim that the libertarian/egalitarian distinction is better conceived of as a “libertarian-egalitarian spectrum.” Second, I argue that in recent years, the U.S. Supreme Court and the Supreme Court of Canada, respectively, have privileged one value—liberty or equality—at the expense of the other. The U.S. Supreme Court has over-emphasized the value of liberty (most notably in itsCitizens Uniteddecision), with the result that political equality is markedly undermined. By the same token, the Supreme Court of Canada’s commitment to equality has become too one-sided in recent cases (HarperandBryan), with the result that there are significant impairments to free speech liberties. I argue that both of these approaches are detrimental to democratic participation and governance. Finally, this article offers a preliminary proposal for how courts and legislatures can allow for the conflict between liberty and equality to be instantiated in law. (shrink)

The ideal model of a just society defended by John Rawls entails the existence of certain institutions—those that form the basic structure of society—that guarantee citizens' basic rights and liberties, equality of opportunity, and access to material resources. Such a model also presupposes a certain account of reasonable citizenship. In particular, reasonable citizens will have a set of moral capacities and dispositions and will voluntarily support just institutions. According to Rawls, the need for such citizens is related to the (...) following important consideration in favor of a normative theory of justice: that it be stable. That is, such a theory must be capable of generating its own support over time. This means that it has to be possible for citizens to come to endorse the theory's principles of justice, integrating them into their personal conceptions of the good life. Rawls explicitly draws attention to the stability requirement on ideal theories of justice. Somewhat surprisingly, when Rawls explains how a widespread and deep moral consensus on the principles of justice might be generated in actual societies—a problem that is closely related to the issue of how such consensus could be maintained over time—he pays very little attention to the potential contribution of schools to the production of reasonable citizens. This neglect can be explained, in part, by his confidence that the functioning of just institutions will spontaneously generate, in citizens who live under them, the necessary support for principles of justice and will encourage the development and exercise of the virtues characteristic of reasonable citizens. But this confidence seems misplaced. (shrink)

This dissertation engages the following question: how, in the absence of an uncontroversial source of moral guidance, can liberals make political and moral claims across cultural divides? While committed to toleration, liberals cannot escape the compulsion to apply basic standards of equal individual human rights and liberties universally. Under postmetaphysical conditions, however, they no longer find credible arguments that assure them of the sources of these standards in "natural law," "human nature," or "practical reason." Aware that individual rights have their (...) provenance in modern "Western" history, liberals fear being intolerant when they apply these standards universally, and experience as a result a problem of cross-cultural judgement. ;In this project I engage in a sympathetic critique of Richard Rorty's, Jurgen Habermas's and John Rawls's attempts at addressing this problem and provide a fourth alternative that cannot be absorbed by any of their frameworks. Rorty offers liberals the comforts of ethnocentrism. He assures them that political and moral judgements are always made by someone from somewhere. For this comfort, however, he extracts the exorbitant ethical price of other-disregard. Habermas derives individual rights from the universal practice of argumentation. By relying on the overly exacting standard of "rational consensus," however, he limits the applicability of his answer to liberal secular contexts. In his free-standing answer, Rawls offers the promising standard of an "overlapping consensus." His overly static use of this concept, however, drains it of its promise. ;Drawing on each of these attempts as well as on Aristotle's Rhetoric, I offer the alternative of a political project of moral persuasion. Instead of seeking to address the problem of cross-cultural judgement by coup de plume, liberals' best hope is to obviate it in practice, by forging a global, minimally liberal, overlapping consensus. As moral persuaders liberals would intrude actively in nonliberal debates and would seek to convince nonliberals from within their various lights, of the worthiness of the commitment to the freedom and equality of persons. (shrink)

In Political Liberalism and the essay "The Idea of Public Reason Revisited" John Rawls argues that citizens must refrain from introducing sectarian values intopolitical debate over fundamental political questions unless the positions they are endorsing can be supported by public reasons. I will argue that this duty allows for a more limited use of non-public ideas and values than is suggested in Rawls's discussion. ln addition, I will argue that reconciliation between citizens and the reinvigoration of free exchange (...) and debate both call for an extension of this duty to debate over issues that are of immediate concern to citizens. I argue that public reason requires citizens to support only those public policies which can be defended by appeal to liberal political values (values such as comity, social stability, equality, happiness), and to sincerely affirm liberal political values as the ultimate justification of the use of state power to implement the public policies they support. (shrink)

The theme of this issue of Ethical Perspectives is the French tradition in liberal thought, and the unique contribution that this tradition can make to debates in contemporary liberalism. It is inspired by a colloquium held at the Katholieke Universiteit Leuven in December of 2008 entitled “In Search of a Lost Liberalism: Constant, Tocqueville, and the singularity of French Liberalism.” This colloquium was held in conjunction with the retirement of Leuven professor and former Dean of the Institute of Philosophy, André (...) Van de Putte, who found much inspiration in this tradition. A revised version of his valedictory lecture from the conference serves as the final contribution to this issue. Much contemporary liberal political philosophy is currently done in conversation with a line of liberal thinkers starting with John Locke, running through Immanuel Kant and John Stuart Mill, and culminating in the work of John Rawls and his followers. The reasons for the enormous appeal of this philosophical tradition are, among other things, the combination of the central role of the intuitively appealing value of individual liberty with a strong rationalistic, universalistic, and normative character. The thread running through most of these liberal theories is a commitment to what the French liberal Benjamin Constant referred to as “the liberty of the moderns,” that is, liberty in a negative sense, as a lack of interference in one’s activity from others and from government. This focus has expanded over time to include a richer body of civil, political, social, economic and cultural rights, for instance, in the work of liberal thinkers who have tried to integrate the insights of communitarian thought and discourse ethics in their work. However, the emphasis on individual liberty in the negative sense continues to be the normative and theoretical touchstone and default position for many contemporary liberal theories. The limitation of the canon of liberal thought to the aforementioned authors and themes deprives the contemporary debate of a rich source of ideas: the French liberal tradition. Montesquieu, considered to be the father of this tradition, provides a good example of how it can enrich current debates in liberal theory. Montesquieu’s work evinces a keen eye for the dynamics of power relations and the limitations of the power of the better rational argument. His insight that power can sometimes only be checked by an equal and opposing power, so that a system of separation and balance of powers is necessary in order to preserve liberty, is reflected in the foundations of most modern democracies. Montesquieu also argues that contingent environmental, historical, social and economic conditions play a dramatic role in determining what kind of government is appropriate for a particular society. On his view, ignoring these facts when framing a government can inadvertently end in despotism. Montesquieu’s observations challenge us to reexamine some of contemporary liberalism’s universalist and rationalist claims. Benjamin Constant is most famous for his distinction between two kinds of liberty: the liberty of the ancients and the liberty of the moderns. The ancient form of liberty manifested itself in the active political participation of citizens in the ancient republic. While this form of government and decision-making was suitable for small, homogeneous city-states, Constant argues that it is impracticable for large modern nation-states. Hence, the concept of modern liberty shifts to an emphasis on the rule of law and the non-interference of the state in private matters. This form of liberty is familiar to us from contemporary liberalism – and Constant cherishes this form of freedom as much as any liberal does today. However, his position is complex: he also argues that the liberty of the ancients should not be neglected. Active political participation is needed to ensure that the government is executing its duty of preserving the modern form of liberty by publicly pointing out violations. The contemporary relevance of Constant’s work is clear when we consider the alleged “democratic deficit” that plagues the EU and international institutions such as the UN, the IMF, and the World Bank. Not only does this democratic deficit threaten the modern form of liberty by placing decision-making processes out of sight of the people, it also threatens citizens’ sense of self-respect derived from self-governance. Constant’s argument for the necessity of combining the liberty of the ancients with that of the moderns provides a fruitful resource for confronting these contemporary issues. Tocqueville’s work on liberalism benefits from his opportunity to observe a society founded on liberal democratic principles – the United States of America – in action. In his Democracy in America, he examines the social consequences, both intended and unintended, of building a society on ‘the equality of conditions’, as he defines ‘democracy’. Tocqueville sees a tension between the democratic value of equality and the aristocratic value of the rule of the best. He observes that democratic societies do not necessarily choose the best leaders and instead promote mediocrity instead of virtue, talent, and excellence. Democracy also confronts citizens with the threat of ‘soft despotism’, where a government that preserves the outer signs of the liberty of the moderns nevertheless controls the behavior of its citizens in minute detail through a system of detailed rules ostensibly aimed at their welfare. This paternalism is an even more insidious threat to liberal values than the hard variety of despotism, since it is so difficult to detect and done in the name of liberal values themselves. Taking Tocqueville’s observations seriously would add complexity to attempts to theorize about the modern social-democratic welfare state. The contributions to this issue supplement and critique mainstream liberal thought and its relation to contemporary issues through a serious engagement with the French liberal tradition. Annelien De Dijn’s contribution discusses Bertrand de Jouvenel, a lesser-known 20th Century representative of the French political tradition she terms ‘aristocratic liberalism’. This tradition has its roots in the work of Montesquieu, and emphasizes the importance of intermediary bodies, most importantly the aristocracy, in providing a check to the top-down power of despotic state authorities and the bottom-up power of revolutionary leveling tendencies, both of which threaten liberty. De Dijn situates Jouvenel in this tradition, but then indicates an important difference between his thought and that of his predecessors: his most significant work, On Power, is not only on French history, but on European history. Pointing to the enthusiastic reception of this work in the Anglophone world, she suggests that the rise of totalitarianism in Europe gave the anti-totalitarian features of aristocratic liberalism a broader appeal. Valentino Lumowa’s paper concerns Constant’s classic text, The Liberty of the Ancients Compared with that of the Moderns. Lumowa argues that in order to understand Constant’s piece, we must be aware that its two parts were written under different historical circumstances and decipher the argumentative thrust inherent in the text. Following Stephen Holmes, he argues that to understand the shift Constant made in the second part of the text, we should read it within the context of the increasing influence of the ultra-Royalists in the legislature during the Bourbon Restoration. However, in contrast to Holmes, he contends that the spirit of both civic and individual freedom, which enlivens representative system, is the backbone of the text in its unity. Demin Duan’s essay investigates an apparent ambivalence between liberal and imperialist tendencies in the work of Alexis de Tocqueville, which has already drawn some attention from Tocquevillian scholars. These interpretations of Tocqueville and his writings on empire generally agree that Tocqueville stands in a recognized tradition of liberalism, which is characterized by respect for human rights, individual freedom and a sense of universal humanism. On this standard view, Tocqueville’s support of imperialism represents nothing but an unfortunate breach of his own otherwise consistent liberal thinking. Duan’s article questions this standard position. By questioning the assumption of Tocqueville’s liberalism in the first place, he tries to gauge the influence of both the old republican tradition and the new liberal perspective on his thinking. In conclusion, he argues that Tocqueville’s overall thought, especially his notion of freedom, is very much informed by an old republican tradition. His support of French imperialism could be better understood from this perspective rather than be rendered simply as a deviation from liberal norms. Pawel Marczewski’s contribution is an attempt to show that Tocqueville’s conception of liberty transcends the divisions between negative and positive aspects of freedom. He begins by juxtaposing this conception with the opposition drawn by Constant between liberty of the ancients and liberty of the moderns. While Tocqueville and Constant shared a concern for the preservation of individual rights, Tocqueville was much more reluctant to accept the modern loss of the communal dimension of liberty. He did not accept the view that jouissances privées, private pleasures, are the main compensation that the modern world has to offer for the lost ancient treasure of political participation. The essay then looks into the relevance of Tocqueville’s standpoint for current debates between liberal defenders of negative freedom and republican advocates of freedom as non-domination. Participants on both sides of the debate seem to be so devoted to showing that their particular approach provides the best guarantees against actual and possible threats to liberty that they overlook the fact that their definitions of freedom remain significantly similar. By arguing that ‘to be free is to be guided by one’s own will’, contemporary republicans, as well as their liberal counterparts, move along the lines drawn by Constant towards private pleasures. By questioning the inevitability of this turn, Tocqueville provides us with a valuable contribution to these discussions in contemporary political philosophy. Finally, André Van de Putte’s contribution, an adaptation of his emeritus speech that closed the conference on French Liberalism, appeals to Tocqueville in order to draw attention to the importance of intermediary, dialogical bodies in mitigating the implicit despotic tendencies of the democratic drive to equality. In Tocqueville’s view, the transition from the feudal corporate inequality to democratic individual equality was not a clean break. Rather, this transition is a continual process of democratization that is driven by a desire for equality, or egalité des conditions. This dissolution of distinctions of estate, class and status has the unintended consequence of concentrating the diffuse power of these entities into a centralized state, which is responsible for ensuring the equality of all under the law. This process leaves increasingly isolated and atomized individuals to face the power of a monolithic state in defense of their freedom, and moves toward a soft, paternalistic despotism. Constant’s freedom of the moderns is not sufficient to protect individuals from this centralized power. Democracy also requires the political freedom of the ancients. Van de Putte argues for a system in which atomized individuals organize themselves into intermediary bodies that, in a Montesquieuian balance of powers, can enter into dialogue with each other and the state on more equitable terms. Van de Putte’s contribution closes with a plea for a conception of democracy as a regime of dialogue. (shrink)

The term “political” egalitarianism is used here, not to refer to equality within the political sphere, but rather in John Rawls’s sense, to refer to a conception of egalitarian distributive justice that is capable of serving as the object of an overlapping consensus in a pluralistic society.1 Thus “political” egalitarianism is political in the same way that Rawls’s “political” liberalism is political. The central task when it comes to developing such a conception of equality is to determine what (...) constraints a principle of equality must satisfy in order to qualify as “freestanding,” or to be justifiable in a way that does not presuppose the correctness of any one member of the set of reasonable yet incompatible “religious, philosophical and moral” doctrines that attract large numbers of adherents in our world.2 (Rawls uses the analogy of a “module” in order to describe the way that a properly political conception of justice “fits into and can be supported by various reasonable comprehensive doctrines that endure in the society regulated by it.”3 Political egalitarianism would be “modular” in this sense.) Rather than getting embroiled in the controversies that have arisen over Rawls’s formulation of this idea, I would like simply to accept the intuition, widespread among political philosophers, that equality is the sort of principle that – if given a proper formulation – could satisfy the requirements of a political conception of justice. After all, regardless of what peoples’ projects, values, or conceptions of the good life may be, it should be possible to design a set of arrangements that would provide equal opportunity to pursue these goals, or that would treat each conception of the good with equal respect, etc. From this perspective, the principle of equality resembles the principle of Pareto-efficiency, or certain formulations of the principle of liberty – it is one that everyone should be able to endorse, insofar as it does not privilege, or presuppose the correctness of, any particular set of projects, values.. (shrink)

Under free institutions the exercise of human reason leads to a plurality of reasonable, yet irreconcilable doctrines. Rawls's political liberalism is intended as a response to this fundamental feature of modern democratic life. Justifying coercive political power by appeal to any one (or sample) of these doctrines is, Rawls believes, oppressive and illiberal. If we are to achieve unity without oppression, he tells us, we must all affirm a public political conception that is supported by these diverse reasonable doctrines. (...) The first part of this essay argues that the free use of human reason leads to reasonable pluralism over most of what we call the political. Rawls's notion of the political does not avoid the problem of state oppression under conditions of reasonable pluralism. The second part tries to show how justificatory liberalism provides (1) a conception of the political that takes seriously the fact that the free use of human reason leads us to sharply disagree in the domain of the political while (2) articulating a conception of the political according to which the coercive intervention of the state must be justified by public reasons. (shrink)

In Political Liberalism and the essay "The Idea of Public Reason Revisited" John Rawls argues that citizens must refrain from introducing sectarian values intopolitical debate over fundamental political questions unless the positions they are endorsing can be supported by public reasons. I will argue that this duty allows for a more limited use of non-public ideas and values than is suggested in Rawls's discussion. ln addition, I will argue that reconciliation between citizens and the reinvigoration of free exchange (...) and debate both call for an extension of this duty to debate over issues that are of immediate concern to citizens. I argue that public reason requires citizens to support only those public policies which can be defended by appeal to liberal political values (values such as comity, social stability, equality, happiness), and to sincerely affirm liberal political values as the ultimate justification of the use of state power to implement the public policies they support. (shrink)

Carol Pateman has said that the public/private distinction is what feminism is all about. I tend to be sceptical about categorical pronouncements of this sort, but this book is a work of feminist political philosophy and the public/private distinction is what it is all about. It is motivated by the belief that we lack a philosophical conception of privacy suitable for a democracy; that feminism has exposed this lack; and that by combining feminist analysis with recent developments in political philosophy, (...) we can meet the philosophical and political need for a distinctively democratic conception of privacy. This book then, is an effort to sketch and defend such a conception of privacy. It aims to show that while some conceptions of privacy are inconsistent with democracy, others are not. Indeed, the book asserts, the belief that privacy can be valuable and that it can justify basic legal rights, is implicit in a democratic conception of persons as free and equal beings, and a democratic conception of politics as the self-governing, or regulating, activity of such individuals. Just as we can and should reject undemocratic conceptions of the suffrage in favour of democratic ones, so the book maintains, we can and must reject undemocratic conceptions of privacy in favour of ones that reflect the moral equality of men and women, and a commitment to democratic forms of government. Democracy is often described as government by and for the people. On such a view, democracy is a political regime which can be contrasted with monarchies or aristocracies on the one hand, or with theocracies and despotisms on the other. By contrast with the former, it is a form of government that views individuals as citizens and as equal members of the agency which authorizes the use of political power. By contrast with the latter, it is a form of government whose purposes and aims are established by the common interests of individuals, conceived as free and equal citizens. It is my contention that there is a plausible and attractive conception of privacy implicit in this view of democracy. Hence, I show that individuals have fundamental interests in privacy because privacy enables them to participate in politics freely and as the equal of others and, beyond that, to lead lives that they can each affirm to be reasonable, valuable and right. As I think that the ideal of democratic government is properly associated with this latter and broader goal, as well as with the former one, I call my account of privacy a democratic conception of privacy to signal its connection to a particular ideal of politics, and to the conception of persons that makes this ideal a convincing and inspiring one. As this is a work of political philosophy, however, no effort is made to address the legal merits of competing accounts of the right to privacy, or to resolve legal dispute about the content and justification of particular constitutional rights in the United States. Thus, while I use Supreme Court decisions and works of legal theory to illustrate and support my arguments, my use of these materials is governed by philosophical concerns and my conclusions, therefore, are strictly of a philosophical, not a legal, nature. The book is divided into four chapters, moving from feminist criticisms of privacy to an engagement with the philosophical literature on privacy and an account of the right to privacy in a democratic society. It proceeds as follows. In Chapter 1, I examine feminist concerns about privacy, through a close reading of the work of Catherine MacKinnon. I argue that MacKinnon persuasively shows that protection for privacy has frequently licensed the coercion and subjection of women, and that her arguments are supported both by feminist scholarship, key Supreme Court decisions, and by familiar conceptions of privacy and equality. However, I argue, these criticisms do not imply that privacy, like slavery, can never be democratic, because wholly inconsistent with the equality of individuals. Rather, feminist criticisms of privacy suggest that privacy, like the suffrage, can be necessary to the equality of women and can have a legitimate and important place in a democratic society. In Chapter 2, I examine the philosophical literature on privacy in light of the need to distinguish democratic from undemocratic accounts of its nature and value. This literature, I show, can help us to provide an account of privacy that is sensitive both to its inegalitarian aspects and to its importance for a democratic commitment to the freedom and equality of women. However, I argue, we cannot embrace current philosophical accounts of privacy uncritically, because to a striking extent they are, themselves, indifferent to the ways that privacy has licensed sexual inequality. Thus, in Chapter 2, I set about interpreting privacy as a moral and political value, in light of the strengths and weaknesses of the philosophical literature on privacy. Their strength is that they show that there are many reasons for caring about privacy, or many ways in which we might define it as a democratic value. Their weakness is that they tend to assume that we must choose amongst these different conceptions of privacy, in order to provide a philosophically cogent account of privacy. This, I show, is a mistake and one that can be remedied by remembering that a commitment to the equality of individuals requires us to acknowledge the reasonable differences in value and interest that may characterize their relations in a democracy. When we do so, I show, it is possible to define privacy in terms of its protection for self-definition, intimacy and confidentiality, without having to choose between the three of them. For individuals may legitimately disagree about the differences between privacy and other values, even while holding that privacy is a distinctive and important democratic good; and they may also disagree about the importance of privacy compared to other goods, such as equality, without denying that self-definition, intimacy and confidentiality can be morally and politically desirable in a democracy. In Chapter 2, therefore, I show that we can provide a philosophically adequate account of what privacy is and why it is valuable without supposing that privacy is always sexually egalitarian, or denying that it has a distinctive place in a democratic conception of value. Chapter 3 then extends this account of privacy, by considering the justification for a legal right to privacy. Just as we cannot provide a democratic conception of privacy without attending to the different, though equally valid, concerns that individuals may have so, I show, we cannot provide a democratic account of privacy rights if we forget that individuals can, quite reasonably, differ in the importance that they attach to privacy. The result, I argue, is that we can distinguish two main reasons for protecting privacy by right in a democracy, the one personal and the other political. Whereas the former emphasizes the importance of self-definition, intimacy and confidentiality to the personal freedom and equality of individuals, the latter emphasizes their importance to their prospects for voluntary and equal participation in the processes of collective choice and deliberation that define a democratic government. These two justifications of privacy rights reflect the fact that in a democracy the personal can be political, as feminists have insisted, but need not be in order to merit protection by right. Indeed, I argue, we can distinguish democratic from undemocratic accounts of the right to privacy in this way: for whilst the former acknowledge the variety of individuals’ interests in personal and collective choice, the latter either collapse the political into the personal, or assume that the legitimate claims of individuals are merely a function of collective needs, interests and values. Neither of these is consistent with familiar assumptions about the nature and justification of democratic institutions and rights, nor can they be reconciled with a commitment to sexual equality. Thus, I conclude, though the fact that there are different justifications for privacy rights in a democracy means that individuals may legitimately disagree over the content and justification of basic rights, it is wrong to confuse democratic debate with moral or conceptual confusion and so, arbitrarily, to truncate our accounts of privacy, equality and democracy. Finally, in Chapter 4, I test and develop these claims by examining the justification for abortion rights in a democracy. I argue that women have legitimate interests in abortion, as well as in bearing children, because they have fundamental, and legitimate, interests in privacy and equality. Although safe and legal abortion is necessary to sexual equality, as feminists claim, I show that we can provide a convincing and democratic account of women’s claims to abortion only if we recognize women’s interests in self-definition, intimacy and confidentiality. This is because women have both personal and political interests in abortion and we will be unable adequately to identify these if we overlook their interests in privacy. Indeed, I show, the difference between democratic and undemocratic solutions to conflict over abortion lies precisely in this: that whereas the former acknowledge the importance of privacy to the personal and political equality of women, the latter overlook or deny this. As a result, the latter license both mandated abortions, although women have legitimate interests in bearing and raising children, and prohibitions on abortion that cannot be reconciled with the freedom and equality of women. That is not to say that abortion is not a politically significant matter, or that we can resolve moral conflict over abortion simply by giving women a legal right to abortion. Neither is the case. However, the chapter shows, in a democracy individuals are entitled to make morally and politically controversial decisions for themselves not simply because this is expedient or useful, but because this is right. To overlook this feature of democracy, I argue, is to make moral and political conflict utterly intractable by democratic means. Thus, while controversy over abortion has been held to show that privacy is an incoherent and undemocratic right, this chapter argues that it shows the reverse: for controversy over abortion makes clear that privacy is essential to democracy, and why this should be so. This overview of the book, I hope, makes clear that its concerns are methodological as well as substantive, and moral as well as political. Thus, its central methodological claim is that we cannot reconcile privacy with the equality of individuals unless we make a deliberate effort to do so. Its central moral and political claims are that privacy is compatible with the equality of individuals, and sufficiently important to the latter that, in a democracy, the privacy of individuals merits legal protection by right. However, this summary of the book also exposes its limitations. Chief amongst these, I fear, is that it provides no sustained discussion of the place of property on a democratic conception of privacy, and that the latter, itself, is rather a broad preliminary sketch than a polished and detailed portrait. I regard these limits on the scope and arguments of the book as limitations, albeit ones that I hope to be able to remedy before too long.However, limited though the book clearly is, I believe that it lays out the essential components of a democratic conception of privacy and that, by analysing and synthesizing several diverse bodies of literature, it may help those who are interested in the relations between privacy, equality and democracy. (shrink)

Few have discussed Rawls's arguments for the value of democracy. This is because his arguments, as arguments that the principle of equal basic liberty should include democratic liberties, are incomplete. Rawls says little about the inclusion of political liberties of a democratic sort – such as the right to vote – among the basic liberties. And, at times, what he does say is unconvincing. My aim is to complete and, where they fail, to reconceive Rawls's arguments and (...) to show that a principle requiring equal political liberty and its fair value is an appropriate component of his theory of justice. (shrink)

According to John Tomasi's Free Market Fairness, there are serious constraints on what a liberal state may do to promote economic justice. Tomasi defends this claim by arguing that important economic liberties ought to be regarded as “basic” and given special priority over other liberal concerns, including those of economic justice. I argue that Tomasi's defense of this claim is unsuccessful. One problem takes the form of a dilemma: depending on how the claim is formulated more precisely, Tomasi's argument (...) seems either to be compatible with standard (e.g., Rawlsian) liberalism or to tell against even the minimal taxation that would be necessary to support the social safety net he supports. Second, granting “basic” status to economic liberties would in many cases defeat the goal, self-authorship, that Tomasi sees himself as sharing with other liberals. Third, contrary to Tomasi's suggestions, no inconsistency arises when liberals (such as Rawls) refuse to recognize the economic liberties as basic. Fourth and finally, the special significance that Tomasi attaches to agency does not provide any additional reason for accepting Tomasi's conclusions. (shrink)

In today’s America the persistence of crushing poverty in the midst of staggering affluence no longer incites the righteous jeremiads it once did. Resigned acceptance of this paradox is fueled by a sense that poverty lies beyond the moral and technical scope of government remediation. The failure of experts to reach agreement on the causes of poverty merely exacerbates our despair. Are the causes internal to the poor – reflecting their more or less voluntary choices? Or do they emanate from (...) structures beyond their control? If both of these explanations are true, poverty experts will need to shift their focus to a hitherto under-theorized concept: coercion. I defend this claim by appealing to distinct areas of philosophical inquiry: social epistemology and moral theory. Poverty knowledge is directly related to both of these inquiries. The aim of poverty knowledge is clearly moral: to reduce suffering and to empower the weak. While the former aim is grounded in utilitarian thinking, the latter aim is grounded in the social contractarian insight that poverty is unjustly coercive, imposing excessive limits on the opportunities and choices of the poor that render them vulnerable to domination by others. Equally obvious is the social nature of poverty knowledge. All knowledge depends on the reliable testimony of others. Poverty knowledge not only ostensibly offers us the most reliable, scientific beliefs about the causes and effects of poverty, thereby determining how we morally judge the poor and their poverty, but it reciprocally bases its understanding of poverty on what the poor themselves have to say about it. What unites both social epistemology and moral theory – at least the social contract variants I will be examining here – is concern about the limits and possibilities of rational choice. As poverty knowledge came of age in the fifties and sixties, it absorbed the language of rational choice prevalent in economics, especially the Keynesian economics whose moral underpinnings can be found in Rawlsian social contract theory. Echoing a different economic theory supported by a different, more libertarian, brand of social contract theory, poverty expertise in the eighties continued to use an abstract model of rational choice. I submit that, in both early and later epochs of poverty expertise, reliance on rational choice reasoning prevented poverty experts from appreciating the coercive impact of poverty on the poor. Social epistemology explains this failure by demonstrating the poverty of rational choice thinking and its mistaken reliance on inflated commonsense expectations about the capacity of individuals to calculate their long-term interests, free from the distortions of social bias. Social epistemology not only exhibits the dangers of not relying on expert testimony, but it also exhibits the dangers of relying on an unreliable source of expert testimony that has removed itself from its human subject matter. In order for poverty experts to become more reliable educators about poverty’s coercive impact on the poor they must return to their discipline’s social epistemological roots. Only a more descriptive and explanatory sociology can narrate a comprehensive story about how the lived experience of poverty relates to the larger social system. The social contractarian model best suited to underwriting this kind of poverty knowledge, I submit, is the discourse theoretic model that has been championed by Jürgen Habermas. When applied as a pedagogical method of dialog and not as a social contractarian model of rational normative consent, discourse theory highlights the unique epistemological advantages of empathetic understanding that are so essential to dispelling stereotypes about the poor. Dispelling these stereotypes is the first step toward respecting the poor as free agents who are nonetheless forced to make suboptimal choices. My defense of these claims proceeds as follows: Part One argues that poverty expertise rightly deserves the opprobrium critics have heaped on it. The charge – leveled by progressives and conservatives alike - that such expertise is ideological is true to the extent that poverty knowledge has all-too-easily accommodated the political aims of the agency that has funded it: the federal government. The shift from the war on poverty to the war on the poor – and the resulting shift from blaming poverty on economic structures to blaming it on the culture of poverty – would not have been possible without an increased emphasis on data gathering aimed at measuring poverty rather than describing it. Part Two assesses the consequences of turning away from qualitative research to statistical analysis: the coercive nature of poverty becomes invisible beneath the surface of aggregate individual choices. The failure to grasp how voluntary choices, ostensibly based on rational, self-interested calculations, can be coerced by social structures - and thereby lead to sub-optimizing behavior – invites the conclusion that the poor have only themselves to blame for their misery. Part Three suggests that this pathologization of the poor directly controverts the major aim of poverty research: to empower the poor as free and equal parties to the social contract. I argue that the different varieties of social contract theory that have justified poverty expertise over the last forty years – the welfarist model pioneered by Rawls and the market-based model defended by Nozick – embrace the same rational choice models favored by poverty experts and so conspire with the latter in neglecting important dimensions of poverty-related coercion. While the welfarist model conceals the coercive nature of bureaucratically administered entitlement programs and top-down urban renewal policies, the market-based model conceals the coercive nature of economic class structures. The discourse-theoretic alternative proposed by Habermas endorses a populist, democratic response to the overly abstract rational choice assumptions embedded in these other models. Despite this advance over its counterparts, the chief advantage of discourse theory for poverty knowledge, I submit, resides less in its proposed procedure of rational collective choice than in its heuristic as a dialogical method of social learning. I demonstrate this claim in Part Four, where I turn to the social epistemological insights of Allen Buchanan. Social epistemology offers a much needed corrective to theories of knowledge that rely on the reasoning capacities of isolated individuals. By stressing the connection between moral response and social belief, on one hand, and the dependence of social belief on epistemic authorities, on the other, social epistemologists suggest ways in which we can learn to distinguish reliable from unreliable authorities and become aware of our own error-prone cognitive proclivities. Their insights need to be supplemented by moral epistemologists who stress the affective dimension of knowledge, above all, the role that empathy plays in understanding the plight of others. Drawing from victim narratives, Diana Meyers shows that switching between first-person experiences of one's own and third-person reconstructions of others' experiences is essential to appreciating the gravity of human rights violations and the seriousness of human rights claims. It goes without saying that such empathy is just as essential to understanding the plight of the poor. Meyers mainly has in mind empathetic understanding that has been facilitated by third-person observation and literary encounter, but the importance of visceral and corporeal representation suggests that face-to-face dialog may sometimes be a more effective way to facilitate empathetic understanding. (shrink)

This dissertation extends John Rawls’s mature theory of justice out to address the environmental challenges that citizens of liberal democracies now face. Specifically, using Rawls’s framework of political liberalism, I piece together a theory of procedural justice to be applied to a constitutional democracy. I show how citizens of pluralistic democracies should apply this theory to environmental matters in a four stage contracting procedure. I argue that, if implemented, this extension to Rawls’s theory would secure background environmental justice. I explain (...) why the theory can be viewed as a partially specified political conception of environmental pragmatism, and how it relates to public environmental policy and discourse. While the framework is anthropocentric, it is one that reasonable non-anthropocentrists can endorse. Using this theory, I argue that liberal democracies must take measures to secure basic environmental rights for all presently existing and future citizens. Measures must also be in place to secure a minimum of social goods (including environmental goods) that guarantees that all citizens (present and future) can exercise their basic rights and liberties. Moreover, disparities in environmental goods should only be tolerated if they arise in accord with Rawls’s principle of fair equality of opportunity. I discuss carbon taxes, as well as carbon allocation trading schemes. I also argue that free democracies should employ precautionary reasoning when attempting to meet the demands of background environmental justice. (shrink)

On this occasion I wish to elaborate further the conception of distributive justice that I have already sketched elsewhere. This conception derives from the ideal of social justice implicit in the two principles proposed in the essay “Justice as Fairness.” These discussions need to be supplemented in at least two ways. For one thing, the two parts of the second principle are ambiguous: in each part a crucial phrase admits of two interpretations. The two principles read as follows: first, each (...) person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others; and second, social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone's advantage, and (b) attached to positions and offices equally open to all. The two ambiguous phrases in the second principle are “everyone's advantage” in part (a) and “equally open to all” in part (b). I shall consider these ambiguities and the several interpretations of the two principles to which they give rise. I shall leave aside any difficulties with the first principle and assume that its sense is the same throughout and clear enough for our purposes. (shrink)

John Rawls’s thesis that a certain package of basic liberties should be given lexical priority is of great interest for legal and political philosophy, but it has received relatively little defense from Rawls or his supporters. In this paper, I examine three arguments for the thesis: the first is based on the two ‘moral powers’; the second, on the social bases of self-respect; and the third, on a Kantian notion of autonomy. I argue none of these accounts successfully establishes 1) (...) the distinct claim of lexical priority, 2) for the complete package of basic liberties, on the basis of reasons that are appropriately public. In turn, I propose an alternative argument, in support of those two claims, based on the social or ‘relational’ conception of equality. (shrink)

This article adapts John Rawls’s writings, arguing that past injustice can change what we ought to publicly affirm as the standard of justice today. My approach differs from forward-looking approaches based on alleviating prospective disadvantage and backward-looking historical entitlement approaches. In different contexts, Rawls’s own concern for the ‘social bases of self-respect’ and equal citizenship may require public endorsement of different principles or specifications of the standard of justice. Rawls’s difference principle focuses on the least advantaged socioeconomic group. I argue (...) that a historicized difference principle considers the relative standing of racial, gender, and other historically stigmatized groups; provides their members assurance by weakening incentives to manipulate justice to another group’s advantage; and may result in policies resembling reparations, though justified by forward-looking considerations of self-respect and public assurance. I then examine how disrespectful justifications were historically used to forcibly include indigenous peoples as citizens. While Rawls thinks providing citizens one package of basic liberties signals respect, indigenous self-government could better support self-respect. I invoke Rawlsian international justice, which calls for mutual respect between peoples. Indigenous peoples’ status should reflect their past and persisting peoplehood, providing assurance by weakening incentives to unjustly transform international into domestic contexts. (shrink)

As today's battles rage between those who march under the banner of liberty and those who unfurl the flag of equality, even an engaged partisan might be forgiven for occasionally wondering whether the game is, after all, worth the candle. For one thing, neither party simply rejects the other's principle – properly understood. Egalitarians routinely emphasize that their concern for equality is, also, a concern for true liberty; thus Michael Walzer, writing “In Defense of Equality,” (...) finds it “worth stressing that equality as I have described it does not stand alone, but is closely related to the idea of liberty.” 1 Libertarians tend to be less enthusiastic in their embrace of equality, but almost all endorse some form of equality or other – for example, equality of political rights or equality before the law. It would seem, then, that the differences between egalitarians and libertarians are really over the meaning and scope of equality and liberty, and that putting the issue as one of equality vs. liberty may be misleading. More important, one can wonder whether either the egalitarian or the libertarian combination of the principles of liberty and equality is worthy of support. What society has exalted personal liberty, has taken rights more seriously, than ours? Yet who can easily dismiss Solzhenitsyn's charge that our worship of freedom has resulted in “destructive and irresponsible freedom” being granted “boundless scope,” leaving us defenseless against “the corrosion of evil”? 2 The cause of liberty against tyranny surely continues to command our support; but what conclusion ought we to draw from the facts that liberty in absentia seems so markedly more attractive than liberty in practice, and that the qualities manifested in the struggle for liberty seem so superior to those that come to the fore once liberty is secured? (shrink)

In Equal Citizenship and Public Reason, Watson and Hartley dispute the claim that Rawls’s doctrine of political liberalism must tolerate gender hierarchy because it counts conservative and orthodox religions as reasonable comprehensive doctrines. I argue that their defense in fact contains two arguments, both of which fail. The first, which I call the “Deliberative Equality Argument”, fails because it does not establish conclusively that political liberalism’s demand for equal citizenship forbids social practices of domination, as the authors contend. The (...) second, which I call the “Equal Liberties Argument”, fails because it supports a particular version of political liberalism and not the doctrine itself. (shrink)

Paternalistic interventions restrict individuals’ liberty or autonomy so as to guide their decisions towards options that are more beneficial for them than the ones they would choose in the absence of such interventions. Although some philosophers have emphasised that there is a case for justifiable paternalism in certain circumstances, much of contemporary moral and political philosophy works from a strong presumption against paternalistic interventions. However, Richard Arneson has argued that there are egalitarian reasons that support the case for paternalism: (...) paternalistic interventions can protect poor decision-makers from making ‘bad’ choices, thus preventing inequalities between them and those with better decision-making skills. This paper seeks to clarify and advance our understanding of the egalitarian argument for paternalism. Arneson’s argument adds an important and often neglected dimension to the debate about paternalism but also raises a number of questions about equality, paternalism and the relationship between the two. (shrink)

Rawls's theory of political obligation attempts to avoid the obvious flaws of a Lockean consent model. Rawls rejects a requirement of consent for two reasons: First, the consent requirement of Locke’s theory was intended to ensure that the liberty and equality of the contractors was respected, but this end is better achieved by the principles chosen in the original position, which order the basic structure of a society into which citizens are born. Second, "basing our political ties (...) upon a principle of obligation would complicate the assurance problem." Instead, Rawls offers a duty-based account, whereby we are duty-bound to support and comply with just institutions that apply to us. A. John Simmons argues that Rawls cannot meet the particularity requirement of establishing political obligation to only one state. I assess the response that this requirement can be met by the political constructivist element of Rawls's theory. I conclude that there are fatal flaws in this response. (shrink)

The project of “public reason” claims to offer an epistemological resolution to the civic dilemma created by the clash of incompatible options for the rational exercise of freedom adopted by citizens in a diverse community. The present Article proposes, via consideration of a contrast between two classical accounts of dialectical reasoning, that the employment of “public reason,” in substantive due process analysis, is unworkable in theory and contrary to more reflective Supreme Court precedent. Although logical commonalities might be available to (...) pick out from the multitude of particularized accounts of what constitutes “civic order,” no “public reason” so derived could adequately capture - and thus be able to secure in a practical sense - any single determinate civic order, much less one that would be consistent with all citizens' conceptions of public order. Part I of this Article raises a number of issues for consideration relating to the epistemology of law and focuses especially on the concept of public reason and its critique. Part II addresses alternative approaches to legal reasoning suggested by classical accounts of practical reasoning and virtue theory and considers the operation of such legal analysis outside the area of substantive due process; Part III analyzes post-Lawrence case law confirming the dilemma created by the Supreme Court's ambiguous approaches to substantive due process and concludes that only one interpretation - that articulated fully in Washington v. Glucksberg and given lip service in Lawrence v. Texas - provides a method for resolving novel substantive due process challenges that is philosophically sound as well as historically coherent. Rather than perpetuating a fiction that denies the propriety of lawmaking unless based on principles that all citizens can rationally agree upon, an appropriate model of substantive due process analysis recognizes that law must inevitably be based upon principles that cannot be agreed upon by all citizens in virtue of rationality alone. -/- Abstract Footnotes (291) Beta -/- Revise My Submission -/- -/- One-Click Download | Share | Email | Add to Briefcase -/- Facebook | Twitter | Digg | Del.icio.us | CiteULike | Permalink Using the URL or DOI link below will ensure access to this page indefinitely -/- Based on your IP address, your paper is being delivered by: New York, USA Processing request. [Processing request.] Illinois, USA Processing request. [Processing request.] Brussels, Belgium Processing request. [Processing request.] Seoul, Korea Processing request. [Processing request.] California, USA Processing request. [Processing request.] -/- If you have any problems downloading this paper, please click on another Download Location above, or view our FAQ File name: SSRN-id1004757. ; Size: 424K -/- Sample Cover You will receive a black and white printed and perfect bound version of this document in 8 1/2 x 11 inch format, with glossy color front and back covers. Currently shipping to the US addresses only. Your order will be shipped within three business days. Quantity: Total Price = $0.50 plus shipping (U.S. Only) -/- If you have any problems with this purchase, please email [email protected] or call 1-585-442-8170. Reason's Freedom and the Dialectic of Ordered Liberty -/- Edward C. Lyons University of Notre Dame Law School -/- Cleveland State Law Review, Vol. 55, p. 157, 2007 -/- Abstract: The project of "public reason" claims to offer an epistemological resolution to the civic dilemma created by the clash of incompatible options for the rational exercise of freedom adopted by citizens in a diverse community. The present Article proposes, via consideration of a contrast between two classical accounts of dialectical reasoning, that the employment of "public reason," in substantive due process analysis, is unworkable in theory and contrary to more reflective Supreme Court precedent. Although logical commonalities might be available to pick out from the multitude of particularized accounts of what constitutes "civic order," no "public reason" so derived could adequately capture - and thus be able to secure in a practical sense - any single determinate civic order, much less one that would be consistent with all citizens' conceptions of public order. -/- Part I of this Article raises a number of issues for consideration relating to the epistemology of law and focuses especially on the concept of public reason and its critique. Part II addresses alternative approaches to legal reasoning suggested by classical accounts of practical reasoning and virtue theory and considers the operation of such legal analysis outside the area of substantive due process; Part III analyzes post-Lawrence case law confirming the dilemma created by the Supreme Court's ambiguous approaches to substantive due process and concludes that only one interpretation - that articulated fully in Washington v. Glucksberg and given lip service in Lawrence v. Texas - provides a method for resolving novel substantive due process challenges that is philosophically sound as well as historically coherent. -/- Rather than perpetuating a fiction that denies the propriety of lawmaking unless based on principles that all citizens can rationally agree upon, an appropriate model of substantive due process analysis recognizes that law must inevitably be based upon principles that cannot be agreed upon by all citizens in virtue of rationality alone. -/- Keywords: substantive due process, practical reason, public reason, Rawls, Casey, Lawrence, Glucksberg, Plato, Aristotle, Kant, Hegel, dialectic, autonomy, freedom -/- . (shrink)

W.E.B. Du Bois’s socialism has provoked debate for decades. His democratic theory and critique of political economy supports democratic socialism. In this article, I offer a philosophical reconstruction of the normative foundation of his democratic socialism in three steps. First, I argue that his philosophy of the modern democratic state supports the people’s advance of the principle of free and equal citizenship or civic equality. Next, I present his critique of the modern American welfare state, which asserts the fair (...) value of political liberty and democratic control over productive activities. Finally, I introduce the method of the excluded groups from Darkwater as an ideal procedure for guiding democratic deliberation in a profoundly nonideal public sphere. The method foregrounds the voices of excluded groups to correct asymmetrical relations of practical power and to infuse democratic reason with practical intelligence, namely, new content and values that can lead to the development of a democratic socialist state. (shrink)

Liberalism has often been viewed as a continuing dialogue about the relative priorities between liberty and equality. When the version of equality under discussion requires equalization of outcomes, it is easy to see how the two ideals might conflict. But when the version of equality requires only equalization of opportunities, the conflict has been treated as greatly muted since the principle of equality seems so meager in its implications. However, when one looks carefully at various (...) versions of equal opportunity and various versions of liberty, the conflict between them is, in fact, both dramatic and inescapable. Each version of the conflict poses hard choices which defy anysystematicpattern granting priority to one of these basic values over the other. In this essay, I will flesh out and argue for this picture of fundamental conflict, and then turn to some more general issues about the kinds of answers we should expect to the basic questions of liberal theory. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Liberalism, Art, and FundingDale Francis MurrayLiberalism, Art, and FundingSince Ronald Dworkin published A Matter of Principle, a host of critics have attempted to systematically dismantle his arguments advocating state support for the arts that appear in a chapter entitled, "Can a Liberal State Support Art?"1 The combined critical force of Noël Carroll, Samuel Black, and most recently, Harry Brighouse, has dislodged the main supports of Dworkin's position on this (...) subject.2 However, while I am skeptical that the arguments of liberals who endorse state support for the arts can be fully resurrected, I reckon that a few remarks can be presented to try to deflect at least a fraction of the contentions cast on Dworkin's argument by the critics listed above. In order to refine our understanding of precisely why state support for cultural expression should or should not be permitted, it is imperative that some sort of response to the critics of state support for the arts is offered.In this essay, I focus primarily on Brighouse's objections that Dworkin's arguments supporting arts funding fail primarily because they are not sensitive enough to the ways in which such support violates two demands of justice in a liberal state — state neutrality and publicity. I examine these two objections since they seem to be the most interesting, compelling, and damaging to Dworkin's case if substantiated. If Brighouse is correct, these violations act as heavy bulwarks against state support for arts funding, especially since public distrust of the state's intent (and the state's perceived advocacy of notions of the good with which the public disagrees) is high. I will employ Brighouse's neutrality of intent constraint, because it best represents the alleged specific violations of state neutrality that may undermine Dworkin's case. Additionally, neutrality of intent is the most plausible form of neutrality for advocates of public arts funding to build a case for in the space of a short essay.I also wish to make a distinction, which for the most part, is ignored by Dworkin's critics — that there is a degree to which moral value and aesthetic value are different and that this effects a possible alternative reading of the term "ways of life" as most liberals understand it. As a final note of preface, I will assume that the background conditions of income and wealth are just.3 This proviso will become important when we examine the role of the market in funding arts projects in lieu of the government. Now let us reiterate the two requirements of any just liberal state that are at issue when considering the legitimacy of state support for the arts. [End Page 116]Brighouse sets the pair of constraints on any just liberal state (neutrality and publicity) as the centerpieces of his essay. Neutrality of intent, that he appeals to more specifically, can be understood to mean, as Brighouse himself explains, "[T]hat while it is unobjectionable that state actions will have differential effects on conceptions of the good, the government should not intend to favor some conceptions over others" (NPS, 38, emphasis mine). The publicity constraint can be characterized by saying that in any just, liberal regime, justice must not only be done, but it must also be seen as being done. While this serves as the motto of the publicity constraint, it is significant to acknowledge that it stipulates that the real reasons for governmental action must be comprehensible to, and available for inspection by, reasonable citizens. In addition, it must be readily apparent to citizens that the demands of justice are being met. I will return to this constraint on the state later in this essay.Neutrality is of chief interest, since recent liberal political philosophers have emphasized the primacy of the right over the good (RLD, 245). Presumably, individuals, via their rational autonomy, shall define the good for themselves beyond the dictates of government. Our morality is our own personal affair, just so long as we remain within the confines of the harm principle and do not violate the equal liberty of others.On the surface, it is not apparent that state funding for the... (shrink)

The distinction drawn by Rawls between the ideas of property-owning democracy and welfare state capitalism parallels his distinction between justice-based ‘liberalisms of freedom’ (including his own conception of justice as fairness) and utilitarian- based ‘liberalisms of happiness’. In this paper I argue that Rawls’s failure to attach the same level of significance to essential socio-economic rights and liberties as he attached to the traditional liberal civil and political rights and liberties gives justice as fairness a quasi-utilitarian character, which is incompatible (...) with the fundamental objective of protecting the highest.-order interests of citizens conceived as free and equal. I argue that in order fully to protect these interests, rights to access to non-human capital and productive resources should be assigned the same level of significance as that assigned to the civil and political rights and liberties, and prioritized over the lower-order rights and benefits regulated by Rawls’s second principle of justice. (shrink)

Human rights belong to individuals in virtue of their common humanity. Yet it is an important question whether human rights entail or comport with the possession of what I call group-specific rights, or rights that individuals possess only because they belong to a particular group. The Universal Declaration of Human Rights says they do. Article 15 asserts the right to nationality, or citizenship. Unless one believes that the only citizenship compatible with a universal human rights regime is cosmopolitan citizenship in (...) a world state – a conception of citizenship that is not countenanced by the UDHR – one must interpret the human right to citizenship as a universal right to a particular group right. Other UN Conventions affirm the right of national minorities and indigenous people to cultural autonomy.[1] In these cases the right attributed to the group is understood as protecting an individually held human right to freedom of religion, association, or cultural expression. Because these individual rights are exercised collectively and exclusively, they ensure that individual members of a particular group have the freedom to act unhindered by outsiders. However, groups often view their right to freedom of religion, association, and cultural expression in an entirely different way. Not only do they wish that their individual members be free from outside interference but they wish to be freely self-determining as a group. That is, they wish to collectively define their own identity, including the identity of their individual members, according to the dominant views of the majority. This right to collective self-determination entitles a group to limit the full exercise of its members’ human right to act as they wish whenever the group determines that this exercise endangers the identity of the group. In these cases, the internal threat to the group’s cultural identity posed by the heterodox practices of its own members appears to be indistinguishable from the external threat to the group’s cultural autonomy posed by outsiders. I shall argue that groups are sometimes morally entitled to limit the exercise of their members' human rights under certain conditions.[2] In some respects the notion of limitation operant here is familiar to us from our own understanding of what liberal democratic societies legitimately demand of their citizens. No right – human or otherwise – is exercised unconditionally, since rights sometimes conflict with one another and their possession is contingent upon respecting the rights of others, which normally involves accepting some limitations on what may be said or done. Laws merely codify how the majority understands these limits. Also, many philosophers have argued that the meaning of human rights is far from settled, so that even a liberal democratic interpretation of rights of the sort that is contained in the first article of the UDHR is far from being universally accepted.[3] Leaving aside the possibility that human rights do not entail the extensive liberty associated with a liberal understanding of them,[4] I shall argue that groups can sometimes be morally justified to limit the expressive liberty of their individual members so long as they are both ontologically and morally legitimate and provide dissenters with reasonable opportunities for exit. [1] These include the Convention Concerning Indigenous and Tribal Peoples in Independent Countries and the Declaration of Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities. [2] Following Thomas Pogge, I regard human rights as claims that individuals raise against institutions that are supposed to guarantee them the conditions and resources necessary for leading a minimally decent human life. Because institutions are imperfect and fallible, assessing their compliance with human rights involves weighing their overall success along a number of variables which normally preclude simple judgments that fall into the either/or of fully satisfying or fully violating a human right. An institution may perform reasonably well in insuring that almost all of the persons on whom it is imposed are relatively successful in enjoying human right X but not human right Y; likewise, it may insure that some persons on whom it is imposed have greater success in enjoying a human right than others. [3] Article 1 states that “All human beings are born free and equal in dignity and rights.” This article can be given a distinctly liberal interpretation if “equal” is understood as “same” and “rights” are understood in to include political rights to equal participation in government and “freedom to manifest his religion or belief in teaching practice, worship, and observance” “in public or private”. [4] There has been an extensive debate over whether human rights, understood as claims that individuals raise against the social institutions that are imposed on them, reflect a conception of individual self-assertion that is universally valid for all societies or only for liberal societies that have embarked upon a Western course of modernization. Some, like John Rawls, have sought to circumvent this impasse by defining the list of universally valid human rights minimally, and in terms that do not imply robust notions of freedom and equality of the sort associated with the Western liberal constitutional tradition. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Liberalism, Art, and FundingDale Francis MurrayLiberalism, Art, and FundingSince Ronald Dworkin published A Matter of Principle, a host of critics have attempted to systematically dismantle his arguments advocating state support for the arts that appear in a chapter entitled, "Can a Liberal State Support Art?"1 The combined critical force of Noël Carroll, Samuel Black, and most recently, Harry Brighouse, has dislodged the main supports of Dworkin's position on this (...) subject.2 However, while I am skeptical that the arguments of liberals who endorse state support for the arts can be fully resurrected, I reckon that a few remarks can be presented to try to deflect at least a fraction of the contentions cast on Dworkin's argument by the critics listed above. In order to refine our understanding of precisely why state support for cultural expression should or should not be permitted, it is imperative that some sort of response to the critics of state support for the arts is offered.In this essay, I focus primarily on Brighouse's objections that Dworkin's arguments supporting arts funding fail primarily because they are not sensitive enough to the ways in which such support violates two demands of justice in a liberal state — state neutrality and publicity. I examine these two objections since they seem to be the most interesting, compelling, and damaging to Dworkin's case if substantiated. If Brighouse is correct, these violations act as heavy bulwarks against state support for arts funding, especially since public distrust of the state's intent (and the state's perceived advocacy of notions of the good with which the public disagrees) is high. I will employ Brighouse's neutrality of intent constraint, because it best represents the alleged specific violations of state neutrality that may undermine Dworkin's case. Additionally, neutrality of intent is the most plausible form of neutrality for advocates of public arts funding to build a case for in the space of a short essay.I also wish to make a distinction, which for the most part, is ignored by Dworkin's critics — that there is a degree to which moral value and aesthetic value are different and that this effects a possible alternative reading of the term "ways of life" as most liberals understand it. As a final note of preface, I will assume that the background conditions of income and wealth are just.3 This proviso will become important when we examine the role of the market in funding arts projects in lieu of the government. Now let us reiterate the two requirements of any just liberal state that are at issue when considering the legitimacy of state support for the arts. [End Page 116]Brighouse sets the pair of constraints on any just liberal state (neutrality and publicity) as the centerpieces of his essay. Neutrality of intent, that he appeals to more specifically, can be understood to mean, as Brighouse himself explains, "[T]hat while it is unobjectionable that state actions will have differential effects on conceptions of the good, the government should not intend to favor some conceptions over others" (NPS, 38, emphasis mine). The publicity constraint can be characterized by saying that in any just, liberal regime, justice must not only be done, but it must also be seen as being done. While this serves as the motto of the publicity constraint, it is significant to acknowledge that it stipulates that the real reasons for governmental action must be comprehensible to, and available for inspection by, reasonable citizens. In addition, it must be readily apparent to citizens that the demands of justice are being met. I will return to this constraint on the state later in this essay.Neutrality is of chief interest, since recent liberal political philosophers have emphasized the primacy of the right over the good (RLD, 245). Presumably, individuals, via their rational autonomy, shall define the good for themselves beyond the dictates of government. Our morality is our own personal affair, just so long as we remain within the confines of the harm principle and do not violate the equal liberty of others.On the surface, it is not apparent that state funding for the... (shrink)

The idea that healthcare should become more person-centred is extremely influential. By using recent English policy developments as a case study, this article aims to critically analyse an important element of person-centred care, namely, the belief that to treat patients as persons is to think that care should be ‘co-produced’ by formal healthcare providers and patients together with unpaid carers and voluntary organizations. I draw on insights from political philosophy to highlight overlooked tensions between co-production and values like equality (...) and liberty. Regarding equality, I argue that co-production compounds both problems of gender inequality in the distribution of care labour and the challenges associated with securing equal access to care. Turning to liberty, I identify important commonalities between co-production and republicanism in political philosophy, given their shared insistence on common citizens’ civic virtue. Then, I use against co-production some liberal arguments against republicanism, to highlight a problem of over-demandingness. In bringing my argument to a close, however, I wish to caution against hastily rejecting co-production as a policy programme. (shrink)

Liberalism, in any of its forms, places a strong emphasis on the individual---it prioritizes equal rights and liberties, and measures are taken to assure for all citizens the opportunity to make full use of their freedoms and entitlements. Many conceptions of human rights are objected to on the grounds that they are based on liberal premises, and insufficiently sensitive to the fact of reasonable cultural pluralism. ;Using as a foil recent work in this area by John Rawls, I argue in (...) chapter one for a justificatory basis of human rights that advances values---in particular values of minimal democracy including the right to political participation---that may have emerged historically alongside liberalism but that we ought not consider specifically liberal. My account diverges form Rawls' at this point: he does not believe that such values can be defended from premises that are not specifically liberal. ;Since a group is, after all, merely a collection of individuals, liberalism appears to be committed, unsatisfactorily, to a permissive right to secede in the sense that, other things being equal, groups always ought to be permitted to secede voluntarily. I show in my second chapter that liberalism is not committed to this permissive view. Though liberalism implies that no one has a duty to refrain from secession, it does not support the stronger thesis that states must permit groups to secede if they wish. My treatment of secession argues for a more general framework in which those liberties whose protection is of basic importance to liberalism are distinguished from those whose protection is not so guaranteed. ;Derek Parfit has put forth a general difficulty regarding our obligations to future generations to which I respond in chapter three. Parfit claims, plausibly, that we may suppose a major public policy decision to have sufficiently broad ramifications that in about two hundred years there would be nobody alive who would have been alive had some different policy been selected. But then the choice of such a policy would not make those people worse off, since they would not otherwise have been born. This would remain so even in the case of policies that cause the lives of future generations to be of a very low quality. Parfit's "Non-Identity Problem" challenges us to provide plausible moral reasons against such public policies. ;I argue that the only adequate response to this problem comes from a liberal focus on the rights of future generations, and the moral status that this confers on them. Taking such seriously, many public polices can be shown to be objectionable despite the fact that such policies may not harm the interests of those affected by them. (shrink)

A central feature of John Tomasi’s ‘Free Market Fairness’ is the emphasis it places upon the good of self-respect. Like Rawls, Tomasi believes that accounts of justice ought to offer support for the self-respect of citizens. Indeed, this is a key way in which Tomasi aspires to engage with the ‘high-liberal’ tradition. Unlike Rawls however, Tomasi argues that this support is best provided by our treating a broader set of economic liberties as basic liberties. In this paper I raise two (...) concerns about this latter claim. Firstly, I trace a number of significant ways in which Tomasi’s discussion of self-respect differs from that of Rawls. Whilst such divergences are not necessarily problematic, I argue that they serve to limit the purchase his account has on left-liberals. Further, I argue that the ideal of self-respect is more deeply ‘hard-wired’ into Rawls’s account of justice than Tomasi recognises. As such, Tomasi fails to address the full range of additional ways in which Rawls expects his principles of justice to support citizens’ self-respect. I argue that this also limits the force of Tomasi’s claims. Secondly, and more seriously, I argue that there are significant tensions between Tomasi’s discussion of self-respect and his most forceful argument in favour of the market democratic model he proposes. I argue firstly that Tomasi’s account of when citizens’ self-respect is jeopardised does not allow us to readily distinguish between economic security born of systems of welfare and redistribution, and economic security born of market forces and historical contingency. And more troubling still, is Tomasi’s belief that self-respecting citizens must view themselves as a ‘central cause’ of their situation. Such self-conceptions, I argue, can only coexist alongside the greater wealth thesis if citizens engage in quite naked self-delusions about their causal power. I argue that theorists of justice have good reason to be suspicious of promulgating such delusions and, as such, that this poses a serious problem for a justification of market democracy which aspires to rest upon an appeal to self-respect. (shrink)

Equal Justice explores the role of the idea of equality in liberal theories of justice. The title indicates the book’s two-part thesis: first, I claim that justice is the central moral category in the socio-political domain; second, I argue for a specific conceptual and normative connection between the ideas of justice and equality. This pertains to the age-old question concerning the normative significance of equality in a theory of justice. The book develops an independent, systematic, and comprehensive (...) theory of equality and egalitarianism. The principal question is about the importance of equality in a theory of justice. More precisely, we should pose questions in four contracting circles: 1. Is justice the supreme value guiding our setup of the basic structure of society, or are there other, equally important values, such as recognition, care, communal belonging? 2. If justice is the highest guiding principle, which competing ideals—especially equality and freedom—ought to have precedence in a policy oriented toward justice? What status does the ideal of equality have in that framework? 3. If equality is a basic ideal of just policy, how should it be practically realized? What sort of equality (equal opportunity, equality of welfare, resource equality) should be demanded? 4. What patterned distribution of which specific goods does the ideal of equality demand? Which principles of distribution can be justified according to our justice ideal? To conclude and summarize: 5. What is the essential core of an egalitarian theory of justice, as opposed to an inegalitarian theory? These five questions structure the work’s order of argumentation. Part A elaborates the conceptual foundations and basic moral principles of justice and equality. Chapter I sets out to install justice as the central moral category in the socio-political domain. At the beginning of the first chapter, the conceptual foundations of justice are clarified. While not eliminating the classical distinctions between different forms of justice, I argue that the distributive paradigm is of primary importance. The primacy of justice in the socio-political domain is developed out of a confrontation with alternative positions, those which maintain either that justice generally, or distributive justice in particular, are subsidiary virtues. At the end of Chapter I, the first of the questions mentioned above is answered in a way that establishes justice as the guiding normative concept for the foundation and evaluation of any social order. To clarify the role of equality in a theory of justice, Chapter II separates the idea of equality into four different principles. They are organized in a way that begins with the most general and uncontroversial principle of equality, and progresses towards increasingly detailed and contested principles. There are two theses that articulate and defend the significance of equality for justice: First there is a conceptual connection between justice and equality, in that principles of formal and proportional equality are necessary in order to explicate the concept of justice. These two principles establish an unbreakable bond between justice and equality. Justice can only be explained—or so I argue—by reference to these and other (normative) principles of equality. The second thesis posits a normative relationship between justice and equality, which is disclosed by three substantive principles of equality: moral equality, the presumption of equality, and the principle of responsibility. I argue that the normative core of an egalitarian theory of justice is expressed by the latter two principles, which are themselves based on the first principle, that of moral equality. When we view one another as persons, what form of equality or equal treatment is normatively demanded? I argue that the answer to this question is given by the procedural principle of the presumption of equality: regardless of their apparent differences, all persons deserve strictly equal treatment, unless certain kinds of differences have whatever particular relevance would justify, on generally acceptable grounds, unequal treatment or unequal distribution. The justification of the presumption of equality is central to this work and has considerable importance. If the presumption principle’s validity can be justified by enlisting the principle of general justification, then the primacy of equality, and the essential argument for an egalitarian theory of justice, is established. This would likewise provide a procedure for the construction of a material theory of justice. The second question is answered thereby at the end of Chapter II: Equality should have primacy over competing ideals within a justice-oriented policy. The presumption of equality establishes this primacy and, at the same time, offers an appropriate metric and guideline for the construction of a material theory of distributive justice. The presumption of equality in Part B offers an elegant procedure for the development of a theory of distributive justice. Chapter III clearly sets out the necessary prerequisites that a theory of distribution must satisfy in order to determine a liberal-egalitarian distributional framework. We need to specify in which situation the distribution takes place; which goods are and are not to be distributed; in which respect the presumptive equality is to be produced; and by and to whom, and for what period, the relevant goods are to be distributed. The distribution is based on resources understood as general-purpose means. It is necessary to divide goods into different categories, since the justification for unequal treatment in one domain will not carry over into another. This makes presumptive equality necessarily complex. To that end, four spheres of justice are distinguished: (1) the political sphere, which involves allocating rights through the distribution of civil liberties; (2) the democratic sphere, in which political power and the rights of political participation are regulated; (3) the economic sphere, in which income and property are distributed; (4) the social sphere, in which social positions and opportunities are distributed. This framework of distributive justice answers the third of our guiding questions, about the nature of equality, in terms of equality of resources. Chapters IV and V set out the egalitarian distributive criteria for each sphere. I argue that the generally accepted, fundamental rights of classical liberalism are more effectively reconstructed by reference to the equal resource distribution presumptively required in those spheres. Chapter IV shows that when it comes to the first two spheres, those involving basic rights and freedoms and entitlement political participation, there can be no justified exceptions to the equal distribution of the relevant goods. That section argues, contrary to what we commonly find in theories of freedom or popular sovereignty, that the value of freedom and self-determination as the political basis of autonomy is best realized through the presumption of equal distribution. Chapter V deals with the other two spheres, those of economic goods and social positions, and argues for justified exceptions to equal distribution. In the economic sphere we find one principal reason favouring unequal distribution of resources, and three restrictions and compensations limiting that inequality. The basic exception to equal economic distribution arises from the unequal consequences of personal responsibility. From a suitably egalitarian standpoint, the principle of responsibility is the normative principle that determines which reasons justify economic inequality. Here the basic idea is that unequal shares of social goods are fair if they result from the choices and deliberate actions of the relevant parties. That individuals have to bear the costs of their own choices is a condition of autonomy. However, benefits or disadvantages arising from arbitrary and unmerited differences in social circumstances or natural endowments is unfair. The unequal consequences of independent decision-making and action must therefore be limited by compensating first for preferences, secondly for disadvantages, and thirdly by redistributing wealth in aid of the worse-off. I situations of emergency, compensating for disadvantages has priority over all other claims, owing to the urgency of the situation. Social inequalities go beyond the permissible limit if it is possible to improve the long-term social or economic situation of the worse-off by redistributing wealth to them. These exceptions lead to a complex system of free economic action within a framework of compensatory tax and transfer mechanisms. Finally, in the social sphere, the distribution of social positions, offices and opportunities must be structured to ensure that equally talented and motivated citizens have roughly equal chances of obtaining those offices or positions, irrespective of their economic or social class backgrounds. This compromise is permissible for reasons of freedom and prudence, and it makes a certain measure of inequality acceptable. The fourth of our guiding questions is answered accordingly. There are five principles of justice for the basic structure of society, and five legal principles that govern the special distribution of goods in the respective spheres—all are ranked according to their most defensible grounds of priority, ensuring that everyone is accorded equal justice. Chapter VI recapitulates the initial question of equality’s value. The conception of equal justice developed in this work postulates five principles of equality and five principles of law; these constitute an egalitarian framework because they support and promote social justice. Equality has value with respect to them, but is not given any independent, intrinsic value. That is why I call the account developed here a form of constitutive egalitarianism: justice is realized through the realization of equality, itself accomplished by applying the five postulates of equality and five distributive principles of law. This is an egalitarianism on two levels. The first level is involves the claim that morality or justice is conceptually connected with equality. The second level gives equality a substantial weight in what is conceptually validated at the first level, namely the presumption of equality, and constructs an appropriate interpretation and conception of distributive justice through principles of distribution for the individual spheres. The weight and importance of equality is shown by the distributive criteria applied to those spheres. This answers our final guiding question about the nature of an egalitarian theory. (shrink)

This chapter discusses how order ethics relates to the theory of justice. We focus on John Rawls's influential conception "Justice as Fairness" (JF) and compare its components with relevant aspects of the order-ethical approach. The two theories, we argue, are surprisingly compatible in various respects. We also analyse how far order ethicists disagree with Rawls and why. The main source of disagreement that we identify lies in a thesis that is central to the order ethical system, viz. the requirement (...) of incentive-compatible implementability. It purports that an ethical norm can be normatively valid only if individuals have a self-interested motive to support it. This idea conflicts with the Rawlsian view because there are cases where it is not clear, from the standpoint of self-interest, why everybody should support its moral demands. If the thesis of incentive-compatible implementability is, in fact, correct, a proponent of JF would have to reform her views. We suggest how she could do that while salvaging the heart of her normative system as a “regulative idea”. The conception that would result from this reformation may be seen as a new variant of order ethics, which we propose to call “Rawlsian Order Ethics”. (shrink)

Vinit Haksar has written a fairly lengthy book in order to establish a rather simple point : that it is impossible to arrive at an adequate account of justice without judging the objective merit of alternative ways of life. The main target of his argument is John Rawls, whose influential A Theory of Justice purports to sever considerations of justice from those of the human good in precisely this way. Haksar’s argument is also intended, however, as a criticism of the (...) views of such other contemporary liberal theorists as Ronald Dworkin and Robert Nozick. (shrink)

Over the last 20+ years, multinational corporations have been confronted with accusations of abuse of market power and unfair and unethical business conduct especially as it relates to their overseas operations and supply chain management. These accusations include, among others, worker exploitation in terms of unfairly low wages, excessive work hours, and unsafe work environment; pollution and contamination of air, ground water and land resources; and, undermining the ability of natural government to protect the well-being of their citizens. MNCs (...) have responded to these accusations by creating voluntary codes of conduct which commit them to specific standards for addressing these issues. These codes are created at both the industry-wide and the individual company level. Unfortunately, these codes have generated little credibility and public trust because their compliance claims cannot be independently verified, and they lack transparency and full public disclosure. In this article, we present a case study of the voluntary code of conduct by Mattel, Inc., the world’s largest toy company. The code, called the Global Manufacturing Principles, confronts the general criticism leveled against voluntary codes of conduct by creating detailed standards of compliance, independent external monitoring of the company’s compliance with its code of conduct, and making full, and uncensored public disclosure of the audit findings and company’s response in terms of remedial action. We present a detailed account of how Mattel’s voluntary code of conduct was created, implemented, and ultimately abandoned over 9 years. We provide an evaluative analysis of the company’s GMP compliance throughout its life span, which suggests a bell-shaped curve, where early top management commitments were met with pockets of resistance from operational groups, who were concerned about balancing GMP compliance efforts with traditional performance criteria. The early stage response from Mattel’s top management was quick and supported with the requisite resources. As a result, the compliance process accelerated, becoming increasingly more robust and effective. The success of code compliance and increased transparency in public disclosure energized field managers with a sense of professional satisfaction and publicly recognized accomplishments. The decline in GMP compliance was equally steep. When all the easily attainable targets had been reached at the company-operated plants, addressing vendor plants’ compliance presented a new set of challenges, which taxed corporate resources and management commitment. It would seem that value-based and ethics-oriented considerations, i.e., doing the right thing for the right reason, were no longer the driving force for Mattel’s management. Mattel did not see any economic benefit from its proactive stance, when competitors did not seem to suffer adverse consequences for not following suit. The final contributing factor to the code’s abandonment was a widely publicized series of product recalls which absorbed top management’s attention. (shrink)

Well-stated modern political or democratic theory is rights-based. Meaningful democracy rests as a precondition on the equal rights of citizens. This idea stems from Rousseau’s distinction between a general will*one which is impersonal and tends toward equality, that is, the equal basic rights of citizens*and a transitory will of all. For instance, absent equal basic rights, one might imagine a possible world in which what I have called a self-undermining series of wills of all, or the results of socalled (...) majority rule, disenfranchises the population. In the USA, one might think, contrahistorically, of a regime in which the women, as a majority, disenfranchise the men, the Black, Latin, and Asian women disenfranchise the White women, and by a series of reductions by further ‘majorities,’ three people still have the suffrage, two of whom disenfranchise one. Based on Rousseau, John Rawls’ Theory of Justice thus emphasizes the priority of the equal liberty principle over an economic difference principle.1 The difference principle permits those inequalities which also benefit the least advantaged. But the priority of the equal liberty principle rules out any inequality, otherwise beneficial to the least advantaged, which enables the rich to control the government. This priority makes equal basic rights the inescapable precondition for any decent majority rule or distribution of income. Note that in principle, such a regime may be international*even a democracy of demoi in James Bohman’s phrase - rather than national. (Published: 5 February 2010) Citation: Ethics & Global Politics, Vol. 3, No. 1, 2010, pp. 55-70. DOI: 10.3402/egp.v3i1.4854. (shrink)

The first principle of Rawls’s conception of justice secures a set of ‘basic liberties’ equally for all citizens within the constitutional structure of society. The ‘worth’ of citizens’ liberties, however, may vary depending upon their wealth. Against Rawls, Cohen contends that an absence of money often can directly constrain citizens’ freedom and not simply its worth. This is because money often can remove legally enforced constraints on what citizens can do. Cohen’s argument – if modified to apply to citizens’ ‘moral (...) powers’ rather than ‘negative liberty’ – threatens a core feature of Rawls’s conception of justice, as it is unclear why the parties within the ‘original position’ would endorse the lexical priority of the first principle over the ‘difference principle’ if both principles similarly shape citizens’ freedom. I concede Cohen’s point regarding the relation between freedom and money but argue that it is not fatal to Rawls’s conception of justice if the ‘basic needs principle’ is understood to enjoy lexical priority over the first principle and is modified to include a right to adequate discretionary time. Nonetheless, Cohen’s argument helpfully highlights the infelicitous nature of Rawls’s terminology with respect to liberty: the basic needs principle, the first principle and the difference principle all should be understood as shaping citizens’ freedom to exercise their moral powers. (shrink)

One of the central elements of John Rawls’ argument in support of his two principles of justice is the intuitive normative ideal of citizens as free and equal. But taken in isolation, the claim that citizens are to be treated as free and equal is extremely indeterminate, and has virtually no clear implications for policy. In order to remedy this, the two principles of justice, together with the stipulation that citizens have basic interests in developing their moral capacities and pursuing (...) their conceptions of the good life, are meant to provide a more precise interpretation of what is involved in treating citizens as free and equal. Rawls’ critics, however, have argued that satisfying the two principles of justice is not the most appropriate or plausible way to respect the status of citizens as free and equal. In relation to this debate, the present paper has two aims. The first is to examine Rawls’ account of the type of freedom that a just society must guarantee equally to its citizens. I will argue that those who think of Rawls as a theorist of freedom as non-interference are mistaken, because his notion of liberty resembles in important respects the republican notion of freedom as non-domination. Second, I will consider the extent to which Rawls’ principles of justice successfully protect the freedom as non-domination of all citizens so as to effectively treat them as free and equal. (shrink)

The most glamorous and even glorious moments in a legal system come when a high court recognizes an abstract principle involving, for example, human liberty or equality. Indeed, Americans, and not a few non-Americans, have been greatly stirred--and divided--by the opinions of the Supreme Court, especially in the area of race relations, where the Court has tried to revolutionize American society. But these stirring decisions are aberrations, says Cass R. Sunstein, and perhaps thankfully so. In Legal Reasoning and (...) Political Conflict, Sunstein, one of America's best known commentators on our legal system, offers a bold, new thesis about how the law should work in America, arguing that the courts best enable people to live together, despite their diversity, by resolving particular cases without taking sides in broader, more abstract conflicts. Sunstein offers a close analysis of the way the law can mediate disputes in a diverse society, examining how the law works in practical terms, and showing that, to arrive at workable, practical solutions, judges must avoid broad, abstract reasoning. Why? For one thing, critics and adversaries who would never agree on fundamental ideals are often willing to accept the concrete details of a particular decision. Likewise, a plea bargain for someone caught exceeding the speed limit need not--indeed, must not--delve into sweeping issues of government regulation and personal liberty. Thus judges purposely limit the scope of their decisions to avoid reopening large-scale controversies. Sunstein calls such actions incompletely theorized agreements. In identifying them as the core feature of legal reasoning--and as a central part of constitutional thinking in America, South Africa, and Eastern Europe-- he takes issue with advocates of comprehensive theories and systemization, from Robert Bork to Jeremy Bentham, the father of utilitarianism, and Ronald Dworkin, who defends an ambitious role for courts in the elaboration of rights. Equally important, Sunstein goes on to argue that it is the living practice of the nation's citizens that truly makes law. For example, he cites Griswold v. Connecticut, a groundbreaking case in which the Supreme Court struck down Connecticut's restrictions on the use of contraceptives by married couples--a law that was no longer enforced by prosecutors. In overturning the legislation, the Court invoked the abstract right of privacy; the author asserts that the justices should have appealed to the narrower principle that citizens need not comply with laws that lack real enforcement. By avoiding large-scale issues and values, such a decision could have led to a different outcome in Bowers v. Hardwick, the decision that upheld Georgia's rarely prosecuted ban on sodomy. And by pointing to the need for flexibility over time and circumstances, Sunstein offers a novel understanding of the old ideal of the rule of law. Legal reasoning can seem impenetrable, mysterious, baroque. This book helps dissolve the mystery. Whether discussing the interpretation of the Constitution or the spell cast by the revolutionary Warren Court, Cass Sunstein writes with grace and power, offering a striking and original vision of the role of the law in a diverse society. In his flexible, practical approach to legal reasoning, he moves the debate over fundamental values and principles out of the courts and back to its rightful place in a democratic state: the legislatures elected by the people. (shrink)

The most glamorous and even glorious moments in a legal system come when a high court recognizes an abstract principle involving, for example, human liberty or equality. Indeed, Americans, and not a few non-Americans, have been greatly stirred--and divided--by the opinions of the Supreme Court, especially in the area of race relations, where the Court has tried to revolutionize American society. But these stirring decisions are aberrations, says Cass R. Sunstein, and perhaps thankfully so. In Legal Reasoning and (...) Political Conflict, Sunstein, one of America's best known commentators on our legal system, offers a bold, new thesis about how the law should work in America, arguing that the courts best enable people to live together, despite their diversity, by resolving particular cases without taking sides in broader, more abstract conflicts. Sunstein offers a close analysis of the way the law can mediate disputes in a diverse society, examining how the law works in practical terms, and showing that, to arrive at workable, practical solutions, judges must avoid broad, abstract reasoning. Why? For one thing, critics and adversaries who would never agree on fundamental ideals are often willing to accept the concrete details of a particular decision. Likewise, a plea bargain for someone caught exceeding the speed limit need not--indeed, must not--delve into sweeping issues of government regulation and personal liberty. Thus judges purposely limit the scope of their decisions to avoid reopening large-scale controversies. Sunstein calls such actions incompletely theorized agreements. In identifying them as the core feature of legal reasoning--and as a central part of constitutional thinking in America, South Africa, and Eastern Europe-- he takes issue with advocates of comprehensive theories and systemization, from Robert Bork to Jeremy Bentham, the father of utilitarianism, and Ronald Dworkin, who defends an ambitious role for courts in the elaboration of rights. Equally important, Sunstein goes on to argue that it is the living practice of the nation's citizens that truly makes law. For example, he cites Griswold v. Connecticut, a groundbreaking case in which the Supreme Court struck down Connecticut's restrictions on the use of contraceptives by married couples--a law that was no longer enforced by prosecutors. In overturning the legislation, the Court invoked the abstract right of privacy; the author asserts that the justices should have appealed to the narrower principle that citizens need not comply with laws that lack real enforcement. By avoiding large-scale issues and values, such a decision could have led to a different outcome in Bowers v. Hardwick, the decision that upheld Georgia's rarely prosecuted ban on sodomy. And by pointing to the need for flexibility over time and circumstances, Sunstein offers a novel understanding of the old ideal of the rule of law. Legal reasoning can seem impenetrable, mysterious, baroque. This book helps dissolve the mystery. Whether discussing the interpretation of the Constitution or the spell cast by the revolutionary Warren Court, Cass Sunstein writes with grace and power, offering a striking and original vision of the role of the law in a diverse society. In his flexible, practical approach to legal reasoning, he moves the debate over fundamental values and principles out of the courts and back to its rightful place in a democratic state: the legislatures elected by the people. (shrink)

Rawls famously argues that the parties in the original position would agree upon the two principles of justice. Among other things, these principles guarantee equal political liberty—that is, democracy—as a requirement of justice. We argue on the contrary that the parties have reason to reject this requirement. As we show, by Rawls’ own lights, the parties would be greatly concerned to mitigate existential risk. But it is doubtful whether democracy always minimizes such risk. Indeed, no one currently knows which (...) political systems would. Consequently, the parties—and we ourselves—have reason to reject democracy as a requirement of justice in favor of political experimentalism, a general approach to political justice which rules in at least some non-democratic political systems which might minimize existential risk. (shrink)

Most criticism and exposition of John Rawls’s political theory has focused on his account of distributive justice rather than on his support for liberalism. Because of this, much of his argument for protecting the basic liberties remains under explained. Specifically, Rawls claims that representative citizens would agree to guarantee those social conditions necessary for the exercise and development of the two moral powers, but he does not adequately explain why protecting the basic liberties would guarantee these social conditions. This gap (...) in his argument leads to two problems. First, the Rawlsian argument for the priority of liberty would fail if the gap could not be filled. His argument would still support the protection of individual freedoms, but these freedoms would be treated like other primary goods and regulated by the difference principle. Second, without a full argument, there is not sufficient reason to favor Rawls’s left-liberal conception of the basic liberties over a more right-leaning conception that would prioritize the protection of free-market rights. To address these two problems, this paper fills in the gap in order to better explain Rawls’s full argument for egalitarian liberalism. (shrink)

My paper addresses a topic--the implications of Rawls's justice as fairness for affirmative action--that has received remarkably little attention from Rawls's major interpreters. The only extended treatments of it that are in print are over a quarter-century old, and they bear scarcely any relationship to Rawls's own nonideal theorizing. Following Christine Korsgaard's lead, I work through the implications of Rawls's nonideal theory and show what it entails for affirmative action: viz. that under nonideal conditions, aggressive (...) forms of formal equality of opportunity (e.g., sensitivity training, outreach efforts, external monitoring and enforcement) and compensating support (e.g., special fellowship programs, childcare facilities, mentoring, co-op opportunities, etc.) can be justified, but that "hard" and even "soft" quotas are difficult to defend under any conditions. I conclude the paper by exploring the implications of these surprising results for contemporary liberalism more broadly and for constitutional law and public policy. (shrink)

This article reviews Jan Narveson and James Sterba’s co-authored book Are Liberty and Equality Compatible?. Sterba argues that negative liberty requires that the poor have a right not to be interfered with in taking from the rich to fulfill their basic needs. Narveson argues that negative liberty means that people agree not to coerce others and that taking from anyone violates negative liberty. The authors not only differ on this point, but, as contractarians, on what (...) terms reasonable people would likely agree to in a “social contract.”. (shrink)

The book's final three chapters address the common objection that perfectionism is unacceptable because it is hostile to the central political values of liberty and equality. This chapter argues that perfectionism can give considerable positive support to liberty if it treats autonomous choice as a perfection, as there are independent reasons to do, and emphasizes how little the state can do to promote a person's perfection; as Green and others emphasize, that is mostly for him to do. (...) The result is not an absolute commitment to the “harm principle” but considerable support. The chapter concludes by contrasting perfectionism's commitment to liberty with its rejection of the stronger ideal of state neutrality, which forbids even noncoercive promotion of the good; perfectionism strongly favors such promotion. (shrink)

I argue that the duty of confidentiality is relative, not absolute; and that it is primarily a matter for the professional judgment of the reflective health practitioner to determine in the particular case whether competing public interests (or other compelling reasons) override that duty. I have supported that account with an analysis of medical practice as a recourse role and with an account of law that emphasises not only its duty‐imposing character but also, and crucially, an embedded liberty to (...) depart from the plain requirements of a primary legal rule where in the conscientious judgment of the addressee of that law, there is ‘damn good reason’ to do so. This account of the moral nullification of law at the outer limits appears to be descriptively accurate over a wide range of law and normatively appealing not only to democratic citizens but also to professionals such as doctors and lawyers whose role involves testing the law on moral grounds and who should be ready to do so, if but only if, they believe in the good faith exercise of professional judgment that the outcome mandated by the literal application of the legal rule is inconsistent with the moral mission of their role. The argument is illustrated with cases from American and English courts which, perhaps, render plausible the otherwise paradoxical notion that the law itself admits of departures from the legal rules. (shrink)