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1 LIBERALISM, COMMUNITARIANISM, AND SELF DETERMINATION By MARANATHA JOY HAYES A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY UNIVERSITY OF FLORIDA 2010
2 2010 Maranatha Joy Hayes
3 To everyone who fights t o promote freedom for themselves and others
4 ACKNOWLEDGMENTS I would like to thank all of the members of my committee Marina Oshana, David Copp, R obert DAmico, and Jay Gopalakrishnan for their support and helpful comments. I would like to express a special thanks to the chair of my committee Marina Oshana for the comprehensive support she offered me during this process. She not only gave me helpf ul feedback on my work; she also helped to keep me motivated and excited about the topic. In addition, I would like to thank my family and friends, and especially my husband James Royal, for assisting with my moral and academic development throughout this process.
5 TABLE OF CONTENTS ACKNOWLEDGMENTS .............................................................................................................. 4 page ABSTRACT ................................................................................................................................... 8 CHAPTER 1 INTRODUCTION................................................................................................................. 10 2 AGENCY AND THE SOCIAL CONSTITUTION THESIS ............................................. 22 The Voluntarist Account of Agency .................................................................................. 23 The Strong and Weak Readings of the Cognitive Account of Agency ....................... 28 Sandel ............................................................................................................................ 29 MacIntyre ....................................................................................................................... 31 Taylor ............................................................................................................................. 35 Problems with the Strong Reading of the Cognitive Theory of Agency ..................... 37 Support for the Weak Reading of the Cognitive Theory of Agency ............................ 41 Additional Community Influences on Agency ................................................................. 46 Conclusion ............................................................................................................................ 49 3 SHARED VALUES AND SELF DETERMINATION ....................................................... 51 MacIntyres Argument ........................................................................................................ 52 The So cial Environment Needed for Self Determination ...................................... 53 Why the Liberal Tradition is not Equipped to Preserve Self Determination ....... 60 Wh y MacIntyres Argument is Unsuccessful .................................................................. 64 Reliance on the Strong Reading of the Cognitive Theory of Agency .................. 64 How Liberal Govern ments Affect their Citizens Private Reasoning .................... 67 Taylors Argument ............................................................................................................... 69 The Social Environment Needed for Self Determination ...................................... 70 Liberalisms Inability to Preserve the Social Environment Needed for Self Determination............................................................................................................ 70 Why Taylors Argument Fails ............................................................................................ 71 Will Kymlickas Argument .................................................................................................. 73 Conclusion ............................................................................................................................ 79 4 RECOGNITION, SELF WORTH, AND AUTHORITATIVE CHOICES ....................... 80 Taylors Argument ............................................................................................................... 80 Identity Formation ........................................................................................................ 83 A Politics of Recognition ............................................................................................. 83 General Problems with Taylors Argument ..................................................................... 87 Survival of a Culture vs. Survival of Particular V alues and Practices ......................... 89 Collective Goals vs. Individual Goals ....................................................................... 93
6 Sufficient Conditions for Cultural Survival ................................................................ 96 Homogenization .................................................................................................................. 98 My Suggestions ................................................................................................................. 101 Unsolved Problems ........................................................................................................... 103 Conclusion .......................................................................................................................... 114 5 LIBERAL NEUTRALITY AND PROBLEMS OF DOMINATION ................................. 116 Marilyn Friedmans Argument ......................................................................................... 118 Rawls Argument ........................................................................................................ 119 Friedmans Critique ................................................................................................... 121 My Resp onse to Friedman .............................................................................................. 124 Roberto Ungers Argument .............................................................................................. 131 My Response to Unger .................................................................................................... 136 The Value of Equal Respect and Concern as Underlying Rawls Theory ........ 137 The Narrow Interpretation of We .......................................................................... 138 The Wide Interpretation of We .............................................................................. 143 The Original Position as a Procedure for Testing Laws ...................................... 145 Feminist Critiques ............................................................................................................. 146 General Worries about Constructing a Universal Position .................................. 147 Domination of Women Caused by Constructing a Universal Position .............. 151 My Defense of Rawls ........................................................................................................ 155 Conclusion .......................................................................................................................... 163 6 LIBERALISM AND THE DISTRIBUTIVE PARADIGM ................................................ 164 Youngs Worries about the Distributive Paradigm ....................................................... 165 Failure to Address Injustices in the Institutional and Social Context ................. 166 Inability to Extend Concept of Distribution to NonMaterial Goods .................... 172 My Response to Young .................................................................................................... 175 Sens Worries about Institutional Fundamentalism ..................................................... 179 Conflicting Impartial Concerns ................................................................................. 180 My Respo nse .............................................................................................................. 180 Robert Nozicks Argument ........................................................................................ 182 Institutions and Results ............................................................................................. 187 My Response .............................................................................................................. 188 Equal Distribution of Primary Goods vs. Equal Distribution of Freedom .......... 190 My Response .............................................................................................................. 192 Conclusion .......................................................................................................................... 195 7 AFFIRMATIVE ACTION, COMMUNITY, AND INDIVIDUAL RIGHTS ..................... 197 Rawls Arg ument ............................................................................................................... 198 Sandels Critique of Rawls ............................................................................................... 199 My Defense of Rawls ........................................................................................................ 206 Dworkins Argument .......................................................................................................... 212 Sandels Critique of Dworkin ........................................................................................... 217
7 My Defense of Dworkin .................................................................................................... 219 Sandel and Community .................................................................................................... 222 Community as a Primary Good ....................................................................................... 224 Conclusion .......................................................................................................................... 229 LIST OF REFERENCES ......................................................................................................... 232 BIOGRAPHICAL SKETCH ..................................................................................................... 235
8 Abstract of Dissertation Presented to the Graduate School of the Universit y of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy LIBERALISM, COMMUNITARIANISM, AND SELF DETERMINATION By Maranatha Joy Hayes August 2010 Chair: Marina Oshana Major: Philosophy Most political theorists can agree upon the importance of freedom, yet many disagree about what the term actually means. Some believe that freedom requires the existence of a broad ran ge of options and access to resources that allow individuals to make reasoned decisions regarding what options are best. Even if theorists can agree on this definition of freedom, though, much debate remains about how we can best protect this sort of freedom. Liberal theories of government, such as those proposed by John Rawls, Ronald Dwo rkin, and Will Kymlicka, suggest that a government can best protect its citizens freedom by remaining neutral toward various conceptions of the good life and giving individuals maximum liberty to live according to their own plans of life. In contrast, com munitarian theorists such as Mic hael Sandel and C harles Taylor argue that liberal theories are self defeating; they claim individuals will not have the capacity to form their own ideas about the good life and act on them unless they live in a community tha t endorses some particular vision of the good life. Some communitarians argue, for example, that individual autonomy cannot flourish in a community that suffers from widespread bigotry; they further claim that a community cannot ensure the absence of
9 such widespread bigotry without endorsing a particular conception of the good life and depriving bigoted individuals of the liberty to act on their preferred plans of life. My dissertation defends liberal theories from the communitarians objections by show ing that they rely either on the truth of an implausible theory of agency or on the false assumption that liberal governments are not equipped to maintain a community in which individuals can develop and exercise autonomy. The liberal commitment to giving individuals maximum liberty to live according to their own conceptions of the good may sometimes require liberal governments to deprive individuals of some options they may have otherwise had, but this does not necessarily illustrate an inconsistency in li beral theory. This is because such deprivations of freedom will only be justified when they are used to guarantee that all citizens under a liberal government will have access to the freedom guaranteed by it. If depriving individuals of some options they w ould have otherwise had can guarantee a more robust freedom to all citizens, it may be the case that some government initiatives that look like they limit individual freedom are consistent with liberal neutrality. Affirmative action programs, for example, may involve depriving some individuals of certain options they otherwise would have had. However, they do so in the name of guaranteeing a more robust freedom to all citizens. Many liberal and communitarian theorists argue that affirmative action progra ms violate liberal neutrality because they endorse a conception of the good and use it to justify the violation of individual rights. I argue, however, that these government initiatives are consistent with liberal neutrality, since they help create an envi ronment in which all citizens have access to the freedom guaranteed by liberal governments.
10 CHAPTER 1 INTRODUCTION Broadly defined, all communitarians accept the social constitution thesis the view that persons are at least partially constituted by t heir social context. Communitarians contrast the social constitution thesis with a view called abstract individualism, which they incorrectly attribute to John Rawls and other liberal political theorists. According to abstract individualism, peoples i dentities are independent from their social contexts and the y experience radical freedom to choose what sort of lives they want to live Arguments for the social constitution thesis usually have two elements a theory of personal identity (which describes what makes someone the particular person that he or she is) and a theory of agency (which describes what a rational decision making procedure looks like and what features someone must have in order to make rational choices ) While communitarians do not distinguish between these elements C. G. Campbell (2008) helpfully suggests that they can be distinguished, and that it is useful to distinguish between them because they support different objections to Rawls political theory. Campbell suggests that th e communitarian theory of personal identity supports metaphysical objections against Rawls formulation of his principles of justice, while the communitarian the ory of agency supports normative objections against the priority of the right over the good expressed by Rawls principles of justice. In my dissertation, I will discuss the communitarian theory of agency and the normative objections it is meant to support against Rawls theory of justice. According to the communitar ian theory of agency, people can only develop the ability to engage in moral and practical reasoning within a community, which makes
11 various plans of life conceivable to the agents and provides them with the frameworks within which they can determine what is worth valuing. Without such community provided frameworks, they argue, nobody would have any reason to choose one way of life over another. Sandel calls this theory the cognitive theory of agency because he thinks a person comes by at least some of her ends simply by perceiving wh at ends have already been set for her rather than by choosing her ends (i.e. through a cognitive process rather than a volitional process). As Will Kymlicka suggests, there is a stronger and a weaker reading of the cognitive account of agency (Kymlicka, 1989, pp. 53 61). According to the stronger reading, persons determine what is worth valuing by means of a framework of social roles and commitments that are provided to them by their community, and they are unable to reevaluate or revise the framework i tself. According to the weaker reading, persons determine what is worth valuing by means of a framework of social roles and commitments that are pr ov ided to them by their community, but they retain some ability to re evaluate or revise the values and ends that constitute their frameworks. In chapter two of my dissertation, I will explain these interpretations of the cognitive account of agency in greater detail. I will argue that while the weaker reading is plausible, we should reject the stronger readin g. I will then argue that the weaker reading is co nsistent with Rawls theory of justice. In chapters three through five of my dissertation, I will explain several normative objections the cognitive theory of agency is meant to support I will show that all of these objections fail because they either rely on the truth of the implausible strong reading of the cognitive theory of agency or on the false assumption that liberal
12 governments are not equipped to maintain a community in which individuals can dev elop and exercise autonomy According to all of these objections, the liberal commitment to the moral priority of the right over the good undermines the kind of social structure that allows individuals to develop and maintain the ability to make qualitati ve assessments and act autonomously. One form of this objection which I will discuss in chapter three, is that liberal neutrality undermines the ability of a community to mai ntain the shared values needed to provide individuals with the frameworks they need to make qualitative assessments. Those who pose this objection worry that unless the government endorses a particular set of values and protects them from being rejected by future generations, individuals will not be able to gain the frameworks they need to determine what i s worth valuing. Alasdair MacIntyre (1981, 1988) for example, thinks that individuals can only determine what is worth valuing by utilizing the standards of a unified tradition, which provides them with a vision of lifes purpose that allows individuals to prioritize their ends and determine what is worth doing. MacIntyre worries that unless governments require us to adhere to the standards defined within a unified tradition when engaging in public debate, individuals will resort to an individualist mode of reasoning in which individuals can merely rank their ends according to the strengths of their unconsidered preferences. I will argue that MacIntyres argument fails because it relies on t he truth of the implausible strong cogni tive theory of agency. Charles Taylor attempts to support his argument against liberal neutrality in a different way. He argues that our ability to determine what is worth valuing relies on the existence of a variety of institutions (such as museums and universities) that expose us
13 to diverse points of view. Taylor claims that the continued existence of these institutions relies on the existence of at least some shared values (such as a value of freedom and diversity) in the culture (1992, 1994) I agr ee with Taylor that our ability to develop the cognitive skills and to gain the information we need to determine what is worth valuing depends partially on the survival of such institutions I will object to his argument, however, by showing that liberal governments do not need to abandon neutrality between competing accounts of the good in order to ensure the survival of these institutions. I n chapter four I will discuss the argument that the liberal priority of the right over the good prevents communiti es from ensuring that individuals gain the social confirmation they need to make authoritative choices In The Politics of Recognition, Taylor (1994) claims that a lack of recognition, or misrecognition, can undermine autonomy by causing individuals to in ternalize a false picture of their own inferiority, lowering their self esteem. He concludes that any political system should pay attention to the need for recognition. Taylor claims that individuals are both culturebearing and self defining. Taylor claims that individuals are culture bearing because they utilize the values and ends provided to them by their cultures to determine what is worth valuing ; he claims that individuals are also self defining because they sometimes reject, or revise, the values and ends provided to them by their cultures. Taylor worries that the liberal focus on individual rights fails to respect the culture bearing aspect of individuals identities. This is because the liberal focus on individual rights allows individual s to completely reject some of the values and practices that define their cultures, which may cause some cultures to die out due to lack of
14 sufficient individual support. For example, he thinks the Qu b cois practice of speaking French may not survive unl ess the Qubcois government requires businesses of a certain size to be run in French requires commercial signage to be printed in French, and requires most of its citizens to send their children to Frenchspeaking schools. Taylor claims that a failure to protect the survival of cultural practices like these often results in a failure to provide those who value the continued survival of their cultures with the social confirmation they are entitled to. I argue that Taylors argument f ails because his proposal would do a worse job of ensuring individuals will get social recognition for both the culture bearing and self defining aspects of their identi ti es. R ecall that according to the strong reading of the cognitive theory, persons determine what is wort h valuing by means of a framework of so cial roles and commitments that they are unable to re evaluate or revise. If the strong reading of the cognitive theory were true, then there would be no reason to ensure recognition for individuals as self defining, since individuals on this account are not self defining in any meaningful sense. If meaningful agency can only be practiced within the context of a culture that provides individuals with a framework of social rules and commitments that one cannot reject, it would make some sense to protect the survival of some cultures from rejection by future individuals. However, given that only the weak reading of the cognitive theory is plausible, it looks l ike the best way to respect the self defining aspects of a persons identity is to allow individuals to revise or altogether reject some of the values and practices of their cultures. This strategy will also do a better job of respecting the culturebearing aspect of peoples identities because it will allow for t he survival of variation within a culture, and so it will allow subcultures to survive and
15 flourish even if it undermines some of the values of the culture from which the sub cultures have sprung In chapters five, six, and seven, I will point out that se veral communitarian objections to Rawls rely on a misunderstanding of Rawls use of the original position as a bargain ing procedure and his use of reflective equilibrium to justify his description of the original position. Rawls procedure might be (over simply) summarized in two steps. First, he provides an argument for his description of the original position. Rawls thinks his description of the original position would be acceptable to all reasonable people (at least in Western societies). He thinks m embers of our society should be able to bring their considered judgments about what a fair bargaining procedure looks like into a reflective equilibrium and agree on the following description of the original position. Rawls claims that the negotiation am ong participants in the original position will only be fair if people lack certain information about their individual identities that could otherwise give certain participants an unfair advantage. If people know, for example, that they have natural talent s society values, or that they belong to a certain race or practice a certain religion, they might try to argue for principles of justice that will give them unfair advantages. Because Rawls wants to give participants in the original position some information to choose which principles of justice to endorse, he says that their aim is to choose principles of justice that will maximize their access to primary goods. He defines primary goods as things which a rational person wants whatever else he wants (Ra wls, 1971, p. 92). After Rawls argues for his description of the original position, he begins the second stage of his argument, in which he argues that participants in the original position would select the principles of justice he specifies.
16 In chapter f ive, I wi ll discuss the objection that the liberal attempt to be neutral between accounts of the good inevitably fails, and results in unjust domination over groups who do not accept the liberal vision of the good life. These theorists claim that it is an illusion to think that law s can be made from a neutral standpoint (Benhabib 1986, Friedman 2003, Unger 1975). In addition, they charge that the attempt to make laws that are not based on a substantive concept of the good affords greater freedom and power to some individuals than others. I will argue that this objection fails because it relies on a misunderstanding of Rawls overlapping consensus requirement and his use of the original position as a bargaining procedure. I will argue that Rawls does not rely on an objective or completely neutral standpoint when he describes conditions under which individuals can bargain in the original position. Rather, when Rawls describes the original position, he relies on principles produced by a process of reflecti ve equilibrium that includes everyone in the society to be governed by the principles of justice. In chapter six, I will discuss the objection that the liberal commitment to the priority of the right over the good fails to promote substantive equality because it does not pay sufficient attention to the social relations in which domination occurs. Iris Marion Young (1990) argues that liberalism focuses too heavily on matters of distributive justice. In doing this, it fails to address the social structure a nd institutional context that causes injustice (including distributive injustice) to occur in the first place. Young claims that the liberal commitment to the distributive paradigm is made apparent by the fact that liberal theorists always analyze justice by examining the distribution of
17 benefits and burdens. I will point out that Young is confused about two aspects of Rawls argument. First, Young mistakenly thinks Rawls use of primary goods in the original position to generate his principles of justi ce indicates that Rawls is exclusively focused on material and oth er easily distributable goods. Second, Young fails to understand that Rawls description of the original position is consistent with the possibility that individuals cannot maximize their a ccess to some primary goods unless they pay attention to the way in which the social structure of society can perpetuate cycles of domination or oppression. For example, negative cultural stereotypes c an cause disadvantaged groups to have fewer opportunit ies and avenues for social recognition than the dominant groups who do not suffer from these stereotypes In order to ensure that these historically oppressed groups get a fair chance to develop and live out their conception of the good, it is insufficien t to redistribute material goods; we also need to work to undermine the stereotypes that limit the opportunities and avenues for social recognition available to these groups. Once we address these areas of confusion, we can see that Youngs objections fai l. Amartya Sen worries about the distributive paradigm for different reasons than does Young. First, he claims that we can only arrive at the difference principle (which allows social and economic inequalities only if they are to the greatest benefit of t he least advantaged) if we dismiss certain types of impartial concerns from consideration in the original position. Sen claims, for example, that utilitarian and libertarian notions of desert are impartial, but they are excluded from consideration in the original position (2009) I will argue that this objection fails because it is based on a misunderstanding of
18 Rawls original position and that the description of the original position is such that it does not automatically exclude utilitarian and libert arian notions of desert. Second, S e n worries that liberalism selects its institutions without paying sufficient attention to the effects those institutions have on the societies they are meant to govern given the actual patterns of behavior in those societies (2009) Sen argues that it is not enough for institutions to embody the political conception of justice generated in the original position; they also need to promote just behavior in citizens. I will argue that this objection, like the previous on e, relies on a misunderstanding of Rawls use of the original position, which calls upon participants to consider information about human society, the basis of social organization, and the laws of human psychology. Third, Sen argues that Rawls focuses too heavily on the distribution of primary goods (1992, 2009) He claims that substantive equality requires that people have an equal amount of actual freedom, and that an equal distribution of primary goods will fail to ensure this result since some people have a harder time converting primary goods into a valuable life than do others. For example, people who have disabilities or people living in an environment ridden with disease or environmental problems will have more expenses, and so it will cost more money for them to pursue their ends than for people who do not face these difficulties. For this reason, Sen claims we need to pay attention both to the distribution of wealth and other primary goods and to the natural disabilities and social relationships of domination and oppression that prevent people from using their primary goods efficiently to meet their ends. While I think Sen is justified in making this criticism, he fails to affirm the extent to which a fair distribution of primary goods can
19 itse l f solve some of the problems he points out. It is important to remember that primary goods do not just include wealth or other easily distributive goods; they also include a healthy environment in which they can access the same goods as others can In chapter seven, I will discuss two more objections against the liberal commitment to the priority of the r ight over the good. First, Sandel (1982) argue s the priority of the right over the good is inconsistent with Rawls difference principle, which calls for a distribution that is to the greatest benefit of the person who is least welloff. Second, Sandel also argues that a commitment to the priority of the right over the good is inconsistent with the use of affirmative action programs to combat prejudice in the community. I will argue that both of these objections fail. The first objection fails because Sandel fails to show that the priority of the right over the good is inconsistent with the difference principle. Rawls specifies the conditions of the original position in such a way that everybody has equal bargaining power when trying to produce the principles of justice. Nobody can use information about the natural advantages of their counterparts in deciding which principles of justice to choose. Under these conditions individual rights would be specified in such a way that they do not necessarily give people entitlements over the disproportionately large proportion of resources they were able to acquire because they were lucky enough to have what ever natural talents society values. I will argue that t he second object ion fails for similar reasons, and that Sandel fails to show that a commitment to the priority of the right over the good is inconsistent with the use of affirmative action programs t o combat prejudice in the community.
20 In short, m y dissertation defends liberal theories from many communitarians objections by showing that these objections rely either on the truth of an implausible theory of agency or on the false assumption that liberal governments are not equipped to maintain a community in which individuals can develop and exercise autonomy. The liberal commitment to giving individuals maximum liberty to live according to their own conceptions of the good may sometimes require liberal governments to deprive individuals of some options they may have otherwise had, but this does not necessarily illustrate an inconsistency in liberal theory. This is because such deprivations of freedom will only be justified when they are used to guarantee that all citizens under a liberal government will have access to the freedom guaranteed by it. If depriving individuals of some options they would have otherwise had can guarantee a more robust freedom to all citizens, it may be the case that some governm ent initiatives that look like they limit individual freedom are cons istent with liberal neutrality. When I argue that liberal governments are equipped to address problems with the social structure that result in the domination or oppression of certain groups, I will use the following strategy. I will argue that while Rawls original list of primary goods (which includes rights, liberties, opportunities, income and wealth, and the social bases of self respect) are not sufficient to address all of the soc ial issues I discuss, his broader definition of primary goods (things a rational person wants whatever else he wants) includes more primary goods than Rawls specifies. I will argue that an extended list of primary goods can be used to justify the use of political authority to address social issues that result in the domination and oppression of certain groups.
21 In my dissertation, I will not respond to every form of the objections I specify. Rather, I will respond to the theorists for whom those objections are most pertinent. In the next chapter, I will explain and evaluate the cognitive theory of agency that communitarian theorists use to support their normative objections against liberalism.
22 CHAPTER 2 AGENCY AND THE SOCIA L CONSTITUTION THESI S Many c ommunitarians endorse a cognitive theory of agency according to which individuals come by at least some of their ends through self discovery rather than by choice. The cognitive theory of agency has a stronger and a weaker reading. According to the stro nger reading, persons determine what is worth valuing by means of a framework defined by the social roles and commitments set for them by their communities, and they are unable to reevaluate or revise that framework. According to the weaker reading, pers ons are only able to make sense of their surroundings through the language and cultural imagery provided by their communities, which provide them with the framework they need to determine what is worth valuing. However, according to this version of the co gnitive theory, an individuals framework is not set in stone; individuals have some ability to re evaluate or revise the values and ends that constitute their frameworks. Sandel contrasts the cognitive theory of agency with what he calls the voluntaris t theory of agency, which he mistakenly attributes to John Rawls and other liberal theorists. According to the voluntarist theory of agency, individuals experience radical freedom to choose their own ends and do not rely on their cultures to define their ends for them ; they also do not rely on their communities to provide them with a framework for understanding and evaluating their options. Sandel, Charles Taylor, and Ala sdair MacIntyre argue that the voluntarist theory of agency is implausible, and they claim that we should instead accept the cognitive theory of agency. In this chapter, I will explain and evaluate this criticism. In order to do this, I will first describe the voluntarist theory of agency in further detail I will explain why Sandel
23 t hink s Rawls is committed to the voluntarist theory and summarize his objections to it. I will show that while Sandel is correct in thinking the voluntarist theory of agency is implausible, he is wrong in thinking that Rawls is committed to it. I will foc us on Sandels arguments because his discussion of it is more detailed that what is offered by the other theorists, and because Taylors and MacIntyres discussions of this topic resemble Sandels. I will then discuss the stronger and weaker readings of t he cognitive theory of agency in further detail I will argue that, while the weaker reading of the cognitive view is plausible, the stronger reading is implausible and should be rejected. The Voluntarist Account of Agency Sandel clai ms that Rawls and o ther liberal theorists are committed to a voluntarist account of agency. According to th e voluntarist account persons experience a radical freedom to choose their own ends and conceptions of the good and they do not rely on their communities to provide t hem with a framework for evaluating their options. Sandel (1982) admits that Rawls never actually endorses the voluntarist account of agency However, Sandel thinks Rawls commitment to respecting the capacity of individuals to choose above all else (inc luding respecting any particular choice) entails a commitment to the idea that there are some pure choosers out there who are able to make decisions without reference to any already existing values and ends. In this section, I will explain this argument in greater detail. I will then set up my argument (which I will flesh out in the remainder of the chapter), that Sandel is mistaken in thinking Rawls commitment to individual rights entails a theory of detached, pure agents who can make decisions withou t using a framework of already existing values and ends.
24 Sandel points out that Rawls thinks there are two ways in which the right is prior to the good. First, he thinks Rawls is committed to the view that the right has foundational priority over the good. This means that the establishment of individual rights does not depend on a particular view about what constitutes the good of man. Sandel writes, This means that, unlike other practical injunctions, principles of justice are justified in a way that does not depend on any particular vision of the good. To the contrary: given its independent status, the right constrains the good and sets its bounds (Sandel, 1982, p. 2) In addition to thinking the right has foundational priority of the good, Rawls is committed to the view that the right has moral priority over the good. This means that one person may only li ve his life according to his concept of the good if he does not infringe on the rights of others in the process (Sandel, 1982, p. 2) It is im permissible for person A to do something that violates person Bs rights even if there is a pressing moral reason to do so. For example, suppose we are trying to decide whether we can use affirmative action programs to help decrease racism in our society. Even though this is a morally laudable goal, the moral priority of the right over the good only allows us to do this if we do not violate individual rights in the process. Sandel writes, The moral priority consists in the fact that the principles of ju stice limit the conceptions of the good individuals may choose to pursue; where a persons values clash with justice, it is justice that prevails (Sandel, 1982, p. 154). According to the moral priority of the right over the good, then, no goal (no matter how morally laudable) is so important that it outweighs our duty to protect individual rights.
25 Sandel claims that by asserting the priority of the right over the good, Rawls reveals his belief that it is more important to protect our capacity to choose than to protect particular choices or lifestyles Sandel attempts to lend further plausibility to his claim that Rawls is focused on protecting our capacity to choose by pointing to a passage in which Rawls objects to theories of ju stice that begin with t eleology. Rawls claims that these theories fail to respect the most important part of our nature as persons our capacity to choose. He writes, We should not attempt to give form to our life by first looking to the good independently defined. It is not o ur aims that primarily reveal our nature but rather the principles that we would acknowledge to govern the background conditions under which these aims are to be formed and the manner in which they are to be pursued. For the self is prior to the ends whic h are affirmed by it; even a dominant end must be chosen from among numerous possibilities (Rawls, 1971, p. 560) Sandel argues that Rawls asserting a persons capacity to choose is more worthy of respect than the particular values and ends that person h olds commits Rawls to t he voluntarist theory of agency By claiming that we need to protect the right of individuals to choose rather than to protect particular choices that they might make, Sandel thinks Rawls endorses a concept of the self as prior to i ts ends (Sandel, 1982, p. 19). As I point ed out in the introduction, the claim that the self is prior to its ends has two senses that Sandel fails to distinguish between. First, the claim that the self is prior to its ends could be interpreted as a desc ription of a theory of identity. Second, the claim that the self is prior to its ends could be interpreted as a theory of agency according to which individuals are able to choose any ends whatsoever and do not require any framework for making that choice. In this chapter, I am focusing on
2 6 Sandels argument that Rawls is committed to the theory of agency associated with the claim that the self is prior to its ends. We might interpret the theory of agency expressed in the second claim in two ways. First, t he idea that the self is prior to its ends might indicate that there is a chooser who is able to make decisions without any sort of framework. This interpretation corresponds to the voluntarist theory of the self. Second, the idea that the self is prio r to its ends might simply indicate that an agent is not defined by any desires, ends, or conceptions of the good in particular. The second interpretation is consistent with the idea that individuals need a framew ork to make a reasoned decision, but that the desires and ends that make up a persons framework can change in light of new commitments a person might take on. The second interpretation corresponds to the weak reading of the cognitive theory of the self, which I will discuss later in this chapter Sandel rightly claims that Rawls commitment to protect ing individual rights (as defined independently from any particular concept of the good) requires him to use a nonteleological foundation for individual rights. Sandel points out that when rights are built on teleology, the right is instrumental to the advancement of some end held to be prior, the denial of liberty for some may be justified in the name of an overriding good for others (Sandel, 1982, p. 18). Rawls priority of the right must therefore be built on a different foundation. According to Sandel, that foundation is the idea that what is most essential to our personhood is not the ends we choose but our capacity to choose them. And this capacity is located in a self which must be prior to the ends it chooses (Sandel, 1982, p. 19). Sandel then distinguishes between two senses in which a self must be prior to the ends it chooses. He writes,
27 One sense of the priority is a moral must which reflects the imperative to respect above all the autonomy of the individual, to regard the human person as the bearer of a dignity beyond the roles that he inhabits and the ends he may pursue. But there is another sense in which the self must be pr i or to the ends it affirms prior in the sense of independently identifiableand this is an epistemological requirement (Sandel, 1982, p. 20). The fact that Rawls commitment to the moral priority of the right over the good commits him to the moral imperative to respect above all the autonomy of the ind ividual seems to be clear enough, and so it does not require further argument. However, it is less clear why we should think Rawls is committed to believing there is an independently identifiable self that stands behind its ends and is distinct from th em. Sandel throws some light on why he thinks Rawls is committed to the second claim when he claims, Where, according to Rawls, teleological conceptions suppose that the unity of the self is achieved in the course of experience justice as fairness reverses this perspective and conceives the unity of the self as something antecedently established, fashioned prior to the choices it makes in the course of its experience (Sandel, 1982, p. 21) This passage is puzzling, but sheds some light on Sandels confus ion. Sandel seems to think Rawls commitment to protecting individuals rights to choose their own plan of life entails a commitment to the idea that there are some pure choosers out there who are able to make decisions without reference to any al ready existing values and ends Rights that are defined without reference to a concept of the good, and rights that are used to protect a persons autonomy rather than any particular lifestyle, do not recognizably protect persons as understood as thick with characteristics. They only protect persons if we understand persons to be defined by their pure capacity to choose persons who must be understood as pure, detached agents who can choose
28 their own values and ends without using already existing ends to serve as the foundation for their rational assessments. Sandel rightly argues that the voluntarist account of agency is problematic because it does not leave room for the kind of deliberation that is necessary for an autonomous choice (1982, p. 161) If people do not choose their plans of life in terms of the values and attachments they already have, then their choices are arbitrary; they have no reason to choose one way of life over another However, Sandel is mistaken in thinking Rawls is committed to the voluntarist theory of agency. As we will see in the following section, even if we do rely on frameworks of values and ends to help us determine what is worth valuing, it may still be possible for us to later evaluate the values and ends that make up our frameworks in light of new values and commitments. Since this is the case, it is possible to respect an agents ability to reject any of his commitments without relying on a notion of a pure, detached chooser who does not rely on a framework of v alues and ends to determine what is worth valuing. The Strong and Weak Readings of the Cognitive Account of Agency According to the cognitive account of agency, at least some of my ends are already given and I choose my plan of life in light of the ends that have already been given to me. Because (at least) some of my ends are already given, I have a foundation for my moral and rational assessments my existing values and attachments give me a reason to choose one plan of life over another. As Will Kymli cka suggests, there is a stronger and a weaker reading of the cognitive account of agency (1989, pp. 53 61) In this section, I will explain and evaluate the stronger and weaker interpretations of the cognitive account of agency as presented by Sandel, Ma cIntyre, and Taylor and evaluate both interpretations of the cognitive theory. Because Kymlickas distinction
29 between the strong and weak readings of the cognitive theory of agency results from the misleading way in which some of these passages are worded, I will rely h eavily on quotes in the following sections Sandel Sandel first introduces his cognitive theory of agency in the following passage. Where the ends of the self are given in advance, the relevant agency is not voluntarist but cognitive, sinc e the subject achieves self command not by choosing that which is already given (this would be unintelligible) but by reflecting on itself and inquiring into its constituent nature, discerning its laws and imperatives, and acknowledging its purposes as its own (Sandel, 1982, p. 58) In this passage, it looks like Sandel thinks practical and moral reasoning is simply a matter of figuring out what ends one already has and acting on them, and that he does not think it is possible for a person to reject one of the ends that has already been set by his or her social context. If there is any room for revising ones own ends in this picture, it is seriously limited. Because Sandel indicates that our ends are already given (under the strong interpretation) our o nly freedom on this account would consist in determining what these ends mean and how best to achieve them. Kymlicka explains the limited power we have to revise or reject our existing ends on the strong interpretation of the cognitive view in the followi ng passage. Kymlicka writes, I can interpret the meaning of the social roles and practices I find myself in, but I cant reject the roles themselves, or the goals internal to them, as worthless. Since these attachments and ends are constitutive of me, as a person, they have to be taken as a given in deciding what to do with my life; the question of the good in my life can only be a question of how best to interpret their meaning (Kymlicka, 1989, p. 57) On the strong interpretation of Sandels cognitive view of agency, then, practical reasoning at least consists in discovering the attachments and ends that have already
30 been provided by ones community; at most, it consists in interpreting those already provided attachments and ends. In any case, accordin g to this picture, one cannot altogether abandon the attachments and ends given by ones community. There are some points in the text, however, where Sandel gives a different picture of what it means to be constituted by ends that are given in advance. I n the following passage, he describes how the self develops on the cognitive account of agency. He writes, [The] self came by its ends not by choice but by reflection, as knowing (or inquiring) subject to object of (self ) understanding. The problem here was not the distance of the self from its ends, but rather the fact that the self, being unbounded in advance, was awash with possible purposes and ends, all impinging indiscriminately on its identity, threatening always to engulf it. The challenge to th e agent was to sort out the limits or the boundaries of the self, to distinguish the subject from its situation, and so to forge its identity . Unlike the capacity for choice, which enables the self to reach beyond itself, the capacity for reflection enables the self to turn its lights inward upon itself to inquire into its constituent nature, to survey its various attachments and acknowledge their respective claims, to sort out the bounds now expansive, now constrained between the self and the other, to arrive at a self understanding less opaque if never perfectly transparent, a subjectivity less fluid if never finally fixed, and so gradually, throughout a lifetime, to participate in the constitution of its identity (Sandel, 1982, p. 152 153) In thi s passage Sandel seems to be describing the process of self discovery as a process by which I distinguish between the world of possible ends that present themselves to me and my ends, which identify me as a person who is distinct from those around me, or e ven as a person who is distinct from the person that others want me to be. My context partially determines what my ends are because it provides me with some of the values and ends that make up my framework, and I use this framework to determine which ends I will see as compatible with the kind of person I am now. However, as I incorporate new values and commitments into my framework, I have new
31 resources (perhaps more expansive, perhaps more constrained) with which to sort out the bounds between self and other. This latter passage corresponds to the weaker reading of the cognitive theory of agency. According to this reading, individuals need a framework that provides them with a starting point for understanding and evaluating their options; but that fra mework can change over time It is difficult to identify which reading of the cognitive account of agency counts as Sandels considered position. As I will discuss later in the dissertation, many of Sandels objections rely on the strong reading of the cognitive account. However, the fact that he frequently concedes that individuals are capable of later rejecting the values and ends they previously accepted indicates that he has some sense of how implausible the strong reading is. At one point, Sandel even straightforwardly rejects the notion of a radically situated subject that is associated with the stronger reading of the cognitive view. He writes, Now a radically situated subject is inadequate to the notion of the person in the same way a standard of appraisal thoroughly implicated in existing values is ina dequate to the notion of justice (Sandel, 1982, p. 21). Sandel wishes to affirm the importance of human agency, but he does not wish to give it the priority Rawls assigns to it. However, th e radically situated subject invoked in the stronger reading of the cognitive view of agency does not leave room for any meaningful human agency. On the other hand, as I will discuss in later chapters, the weaker reading of the cognitive view is insuffici ent to support Sandels objections against the liberal commitment to the right over the good. MacIntyre MacIntyres picture of what moral reasoning consists in also appears to be quite restrictive at times. According to MacIntyre, the (often unchosen) so cial roles a person
32 occupies set the parameters around what counts as the good life for her; and as a virtue ethicist, MacIntyre thinks the parameters that determine what is good for a person are the same parameters that determine a persons moral obligati ons. Hence, MacIntyre thinks peoples moral obligations are at least partially determined by the social roles they occupy and to the practices of the cultures they find themselves in. He writes, What the good life is for a fifth century Athenian general will not be the same as what it was for a medieval nun or a seventeenth century farmer. But it is not just that different individuals live in different social circumstances; it is also that we all approach our own circumstances as bearers of a particular social identity. I am someones son or daughter, someone elses cousin or uncle; and I am a citizen of this or that city, a member of this or that guild or profession; I belong to this clan, that tribe, this nation. Hence what is good for me has to be th e good for one who inhabits these roles. As such, I inherit from the past of my family, my city, my tribe, my nation, a variety of debts, inheritances, rightful expectations and obligations. These constitute the given of my life, my moral starting point. This is in part what gives my life its own moral particularity (MacIntyre, 1981, p. 220) MacIntyre claims in this passage that whether I like it or not, what constitutes the good life for me is largely determined by the roles that have been assigned to me and how I fit into my social context. Kymlicka highlights the implications of this view in the following passage. Kymlicka writes, On this view, we neither choose nor reject these attachments, rather we find ourselves in them; our ends and goals com e not by choice, but by self discovery. A Christian housewife in a monogamous, heterosexual marriage can interpret what it means to be a Christian, or a housewife she can interpret the meaning of these shared religious, economic, and sexual practices. Bu t she cant stand back and decide that she doesnt want to be a Christian at all, or a housewife. I can interpret the meaning of the social roles and practices I find myself in, but I cant reject the roles themselves, or the goals internal to the, as wor t hless (Kymlicka, 1989, p. 57). Even if MacIntyre identifies the social roles we find ourselves in merely as moral starting point s, the account of agency highlighted in the above quote is severely
33 restricted, as it is not possible for me to altogether r eject the un chosen social roles that define that moral starting point. MacIntyre later softens this position when he claims that rebellion against my identity is always one possible mode of expressing it (MacIntyre, 1981, p. 221). When we take this c laim into account, we might be able to reinterpret his above claim that we cannot reject the social roles that define us as meaning we cannot avoid being influenced by the fact that the social roles we find ourselves in played an important part in our mor al starting point. They gave us the initial framework that allowed us to determine what is worth valuing, even if we accepted new commitments that caused us to later reject those social roles that were initially part of our frameworks. MacIntyre points ou t the way in which individuals depend on frameworks when h e claims that a person can only make the meaningful moral assessments that a good life requires within the context of what he calls practices (MacIntyre, 1981, p. 187). He writes, A practice invo lves standards of excellence and obedience to rules as well as the achievement of goods. To enter into a practice is to accept the authority of those standards and the inadequacy of my own performance as judged by them. It is to subject my own attitudes, choices, preferences, and tastes to the standards which currently and partially define the practice. Practices of course, as I have just noticed, have a history: games, sciences and arts all have histories. Thus the standards are not themselves immune f rom criticism, but nonetheless we cannot be initiated into a practice without accepting the authority of the best standards realized so far. If, on starting to listen to music, I do not accept my own incapacity to judge correctly, I will never learn to hear, let alone appreciate, Bartoks quartets. If, on starting to play baseball, I do not accept that others know better than I when to throw a fast ball and when not, I will never learn to appreciate good pitching let alone to pitch. In the realm of pract ices the authority of both goods and standards operates in such a way as to rule out all subjectivist and emotivist analyses of judgment (MacIntyre, 1981, p. 190).
34 MacIn tyre claims that living a good life requires utilizing the moral standards already gi ven to us because we are unable to make meaningful and reasoned judgments otherwise. If we do not utilize the language and patterns of evaluation provided to us by our communities when making decisions, we are like children who try to play chess without l earning the rules of the gamesuch children do not have any reason for choosing one move over another. MacIntyre does, however, claim that it is possible to evaluate and revise the patterns of evaluation learned from ones community after learning those patterns Sometimes MacIntyre treat s the moral language and patterns of evaluation we are given by our community as just the starting point they give us the tools to create a new moral language and new patterns of evaluation that we can use to evaluate the existing practices of our culture. Notice also that the fact that the self has to find its moral identity in and through its membership in communities such as those of the family, the neighborhood, the city, and the tribe does not entail that the self has to accept the moral limitations of the particularity of those forms of community. Without those moral particularities to begin from there would never be anywhere to begin; but it is in moving forward from such particularity that the search for the good, f or the universal, consists (MacIntyre, 1981, p. 221) MacIntyre s claim that we depend on our communities to give us the tools we need to engage in moral reasoning and to practice virtues, but that we are also able to evaluate the moral standards that are currently accepted by our cultures corresponds to the weaker reading of the cognitive theory of agency As was the case with Sandel, it is difficult to identify which reading of the cognitive account of agency counts as MacIntyres considered position. The fact that he concedes that individuals are capable of reevaluating and revising the practices that
35 originally shaped their evaluations indicates an acceptance of the weaker reading. However, MacIntyre wishes to use his account of agency to suppor t his objections against liberal neutrality; and, as I will discuss in later chapters, the weaker reading of the cognitive view is insufficient to support these objections. Taylor Taylor claims that both the voluntarist account and the cognitive account leave room for agency. However, he claims that the voluntarist account does not leave room for the kind of agency that defines us as persons. Taylor claims that the voluntarist account merely allows for the kind of agency in which people can determine h ow best to satisfy their existing desires, while the cognitive account allows for the kind of agency in which people can determine whether their existing desir es are themselves worthwhile. Taylor claims that we rely on frameworks to make qualitative j udgments about our existing desires, and we only have access to these frameworks through a particular culture, which gives us the language and patterns of evaluation needed to form that framework. Taylor spells out what he means by framework in th e foll owing passage. Taylor claims that when we try to spell out what it is that we presuppose when we judge that a certain form of life is truly worthwhile, or place our dignity in a certain achievement or status, or define our moral obligations in a certain manner, we find ourselves articulating inter alia what I have been calling here frameworks [my emphasis] (Taylor, 1989, p. 26) Taylor claims that a persons framework can be made up of the commitments established by his or her religion, country, or the political and intellectual groups to which he or she belongs People may see their identity as defined partly by some moral or spiritual commitment, say as a Catholic, or an anarchist. Or they may define it in part by the nation or tradition they belong to, as an Armenian, say, or a Qubcois
36 What they are saying by this is not just that they are strongly attached to this political view or background; rather it is that this provides the frame within which they can determine where they stand on questions of what is good, or worthwhile, or admirable, or of value (Taylor, 1989, p. 27) Taylor thinks these frameworks allow us to both recognize certain plans of life as conceivable, or intelligible (Taylor, 1992, pp. 43 44) and to qualitatively evaluate those plans of life (Taylor, 1989, p. 27) To gain a deeper understanding of how our reliance on frameworks supports the cognitive account of agency (in its strong or weak reading), it will be useful to discuss the connection Taylor draws between language and strong evaluation. Taylor claims that in order to have frameworks, which are required for meaningful decisionmaking, people must be initiated into a language, which allows them to draw the distinctions needed for making qualitative judgments about what i s worth v aluing. Taylor writes, There is no way we could be inducted into personhood except by being initiated into a language. We first learn our languages of moral and spiritual discernment by being brought into an ongoing conversation by those who bri ng us up. The meanings that the key words first had for me are the meanings they have for us that is, for me and my conversation partners together. Here a crucial feature of conversation is relevant, that in talking about something you and I make it an object for us together, that is, not just an object for me which happens also to be one for you, and you know, etc. So I can only learn what anger, love, anxiety, the aspiration to wholeness, etc., are through my and others experience of these being objects for us in some common space. This is the truth behind Wittgensteins dictum that agreement in meanings involves agreement in judgments. Later, I may innovate. I may develop an original way of understanding myself and human life, at least one w hich is in sharp disagreement with my family and background. But the innovation can only take place from the base in our common language (Taylor, 1989, pp. 35 36) Because persons get their language (at least in the beginning) from their communities, the ir frameworks will (at least in the beginning) be constituted by the values expressed through the language and cultural imagery used by their communities.
37 According to the stronger interpretation of Taylors theory, we use these frameworks to make quali tative judgments about whether the desires and values that w e can take on are themselves desirable, but we are unable to qualitatively evaluate the frameworks themselves. According to the weaker interpretation, we are able to qualitatively evaluate the fr ameworks. Because of the way in which Taylor discusses the possibility of innovation and developing an original way of understanding myself, I think he intends to support the weaker interpretation. Taylor sees the frameworks given to us by our cultur e and serving as the necessary starting point for evaluating those frameworks themselves. However, as I will discuss in later chapters, Taylor depends on the stronger interpretation of the cognitive account of agency to support some of his normative objec tions against the liberal priority of the right over the good. Problems with the Strong Reading of the Cognitive Theory of Agency As I have already argued, Taylor, Sandel, and MacIntyre often appear to recognize the problems with the strong reading of the cognitive theory of agency. However, these theorists sometimes word their claims in such a way that makes it appear that they su pport the strong interpretation. In addition, the y use the strong interpretation to support objections against the liberal pr iority of the right over the good. Because of this, I will offer a brief evaluation of the strong interpretation. It is useful to recall at this point that these theorists formulated the cognitive theory of agency in contrast to the voluntarist theory of agency, according to which people experience radical freedom to choose their own ends and do not rely on a framework for evaluating their options. They criticize the voluntarist theory of agency by pointing out that it does not leave room for the kind of deliberation that is necessary for a meaningful choice about what is worth valuing. If people do not choose their plans of
38 life in terms of the values and attachments they already have, then their choices are arbitrary; they have no reason to choose one w ay of lif e over another. Communitarians argue that whenever we make qualitative judgments, there are certain things we have to presuppose. These presuppositions form the framework within which we make rational decisions and determine what is worth valuin g. According to the strong interpretation of the cognitive view, if people lose the particular commitments that constitute their frameworks at a given time they would be at sea, as it were; they wouldnt know anymore, for an important range of questions what the significance of things was for them (Taylor, 1989, p. 27). Sandel claims that because one needs a framework in order to make reasoned decisions, it cannot be the case that persons can evaluate the commitments that constitute their frameworks, s ince that relies on a vision of persons who can make meaningful judgments without using frameworks, which is incoherent. This argument might be formalized as follows. 1) If people can evaluate the values and attachments that constitute their frameworks, t hen they must be unencumbered selves that is, they must be able to make reasoned judgments what is worth valuing without using a framework. 2) The view that a person can make rational decisions w ithout frameworks is incoherent because i f people do not choose their plans of life in terms of the values and attachments they already have, then their choices are arbitrary they have no reason to choose one way of life over another
39 3) Therefore, the view that people can evaluate the values and attachments that con stitute their frameworks relies on an incorrect view of how rational decision making occurs. 4) Therefore, people cannot evaluate the values and attachments that constitute their frameworks. This argument is problematic because the first premise is false. As Kymlicka points out, a persons ability to evaluate the values and attachments that constitute his or her framework relies on the ability to use some framework or other to structure his or her reasoni ng about what is worth valuing. I t is not necessari ly the case that people need to use the same framework to structure their reasoning throughout their lives. In other words, I can evaluate the values and attachments that constitute my framework by evaluating it from the perspective of some other framewor k. I can always envisage my self without its present ends. But this doesnt require that I can ever perceive a self totally unencumbered by any ends the process of ethical reasoning is always one of comparing one encumbered potential self with another encumbered potential self. There must always be some ends given with the self when we engage in such reasoning, but it doesnt follow that any particular ends must always be taken as a given with the self. As I said before, it seems that what is given w ith the self can, and sometimes does, change over the course of a lifetime. Thus there is a further claim that Sandel must establish: he must show not only that we cant perceive a totally unencumbered self, but that we cant perceive our self without som e specific end or motivation (Kymlicka, 1989, pp. 52 53) In other words, I can evaluate the values and attachments that constitute my current framework by evaluating it from the perspective of some other framework. Therefore, the view that people can ev aluate the values and attachments that constitute their frameworks does not rely on the view that it is possible to make reasoned judgments what is worth valuing without using a framework at all.
40 The communitarian might respond at this point by claiming t hat this reply simply pushes the problem back a step. The agent, instead of choosing between potential ends from the perspective of a fixed framework, has to choose what framework to use each time he or she has to qualitatively evaluate anything. But in order to have a reason to choose one framework over another, the agent has to use some metaframework. The communitarian might say that this indicates the agent does have to make rational decisions within the context of a fixed framework that he or she is unable to revise, since this fixed framework is the only thing that can allow agents to make reasoned judgments about anything, including which framework to use at a given time. While this reply indicates that our ability to revise our own frameworks is limited, it does not demonstrate that we lack any ability to revise our frameworks and reject some of the values that constitute it. Because a persons framework is constituted by numerous values, one of the values in his or her framework may ground his o r her rejection of another value that was part of that framework. If at one time we make choices about whats valuable given our commitment to a certain religious life, we could later come to question that commitment, and ask whats valuable giv en our co mmitment to our family (Kymlicka, 1989, p. 51) In any case, even if we do not entirely understand the process of self examination, we know from experience that we sometimes do question the desirability of the values and attachments that constituted our frameworks up to the point at which we started questioning those commitments. This indicates that, contrary to the strong interpretation of the cognitive view, we have some ability to evaluate and revise our frameworks.
41 Support for the Weak Reading of t he Cognitive Theory of Agency According to the weak reading of the cognitive theory of agency, people need to make decisions about what is worth valuing within the context of a framework, but they have some ability to revise their frameworks. Recall that Taylor claims in order to have a framework to use in making qualitative decisions about what is worth valuing, people need to be initiated into a language ( that is given to them by their community), which expr esses the values that form their frameworks, at least in the beginning. MacIntyre and Sandel have similar ideas about how agency works. They think that persons can only make qualitative judgments within the context of a framework and that persons can only have a framework within the context of a comm unity. They argue that persons communities provide them with the initial set of values and attachments that serve as the starting point for the development of the critical faculties they will need to reevaluate those values and attachments later in life In other words, they think that the very capacity to reject the values and attachments given by ones culture relies on the agents initial acceptance of those same values and attachments to serve as the foundation for his or her rational assessments. Recall also that Taylor argues that people rely on language and their communities to do more than provide them with the background of qualitative distinctions needed to engage in strong evaluation. He claims that our aspiring toward something depends on the goal being meaningful and he claims that we often rely on our cultures to make those goals meaningful Therefore, we rely on our cultures to give us the tools to comprehend the various goals we choose between as well as to give us the tools to determ ine which of those goals is most desirable.
42 In this section, I will argue that both of these claims are plausible; that is, I will argue that we rely on our cultures both to provide us with the initial frameworks we need to make qualitative judgments (in cluding qualitative judgments about the frameworks provided to us by our cultures), and that we rely on our cultures to make certain goals meaningful. I will also show that such a process of moral and practical reasoning leaves room for the kind of agency Rawls wishes to protect through his commitment to the priority of the right over the good. Even if we rely on our communities to provide us with the tools we need to make meaningful judgments in the beginning we may st ill be able to revise or reject the values, ends and conceptions of the good that are common in our communities. Making a rational judgment involves having reasons for choosing one thing over another. Without the existence of some values or attachments to serve as the foundation for my r ational assessments, I would not have any reason to choose one course of action over another, or to reject one of my previous values as undesirable. An individuals foundation for these reasons will include the values, beliefs, and attachments that consti tute her character. For example, if someone asks me why I decided to work on my dissertation today rather than watch television, I will cite the following reasons: I value spending my time on intellectual pursuits; I have the desire to complete a quality dissertation within two years; I believe that the best way to write an intelligent and insightful dissertation is to spend a few hours every day working on it, etc. My ability to act as a rational autonomous agent depends on my being guided by reasons, an d my ability to be guided by reasons is rooted in the beliefs, values, and attachments that form my character The beliefs, values, and attachments that I started
43 with were given to me by my community, and the values held by my community are reflected in the language of evaluation I use to make qualitative assessments. Granted, I should also have reasons for having the particular beliefs, values, and attachments that make up my character. However, the beliefs, values, and attachments that constitute my p resent character arose, at least in part, from the beliefs, values, and attachments that I held previously. If we think through the way in which we make decisions about how we want our lives to go, we will see the view that we rely on frameworks to make qu alitative assessments (and that these frameworks develop socially) is intuitively plausible. We need a set of values, beliefs, and attachments to have reasons for choosing one course of action over another, and we are not able to form those values, belief s and attachments from scratch. The claim that people rely on their languages and cultures to make various possible courses of action comprehensible is also plausible. This is important, since a persons ability to make an autonomous decision to engage i n a particular action depends on his or her ability to make sense of that action as possible for her To see how we rely on our languages and cultures to make possible courses of action comprehensible consider the following aspect of David Vellemans th eory of agency. According to Velleman, an agents abil ity to act freely depends on her doing what s he intends to do, and acting on ones own intention in turn relies on the agents ability to offer both a prima facie and a descriptive explanation of what s he is doing. In other words, for an agent to act intentionally, she must be able to explain what she is doing and why she is doing it (Vellema n, 1989, pp. 15 17) If Vellemans requirements
44 on agency are accurate, then an action will only count as free i f we can make sense of it. If we are unable to comprehend action X as a possible action, we will be unable to intentionally perform action X, since we will be unable to explain what we are doing and why we are doing it. Our ability to comprehend certain actions as possible for us and to perform them intentionally will rely on what kind of language and cultural imagery is available to us. Therefore, the range of free actions that we can perform will largely be determined by the concepts and cultural imagery that we have been exposed to. To see how this is the case, consider the following example. When traveling to Africa to teach people strategies for avoiding the dangers of mosquitoes, John Wilson of London University showed a film to some African vill agers that illustrated strategies for reducing mosquito populations in their village. When these villagers were asked to describe what they had seen, they responded that they had seen a chicken. Confused by the response of these villagers, Wilson watched the video again and noticed that, indeed, a chicken briefly wandered in and out of the shot (Eliade, 1989, pp. 213 213) The only aspect of the film that was meaningful to the inhabitants of this village was the chicken, which they were familiar with thr ough the context of their cultural experience. Anthony Alioto uses this story to illustrate a broader point about the human condition when analyzing the development of theories in the history of science. We are those Africans, for all facts, even soca lled scientific ones, are like this. They depend on perspective. They do not come upon us pristine, pure, and naked; rather they are selected and molded into meaningful forms with the tools and habit of culture, in the workshop of preformed expectations and, especially, language (Alioto, 1993, p. 162)
45 While Alioto uses this illustration to discuss the way in which our cultural context shapes our ability to recognize scientific facts, it can also be used to show how our ability to recognize certain ends as meaningful (or even comprehensible) depends to some degree on the language and concepts available to us. In order to make the Africans understand the information that was conveyed in the film, Wilson would have to do one of two things. He could (a) teach them the vocabulary and concepts they need in order to understand the content of the film, or (b) use vocabulary and concepts already understood by the Africans to present the information. Note that the second option is only possible if the vocabulary and concepts needed to explain the goal of, and strategies for, minimizing mosquito populations already exist in that culture. This example demonstrates that, even to form relati vely simple goals, one has to have the language and concepts needed to make that goal comprehensible. As I have already discussed, even though the weak reading of the cognitive theory of agency is plausible, that does little to help the communitarians objections against the liberal commitment to the right over the good. In fut ure chapters, I will argue that the weak cognitive view of agency does not succeed in supporting the normative objections against Rawls principles of justice it was meant to support. Even if the weak reading of the cognitive theory does not undermine the liberal priority of the right over the good, however, it does highlight the importance of maintaining a community that provides individuals with the kind of framework that allows them to make qualitative evaluations. In the remainder of this chapter, I w ill discuss some additional ways in which a persons community can affect his or her capacity to act autonomously. In doing so, I will highlight some ways in which the social structure in a community can
46 promote or undermine a persons autonomy even if th ey have the full range of rights liberalism traditionally guarantees. Additional Community Influences on Agency To understand how the social structure in a community can affect a persons ability to act autonomously, consider the following case. A woman i s frustrated by her communitys expectation that she wear a burqua when she is in public, and she has the legal right to refuse to follow this custom. There are other factors, however, that may prevent her from rejecting this custom. The practice of wear ing a burqua is associated with the way in which her community views the world. Women living in her community may have learned to associate the custom of wearing a burqua with femininity, sexual modesty, and community membership. By revising one aspect o f her identity (i.e. by choosing not to wear a burqua) the woman may have to abandon other aspects of her identity that are foundational to her character and the way she views herself. This case illustrates that the possession of legal rights is not alwa ys enough to allow a person act on her choices. In addi tion to having legal rights, the person must also be able to see that acting on her choices will not prevent her from living a plan of life she thinks is worth valuing. To do this, she must (a) live i n a community that does not impose unbearable social costs on her for choices and (b) have access to language and cultural imagery that represent her choices in a positive light. The first requirement makes intuitive sense, as it captures the intention behind legal rights. When we give a person a legal right to do something, we do so to prevent him from being punished for making that choice. The prospect of legal punishment puts someone in a position where their only options are undesirable. If Steve wishes to practice Islam, but faces hefty fines, imprisonment, or execution for doing so, he must
47 either refrain from practicing the religion of his choice, or he must face a legal penalty that may even further narrow his choices in life neither option is desirable. Because the costs that commun ities impose on their members for their choices can be just as severe as the costs governments can impose on their citizens, giving a person legal rights is not suffic ient to protect her autonomy. Uma Narayan (2002) supports this point as she examines some of the reasons women from a conservative community of Old Delhi continue to wear a veil in public despite their desire to sometimes refrain from doing so. Many of the women she interviewed claimed they continue this practice because it allows them to represent themselves as modest and proper, because failing to wear the veil would make them less desirable within the community as marriage partners, and because wearing the burqua is an integral part of their socia l identity and sense of self and the social discomfort they would feel without it outweighs its physical inconveniences (p. 420). Narayan points out the choice to participate in one cultural practice will usually require the individual to participate in o ther cultural practices that she would otherwise avoid. The decisions many women make with respect to cultural practices ought, I think, to be understood as a bundle of elements, some of which they want and some of which they do not, and where they lac k the power to undo the bundle so as to choose only those elements they want. Much of what individuals in general want in life comes in such mixed bundles that require resignation to certain tradeoffs as a means to secure goods one values (Narayan, 2002, p. 422) Because we have to choose between bundles of elements, our ability to revise our identities will be limited by the way in which cultural practices are bundled together. Therefore, we will frequently be unable to eliminate all of the undesirable features of our
48 identities and incorporate all of the features we fi nd to be desirable. It appears that the way in which individual customs are deeply embedded within a culture as a whole can limit our ability to choose our own projects by narrowing t he range of eligible pu rsuits available to choose from; and some cultures impose heavier social costs for deviant choices than others. In order to best promote autonomy, then, a theory of justice may have to address the social structure of the community i t is meant to regulate in addition to dealing with strictly legal issues. To see how our ability to make and act on alternative choices depends on having access to language and cultural imagery that represent our choices in a positive light, consider Catr oina Mackenzies discussion of how imagination shapes practic al deliberation about the self. Mackenz i e argues that imagination can allow somebody to try on other modes of behavior by picturing herself performing activities that are out of character for her. She can then pay attention to the emotional response the imagery invokes to determine whether these modes of behavior are compatible with a life she thinks is worth valuing (Mackenzie, 2000, p. 137) Recall that I agreed with Taylor that autonomous decision making depends upon being initiated into a language, which allows people to draw the distinctions needed for making qualitative judgments about what is worth v aluing. This language will also largely shape the emotional response invoked when a person pictures herself performing activities that are out of character for her or as holding values she does not now hold. However, even if Taylor and I were wrong about the degree to which language can shape a persons own initial assessments the value j udgments expressed in language usually indicate what values the larger community accepts. This
49 can guide a persons decision making process by making clear to her which choices will allow her to gain positive social recognition from the others in the comm unity Therefore, even if a persons language does not prevent her from making initial judgments about what is worth valuing that deviate from the communitys norms, it may prevent her from acting on her initial judgments for fear of the negative reaction s she will get from others. Mackenzie writes, Given the connection between an agents sense of self worth and social recognition, there is a strong incentive for agents to identify with those cultural representations of their identities that seem to affor d greater social recognition and to incorporate these representations into their self conceptions and their imaginative projections. Even if these representations are oppressive, in the sense that they present agents with severely curtailed avenues for ac hieving social recognition, the fact that these avenues afford the main means of achieving social recognition nevertheless provides agents with a strong incentive for identifying with them ( Mackenzie, 2000, p. 144). T his indicates that the language and cu ltural imagery a person has access to have a huge impact on a persons ability to choose an a lternative lifestyle These things can affect the very desires that guide the individuals choices. If the language and cultural imagery a person has access to p rovide only a narrow range of options that are represented as worthwhile, then a persons autonomy can be severely constrained, even if the person has legal rights that guarantee a wider range of opportunities. While most liberal theorists would not rejec t these claims regarding the way in which a persons social structure can affect our ability to act autonomously, they do not always pay sufficient attention to these issues when talking about how best to promote individual liberty Conclusion In this c hapter, I discussed the voluntarist theory of agency and the strong and weak readings of the cognitive theory of agency. I argued that while the
50 communitarians are right to claim that the voluntarist account is implausible, they are mistaken in thinking t hat the priority of the right over the good commits liberal theorists to the voluntarist account of agency. I then showed that while the strong reading of the cognitive account of agency is problematic, the weak reading is plausible. Finally, I highlight ed some additional ways in which the social structure of our communities can affect our ability to act autonomously. I did this to illustrate the merits of the communitarian argument that protecting a persons legal right to do something is sometimes insufficient to make that choice a viable option. In the next few chapters, I will explain and evaluate some of the normative objections that the cognitive account of agency is meant to support against liberal neutrality. I will argue that even if the weaker reading of the cognitive theory of agency is correct, it fails to support these objections However, I will show that while these arguments fail to undermine liberal neutrality, they highlight the importance of paying attention to the social structure of a community when working to protect individual rights and autonomy.
51 CHAPTER 3 SHARED VALUES AND SE LF DETERMINATION As pointed out in the previous chapter communitarian theorists attempt to use the cognitive theory of agency to support several normative objections against liberal neutrality According to these objections, the liberal commitment to the moral priority of the right over the good undermines the kind of social structure that can support individual self determination. One such objection is th at liberal neutrality sometimes undermines the survival of the traditions that can produce the values and ends that make up our frameworks. Some communitarians worry that such disruptions will damage our frameworks, which will in turn damage our ability t o determine what is worth valuing. These theorists point out that an important part of what we value about self determination is the ability to make reasoned decisions and to act on them; and so any damage to our frameworks will undermine much of what we value about self determination. They proceed to argue that because the liberal priority of the right over the good is meant to protect individual self determination, but often undermines the conditions under which we can exercise it, liberalism is self defeating. Alasdair MacIntyre and Charles Taylor both present a version of this objection against liberalism, which can be represented as follows. (1) The capacity for self determination (which the moral priority of the right over the good is meant to protect) depends on the possession of a framework, which can only be developed and utilized within a certain kind of social environment. (2) Liberal ne utrality undermines the social environment needed to develop and sustain the frameworks individuals need. (3) Therefore, we should reject liberal neutrality.
52 While MacIntyres and Taylors objections share this common structure, their defense of the first and second premises differs In this chapter, I will explain and evaluate MacIntyres and Taylors versions of this objection. I will demonstrate that each version of the objection fails for different reasons. I will argue that MacIntyres argument fails because his claims about the social environment needed to create and sustain the frameworks we use in makin g decisions about what is worth valuing depend on the implausible strong reading of the cognitive theory of agency. Taylors argument fails for a different reason. While we have good reason to believe that much of what we value about self determination c an only survive in a social environment like the one he describes, there is no good reason to believe liberal governments cannot support this environment. MacIntyres Argument Alasdair MacIntyre (1981, 1988) suggests that whether we recognize it or not, th e standards of moral or rational inquiry that we use when deciding what is worth valuing are part of a tradition; and our ability to use those standards of moral and rational inquiry depends upon our knowledge of and connection to the traditions that produ ced those standards. MacIntyre warns us against attempting to take on standards of evaluation that are not connected to a particular tradition. He argues that a ny attempt to reason from outside the bounds of a tradition will limit a person to a mode of r easoning by which one can merely determine what will best satisfy his existing preferences and will be unable to evaluate the desirability of those preferences MacIntyre claims that liberal governments undermine the conditions of survival for tradition s that can produce the standards of evaluation that compose our framework s. In doing so, liberal governments prevent citizens from having access to
53 the moral and rational standards provided by such a tradition Without those standards, MacIntyre thinks individuals can only make judgments about the relative intensity of their existing desires ; they cannot make judgments about what is worth valuing In this section, I will explain MacIntyres argument in more detail by first outlining what MacIntyre thinks individuals need to make qualitative judgments about what is worth valuing Next, I will explain why he thinks liberal governments are not equipped to preserve a social environment that gives individuals the tools to make such judgments. MacIntyre think s the liberal failure to promote a particular tradition will cause individuals to think of themselves as independent from any tradition and to avoid using the standards of reasoning associated with a particular tradition. A s discussed above, MacIntyre thi nks the attempt to reason outside of a tradition will limit individuals to reasoning about how best to satisfy their preferences because they will not have the tools to make judgments about the desirability of their preferences I will conclude the sectio n by explaining why MacIntyres argument is unsuccessful. While he is correct in claiming that liberal governments cannot maintain the social environment he describes, he is incorrect that individuals can only develop and maintain the frameworks they need for determining what is worth valuing in the kind of environment he describes. The Social Environment Needed for Self Determination In After Virtue MacIntyre suggests that we need a certain kind of conceptual background before we can make sense of the m oral requirements and prohibitions that allow us to engage in moral reasoning; further, he claims that we largely rely on our communities to provide us with this conceptual background. Without this background, any account of moral rules and virtues w ill b e arbitrary. MacIntyre claims this conceptual background needs to contain three interrelated elements, which I will explain
54 in turna practice, a narrative order of an individual humans life, and a moral tradition (MacIntyre, 1984, pp. 186 187) MacInty re claims that we can only make sense of moral rules and virtues through practices, which provide us with standards by which we can judge the rightness of our behavior. Without such a standard, he claims, any moral judgment would be arbitrary. He defin es practice as follows. By a practice I am going to mean any coherent and complex form of socially established cooperative human activity through which goods internal to that form of activity are realized in the course of trying to achieve those standar ds of excellence which are appropriate to, and partially definitive of, that form of activity, with the result that human powers to achieve excellence, and human conceptions of the ends and goods involved, are systematically extended (MacIntyre, 1984, p. 187) In order to clarify this definition and illustrate why we need practices to make meaningful moral judgments, MacIntyre provides an example of a practice and explains what we can gain from practices One example of a practice, MacIntyre claims, is t he game of chess. He explains that there are two types of goods that can be achieved by playing chess goods external to the game and goods internal to the game. To illustrate the difference between these types of goods, he asks us to consider the followi ng example. Suppose you are trying to encourage an intelligent child to learn to play chess. As an incentive, you offer to pay the child 50 cents for playing the game, and an extra 50 cents for winning the game. In the beginning, the child plays the gam e solely to get the money. MacIntyre points out that that as long as the childs sole motivation for playing the game is to get money he has no reason to refrain from cheating if he can get away with doing
55 so. As time passes, suppose the child enjoys pla ying the game for its own sake and enjoys using his imagination and analytical skills to win the game. In this case, if the child is motivated to play chess because he enjoys the game and is no longer motivated by the monetary reward, he has no incentive to cheat he wants to win the game according to the rules and standards of play defined within the game of chess. MacIntyre explains that when the child is motivated by the prospect of getting money he is working to achieve goods external to the game; but when he is motivated by the prospect of winning the game according to the rules and standards of chess he is working to achieve goods internal to the game of chess (MacIntyre, 1984, p. 188) According to MacIntyre, goods internal to a practice have two features. First, we can only specify goods that are internal to a practice in terms of the practice itself; we cannot specify the goods that are internal to playing chess without reference to the rules and standards of excellence that define game of chess. Second, he claims that we can only recognize the goods internal to a practice by participating in that practice; the child will never recognize the goods internal to playing chess until he has actually played chess. While he does not say so outright, Mac Intyre suggests that goods that are external to practices are always and only goods that further ones own self interest. He writes, On the one hand there are those goods externally and contingently attached to chess playing and to other practices by the accidents of social circumstance in the case of the imaginary child candy, in the case of real adults such goods as prestige, status, and money (MacIntyre, 1984, p. 188). MacIntyre points out t hat we can only achieve goods internal to a practice by following the standards that regulate our relationships with others who are participating
56 in the practice. These standards may specify what duties each participant in the practice has to each other participant. The child who cheats at chess violates these st andards, for example, through his dishonesty with the other player (MacIntyre, 1984, pp. 187 191) Doing this prevents the child from achieving the goods internal to the game of chess. MacIntyre claims that the main reason a person cannot achieve the goods internal to the practice if he violates the standards that regulate relationships with others in the practice is because practices are built around certain collective goals. A collective goal that defines th e practice of chess is fair play as def ined b y the rules of the game; and that collective goal is undermined when an individual does not follow the rules that regulate his relationship with others participating in the practice. MacIntyre claims that just as playing chess requires following the rules and standards of excellence defined within the practice of chess, our ability to behave morally requires following the rules and standards of excellence produced by a moral tradition, which provides us with an account of the human telos. It is important to keep in mind at this point that MacIntyre is stressing the importance of a telos to moral deliberation in order to set up his objection to liberalism. He will later argue that the liberal priority of the right over the good s ometimes interferes with th e survival of the moral traditions that furnish an account of the human telos ; and we depend on these moral traditions to provide us with an account of the human telos to allow us to engage in moral reasoning. MacIntyre does not need to offer his own account of the telos to make this objection. Rather, he just needs to show that the liberal priority of the right over the good undermines the conditions under which the moral traditions (which provide us with an account of the telos ) can survive
57 To illust rate why MacIntyre thinks an account of morality cannot make sense without an overriding account of the human telos MacIntyre explains how we cannot make sense of the virtue of patience without a broader context. He claims that patience is defined as, w aiting attentively without complaint, but not of waiti ng thus for anything at all (MacIntyre, 1984, p. 202). He claims that to understand in a non arbitrary way what patience requires, I need to recognize what overriding good is achieved by practicing th e virtue of patience. He claims that it is only by recognizing this overriding good (found through an account of the human telos ), that one will be able to determine what patience requires in a particular situation (MacIntyre, 1984, pp. 202 203) MacInty re argues that just as we cannot make sense of individual virtues outside the context of a practice, we cannot understand individual moral rules outside of the context of a practice. He claims t hat in order to define and prioritize our set of moral rules in a nonarbitrary way we need an account of the human good that the moral rules are meant to achieve (MacIntyre, 1984, 152 154) He writes, Partly because laws are general, particular cases will always arise in which it is unclear how the law is to be applied and unclear what justice demands. Thus there are bound to be occasions on which no formula is available in advance; it is on such occasions that we have to act kata ton orthon logon (according to right reason, Nicomachean Ethi cs 1128b25) (MacIn tyre, 1984, p. 152). In order to act according to right reason and determine what justice demands in such situations, MacIntyre thinks we need to determine what course of action will help us to best accomplish the human telos as defined by a particular tradition MacIntyre thinks that an individuals ability to engage in any kind of rational or moral inquiry depends on having a vision of the human telos This telos allows us to
58 engage in rational and moral inquiry by providing us with a standard by wh ich we can evaluate alternative courses of action. According to this account, an activity is desirable if it promotes the accomplishment of the human telos as defined by the tradition in question; and an activity is undesirable if it interferes with the accomplishment of this telos A telos then, is essential to a process of inquiry that does anything further than ranking the intensity of existing unconsidered preferences because it provides us with a standard by which potential activities and their results can be evaluated. MacIntyre thinks that once a n individual affirms the telos provided by his tradition, and once he understands what will promote or interfere with this telos his or her life will embody a story whose shape and form will depend upo n what is counted as a harm and danger and how success and failure, progress and its opposit e, are understood and evaluated (MacIntyre, 1984, p. 144). The individuals life will then take on a narrative form as her choices are guided by the standards tha t regulate her relationships with others who are participating in the moral practice defined by that tradition. These standards specify what duties each participant in the practice has to each other participant; and t he standards of success and failure th at apply to an individuals life will partially depend on what social role he or she inhabits. MacIntyre writes, We all approach our own circumstances as bearers of a particular social identity. I am someones son or daughter, someone elses cousin or uncle; I am a citizen of this or that city, a member of this or that guild or profession; I belong to this clan, that tribe, this nation. Hence what is good for me has to be the good for one who inhabits those roles (MacIntyre, 1984, p. 220) These guidelines will determine what the narrative order of my life will look like, since my success or failure to fulfill these guidelines will determine my success or failure to fulfill the human telos defined by my tradition
59 The final ingredient that MacIntyre c laims is needed to form the conceptual background for moral deliberation is a moral tradition, which provides us with the account of the human telos that determines the rules that define what it means to behave morally. Recall that MacIntyre claims that one cannot enjoy the goods internal to a practice without entering into a practice; and ente ring into a practice requires one to accept the authority of the standards developed within the practice so far. These standards are developed over a long period of time, through moral tradition. By entering into a practice (such as the practice of morality as defined within a tradition ), I become part of that practices tradition and can play a role in further developing its standards. MacIntyre claims that wheth er I like it or not and whether I recognize it or not, I am part of a moral tradition. He thinks it is important to recognize my part in this tradition because I can only gain the ability to make rational and moral judgments by recognizing and accepting t he best standards that have been developed within the practice so far. To recall, he writes If, on starting to listen to music, I do not accept my own incapacity to judge correctly, I will never learn to hear, let alone appreciate, Bartoks last quartet s. If, on starting to play baseball, I do not accept that others know better than I when to throw a fast ball and when not, I will never learn to appreciate good pitching let alone to pitch (MacIntyre, 1984, p. 190) MacIntyre claims that this initial ac ceptance of the existing standards of a practice will allow me to later participate in the development of these standards where they are incapable of properly dealing with certain problems. Another advantage MacIntyre thinks is present in the awareness an d acceptance of a moral tradition that sets the rules and standards of excellence defining a practice is the fact that it gives us a
60 common vocabulary that we can use to question the behavior of one another and to debate what goods constitute the tradition of which we are a part (MacIntyre, 1984, pp. 218, 222) Why the Liberal Tradition is not Equipped to Preserve Self Determination MacIntyre claims that liberalism does not provide individuals with adequate standards for moral and rational inquiry because of i ts antagonism to all tradition (MacIntyre, 1988, p. 10). He claims that because of its commitment to protect an individuals ability to choose which tradition he will accept, liberalism relies on a concept of the individual as distinct from any part icular moral tradition This is problematic for two reasons. First, since liberal governments will not allow a particular moral tradition to dominate public debate, t he liberal structure of debate must proceed by individuals express ing their demands from their own perspectives rather than from the perspective of a shared tradition. This is problematic because without a shared tradition, individuals will lack a common vocabulary that allows them to work together determine which course of action is best. I ndividuals living in a liberal society will thus lack a rich common vocabulary needed to question the behavior of one another and to have a rational debate about what is worth valuing (MacIntyre, 1988, pp. 342 344) Second, MacIntyre claims that by creat ing the concept of individual as distinct from any particular tradition, liberalism creates a cycle. By trying to protect individuals from having a tradition imposed on them, they prevent a particular tradition from dominating public debate and limiting public debate to mere statements of preference. By failing to promote a particular moral tradition, and by regulating public debate so that it can only i nclude statements of mere preference and bargaining for ways to maximize satisfaction of those prefer ences, liberal governments train their citizens to use the
61 same process of reasoning when evaluating what they should do in their private lives (MacIntyre, 1988, pp. 337 341) This will cause individuals to think of themselves as independent from any tradition and to reason as individuals qua individuals, distinct from any particular tradition; and, as discussed above, MacIntyre thinks the attempt to reason outside of a tradition and the telos it provides will limit individuals to reasoning about how best to satisfy their preferences. I will first explain MacIntyres argument for the claim that liberal citizens are unable to engage in a rational debate with one another about what is worth valuing. MacIntyre claims that there are four possible stages of debate in a liberal government. The first stage of debate deals with the dialog between individuals in the state, whereas the last three stages involve the government weighing the interests of the citizens. Only the first stage is directly related to MacInt yres worry that liberal traditions do not provide individuals with the conceptual background they need to make reasoned decisions; I will therefore only outline MacIntyres explanation of this stage of liberal debate. MacIntyre claims that during the fi rst stage of debate in a liberal government, citizens can articulate their values and attitudes in their own terms These individuals often have very different assumptions that shape their deliberation s about what should or should not be done. At the e nd of this stage, we are often left with individuals who have drawn very different conclusions because they reason from different assumptions MacIntyre claims that any attempt to engage in rational debate will be futile because the individuals engaging i n the debate reasoned to their position from different and often incompatible premises. He writes, The only rational way in which these disagreements could be resolved would be by means of a philosophical enquiry aimed at deciding which out of the
62 conflic ting sets of premises, if any, is true. But a liberal order, as we have already seen, is one in which each standpoint may make its claims but can do no more within the framework of the public order since no overall theory of the human good is to be regarded as justified. Hence at this level debate is necessarily barren; rival appeals to accounts of the human good or of justice necessarily assume a rhetorical form such that it is as assertion and counterassertion, rather than as argument and counterargument, that rival standpoints confront one another. Nonrational persuasion displaces rational argument (MacIntyre, 1988, pp. 342 343) MacIntyre claims that this debate is further complicated by the fact that just as there are different and incommensurable accounts of morality, there are also different and incommensurable accounts of rationality. He claims that because we do not have a common standard of morality and rationality, we can only judge one tradition to be superior to another by determining (a) wh ether both traditions are coherent and consistent with the rules of Aristotelian logic, and (b) whether one tradition does a better job of solving the problems that arise in its cultural context than another tradition. However, he claims that because many traditions both meet the rules of Aristotelian logic and do a good job solving the problems that arise within their social contexts, the tools we have to evaluate traditions will not allow us to establish one tradition as superior to all others (MacIntyre 1988, p. 4) He claims, therefore, that not only are the liberal citizens in this stage of debate reasoning from different and incompatible moral premises they also lack a mechanism for rationally weighing the interests of each party. MacIntyres second and stronger reason for thinking liberal governments fail to provide individuals with the tools they need for moral and rational inquiry is that they fail to provide individuals with a telos or a unified set of the standards for moral and rational inq uiry. Because liberalism fails to offer an overriding account of the good, MacIntyre
63 claims that members of this tradition purs ue a wide range of goods, but they have no way of weighing the value of these goods against one another. He writes, The liberal norm is characteristically, therefore, one according to which different kinds of evaluation, each independent of the other, are exercised in these different types of social environment. The heterogeneity is such that no overall ordering of goods is possi ble. And to be educated into the culture of a liberal social order is, therefore, characteristically to become the kind of person to whom it appears normal that a variety of goods should be pursued, each appropriate to its own sphere, with no overall good supplying any overall unity to life (MacIntyre, 1988, p. 337) MacIntyre is concerned that unless citizens adhere to a tradition, which provides them with a telos and an overall concept of the good in terms of which they can prioritize their ends, they w ill only be able order their ends by determining what will maximize the satisfaction of their own preferences ; and they will have no way to determine whether their preferences are themselves desirable (MacIntyre, 1988, p. 337) MacIntyre thinks that the l iberal antagonism to tradition hence undermines the conditions for the kind of self determination we value. It does this by training individuals to use a process of reasoning that only allows them to rank their preferences and does not allow them to exami ne their desires to determine whether they are worthwhile MacIntyre claims that the liberal structure of public debate and the individualist mode of reasoning focused on ranking preferences rather than evaluating the desirability of preferences are inter dependent. He claims that they each feed into each other, each causing the advancement of the other; and so the liberal structure of public debate could not exist without the preferencesatisfaction mode of reasoning or vice versa (MacIntyre, 1988, p. 339). My thesis is not that the procedures of the public realm of liberal individualism were the cause and the psychology of the liberal individual effect nor vice versa. What I am claiming is that each required the other and that in coming together
64 they def ined a new social and cultural artifact, the individual. In Aristotelian practical reasoning it is the individual qua citizen who reasons; in Thomistic practical reasoning it is the individual qua enquirer into his or her good and the good of his or her community; in Human practical reasoning it is the individual qua propertied or unpropertied participant in a society of a particular kind of mutuality and reciprocity; but in the practical reasoning of liberal modernity it is the individual qua individual who reasons (MacIntyre, 1988, p. 339). MacIntyre thinks liberal governments undermine individual self determination by creating the individual as a social and cultural artifact. This notion of the individual then (a) creates a structure of debate in w hich individuals lack a common vocabulary to debate matters of public interest, and (b) prevents individuals from being guided by the vision of the human telos provided by a particular tradition when ranking what is worth valuing in their private lives. W hy MacIntyres Argument is Unsuccessful While MacIntyre is correct in claiming that liberal governments cannot maintain a social environment that protects a dominant tradition, he is incorrect in claiming that liberal governments undermine the ability of t heir citizens to develop and maintain the capacity for self determination. MacIntyres view that individual self determination cannot exist unless the individual commits to a single tradition requires the support of the strong version of the cognitive theory of agency, which I have already argued is implausible. In addition, MacIntyre is incorrect that individuals will not be able to develop and maintain the frameworks they need to determine what to do and what is worth valuing unless public debate proceeds from the perspective of a tradition shared by all citizens Reliance on the Strong Reading of the Cognitive Theory of Agency One can see how MacIntyres views about what one requires for self determination rely on the strong version of the cognitive th eory of agency simply by
65 recalling that he suggests we can only make qualitative choices if we are given a vision of our telos and a unified set of standards by which we can evaluate our behavior. It is important to realize that while MacIntyre thinks ind ividuals have some ability to revise the tradition and the standards of evaluation favored by their culture, he thinks their ability to do so is severely limited. On MacIntyres picture, one can only deliberate about the ends provided by his or her cultur e by using the framework provided by that culture (MacIntyre, 1988, p. 337). MacIntyre also claims that i ndividuals only have a reason to question the frameworks provided by their traditions if an epistemological crisis arises; and he claims such a cri sis only arises when a tradition confronts a situation that counts as a problem that it is unable to solve. Importantly, MacIntyre claims that what counts as a problem is determined by the existing standards of the culture not by any other standard. He claims that in order to resolve such an epistemological crisis, individuals within the culture need to incorporate new or discovered concepts into the traditions framework. However, he claims that a rational revision to the framework can only take place if three conditions are met. He writes, First, this in some ways radically new and conceptually enriched scheme, if it is to put an end to epistemological crisis, must furnish a solution to the problems which had previously proved intractable in a system atic and coherent way. Second, it must also provide an explanation of just what it was which rendered the tradition, before it had acquired these new resources, sterile or incoherent or both. And third, these first two tasks must be carried out in a way which exhibits some fundamental continuity of the new conceptual and theoretical structures with the shared beliefs in terms of which the tradition of enquiry had been defined up to this point (MacIntyre, 1988, p. 362) In order to see how MacIntyres view relies on the strong reading of the cognitive theory of agency, it is important to pay particular attention to two features of his view. First,
66 MacIntyre thinks that individuals within a culture cannot rationally revise a tradition unless they confront a situation that counts as a problem according to the existing standards of the tradition. According to this view, people cannot rationally discover problems with their own traditions by examining those traditions from the perspective of another tradition Second, MacIntyre thinks that individuals can only rationally revise the framework given to them by their own traditions if their solution to the epistemological crisis has some continuity with the tradition that existed up to this point These featu res of MacIntyres view imply that individuals cannot rationally put the telos provided by their cultures into question. To see how this is the case, consider how these claims fit into the rest of MacIntyres theory: MacIntyre claims that the telos provides us with an overriding concept of the good that formulates the standards by which we can judge what is counted as a harm and danger and how success and failure, progress and its opposite, are understood and eva luated (MacIntyre, 1984, p. 144). It seem s, therefore, that something will only count as a problem if it threatens the achievement of the telos as defined by the tradition. In addition, in order for the new ideas created from the epistemological crisis to achieve continuity with the tradition th at existed up to that point, they would have to be consistent with the telos defined by that culture, which gives meaning to the standards of evaluation, the narrative of the single human life, and the moral tradition that define that culture. If we canno t rationally evaluate the telos as provided by the traditions within which we find ourselves, our capacity for self determination is very limited indeed! Now that we have a clearer picture of what MacIntyre thinks ration ality involves, we can see how his claim that individuals rely on a conceptual background supplied by
67 a particular tradition relies on the strong reading of the cognitive theory of agency. Both the strong and the weak readings of the cognitive theory of agency affirm that we cannot make ra tional decisions without a framework. The strong reading of the cognitive theory, however, claims that we cannot rationally evaluate the crucial aspects of the frameworks that have been given to us by the traditions in which we find oursel ves. Recall tha t in chapter two of this dissertation, I argued that the strong reading of the cognitive theory of agency is implausible because it fails to provide us with a reason to think that an individuals ability to make rational assessments relies on his using the same framework throughout his life. I argued that a more plausible view is that we merely need to use some framework or other in order to make rational assessments, and that the framework we use can change throughout our lives. After being exposed to ne w traditions, we may be given the resources to question even the telos that has been provided by our culture. How Liberal Governments Affect their Citizens Private Reasoning MacIntyre s argument that liberal governments are self defeating relies on his claim that l iberalism does not provide individuals with the resources they need to make qualitative evaluations He thinks individuals can only make qualitative evaluations if the government allow s a particular concept of the good to shape public debate. In addition, his objection relies on his claim that the liberal structure of public debate and the individualist, preference satisfaction mode of reasoning feed into one another, each causing the advancement of the other. The second part of MacIntyres argument is problematic because he has failed to describe why there is a necessary interrelationship between the liberal structure of public debate and an individualist, preference based reasoning of liberal citizens. A
68 structure of debate according to wh ich people merely voice their preferences may exp ose people to an alternative procedure by which they can determine their own ends (by basing their ends on their own desires rather than on the requirements of their tradition s). However, the existence of t his procedure of public debate does not make it inevitable that individuals will take on a preference based procedure for creating and evaluating their own ends. Once citizens of liberal governments are exposed to this procedure for public debate, they ca n use the standards of their own traditions (as produced by their churches, political parties, universities, etc.) to determine what is worth doing in their private lives. Therefore, even if MacIntyre were correct in claiming that the liberal tradition fa ils to provide its adherents with the resources they need to make qualitative evaluations, that argument would not give us a reason to reject liberal governments unless he could give us a better reason to believe that liberal governments prevent individual s from utilizing the standards of evalu ation provided by more narrowly defined traditions when attempting to determine what is worth doing and valuing in their private lives. T here is no reason to believe the liberal structure of debate dictates the way i n which individuals reason about what is worth doing and valuing in their private lives. To review, MacIntyres argument that liberal governments are self defeating was presented in several stages. First, he argued that individuals can only reason from w ithin a tradition that provides them with a practice (which defines a telos ), a narrative structure of an individual human life, and a moral tradition. He claims that the liberalism fails to promote a tradition that has these elements and hence does not p rovide individuals with the conceptual tools they need to make qual itative evaluations.
69 MacIntyre then claims that liberal governments undermine the conditions under which individuals can make qualitative evaluations by promoting a concept of the individual as distinct from any particular moral tradition. MacIntyre thinks this notion prevents individuals from being guided by the vision of the human telos provided by a particular tradition when ranking what is worth valuing in their private lives. I objected to his argument by showing his argument that an individual can only reason within a single tradition depends on the implausible strong reading of the cognitive theory of agency. I then argued that the re is no reason to believe the liberal refusal to privilege a single tradition in public debate prevents individuals from utilizing the standards of a tradition when making decisions in their private lives. Taylors Argument Charles Taylor suggests that those who argue for the primacy of rights value a freedom in which people are capable of conceiving alternatives and arriving at a definition of what they really want, as well as discerning what commands their allegiance (Taylor, 1992, p. 43) ; that is, they value a kind of autonomy that involves having the resources to make qualitative moral and rational assessments. He claims that unless we live in a culture that exposes us to many viewpoints and ways of life, we will be unable to practice this kind of autonomy. Further, he argues that we can only gai n exposure to these different viewpoints and ways of life through cultural institutions whose continuity and stability require a great deal of support from individuals within a given community. Taylor argues that these institutions will be unable to survi ve in liberal governments (or any governments that assert the primacy of rights) because these governments fail to demand an unconditional obligation on their citizens to support the existence of these cultural institutions.
70 The Social Environment Needed f or Self Determination Taylor claims that the ability to make qualitative choices depends on the existence of public debate about moral and political questions and the maintenance of certain bearers of culture. These bearers of culture can include museu ms, symphony orchestras, universities, laboratories, political parties, law courts, representative assemblies, newspapers, publishing houses, television stations, and so on (Taylor, 1992, p. 45). Taylor claims that without the existence of public debate and institutions that expose us to various ways of life and alternative viewpoints, we will be unable to act autonomously. Further, Taylor explains that the existence of these autonomy preserving institutions depends on the existence of shared values with in a culture. He writes, Freedom and individual diversity can only flourish in a society where there is a general recognition of their worth. They are threatened by the spread of bigotry, but also by other conceptions of lifefor example, those which look on originality, innovation, and diversity as luxuries which society can ill afford given the need for efficiency, productivity, or growth, or those which in a host of other ways depreciate freedom (Taylor, 1992, p. 45) Thus, Taylor thinks that freedom does not just depend on the survival of certain cultural institutions; it also depends on many other things, such as the preservation of an atmosphere in which people value freedom and are sometimes willing to make sacrifices for it, and in which there is nt widespread bigotry. Liberalisms Inability to Preserve the Social Environment Needed for Self Determination Taylor claims that the maintenance of institutions that make autonomy possible depends upon the members of the culture recognizing them as impor tant and providing them with considerable material support. He claims that liberal and libertarian governments will be unable to maintain these institutions because their commitment to
71 the primacy of rights will prevent them from interfering with individu al rights for any reason, including the maintenance of a social environment in which individual autonomy flourishes (Taylor, 1992, pp. 46, 48). In addition, Taylor thinks that because liberal governments are forbidden from taking a stand on what the good life involves, they cannot encourage citizens take on a shared concept of the good that will cause them to value and support these institutions that make the practice of autonomy possible (Taylor, 1985, p. 225) Why Taylors Argument Fails Taylors defens e of his first premise is plausible. His claims about what kind of social environment is required for the development and maintenance of individual autonomy do not rely on the truth of the strong reading of the cognitive theory of agency. Taylor does not claim that a government needs to endorse one particular sort of good li fe in order to equip its citizens with the tools they need to make qualitative decisions about what is worth valuing ; quite the contrary he claims that a government needs to ensure that its citizens are exposed to many ideas about what the good life involves in order to give its citizens the tools they need to make such qualitative decisions. In addition, Tay lors defense of this premise has prima facie plausibility. It seems that ou r ability to make qualitative judgments about what is worth valuing relies on our exposure to at least some different viewpoints and different ways of life, and that exposure to these different viewpoints and ways of life can depend on the existence of pub lic debate and cultural institutions such as schools, publishing houses, and newspapers. Many liberal theorists also agree with this part of Taylors argument, including John Rawls, Ronald Dworkin, and Will Kymlicka. Following these theorists, I
72 will not object to this portion of Taylors argument. Instead, I will object to Taylors defense of the second premisethat liberal governments are not equipped to maintain these autonomy promoting institutions. One might object to Taylors defense of the second premise in two ways. First, one might say that individuals in a liberal society would support these institutions on their own because they value the way in which these institutions promote their shared concept of justice by promoting the self determinati on of all citizens. If this were the case, liberal governments would not need to use political authority to preserve these institutions. I think Taylor is correct to think that, given what history has taught is, this is overly optimistic. It is easy to see some examples of deteriorating freedom in the United States today that result from individual choices. For example, because news channels are driven by profit, they show news that will gain the most viewers; and because most people tend to be interes ted in watching sensationalist news instead of news that gives them information that will allow them to make responsible voting choices there are few news sources that offer valuable information (to those of us who want it) that allow us to vote responsibl y on certain political issues. This is one of many examples that show some culturebearing institutions that give individuals the intellectual resources to make reasoned decisions may not survive without the use of political authority. Luckily, t here is also a second way that one might object to Taylors defense of the second premise; one might challenge Taylors claim that the liberal commitment to individual rights is inconsistent with the use of political authority to preserve these institutions and go vernment encouragement to value and support these institutions. My
73 objection to Taylor will be along these lines. I will proceed by first explaining Will Kymlickas claim that it may be possible for a liberal government to use political authority to maintain the cultural institutions while continuing to follow the requirements of liberal neutrality. I will then explain why Kymlickas argument will not succeed without further support. Finally, I will provide Kymlickas argument with the further support i t needs to succeed. Will Kymlickas Argument According to Will Kymlicka, it is possible for the government to use political authority to support the maintenance of the cultural institutions that make freedom possible while continuing to follow the require ments of liberal neutrality. He asks us to consider two cases, the first of which would be acceptable under liberal neutrality and the second of which would not. In the first case, the government ensures an adequate range of options by providing tax credits to individuals who make culture supporting contributions in accordance with their personal perfectionist ideals. The state acts to ensure that there is an adequate range of options, but the evaluation of these options occurs in civil society, outside the apparatus of the state. In the second case, the evaluation of different conceptions of the good becomes a political question, and the government intervenes, not simply to ensure an adequate range of options, but to promote particular options (Kymlick a, 2002, p. 247) Kymlicka claims that the first proposal is both (a) consistent with liberal neutrality, and (b) a plausible way to maintain the plurality of institutions required for self determination. Problems with Kymlickas Argument It is not enti rely clear how one would go about implementing Kymlickas proposal, but I can think of t wo interpretations of how a government could carry out his suggestion. First, the government could take a stand on what kinds of contributions count as culture support ing and provide tax credits for only those contributions. If the
74 government implements Kymlickas first strategy in this way, they are not necessarily allowing individuals to support just any of their perfectionist ideals, and it appears that they are to some degree making the evaluation of different conceptions of the good a political question. This political question could be decided in a number of different ways. It might be decided, for example, by allowing citizens to vote on what perfectionist ideals are worth supporting and to what extent the state should support them. Alternatively, it could be decided by the state officials elected by the people. Regardless of the procedure by which the state decides which perfectionist ideals we should support and to what degree we should support them, it appears (at least at first glance) that this method for implementing Kymlickas first strategy is inconsistent with liberal neutrality It also resembles the second strategy Kymlicka outlines, which he expl icitly rejects However, I will later provide additional support for Kymlickas argument to show that this method for implement ing Kymlickas first strategy can be made consistent with liberal neutrality. Another way in which the government might attempt to carry out Kymlickas proposal is by refrain ing from taking a stand on what kinds of contributions cou nt as culture supporting and providing tax credits for contributions that support any of the perfectionist ideals of any one of its citizens. This suggestion is problematic, however, because it appears that it would not be sufficient to maintain the plurality of institutions required for self determination. To see how this is the case, consider again the case in which the quality of information covered in the news declines because people prefer to watch sensationalist news. If the government is not in the business of determining what counts as a worthy perfectionist ideal, then at first glance it looks like it cannot dismiss
75 the fact that people pref er sensationalist news, and it cannot claim that these preferences are less worthy of government support than the preference for news that helps people make informed voting choices. Recall that the original problem Kymlicka was trying to address is that l eaving it up to individuals which institutions they wish to support can result in a failure to support the diversity of institutions required to create and maintain the capacity for self determination. Given that, I see no reason to believe that it will h elp the situation if the government offers tax credits to individuals for supporting institutions they already wanted to support. Support for Kymlickas Argument Kymlicka is right to question the truth of Taylors claim that the liberal commitment to ind ividual rights is inconsistent with the use of political authority to preserve these institutions, but he needs to show why the first proposal he considers is consistent with liberal neutrality. In order to support Kymlicka, I will show that Taylor miscon strues what the liberal commitment to individual rights involves. I will then show that Taylors argument is also problematic because he is confused about what kind of commitment to the community is required to preserve the institutions that make self det ermination possible. We can better understand the liberal commitment to individual rights if we recall John Rawls method for formulating the principles of justice. Rawls suggests that we can formulate his principles of justice by putting individuals un der a veil of ignorance regarding their situation in life and their conceptions of the good. An Individual under the veil of ignorance can decide which political system is best by beginning with the assumption that he wants to maximize his access to prima ry goods, which are things
76 one needs to pursue hi s vision of the good life, or things which a rational m an wants whatever else he wants (Rawls, 1971, p. 92). Some examples of primary goods might include wealth, opportunities, powers, rights, and liberti es. Using this method, Rawls formulates his first principle of justice, which states, each person is to have an equal right to the most extensive basic liberty compatible wi th a similar liberty for others (Rawls, 1971, p. 70). On this account, individu als are not guaranteed the right to do whatever they want; they are only allowed to engage in activities that do not violate other peoples ability to live according to their own conceptions of the good. More specifically, individuals do not have the righ t to deprive others of the primary goods they need in order to pursue their own plans of life. It is impermissible to steal someones property or to enslave someone because doing so deprives him of the primary goods that empower him to live out his chosen life plan. If someone engages in these activities that deprive others of the primary goods to which they have a right a liberal government can intervene, and it can do without sacrificing its commitment to liberal neutrality and individual rights. Rec all again Taylors worry that if left alone, individuals may not make the sacrifices necessary to maintain the museums, newspapers, universities, and other institutions that provide us with the resources we need to make reasoned decisions. Taylor thinks t hat liberalism is not allowed to use political authority to force people to make the sacrifices necessary to preserve these institutions, as doing so involves interfering with individual rights. However, i f Taylor is right that individuals will not be abl e to develop and maintain the capacity for self determination in the absence of these cultural institutions, then thes e institutions will count as primary goods and so the
77 government will be justified in using political authority to preserve everyones co ntinued access to the primary goods they need to be able to act autonomously. Because this is the case, the protection of the social structure Taylor describes does not even involve limiting one persons freedom to protect another persons freedom; rather, any time a government limits a persons freedom to protect this social structure, it protects the freedom of that person along with the freedom of everyone else living under that government. It should now be easier to explain why Kymlickas suggestion for how a government can use its authority to ensure the maintenance of culturesupporting institutions can be consistent with liberal neutrality. By identifying the primary goods that allow everyone to decide on and pursue her vision of the good and ens uring that everyone has access to th ose primary goods the government does not endorse a particular version of the good life; it simply prevents individuals from performing actions that will interfere with the liberties of others by preventing them from en gaging in actions that will deprive others of those primary goods. Since many of the bearers of culture Taylor identifies are primary goods, an individual only has a right to his property insofar as his holding that property does not prevent others from gaining access to the primary goods they need to live out their plan of life. Therefore, forcing people to pay taxes to support these institutions that they may not care about does not violate their right to property, since they only have a right to proper ty insofar as their holding that property does not violate the right others have to the primary goods they need to live out their plans of life.
78 Another reason that Taylors argument is problematic is that he seems to be confused about what kind of commitm ent to the community is required to preserve the institutions that make self determination possible. When attempting to outline the comm itments of atomist theories Taylor writes, Theories which assert the primacy of rights are those which take as the fu ndamental, or at least a fundamental, principle of their political theory the ascription of certain rights to individuals and which deny the same status to a principle of belonging or obligation, that is a principle which states our obligation as men to belong to or sustain society, or a society of a certain type, or to obey authority or an authority of a certain type. Primacy of right theories in other words accept a principle ascribing rights to men as binding unconditionally, binding, that is, on men as such. But they do not accept as similarly unconditional a principle of belonging or obligation. Rather our obligation to belong to or sustain a society, or to obey its authorities, is seen as derivative, as laid on us conditionally, through our consent, or through its being to our advantage. The obligation to belong is derived in certain conditions from the more fundamental principle with ascribes rights (Taylor, 1992, p. 30) It is unclear why Taylor thinks this is a problem. H e gives us no reason to believe that the preservation of institutions that make selfdetermination possible depends on an unconditional obligation to belong. In fact, contrary to ensuring the creation and maintenance of the cultural institutions Taylor discusses, it seems that such an unconditional commitment to belonging could undermine the creation and maintenance of such institutions. Consider a conservative religious community that does everything in its power to silence those who oppose its teachings In this case, giving primary status to a principle of belonging will undermine the creation of a community in which self determination is possible. In order to ensure the creation and maintenance of a social environment in which self determination is possible, it would be be tter for me to make my obligation to belong to the community conditional on its ability to promote
79 individual rights by maintain ing the conditions under which citizens can practice autonomy. To review, Taylor thinks liberal governments are self defeating because they cannot maintain the culture of shared values needed to maintain the existence of autonomy supporting institutions. He argues that any attempt to use political authority to maintain these institutions directly or to encourage citizens to value these institutions would violate the liberal commitment to neutrality between competing conceptions of the good. I objected to Taylors argument by claiming that a liberal government can use political authority to maintain these institutions without viol ating liberal neutrality if maintaining these institutions promotes the availability of primary goods that empower all citizens to choose and live out their plans of life. Conclusion In this chapter, I have argued that MacIntyres and Taylors arguments th at liberal governments are self defeating fail for different reasons. I argued that MacIntyres argument fails because his claims about the social environment individuals need in order to make qualitative assessments relies on the truth of the strong reading of the cognitive theory of agency. I then argued that Taylors argument fails because his claim that a liberal government cannot support the kind of social environment he describes is incorrect.
80 CHAPTER 4 RECOGNITION, SELF WORTH, AND AUTHORITA TIVE CHOICES Some communitarian theorists claim that the kind of self determination we value the ability to make reasoned decisions and act on them relies on gaining social con firmation as well as having the frameworks that allow us to decide what is worth valu ing. In The Politics of Recognition, for example, Charles Taylor claims that recognition is a vital human need, and a lack of recognition, or mis recognition, can undermine individual autonomy by causing individuals to adopt a negative image of themselve s and to become incapable of utilizing opportunities that are available to them (Taylor, 1994, pp. 25 26) Taylor worries that the liberal priority of the right over the good fails to promote an environment in which everyone can gain such confirmation, an d hence fails to provide everyone with all the resources they need to make reasoned decisions and act on them. In this chapter, I will explain and evaluate this objection In doing so, I will focus on Charles Taylors The Politics of Recognition, as it s eems to provide the clearest articulation of this worry. I will argue that while Taylor is right to stress the i mp o rtance of recognition, the liberal model does a better job of affording people due recognition than does Taylors model Taylors Argument In The Politics of Recognition, Taylor claims that a lack of recognition, or misrecognition, can undermine autonomy by causing individuals to internalize a false picture of their own inferiority, lowering their self esteem. He claims that because of this connection bet ween autonomy and recognition, Due recognition is not just a courtesy
81 we owe people. It is a vital human need (Taylor, 1994, pp. 25 26) He concludes that any political system should pay attention to the need for recognition. Taylor cl aims that individuals form their identities dialogically. That is, when deciding what we think is worth valuing, we utilize the language and patterns of evaluation given to us by our communities. With these resources, we decide which values and ends we will adopt; and in doing so we sometimes reject the values and ends typical for other members of our culture (Taylor, 1994, pp. 30 35). Because we form the values and ends that make up our identities in this way, we are both self defining and culture bearing. That is, our identities bear the marks of our cultures and of our own unique choices. Taylor claims that because people are both self defining and culturebearing, providing individuals with due recognition requires us to recogni ze the value of the groups individuals belong to as well as recognizing their unique individuality. To ensure that individuals ge t due recognition for the culture bearing aspects of their identities Taylor suggests that governments need to meet t wo requirements specifie d under a politics of recognition. First, governments must make sure that their policies offer equal respect and protection to the variety of individuals and cultures under their rule. Second, they must promote the recognition of various cultures as worthy of our respect through education by enlarging the curriculum so that it represents the cultural contributions of previously excluded groups. Taylor claims that governments committed to the priority of the right over the good fail to meet the first r equirement by preventing public institutions from pr omoting the survival of cultural practices that would not flourish if we allow individuals to reject
82 those practices. To illustrate the way in which the liberal commitment to individual rights can fail t o protect the survival of cultural practices people value, consider the following example. Some French Canadians (particularly Qubcois citizens ) worry that if individuals are allowed to decide to send their children to English language schools, to use c ommercial signage in English, or to run their businesses in English, an important aspect of Qubcois culture (the practice of speaking French) will not survive. By insisting on giving all individuals these rights, regardless of what culture they belong t o, Taylor claims liberal governments threaten the existence of some cultures more than others. In particular, Taylor claims that the uniform application of individual rights threatens cultures that embrace collective goals that rely on future generations continuing to carry on the traditions of the culture Because this is the case Taylor thinks governments committed to liberal neutrality give greater recognition to individuals who chart out their own unique course in life than to individuals who want to do what it takes to ensure that there will continue to be people who carry on the traditions of their culture. Hence, he claims that liberal governments fail to give due recognition to certain citizens by failing to respect the cultures they belong to. I n this section, I will summarize Taylors argument that liberal neutrality undermines autonomy by failing to meet the demands of a politics of recognition. In doing so, I will first briefly summarize his relevant views about identity formation. I will th en explain Taylors politics of recognition and why Taylor thinks a government needs to meet its requirements in order to provide individuals with the recognition they need to be autonomous. I will also explain why Taylor thinks that governments committ ed to liberal neutrality cannot meet the first requirement specified under a politics of
83 recognition (the requirement that their policies offer equal respect and protection to the variety of cultures under their rule). Identity Formation Taylor claims th at because individuals define their identities dialogically (in relation with others), their un iqueness results from the way they respond to the cultures within which they find themselves We do not create our features from scratch; rather, our individu al features arise because of our acceptance, rejection, or modification of the values and practices we have been exposed to. Taylor claims that individuals are therefore both self defining and culture bearing. Individuals are self defining insofar as they are able to critically examine and modify some of the values and practices of their cultures. However, Taylor thinks we are also culturebearing because we define our identity always in dialogue with, sometimes in struggle against, the things our significant others want to see in us. Even after we outgrow some of these others our parents, for instance and they disappear from our lives, the conversation with them continu es within us as long as we live (Taylor, 1994, pp. 32 33). Taylor thinks this process of identity formation has implications for how governments should give individuals the recognition they need to make autonomous choices. He claims that governments should be guided by a politics of recognition which attempts to promote recogniti on of both peoples unique identities and of their identities as members of certain groups (Taylor, 1994, pp. 28 37) A Politics of Recognition Taylor claims in order to ensure that individuals are given due recognition as both self defining and culture bearing, a politics of recognition must be guided by both a politics of difference a nd a politics of equal dignity (Taylor, 1994, pp. 37 44) A
84 politics of equal dignity insists on treating all citizens with equal respect, while a politics of difference insists on respecting the difference between individuals and groups. Taylor reviews a number of different ways in which a government might try to meet the requirements of a politics of equal dignity, but points out that many of these strategies are incom patible with meeting the requirements of a politics of difference. Taylor claims that one suggestion for how to meet the requirements of a politics of equal dignity is to promote a society in which there is an absence of differentiated roles and in which i ndividuals share a common purpose. With the use of this strategy, nobodys values or practices are seen as superior to anothers because everyone shares the same values and practices. While the demand for equal recognition is satisfied on this picture, T aylor argues that the cost is too high because individuals are recognized only for the fact that they are all equal citizens, and they are not recognized for their individuality (1994, p. 44 51) Taylor claims that this strategy for meeting the requiremen ts of a politics of equal dignity is thus incompatible with meeting the requirements of a politics of difference. Taylor claims that another suggestion for how to meet the requirements of a politics of equal dignity is to give all citizens equal rights and entitlements. However, he claims that while this demand is prima facie desirable, it can be problematic if it is pursued without qualification, because equal rights can apply unequally. For example, some people inherit certain disadvantages such as poverty, a lack of education, or physical or mental disabilities and are unable to take advantage of the rights they are given. In addition, a uniform set of rights applied to all cultures will protect some cultural values while threatening others. As I described above, giving all individuals in Qu bec
85 the right to send their children to English speaking schools, run their businesses in English, and post commercial signage in English may undermine the Qubcois cultural practice of speaking French. This is because it will fail to provide individuals who value that cultural practice with the tools they need to ensure that there will continue to be individuals who will carry on that practice. Because of problems like these, Taylor claims that pursuing equal ri ghts by itself is not the best way to promote equal dignity; rather, we must pay attention to the differences between various individuals and groups. In doing so, we must pursue a politics of difference along with a politics of equal dignity. According t o Taylor, once we way pay attention to the differences between various individuals and groups, we can see that nondiscrimination sometimes requires differential treatment. He writes, So members of aboriginal bands will get certain rights and powers not e njoyed by other Canadians, if the demands for native self government are finally agreed on, and certain minorities will get the right to exclude others in order to preserve their cultural integrity, and s o on (Taylor, 1994, p. 62). Taylor points out that some liberal theorists sometimes try to respond to criticisms like this one by pointing to the liberal distinction between the public and the private spheres, which is meant to offer a neutral ground on which people of all cultur es can meet and coexist ( Taylor, 1994, p. 62). Liberal theorists claim that people should be able to do as they wish in the private sphere as long as their behaviors do not violate the rights of others. For example, liberal governments protect the ability of individuals to follo w the religion and cultural customs of their choice within the private sphere. In the public sphere, however, they must adopt the standpoint of liberal neutrality, which is
86 meant to protect the ability of individuals to live out their chosen plans of life in the private sphere. Taylor claims that this strategy fails to protect the interests of all groups equally, however, because it fails to provide due recognition to and protection of individuals who reject the public/private distinction. He writes, For mainstream Islam, there is no question of separating politics and religion the way we have come to expect in western liberal society. Liberalism is not a possible meeting ground for all cultures, but is the political expression of one range of cultures, quite incompatible with other ranges (Taylor, 1994, p. 62). Hence, Taylor thinks the liberal idea that the public/private distinction can provide a neutral ground on which people of all cultures can meet and coexist is an illusion, since that very dist inction favors the values of some cultures over the values of others. Taylor claims that it if we formulate the politics of equal dignity in a different way, we can make it compatible with a politics of difference. He suggests that while we should invaria bly protect fundamental rights (such as freedom of speech, thought, religion, and association), we should distinguish these fundamental rights from the broad range of immunities and presumptions of uniform treatment and weigh the importance of certain f orms of uniform treatment against the importance of cultural survival, and opt s ometimes in favor of the latter (Taylor, 1994, p. 61) In doing this, he claims that we should permit publ ic institutions to limit individual rights to protect the survival of their cultures as long as they do not violate individuals fundamental rights. For example, Taylor thinks it is permissible for Qu bec to require certain citizens to
87 send their children to Frenchspeaking schools, that certain businesses be run in French, and that all commercial signage be in French (Taylor, 1994, pp. 52 53). Taylor concludes that governments committed to liberal neutrality are not equipped to meet both of the requirements specified under a politics of recognition. Recall that Taylor cla ims giving individuals their due recognition requires that governments ensure that their policies offer equal respect and protection of the wide variety of cultures under their rule. In addition, it requires promoting the recognition of various cultures as worthy of our respect through education. Taylor claims that liberal governments are unable to meet the first requirement because they are committed to allowing individuals to reject the practices of their cultures; and allowing such freedom will undermi ne the conditions of survival for some cultures In doing so, governments committed to liberal neutrality offer greater respect and protection to those who are primarily concerned with individual pursuits than those concerned with pursuits that depend on the survival of a particular culture. Taylor claims this is problematic, since it undermines the autonomy of individuals who are concerned with the collective goal of cultural survival by offering them less respect and protection. General Problems with Taylors Argument Taylors argument that governments committed to liberal neutrality are unable to offer all citizens their due recognition is problematic for three reasons. First, Taylors selection of which rights count as fundamental indicates a western bias. The uniform application of the rights of freedom of speech, thought, religion, and association can undermine the conditions of survival for some cultures just as the uniform application of nonfundamental rights can undermine the conditions of sur vival for certain cultures. Consider Taylors claim I highlighted above, which stresses that the liberal distinction
88 between the public and private spheres fails to provide recognition for those who reject the public/private distinction. He points out th at mainstream Islam rejects the separation of church and state. However, at least some division between church and state is required in order to promote the rights to freedom of association and religion that Taylor claims are fundamental. Therefore, Tayl ors proposal fails by his own standards because following this proposal would afford less recognition to those who accept mainstream Islam than to those who do not want a particular religion to dominate the political process. Second, Taylors arguments re ly on incoherent ideas about culture. It does not make sense to fight for the survival of a culture, it only makes sense to fight for the continuation of specific values or practices that may be essential to the culture as it exists at that time To enfo rce the continuation of a specific set of values or practices that would not exist through the free association of individuals involves a failure to pay attention to the very dialogical aspect of identity formation that Taylor claims the liberal ignores. While Taylor criticizes those committed to liberal neutrality for focusing too heavily on the role of the individual in identity formation, his argument for the protection of the survival of particular cultures focuses too heavily on the role of culture in identity formation; such a move to promote cultural survival would undermine the ability of the individual to reject or modify certain values or practices endorsed by his or her culture. Third, implementing Taylors proposal can have a homogenizing effec t within a larger culture by undermining the power and legitimacy of subcultures. Limiting individual freedoms within a group can cause the very problem of domination and misrecognition that T aylor seems to be worried about. A llowing public institutions to
89 promote the survival of a specific culture can allow the majority group in the community to impose its way of life on minority groups in that community in the name of protecting the culture in question. Taylor is right that a government should respect difference (and encourage its citizens to respect difference) in order to ensure that individuals get the recognition they need in order to have a positive self image and to make authoritative choices. However, there is an important distinction between r especting difference and essentializing it. While respecting difference is likely to promote the recognition individuals need in order to have a positive self image, essentializing difference may create the problems of misrecognition that Taylor is attemp ting to use his politics of recognition to address. I will elaborate on each of the second and third objections in turn. Survival of a Culture vs. Survival of Particular Values and Practices While Taylor fails to specify exactly what he means by culture in The Politics of Recognition, he presumably understands a culture as being constituted by a set of values and practices shared by a group of people (such as Qubcois citizens African Americans, homosexuals, Christians, etc). To see why I think Taylor understands culture in this way, recall his claim that Qubcois public institutions should be allowed to limit individual choices in order to ensure that there will continue to be a population who spe aks French. This conviction indicates that Taylor thi nks the survival of the Qubcois culture depends (at least in part) on its citizens continuing to speak French. While this definition of culture makes some degree of sense, it leaves out at least one important fact about cultures.
90 Cultures do not remai n static over time; and it is sometimes not desirable that they should remain the same. American culture, for example, has changed significantly throughout the years. One change that has taken place in the United States over the years is a changed (and s till changing) understanding of gender roles. The ideals of masculinity and femininity are quite different now than they were even 100 years ago. However, there is a continuity of values and practices that has taken place over this period of time that al lows us to make sense of the idea that American culture has survived over time. Gender ideals have changed partially because individuals re interpreted the ideals of freedom, equality, and the value of family as having a different meaning than what had pr eviously been assigned to them. However, individuals utilized concepts provided to them by their culture in their re interpretation of the culture, and thus maintained a continuity between the culture as given to them and the culture as they re interprete d it. In addition, American culture was preserved by a shared history that unified various stages in the cultures development. It would be a mistake to specify a static list of values, characteristics, and practices and claim that the survival of Americ an culture depends on the preservation of those features into the indefinite future. Rather, the requirements for the survival of American culture rely on a continuity of values, characteristics, and practices (as opposed to the survival of the same value s, characteristics, and practices) and an awareness of a shared history. This continuity of values, characteristics, and practices and this awareness of a shared history provides individuals in a culture with the frameworks they use when evaluating what is worth valuing in the future. It connects individuals to each other within a generation and across generations, allowing them to participate in some short
91 and long term collective goals as defined by their cultures and allowing them to reject others. T he conditions of survival for an individuals identity are similar in many ways. For example, I dont have the same values and characteristics as I did 10 years ago; and I dont engage in the same activities now as I did then. However, I share a history with the Joy of 10 years ago, and the values, goals, and characteristics I had at that time composed the framework I used thereafter to determine what to do in the future and whether I should continue to accept the goals I had in the past. Because I share an identity with the Joy of 10 years ago, I can carry on some of the longterm goal s I accepted at that time. M y decision about whether to reject those goals or continue to pursue them will largely depend on the framework I use to determine what is worth valuing; and what my framework looks like now partially depends on what my framework looked like 10 years ago. It is important to keep in mind that the cultural continuity required for the survival of a culture is not inevitable. This cultural continuity can be threatened by outside forces; and minority cultures are especially susceptible to this threat. For example, the continuity of Native American cultures has been disrupted by the fact that they have been deprived of their land an d the fact that some laws have prevented them from following some of their cultural traditions. When these things happened, new generations of Native Americans were unable to access important elements of their traditions when forming their frameworks. This undermined the co ntinuity of values, characteristics, and practice s required for the survival of their culture s. In addition, these outside interferences also undermined the conditions under which these cultures
92 could survive even within a single generation. Even if a ge neration of individuals have been initiated into a culture, incorporated the values and ends of that culture into their frameworks, and engaged in some of the practices that define that culture at a particular time, the culture may die out if the individua ls who compose it are suddenly deprived of the opportunity to act on the choices that are motivated by their connection to their cultures. It may also be possible for the cultures survival to be disrupted by members of the culture itself, though that see ms to be a much less likely threat since people use the cultural imagery provided to them even to form new ideas. As I will discuss later, there is an important difference between protecting a culture from domination from the outside and protecting it from rejection by the individuals who belonged to the culture. Once we understand culture as a continuity of values, characteristics, and practices and as an awareness of shared history rather than as a static set of values, characteristics, and practices, Ta ylors argument becomes less compelling. This is because it is not clear that the Qubcois culture will fail to survive if people gradually start to voluntarily speak English instead of French. While such a transition would cause a significant cultural transformation, it would not necessarily cause the death of that culture. Taylor might respond to my second criticism in one of several ways. First, he might say that we sometimes have the obligation to promote the continuation of certain values and prac tices, even if doing so isnt essential to the survival of a culture. He might claim that some people define themselves by their commitment to the collective goal of promoting the survival of certain values and practices, while others define themselves by their individual goals and commitments. If we dont give people the tools
93 they need to act on these collective goals, then we give greater recognition to individuals who define themselves by individual goals than to people who define themselves by collective goals. Second, he might say that there are some cases in which the disappearance of certain values and practices would constitute the death of a culture, no matter how gradually that disappearance occurred. I will explain and respond to each of thes e worries in turn. Collective Goals vs. Individual Goals Taylor might respond to my criticism by claiming that there are compelling reasons to protect a specific set of values and practices, regardless of whether we call it culture. One reason that we should do this is because failing to allow public institutions to limit individual choices in service of continuing those values and practices undermines the autonomy of those who live by those v alues and practices. T he failure to follow Taylors suggesti on may give greater recognition and protection to individuals who chart out their own unique course in life than to those who want to do what it takes to ensure that there will continue to be individuals who wis h to carry on the traditions of their cul ture s as they exist at that time He claims that liberal neutrality is inhospitable to difference because it cant accommodate what the members of distinct societies real ly aspire to, which is survival (Taylor, 1994, p. 61). The real issue that Taylor may be concerned with, then, is that by protecting the individuals ability to pursue his own goals but failing to protect the collectives ability to pursue its goals, liberal governments fail to respect those individuals whose lives are largely defined by co llective goals. To see whether this worry has any force, it will be useful to examine more closely the notion of protection to determine whether governments committed to liberal neutrality do in fact offer better protection of individual goals than collect ive goals. Any
94 sufficiently detailed demands for protection must come in the following form. We should protect (person, group, or object) X from (danger) Y as imposed by (person, group, or object) Z. Knowing this information will help us to determine both whether Taylors demands are legitimate and whether he is correct in claiming that governments committed to liberal neutrality provide greater protection to individual goals than collective ones. Taylor claims that governments committed to liberal n eutrality are committed to protecting individuals from interferences in their ability to pursue their life plans as imposed by another person or group. He thinks that this sort of commitment prevents liberal governments from offering protection to collect ive goals, since offering such protection would involve limitations o n individual choices, which liberal governments are committed to protecting. Presumably, Taylors demand for the protection of collective goals would take the following form: we should protect som e groups (such as Qubcois citizens ) from the rejection of their values and practices by current or future generations of those groups A demand for the protection of collective goals taking this form would certainly violate the requirements o f liberal neutrality. However, the demand for the protection of collective goals could take on a different form. One might demand that we should protect people belonging to some groups (such as Qubcois citizens) from interferences in their ability to act on their collective goals by some other person or group. When the demand for the protection of collective goals takes on this form, it no longer violates the requirements of liberal neutrality. In fact, one might say the commitments of liberal governm ents would require them to meet this demand.
95 Will Kymlicka highlights the distinction between these sorts of demands when he points out the difference between the demand to destabilize internal dissent and the demand t o protect a group from the impact of e xternal decisions. He writes, Internal restrictions involve intra group relations the ethnic or national group may seek the use of state power to restrict the liberty of its own members in the name of group solidarity . External protections involve inter group relations that is, the ethnic or national group may seek to protect its distinct existence and identity by limiting the impact of the decisions of the larger society (Kymlicka, 1995, p. 36). To understand the difference between these demands, it may help to consider an example. In The Politics of Recognition, Taylor defends Qubcois law that requires francophones and immigrants to send their childre n to Frenchspe aking schools. T his regulation involves the use of state power to restrict the liberty of its own members and it works to preserve the practice of speaking French, which may not survive if individuals are allowed to send their children to whatever schools they want Hence, this way of protecting collective goals is inconsistent wit h liberal neutrality. However, there is another way to protect the collective goal of maintaining a French speaking community that would be perfectly consistent with liberal neutrality: one might suggest that francophone Qubcois citizens can demand the establishment of a French speaking school where numbers warrant, or that they should have the right to a trial conducted in French. The latter policies would protect the ability of individuals to pursue the collective goal of maintaining a French speaking community without forcing those practices on individuals who do not accept that collective goal. Recall that Taylor claims an adequate respect for individuals will respect the dialogical character of identity formation. We do not create our values and e nds from scratch and we do not choose which practices we want to engage in from thin air ;
96 rather, our individual features arise because of our acceptance, rejection, or modification of the values and practices we have been exposed to. In this sense, indi viduals are both self defining and culture bearing. Unfortunately, Taylors suggestion seems to focus too heavily on the culture beari ng aspect of our identities. If we acted on Taylors proposal to protect the p ractice of speaking French that defi ne s Qubcois culture during a specific point in time, we would be undermining the ability of individuals to modify or reject certain values and practices. In doing so, we would fail to provide due recognition to those who do not accept the values and practices (or who interpret them differently) that are being defended against the rejection of individuals. Sufficient Conditions for Cultural Survival Taylor might offer the following response to my criticism that using state authority to promote the surviva l of a static set of values and practices (such as the practice of speaking French) will fail to respect individuals as self defining because it will undermine the ability of individuals to modify or reject these practices. He might say that sometimes a continuity of values, characteris tics, and practices is not sufficient for cultural survival. While some changes can occur within a culture without the destruction of the culture, some cannot. For example, it seems that American culture may not survive if people ceased to value freedom and/or equality, even if this change occurred gradually. Some Aboriginal cultures may not survive if people cease to engage in similar hunting and fishing practices to those practiced by their ancestors, even if this change occurred gradually. There may be some values and practices that are so essential to some cultures that they would not survive the loss of those values and practices, no matter how gradually this occurs. It may be the case that speaking French is essen tial to the Qubcois culture in this way. Taylor might claim that if we do not
97 allow public institutions to limit some individual freedoms to achieve the collective goal of protecting certain cultural values and practices then we fail to offer members of these cultures the recognition they need. This worry has some force. It seems right to say that some values and practices are essential t o the survival of some cultures. I t also seems right that while some cultures may flourish in governments where the individual is the only entity that counts as a bearer of rights, other cultures will not survive. The dominant American culture, which is defined by individualism and self determination, will receive recognition and protection under this model. T he Qub cois culture, however, which is defined by practice of speaking French, will only receive recognition and protection under this model if individuals wish to continue speaking French. Taylor is concerned that if we always see individual freedoms as takin g priority over collective goals, then some cultures will not survive, and we will fail to give due recognition to some by failing to protect and respect their cultural traditions. Taylor suggests that we can avoid this problem and make sure to give due r ecognition to a wider range of cultures if we also see collectives as the bearers of rights, and if we do not always allow individual rights to trump collective rights. He further suggests that we can continue to provide adequate protection for and recogn ition of individuals by never allowing collective rights to trump fundamental individual rights. Taylor is right that some cultures may not survive if individuals are seen as the only bearers of rights. However, as you will see in the next section, some c ultures also will not survive if we see collectives as bearers of rights, even if those collective rights can never trump fundamental individual rights. After I have explained this problem I will
98 argue that, once we become aware of the way in which granti ng rights to collectives can prevent the survival of some (sub)cultures, we should reconsider Taylors suggestions for how to ensure recognition for both the culturebearing and self defining aspects of an individual s identity Because there is no cl ear way to ensure the protection of all cultures (even all cultures that respect fundamental individual rights), we should prefer courses of action that empower individuals to pursue collective goals to courses of action that empower collectives to force i ndividuals to act according to specific values and practices. Homogenization Taylors proposal has the potential to homogenize differences within a larger culture by undermining the power and legitimacy of subcultures and individuals. To see how follo wing Taylors suggestion might undermine the conditions under which some cultures might survive, consider some potential problems with the millet system and the way in which it can undermine the continuation of the values and practices of various sub cultu res. The millet system is a system in which some religious groups in the Ottoman Empire were given power to form their own distinct governments and rule themselves with minimal interference from the larger government of the Ottoman Empire. For example, t hese groups were allowed to set their own laws, collect their own taxes, and decide h ow to spend and distribute most of thier funds. Under the millet system in the Ottoman Empire, Orthodox Christians were all contained within the Millet i Rum, which c ons isted of Orthodox Christians belonging to many different nationalities with separate traditions and who spoke many different languages. Despite these cultural differences within the millet, its political structure was la rgely controlled by Greek Orthodox Christians (Clogg, 1982, p. 185) Such a millet
99 system might be created to protect the collective goals shared by a minority group (such as the Orthodox Christians) against the majority group in a nation or empire (such as the Muslims). However, it is im portant to remember that minority groups themselves are not necessarily homogenous, and that there can be minority groups within minority groups. The danger of allowing a minority group such as Orthodox Christians to create laws that protect their collective goals against the threat of individual choices is that such an activity involves defining the collective goals of Orthodox Christianity in a way that excludes alternative understandings of what it means to be an Orthodox Christian. Offering recogniti on for groups in this way can have some problems even if we dont give those collectives legal authority over the individuals within the group. To see how this is the case, and how this attempt to give people due recognition might impose misrecognition on some individuals, consider Kwame Anthony Appiahs claim that respect for people as members of groups comes with scripts that go with being a member of those groups. He writes, Demanding respect for people as blacks and as gays requires that there are some scripts that go with being an AfricanAmerican or having samesex desires. There will be proper ways of being black and gay, there will be expectations to be met, demands will be made. It is at this point that someone who takes autonomy seriously wil l ask whether we have not replaced one kind of tyranny with another . The politics of recognition requires that ones skin color, ones sexual body, should be acknowledged politically in ways that make it hard for those who want to treat their skin an d their sexual body as personal dimensions of the self. And personal means not secret, but not too tightly scripted. I think (and Taylor, I gather, does not) that the desire of some Qubcois to require people who are ethnically francophone to teach thei r children in French steps over a boundary. I believe (to pronounce on a Topic Taylor does not address) that this is, in some sense, the same boundary that is crossed by someone who demands that I organize my life around my race or sexuality (Appiah, 1994, p. 162 163) Appiah points out two dangers here with the demands associated with a politics of recognition. First, offering recognition for an individual as a member of a group comes
100 with expectations regarding what it means to be a member of that gr oup. This poses the danger of imposing the kind of misrecognition upon individuals that Taylor admits can be dangerous to autonomy. This is because such recognition is only afforded to individuals who fit the script that has been assigned to them as members of the group in question. Second, there is a further danger that comes with giving these groups political power to limit the choices of individuals, since doing so may serve as another way of preventing people from acting on alternative understandings of what it means to be a member of that group. Hence, following Taylors suggestion may actually have the homogenizing effect he is striving to avoid since it makes it difficult for individuals and members of sub cultures to act according to their own vi sions of what it means to be a member of the group in question. Taylor is right that we need to affirm the dialogical character of identity formation, but we need to do so in a way that does not impose misrecognition upon people by tying them to scripts over which they have too little authorial control. We also do not want to legally impose limitations on the freedoms of individuals so that they will not be able to act on their own understandings of what it means to be a member of the group in question. I f this is the case, how can we go about making sure that individuals get the respect they need in order to make authoritative choices? We need to be guided by the ideal of respecting difference rather than essentializing it, and by Kymlickas suggestion that we should use group differentiated rights to supplement individual rights rather than limit them (Kymlicka, 2002, pp. 340 341) In the next section, I will review some suggestions for how we might go about doing this.
101 My Suggestions I have already h inted at my alternative recommendations above, but it bears repeating now that we have seen how Taylors suggestion can actually cause the problems of domination, lack of recognition, and misrecognition that he is attempting to avoid. As stated above, the demand for the protection of collective goals such as the maintenance of certain cultural values and practices can take more than one form. Taylors demand for the protection of collective goals takes the following form: we should protect some groups (su ch as Qubcois citizens ) from the rejection of their values and practices by current or future generations of those groups (with the restriction that we cannot violate fundamental individual rights in the process). However, the demand for the protection of collective goals could take on a different form. One might demand that we should protect people belonging to some groups (such as Qubcois citizens ) from interferences in their ability to act on their collective goals by some other person or group. An example of the first type of demand for the protection of collective goals would be the demand for a law that requires francophones and immigrants to send their children to French speaking schools. This regulation involves the use of state power to res trict the liberty of its own members and it works to preserve practices that may not survive if we allow individuals to reject or modify those principles Hence, this way of protecting collective goals is inconsistent with liberal neutrality. An example of the second type of demand for the protection of collective goals, on the other hand, would be the demand for the establishment of a Frenchspeaking school where numbers warrant, or the demand for the right to a trial conducted in French. The latter pol icies would protect the ability of individuals to pursue
102 the collective goal of maintaining a French speaking community without forcing those practices on individuals who do not accept that collective goal. Kymlicka suggests that we can promote multicul turalism by empowering groups to protect the group from the impact of external decisions (e.g. the economic or political decisions of the larger society) without allowing them to destabilize the impact of internal dissent (e.g. the decision of individual members not to follow traditional practices or cus toms) (Kymlicka, 1995, p. 35). By following this suggestion, we can protect the ability of individuals to pursue collective goals without causing some of the problems of domination and misrecognition th at would result from following Taylors proposal. While it is true that some cultures will not survive under this model, their failure to survive will result from the diminishing commitment of individuals to the values and practices that define that cultu re. It is important to keep in mind, though, that Taylors suggestion does not offer us an alternative in which all cultures will survive, either. Some cultures will not survive under Taylors model; but under Taylors model, the failure of some cultures to survive may result from the domination of one cult ure over another (sub) culture. The latter result is worse even by Taylors own standards. Recall that Taylor claims governments should work to ensure recognition for individuals as both self defini ng and culture bearing. To do this, governments need to afford equal recognition to the variety of individuals and cultures under their rule. While protecting individual rights may result in the destruction of some cultures, it will allow most of the cultures individuals would voluntarily participate in to survive. It also allows cultures to develop as the individuals who compose them decide the existing values, ends, and practices need to be adapted or abandoned. Further, Kymlickas
103 proposal (unlike Taylors) allows those in a culture who lack political power to play a role in shaping the future of their cultures. Taylors proposal, on the other hand, will not always allow cultures to develop, since protecting cultures as distinct from individuals that make them up involves ensuring the continuation of static values and practices. Hence, Taylors proposal does not allow cultures to develop in the same way and does not give individuals who lack political power the same ability as Kymlickas proposal would to shape their cultures. It appears, then, that we would do a better job respecting individuals as both culturebearing and self defining if we follow Kymlickas proposal than if we follow Taylors proposal. While I think that Kymlickas model is superior to Taylor s, there is still a potential for problems of domination to exist under Kymlickas model unless we flesh it out a bit. There are no clear solutions to these problems, and they must be addressed on a caseby case basis. In the remainder of this chapter, I will outline the problems of domination that may exist under Kymlickas model (as it has been developed thus far) and gesture at some possible solutions. Unsolved Problems Recall my claim that Taylors demand for the protection of cultures takes the following form: we should protect some groups from the rejection of their values and practices by current or future generations within those groups. Kymlicka says that affording groups this kind of protection would give them the power to destabilize the impact of internal dissent. Kymlicka then argues that we should not give cultures this sort of power, since they can use it to violate individual rights. Instead, he suggests that we sho uld protect cultures from the impact of external decisions. In other words, we
104 should protect people belonging to some groups from interferences in their ability to act on their collective goals by some outside person or group. One unsolved problem with Kymlickas proposal is that domination can come in many forms, and following Kymlickas suggestion may not protect individuals belonging to minority cultures from all forms of domination. One form of domination, as we have already discussed, involves the use of legal authority to pressure or coerce a per son or group to act or refrain from acting in certain ways. However, what I will call economic power and cultural power (and the interaction between the two) can be just as effective as legal authority in forcing peopl e to behave in certain ways. Ec onomic power refers to the power an individual or group can gain from having a much larger share of material goods than another individual or group. By cultural power I mean the power a group can gain from having more members who support the values, en ds, practices, and institutions required for the cultures survival. Both economic power and cultural power can be used to dominate other individuals and groups. Such forms of domination can occur even if those holding that power have no intention of dom inating others. In this section, I will illustrate how unequal economic power and cultural power can undermine the ability of some individuals and collectives to pursue their goals. I will do this by first explaining how the free market often only affo rds freedom to the big players in that market. I will argue that, in a similar way, if we let the survival of cultural institutions merely depend on the support of individuals, we run the risk of giving members of majority cultures more power to preserv e their cultures than is afforded to members of minority cultures. As I discuss these problems, I will also gesture toward some possible solutions
105 As a model of what happens in the free market, consider Robert Nozicks famous Wilt Chamberlain case. Nozi ck begins his case by asking us to suppose that our preferred pattern of distribution of material goods obtains. Perhaps everyone has equal shares, or perhaps peoples shares vary to compensate some individuals for their natural disadvantages. He then wr ites, Now suppose that Wilt Chamberlain is greatly in demand by basketball teams, being a great attraction. (Also suppose contracts run only for a year, with players being free agents.) He signs the following sort of contract with a team: In each home ga me, twenty five cents from the price of each ticket of admission goes to him. (We ignore the question of whether he is gouging the owners, letting them look out for themselves.) The season starts, and people cheerfully attend his team s games; they buy their tickets, each time dropping a separate twenty five cents of their admission price into a special box with Chamberlains name on it. They are excited about seeing him play; it is worth the total admission price to them. Let us suppose that in one s eason one million persons attend his home games, and Wilt Chamberlain winds up with $250,000, a much larger sum than the average income and larger even than anyone else has (Nozick, 1974, p. 161) Nozick claims that the uneven distribution that results fr om people voluntary exchanging holdings to which they were entitled is just, and that it is unjust to redistribute holdings that have been acquired in this way. He stands by this view even though he is aware that people like Wilt Chamberlain are able to earn the money they do because they have skills that are in demand; and the fact that they have skills that are in demand is not only the result of hard work, it is also because they got lucky in the natural lottery. Some people, through no fault of thei r own, have physical and mental disabilities; others have physical and mental strengths that they did not earn and do not necessarily deserve. In addition, some people happen to have talents that allow them to earn a disproportionately high share of wealt h and other primary goods even if those high earning talents are not more intrinsically valuable than talents that do not give
106 individuals the same earning power. Because Wilt Chamberlain was lucky enough to have a skill that is in demand, he has more w ealth (which is a primary good) under the free market; and, all other things being equal, Wilt Chamberlain will have more freedom than others because he has more of a primary good ( wealth ) that he can use to help him live out his plan of the good life th an others do. This issue is further complicated if we consider how this process will continue over the generations. Individuals who are born from wealthy parents will have educational and monetary benefits that others will not have, and so they will have more power to pursue their goals than those who do not have the same benefits. Along with this economic power will also come cultural power. Recall my earlier claim that a cultures survival relies on a continuity of values, ends, practices, and institu tions. The continuity of values, ends, and practices that make up a culture can only survive if enough individuals remain committed to those traditions to pass them on to the next generations so they can incorporate those values, ends and practices into the frameworks of future individuals. The continuity of the institutions that help preserve these frameworks can only survive if enough individuals provide the financial support needed to maintain those institutions. A culture with a large number of members will not only have a better chance of maintaining the commitment of its own members, it will also have a stronger ability to recruit new members. Consider, for example, Christianity in the United States. Because there are so many Christians in the U. S., it is easier for Christianity as a culture to survive. Even if somebody who was previously a Christian later rejects the central values and practices of that culture, there are plenty of other Christians who can pass on those values, ends, and practic es so they become part of
107 future individuals frameworks. In addition, Christian institutions and practices are so prevalent in the U.S. that it is likely that those things will play a role in forming the frameworks of individuals belonging to minority gr oups. Examples like this indicate that cultures made up of a large number of wealthy individuals will flourish in the free market, while cultures made up of a small number of poor individuals will perish. The redistribution that occurs under the differ ence principle can make some pro gress toward taking care of the problem of domination that could result from economic power Because a Rawlsian distribution differs from the free market model represented in the Wilt Chamberlain case, the distribution of w ealth will not be as uneven as it is on Nozicks picture. This is because Rawls difference principle only allows for an uneven distribution of goods if it benefits the person who is least well off. Under such a distributive scheme, some of Wilt Chamberl ains money under most circumstances will be redistributed to those with fewer material goods. The distributive scheme called for by the difference principle will not however, complete ly solve the problem of domination resulting from cultural power If individuals are seen as the only bearers of rights, and if liberal governments must insist on uniform application of the rules defining these rights (Taylor, 1994, p. 60), then minority cultures will be at risk for domination resulting from cultural powe r held by majority cultures, even if this domination is unintentional. As Charles Taylor points out in Atomism, the continuity and stability of cultural institutions such as museums, schools, and printing presses requires the moral support of being com monly recognized as i mportant in addition to material support (Taylor, 1992, p. 45) Also, as I already discussed above, a culture can only survive if there are
108 enough adherents to pass the cultural traditions down to the next generation so those traditi ons are incorporated into their frameworks. Because of the fact that their populations are smaller, minority cultures are less equipped to provide the moral and material support required for the survival of these institutions and to incorporate the tradit ions of their cultures into the frameworks of future generations Even if individual members of these minority cultures are not financially disadvantaged as compared to individual members of the majority culture, their ability to offer the moral and finan cial support required for the stability and continuity of their cultural institutions is undermined by the fact that there are fewer people who belong to their culture and who are interested in offering such support. Further, because fewer people belong t o minority cultures it is harder for members of those cultures to embed the values, ends, and pract ices that define their cultures in as many aspects of life as majority members can. Therefore, even if members of those minority cultures can maintain some institutions, such as museums and churches, their children will likely receive more exposure through the dominant culture through education, the media, and other sources. I suspect that Taylor would argue that this is an example of why we should assign ri ghts to collectives. There may be situations in which members of a minority culture do not have the resources needed to sustain the multiplicity of institutions necessary for the survival of their cultures. In such cases, he might claim, we have the duty to violate the individua l rights of some to refrain from supporting such institutions in order to provide minorities with the resources they need to protect the survival of their culture from domination resulting from the economic and cultural power held by the majority. Taylor might claim that b y doing this, we would not be violating anyones
109 fundamental rights. While we would require individuals to provide financial support for institutions they may not value (hence violating the individual right to pr operty) we would be doing this in the service of promoting the more important right to recognition and protection from domination. This suggested course of action can be justified to a degree from the point of view of liberal neutrality, as well. To see how this is the case, let us imagine we are under Rawls veil of ignorance. We do not know our race, gender, class, or conception of the good. We also do not know whether we belong to a majority group or a minority group within the nation. What we do k now is that we want to make sure we have the greatest possible amount of primary goods (such as wealth political power, education) so that we can make sure we have the tools we need to live out our concept ion of the good life. Now recall what weve learned about the fact that, if left alone, minority cultures do not have the same power as majority cultures to provide the support needed to maintain their cultural institutions. For this reason, minority cultures are vulnerable to cultural domination fr om the majority culture. For many members of these minority cultures, the survival of their culture will be an important part of their vision of the good life. If we are under the veil of ignorance, we will be concerned with ensuring that members of thes e minority cultures will have t he same access to primary goods as members of majority cultures have. In some cases, simply belonging to a majority group can increase an individuals power to meet his goals, particularly when those goals involve promoting the continuity of certain cultural values and practices. For this reason, fairness may require us to compensate members of minority groups for the
110 inequalities in power that result from their smaller numbers by redistributing some material resources from the majority group to the minority groups in order to equip minority groups to sustain their cultural institutions. It seems, then, that differential treatment is not forbidden on the liberal picture after all, and that liberal theorists must sometimes interpret the uniform application of rules as giving special consideration to minority groups in order to maximize everyones access to primary goods. While this sort of redistribution between groups may be justifiable to some degree it is important to not e that it will not always be consistent with a Rawlsian system of distribution. For example, just as some individuals have expensive tastes that could only be satisfied if they have a disproportionately large share of primary goods, some groups might also have expensive tastes; and a Rawlsian system of distribution does not necessarily require us to give these persons or groups the larger amount of primary goods to satisfy those desires. There are no easy answers to the questions of when redistribution between groups should be required, and such decisions will likely have to be made on a caseby case basis. In making such decisions, we would have to consider what sort of primary goods are at stake and how we can weigh their value against one another. My solution involves granting rights to collectives in some sense, but it does not violate the requirements of liberal neutrality. This is because by granting rights to collectives in this way we are supplementing individual rights rather than violating them B y following my suggestion, we would be taking steps toward ensuring that members of both minority cultures and majority cultures have fair access to the primary goods they need to live according to their own visions of the good life.
111 While Kymlickas model may be able to address some of the problems involving cultural dominance of minority cultures by the majority culture, other potential problems arise that are not so easily solved by this model. Sometimes even if members of a minority culture value the survival of their culture, practical concerns move them to take actions that undermine the goal of ensuring the survival of their culture. This seems to be a concern in Qubec among other places. Even if Qubcois citizens value the practice of speaking French, some of them may do things that threaten that continued practice in hopes of making their businesses more profitable and giving their children greater opportunities. Because the Qubcois citizens make up a minority culture, and are surrounded by English speaking territories, they may think that running their businesses in English will make them more profitable, and that training their children to speak English will give them broader career and education opportunities. As some Qubcois citiz ens start moving in this direction, the pressure for other Qubcois citizens to do the same increases, as the number of opportunities for those who speak French may decline even within Qubec Even if most people in Qubec prefer to use French as their p rimary language, individuals may act in ways that undermine that collective goal in response to their awareness of the growing trend to speak English. Taylor may have problems like this in mind when he claims that collective rights should sometimes trump individual rights. He might agree that we should preserve the ability of individuals to reject or modify the values and practices of their cultures; and we should allow individuals to reject collective goals that they do not endorse. However, in order to provide due recognition for the culturebearing aspects of individuals identities, we should sometimes violate non fundamental individual rights in order to
112 prevent individuals from acting in ways that undermine the collective goals that they do actual ly endorse. Specifically, Taylor may think that we should allow public institutions to limit the rights of individuals to run their businesses in the language they prefer and to send their children to whatever schools they prefer in order to serve the col lective goal of maintaining a Frenchspeaking culture. Importantly, he may think this is justified because those whose individual rights are being limited are the same ones whose collective goals are being protected by those limitations on individual rights. If Taylors suggestion always involved limiting the individual rights of some in order to promote the ability of those same individuals to act on their coll ective goals, then it would be less problematic (though it may still run into problems of pate rnalism) However, this is not always the case. Taylors suggestion that it is permissible to use law to enforce the continuation of certain cultural practice always runs the danger of forcing people who reject those customs to continue to act according to them. Even if such laws can only be formed after a majority vote, these laws will still force people wh o reject those practices to follow them. This will result in problems of homogenizatio n I discussed above. While Taylors suggestions may not form an adequate solution to the problem, it is not clear that liberalism offers a good solution either. Under Taylors model, the protection of the values and practices that define a culture is likely to lead to problems of misrecognition and domination for s ubcultures. However, if we fail to follow Taylors suggestions, we may run into problems where those who are driven by individual goals are offered greater protection and recognition than those driven by collective goals. Recall that I said some people i n Qubec might be driven to run their businesses in
113 English because they think their businesses will be more profitable if they cater to Englishspeaking clients. Such people would be more motivated by the individual goal to make a profit than by the coll ective goal (which they may endorse) of maintaining the Frenchspeaking culture of Qubec By running their businesses in English, these Qubcois citizens would be limiting the opportunities for Frenchspeaking Qubcois citizens even within Qubec whic h would have the potential to begin a growing trend to rely on English. People may begin following this trend even if maintaining the Frenchspeaking culture had been a priority up to that point. This example is worrisome, because it seems to be another illustration of how the liberal conception of freedom might only afford freedom to the big players. Suppose one individualistic businessman in Qubec named Joe, driven by the individual goal of maximizing his profits, decides to run his ( very large) bu siness in English. T his may begin an increasing trend to speak English. Joes business may utilize the services of other (smaller) businesses in Qubec which may create pressure for those business owners to run their businesses in English. Such a trend would limit the freedom of other Qubcois citizens to continue to use French as their primary language because their career opportunities will diminish greatly unless they switch to English. While on Taylors picture we should be worried about how law c an be used to diminish peoples freedom, on the standard liberal picture it looks like we should be worried about how the actions of powerful individuals can diminish peoples freedom While there are no easy answers to this problem, it looks like there i s more hope for a remedy on the liberal model than on Taylors model. This is because the liberal model allows people to resist the limitations on their freedom created by these big
114 players in a way that Taylors model does not. On Taylors model, if f rancophone Qubcois citizens do not share the collective goal of maintaining a Frenchspeaking community, they are still legally required to do so. On the liberal model, however, if a reasonable number of Qubcois citizens share the collective goal of m aintaining a Frenchspeaking community, they can form a voluntary collective agreement to continue to follow the customs of their culture they care about. If there are enough people who care more about the collective goals of promoting the survival of cer tain cultural customs than individual rewards such as profit, then these people can agree to forego these individual rewards in order to promote the collective goals that they see as more important. Conclusion To sum up, in this chapter I discussed Charl es Taylors proposal for how we can provide due recognition to individuals as both self defining and culture bearing. I argued that his suggestion is flawed because it faces the same problems of homogenization and misrecognition that he is trying to avoid. I then discussed Will Kymlickas suggestion for how we can protect minority cultures from domination by majority cultures. I argued that Kymlickas model not only helps prevent the majority group from using law to dominate minority groups, it also helps prevent some forms of economic domination of minority groups by the majority group. By allowing redistribution of material goods to occur between groups, as well as between individuals, we would be using group differentiated rights to supplement individual rights rather than to limit them. We would also be protecting minority groups from the impact of decisions made by the majority culture without giving them the power to oppress members of their group by destabilizing internal dissent.
115 Finally, I disc ussed how the liberal model still faces some potential for the majority group to dominate the minority group even after we allow redistribution to occur between groups. I explained how people can sometimes act in ways that undermine collective goals that they actually accept. While this is in fact a serious problem on the liberal account, I argued that the liberal model offers more hope for a solution to the problems of domination than Taylors model does.
116 CHAPTER 5 LIBERAL NEUTRALITY A ND PROBLEMS OF DOM INATION In the previous two chapters, I discussed two forms of the objection that liberal neutrality undermines the kind of social structure that allows individuals to act autonomously. According to both of these objections, the ability to make qualitativ e decisions about what is worth valuing is an important part of what we value about autonomy; therefore, undermining a social structure that gives individuals the tools to make these qualitative assessments undermines an important part of our ability to ac t autonomously. In chapter three, I discussed the objection that liberal neutrality undermines the ability of a community to maintain the shared values that can provide individuals with the frameworks they need to make qualitative assessments. In chapter four, I discussed the objection that the liberal priority of the right over the good prevents communities from ensuring that individuals gain the social confirmation they need to make authoritative choices. I argued that both of these objections fail. In this chapter, I will discuss one more form of the objection that the liberal commitment to the moral priority of the right over the good undermines the kind of social structure that allows individuals to act autonomously. This objection proceeds along di fferent lines than the ones I discussed in chapters three and four though, in that it does not argue that liberal governments fail to provide citizens with the resources they need to make decisions about what is worth valuing. Instead, it argues liberal governments fail to respect some decisions as worthy of protection, and so they fail to allow all citizens to act according to their vision of what is worth valuing. According to this objection, the liberal attempt to be neutral between accounts of the good inevitably fails, and results in unjust domination over groups who do not accept the liberal vision of
117 the good life. These theorists claim that it is an illusion to think that law can be made from a neutral standpoint, and the attempt to make laws that are not based on a substantive concept of the good affords greater freedom and power to some individuals than others. Marilyn Friedman, for example, examines Rawls argument that liberal governments are legitimate because all reasonable and rational persons reasoning under certain constraints would agree to its exercise. She argues that this argument for liberalism is question begging, since it excludes from the legitimation pool those who do not already agree to liberal principles and justifies the domination of those who do not share liberal values. She concludes that liberalism is simply one political doctrine among many and has no greater politically independent claim to anyones allegiance than its political rivals (Friedman, 2003, p. 178). While Friedman agrees with the liberal principles, she claims her allegiance results from the fact that she reasons from the same historical standpoint as Rawls and because she thinks liberal principles are morally superior to the political principles of other political theories. However, she does not think Rawls succeeds in justifying liberalism from a politically neutral standpoint. Other theorists, such as Roberto Unger, argue that unless governments are guided by a substantive concept of the good, they will make arbitrary laws, which will provide unjust advantages for some groups of people. He claims that the goal of liberal governments is to create and maintain freedom and order among it s citizens. He claims that nevertheless, the liberal commitment to neutrality does not allow liberal governments to impersonally make and apply laws. He claims that the liberal commitment to maximum and equal freedom is too vague to give us substantial
118 guidance on what laws to make and how to apply them; and when we attempt to make concrete laws and apply them in concrete cases, we will inevitably prefer some values to others (Unger, 1975, p. 85) Some feminist philosophers offer worries similar to Ungers regarding how problems of domination can occur in liberal go vernments. Iris Marion Young, for example, claims that the liberal ideal of impartiality and universality excludes from the public those individuals and groups that do not fit the model of the rational citizen who can transcend body and sentiment (Young 1986, p. 66). Seyla Benhabib echoes this worry, arguing that the universalistic form of reasoning utilized to prove liberal theories and apply liberal principles in concrete cases fails to take the experience of women into account (Benhabib, 1986, pp. 77 95) By doing this, liberal governments fail to meet the needs of its female citizens and allows for continued domination of men over women. These theorists worry that by limiting themselves to the use of (presumed) universal and impartial principl es, liberal governments consistently fail to promote substantive equality, which provides unjust advantages for some groups of people (such as those whose values and ends are better represented in the universal other). In this chapter, I will explain an d evaluate each of these objections in turn. Marilyn Friedmans Argument Friedman argues that Rawls argument for liberalism in Political Liberalism is question begging, since it excludes from the legitimation pool those who do not already agree to lib eral principles and supports the domination of those who do not accept liberal values. She concludes that liberalism, like other political theories, is not justified by politically neutral principles, but is justified from a moral and political standpoint contained within a particular historic tradition (Friedman, 2003, pp. 163 178)
119 In this section, I will first briefly summarize the portion of Rawls argument that Friedman is responding to. Next, I will explain why Friedman thinks Rawls begs the questi on in this argument. Finally, I will evaluate Friedmans response to Rawls argument. Rawls Argument In Political Liberalism John Rawls claims that a states use of coercion is only justifiable when it is exercised in accordance with a constitution th e essentials of which all citizens may reasonably be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational. This is the liberal principle of legitimacy (Rawls, 1993, p. 217). Friedman (2003) suggests that to get a more concrete idea of how this principle works, it may help to imagine a group of reasonable and rational persons who make up Rawls legitimation pool. According to Rawls, a government is only legitimate if everyone belonging to the legit imation pool would consent to the constitutional essentials of that government. Rawls defines rational persons as persons who can choose and order their ends in accordance with their life plans and who can choose and act on effective means to their chose n ends (Rawls, 1993, pp. 50 51) Before defining the two basic aspects of reasonable persons, it is important to note that Rawls assumes reasonable persons will affirm that all individuals are free and equal, and that they will not exclude anyone from t he pool of individuals with wh om they strive to achieve fair terms of cooperation (Rawls, 1993, p. 50) He defines the two basic aspects of reasonable persons as persons who possess (a) the willingness to propose fair terms of cooperation and to abide by them provided others do, and (b) the willingness to recognize the burdens of judgment and to accept their consequences for the use of public reason in directing the legitimate exercise of political power in a constitutional regime (Rawls, 1993, p. 54).
120 Rawls spells out the second aspect of reasonable persons as follows. He claims that recognizing the burdens of judgment and accepting their consequences for the use of public reason involves an admission that not all disagreements about what the good l ife involves are rooted in ignorance or negligence. He claims that reasonable persons will thus accept the fact of reasonable pluralism and that it is not possible to prove the superiority of one comprehensive view once and for all. Rawls cites many reas ons for why he thinks this is the case, such as the complexity of the evidence we must work with, the difficulty of identifying and weighing the relevanc e of various considerations, the variability and finitude of our experience, and the variability of the norms and values we use in making our judgments (Rawls, 1993, pp. 56 57) For these reasons Rawls concludes that many of our most important judgments are made under conditions where it is not to be expected that conscientious persons with full powers of reason, even after free discussion, will al l arrive at the same conclusion (Rawls, 1993, p. 58). According to Rawls, a government is justified in using coercive power against its citizens as long as all reasonable and rational persons, reasoning under certain constraints, w ould approve of the use of the constitutional essentials that specify when such coercion is permissible It is important to note that someones acceptance of a particular comprehensive doctrine will not prevent them from belonging to the legitimation pool unless their allegiance to that comprehensive doctrine prevents them from counting as reasonable or rational. Someone committed to any comprehensive doctrine can belong to the legitimation pool, as long as he or she possesses the qu alities of reasonableness and rationality as defined above.
121 Friedmans Critique To demonstrate that liberal governments are legitimate, Rawls relies on his principle of legitimation; that is, Rawls argues that liberal governments are legitimate because al l reasonable and rational persons would consent to the rules regulating the use of political coercion under liberalism. Friedman worries that this argument for liberalism is question begging because Rawls excludes from the legitimation pool all people who do not already accept liberal principles. She writes, In Rawlss view, the legitimacy of a political system is sufficiently established even if it is endorsed by only the reasonable and rational among its citizens. Reasonableness, however, is defined in terms of the very values and assumptions from which Rawls derives his political liberalism. Yet, how satisfactory or meaningful is the consent of a citizenry if the process of representing or obtaining consent excludes the opinions of those persons who, because they start with nonliberal attitudes, are the very ones who might vote no? By excluding from the legitimation pool exactly those persons who do not accept the political values and basic tenets on which Rawls grounds political liberalism, Rawls r igs the election in advance (Friedman, 2003, p. 169) In other words, Friedman is concerned that the method Rawls uses to determine whether a government is legitimate is not politically neutral. Rather, because it only takes into account the opinions of those who already accept liberal principles, Rawls procedure for deciding whether a government is legitimate will result in the endorsement of governments that afford greater political autonomy to those who share liberal values than those who do not. Let us now consider why Friedman might think that Rawls reasonableness and rationality criteria exclude from the legitimation pool those who reject liberal principles. When Friedman makes this argument, she focuses primarily on Rawls reasonableness criterio n. Recall th at Rawls defines the two basic aspects of reasonable persons as follows: they possess (a) the willingness to propose fair terms of cooperation and to
122 abide by them provided others do, and (b) the willingness to recognize the burdens of judg ment and to accept their consequences for the use of public reason in directing the legitimate exercise of political power in a constitutional regime (Rawls, 1993, p. 54). Friedman seems to have worries about all of these features of reasonableness. Let us first consider who Friedman thinks the first aspect of the reasonableness criterion (which requires seeking fair terms of cooperation and obeying the rules specified in those terms ) might exclude from the legitimation pool. She claims that this aspect of reasonableness clearly excludes people who seek terms of cooperation that give some people undeserved advantages and other people undeserved burdens. Friedman agrees that this feature of reasonableness seems at first glance to be compatible with nonli beral comprehensive doctrines. However, spelling out this aspect of reasonableness in sufficient detail to give us guidance seems to require utilizing the values and beliefs that would be rejected by those who do not already accept liberal values. Friedm an writes, Few people would admit that they wanted social systems that gave them unfair or undeserved advantages. Most people would characterize the terms of social cooperation they seek as fair. Most of the people who believe that women should be subordinated to men either believe that men are smarter and stronger than women and therefore deserve to rule, or they believe that the traditional female social roles that many of us regard as socially subordinated to mens traditional social roles are equally va lued within these traditions and not subordinated at all. When I describe these views as aiming at womens (undeserved) subordination, I am using my terms, not those of their exponents. Thus, the terms of social cooperation that I regard as inegalitari an or hierarchical might well seem, to some other persons, as quite fair indeed (Friedman, 2003, pp. 175 176) Friedman argues Rawls claim that we should exclude those who are unwilling to seek and abide by fair terms of cooperation does not give us enou gh information to guide our decisions about who should be included or excluded from the legitimation pool. She
123 claims that Rawls must also specify what counts as fair terms of cooperation; he must specify what counts as undeserved advantages or burdens so we can determine who is attempting to propose terms of cooperation that give some people undeserved benefits or burdens. This is where Friedman thinks the first aspect of Rawls reasonableness criterion runs into problems. She thinks it relies on an int erpretation of what counts as fair terms of cooperation that excludes those who do not already accept the liberal notion of equality. For example, Rawls wishes to eliminate those who insist on subordinating women to men on the grounds that they are unwill ing to seek and abide by fair terms of cooperation. Such exclusion however, can only be justified if we base our notion of fair cooperation on the liberal notion of equality, Friedman thinks. Let us now consider who Friedman thinks the second aspect of t he reasonableness criterion might exclude from the legitimation pool. Recall that Rawls claims recognizing the burdens of judgment and accepting their consequences for the use of public reason involves an admission that n ot all disagreements about the good life are rooted in ignorance or negligence. He claims that reasonable persons will thus accept the fact of reasonable pluralism and that it is not always possible to prove the superiority of one comprehensive view once and for all. Friedman points out that not everyone meets this qualification. Some people think, for example, that there is one true faith and that a government should use its political power to force individuals to take on the values and practices associated with that faith (Friedman, 20 03, p. 168) Hence, Friedman thinks that this aspect of the reasonableness criterion will only include
124 those who hold comprehensive doctrines that already include liberal values of inclusion and acceptance of pluralism Finally, Friedman claims that the i dea of all individuals as free and equal is a liberal value, and so by excluding those who reject these values from the legitimation pool, Rawls already rigs the election in favor of liberalism. Many people who reject liberal values wish to subordinate women, certain religious groups, and certain racial groups. Friedman concludes, Thus Rawlss legitimation pool for political liberalism is defined precisely i n such a way as to exclude those whose prior (illiberal) commitments would lead them to reject pol itical liberalism (Friedman, 2003, p. 175). This is because reasonable persons are defined by their acceptance of liberal ideas and attitudes, such as the belief that individuals are free and equal, the desire to propose and act on fair terms of cooperat ion ( according to the notion of fair cooperation Rawls relies on in Political Liberalism ), and the belief that people can have disagreements in values and attitudes that do not simply arise from ignorance or selfishness. My Response to Friedman In this section, I will show that the reasonableness criterion will not exclude those who do not already have liberal values without a principled, politically neutral reason for doing so. I will do this by explaining how Rawls criteria for reasonableness arise f rom the image of people as free and equal citizens which is compatible with many comprehensive views of the good and not only with those that spell out the notions of fairness and deservedness in liberal terms Rawls political conception of the person i s distinct from a moral conception of the person that would be connected with a particular comprehensive view, and so it can include some who do not already have liberal values. Also, it is possible to apply Rawls reasonableness criteria to reasons rathe r
125 than persons In other words, we do not necessarily need to exclude those with unreasonable views from political debate. Instead, we can claim that a persons veto will only count if he can justify his veto within parameters set up for public debate. Any political argument that r elies on the rejection of the freedom and equality of people or on the rejection of the possibility of reasonable pluralism will be inadmissible in public debate and as justifi cation for political decisions. If we use Rawls r easonableness criteria in this way, they will merely prevent individuals from using their comprehensive views to specify terms of cooperation that do not require everyones consent. This approach would only allow for the coercion of unreasonable people in order to prevent the unreasonable from coercing others; it will not allow for the coercion of unreasonable people beyond what is necessary to prevent them from dominating others. I will elaborate on each of these objections in turn. To see why the conc eption of people as free and equal is compatible with many comprehensive views of the good and not only those that spell out the notions of fairness and deservedness in liberal terms, consider the following argument offered by Ronald Dworkin. Dworkins ar gues that the right to equal respect and concern en tailed by the image of people as free and equal is a very general right, and can be spelled out in a number of different ways depending on what comprehensive theory of the good one accepts. Dworkin writes Someone might argue, for example, that it is satisfied by political arrangements that provide equal opportunity for office and position on the basis of merit. Someone else might argue, to the contra ry, that it is satisfied only by a system that guarante es absolute equality of income and status, without regard to merit. A third man might argue that equal concern and respect is provided by that system, whatever it is, that improves the average welfare of all citizens counting the wel fare of each on the sa me scale (Dworkin 1978a p. 180)
126 The original position (and, I think Dworkin would say, the overlapping consensus of reasonable persons) should be seen as a method for evaluating these competing ways of spelling out the abstract right to equal concern an d respect (Dworkin, 1978a pp. 180 181). If we view Rawls reasonableness criterion in this way, people are not excluded from the legitimation pool because they spell out the notion of equal concern and respect differently from classical liberals; indeed, many of the reasonable views cited above are non liberal views. Rather, people are only excluded from the legitimation pool if they altogether reject the notion of equal concern and respect expressed by the imperative to give everyone bargaining power wh en formulating the principles of justice. Friedman might respond to this argument as follows. Even if the reasonableness criterion does not exclude all non liberal comprehensive views of the good, it certainly excludes some. Rawls, in fact, affirms that this is the case. Rawls writes, We can imagine a society (history offers many examples) in which basic rights and recognized claims depend on religious affiliation and social class. Such a society has a different political conception of the person. It lacks a conception of equal citizenship, for this conception goes with that of a democratic society of free and equal citizens (Rawls, 1993, p. 30). Hence, without some way of narrowing whose consent is relevant, it would be impossible to even gain hypot hetical consent for the use of political force from everyone. Let us call those who reject the conception of equ al citizenship and wish to exclude people who belong to a certain religion, race, gender, or class dominators and those who might belong to the subordinated groups the subordinated. In order to gain
127 hypothetical consent from dominators, a government would have to allow the domination of the subordinated to take place, which the subordinated groups would not consent to. However, in order to gain hypothetical consent from the subordinated, a government would have to prevent the dominators from subordinating them, which the dominators would not consent to. To address this problem, Rawls claims that legitimacy only requires the (hypothetical) consent of people who (a) accept that people can reasonably disagree about matters of religion, morality, and philosophy, and (b) seek fair terms of cooperation with others who are willing to do the same. By adding this proviso, Rawls avoids problems such as the one illustrated above, but at the cost of excluding some people from the legitimation pool. Even if Rawls legitimation pool includes people who accept a wide range of comprehensive theories, some of which are non liberal, Friedman would argue th at his argument is still questionbegging, since it uses a principle that is not politically neutral to exclude some people from the legitimation pool. She writes, If Rawls is not to engage in serious questionbegging, he needs a conception of reasonablen ess that is politically neutral, one that is not defined in terms of the politically li beral values he seeks to defend (Friedman, 2003, p. 175). Even if she is wrong to claim that the value of freedom and equality only accommodate liberals, she is right that not all comprehensive views are compatible with the value of freedom and equality. Rawls attempts to spell out what fair terms of cooperation involve by stating that they require citizens to recognize everyone, regardless of their race, gender, class or comprehensive views, as having equal st atus. Friedman claims that this does not work
128 as an Archimedean starting point for establishing political legitimacy because it is politically loaded with values of tolerance that not everybody accepts. Many r eligious conservatives for example, would argue that the best way of promoting equal respect and concern is to ensure that everyone lives according to the religious virtues as outlined by a particular religion, hence ensuring that everyone goes to heaven. By requiring that all reasonable persons must consent to a political arrangement, Rawls rules out systems such as this one, since those who do not belong to this religion (who could be wrong about what is best for them) would not consent to a political arrangement that forced them to act according to these religious virtues. Those who spell out the principle of equal respect and concern in this way are excluded from Rawls legitimation pool based on Rawls notion of inclusion, which Friedman claims is no t a politically neutral value. While the overlapping consensus requirement rules out political arrangements such as the one outlined above, it is not clear that this move relies on a politically loaded notion of fairness and deservedness As stated above, while there seems to be a wide agreement that the principle of freedom and equality requires treating everyone fairly, the notion of fairness is not concrete enough to offer us guidance in forming political institutions and arrangements, and so we need s ome way to test the various notions of fairness. In a pluralistic society, it does not make sense to use a particular comprehensive view to test various conceptions of fairness because there is no clear way to determine which comprehensive theory we shoul d use to do this. Fairness therefore requires a decision procedure that does not allow a particular comprehensive theory to dominate public debate.
129 While most people would prefer using their own comprehensive view to test the various notions of fairness, it seems likely that everyone would prefer using the overlapping consensus requirement or the original position to test notions of fairness to using another persons comprehensive view. To clarify, suppose person P1 adheres to comprehensive view A and per son P2 adheres to comprehensive view B. Perhaps neither of these comprehensive views endorse the liberal values of freedom and self determination. Both P1 and P2 want the creation and application of the laws of their government to be guided by the valu es of their own comprehensive view. P1 would justify his view that the government should be guided by the values associated with view A by referring back to the values of view A; and P2 would justify his view that the government should be guided by the va lues associated with view B by referring back to the values of view B. Neither P1 or P2 would agree to use the other persons comprehensive view to test which conception of fairness and equality is best. Both would think it is unfair to use the values as sociated with another comprehensive view to justify the use of that comprehensive view in creating and applying laws. It seems that in a case like this one, both P1 and P2 seem to accept the following principle: Unless he can justify the creation and appl ication of laws in my terms, it is unfair for him to impose those laws on me. Even if comprehensive views A and B do not include the values of freedom and self determination, it would make sense for P1 and P2 to endorse a political system that gives indiv iduals such freedom, since that system best allows them to live out the values associated with their comprehensive view. Friedman might object to this reply in another way, by claiming that Rawls exclusion of unreasonable people from the legitimation pool illustrates that he does not
130 recognize everyone as worthy of equal respect and concern. She could claim that this exclusion of unreasonable people from the legitimation pool implies that he thinks unreasonable people, at least, are not worthy of equal r espect and concern. Since their consent to the political system is not relevant, it is possible that we could end up with a system that denies these people some of the basic rights and liberties that other citizens enjoy, such as freedom of speech. She w rites, In a footnote that is crucial for our purposes, [Rawls] suggests that the way to treat unreasonable doctrines is to contain them like war and diseaseso that they do not overturn political justice (Friedman, 2003, p. 169). She claims that one ca n only contain a doctrine by regulating and controlling the media in which it is expressed and promulgatedbooks, magazines, cyberspace, and so on. More significant, it requires suppressing those who hold the doctrine, in particular, suppressing their ex pression and/or enactment of it (Friedman, 2003, pp. 169 170). If Rawls procedure had the implication that some individuals did not deserve equal consideration and concern, it would indeed be problematic. However, it is not clear that this is the case. The footnote in q uestion suggest s that the right to freedom of speech should not include the right to use that speech to domin ate others; it does not suggest that we altogether deny the right to freedom of speech to unreasonable persons. When we interpret Rawls claim in this way, the conditions of equal respect and concern are met because the right to freedom of speech is specified in the same way for both reasonable and unreasonable persons neither has the right to use speech to dominate others.
131 Rober to Ungers Argument Roberto Unger claims that liberal governments strive to create order through the creation and application of laws that will not provide unfair advantages or burdens for any of its citizens. In particular, Rawls wishes to come up with a system that will ensure that all reasonable people, regardless of which comprehensive view they accept, have access to the primary goods they need in order to act on their vision of the good life. Unger claims that Rawls attempts to do this by creating a procedure that will allow us to formulate l aws without basing those laws on particular values. Unger argues, however, that any attempt to form and impersonally apply laws without being guided by values will fail for two reasons. First, no procedure that is concrete enough to provide us with legislation would gain the consent of all citizens because it would inevitably result in legislation that gave some individuals advantages over others (Unger, 1975, pp. 83 88). This worry is similar to Freidmans wor ry as outlined above. Second, even if it were possible to formulate impersonal laws that did not in theory give anybody advantages over others, it is not possible to impersonally apply laws, since the interpretation and application of laws cannot occur wi thout reference to some set of values (Unger, 1975, pp. 88 100) Unger thinks the general problem with Rawls procedure, then, is that he bases it on an incoherent account of the relationship between rules and values. In this section, I will explain this argument in more detail. I will argue that Unger is mistaken in thinking that Rawls attempted to create a procedure that does not base the creation and application of laws on any values whatsoever. Rather, Rawls procedure is based on the principle of eq ual respect and concern for all citizens. This value is reflected in a procedure that can gain consent from all citizens and that can provide us with legislation that treats people as equals. Further, it is not clear that we
132 need a more detailed and less widely accepted set of values in order to create and apply laws. Unger argues that liberalism has the goal of creating freedom and order among citizens in its government, but that liberalisms understanding of the relationship between rules and values in social life prevents it from being able to meet this goal. Unger claims that liberalism is partially defined by its commitment to the following three principles: (1) the contrast between rules and values, (2) the view of values as subjective, and (3) the view that the characteristics of a group are reducible to the qualities of its individual members. To clarify the first principle, Unger claims that in liberal governments rules are created to maintain freedom and order in a society that is defined by hostility (as opposed to shared values) between individuals who seek to fulfill their individual desires (Unger, 1975, p. 67) Because liberal governments create rules in order to protect the ability of all individuals to act on thei r ends and to make their own choices about what is worth valuing, they try to specify rules in a way that does not depend on any particular set of values In other words, Unger claims liberals accept the first principle specified above (which contrasts rules and values) because they wish to maintain freedom and order among a group of people who hold different (and sometimes conflicting) values. According to the second principle, there is no objective truth about what is valuable; values are determined by choice rather than by s tandards that exist apart from the choices made by individuals (Unger, 1975, pp. 76 81) According to the third principle, the group must never be viewed as a source of values in its own right. Within the group there will be a greater or lesser sharing of values. But this sharing will be
133 contingent and subjective Typically, there will be no single set of shared ends, but only varying coalitions of int erests among particular members (Unger, 1975, p. 82). In other words, the third principle states that we should not view groups as sources of shared values, but instead merely as a collection of individ uals who use the group as a means to satisfying some of their ends. According to Unger, this view of society leads liberals to decide that a governme nts primary job is to address the problems of freedom and order. Because societies are defined by mutual hostility between individuals rather than by shared values among the group, a government needs to create laws that prevent some individuals from harm ing others in the service of promoting their own desires (Unger, 1975, p. 66) However, when liberal governments create the laws needed to maintain order, they run into the problem of promoting equal freedom for all of their citizens. Unger claims that, whatever restraints are established to ensure order will benefit the purposes of some individuals m ore than those of their fellows (Unger, 1975, pp. 66 67). Further, because liberals are committed to viewing values as subjective, and because they believ e that any sharing of values within a group is arbitrary, any choice of rules and restraints will be arbitrary (Unger, 1975, p. 67) Unger thinks liberals are committed to viewing values as subjective because he thinks if they viewed values as objective, they would make those objective values the foundation of their social order (Unger, 1975, p. 76). Unger claims that liberals attempt to solve this problem of freedom and order by creating laws that do not arbitrarily prefer one persons liberty over anothe r they do this by trying to create impersonal laws and apply them impersonally. He claims that
134 liberals attempt to create and apply such laws by assuming that individuals are the bearers of rights, and by using rules to equally protect the basic rights of all individuals (Unger, 1975, p. 71) Unger claims that liberals might try to accomplish this in one of two ways. First, they might claim that individuals have certain natural rights simply in virtue of being human or having certain capacities. They might then make rules that require all citizens to respect the natural rights of all other citizens, whether or not they recognize that all citizens hold these natural rights (Unger, 1975, p. 71) Second, he Unger says liberals might claim that we assign cer tain rights to all individuals as a convention with the aim of ensuring everyones mutual advantage (Unger, 1975, p. 85) Unger claims that the first solution for creating and applying impersonal laws (the natural rights approach) is problematic because it relies on the truth of the doctrine of intelligible essences, which liberals are committed to reject ing According to the doctrine of intelligible essences, we can understand the world by observing that objects or events have certain features that define them; we are then able to identify those objects and events as belonging to certain categories, or as being particular instances of some universal category. Unger thinks that if liberals accepted the doctrine of intelligible essences, at least as applied to values, then they would use those as the foundation of a social order rather than equally protecting everyones ability to act on their own values. Unger argues that if there are no intelligible essences, then we lack the criteria we need for determi ning which natural rights we have and what features one has to have in order to have those natural rights. In addition, he claims that if the doctrine of intelligible essences is false, then there is no definite way to classify objects and events;
135 rather, the classifications of objects and events will depend upon the theory used for classifying them. Further, if the doctrine of intelligible essences is false then there will be no way to determine which theory does a better job of classifying a state of af fairs, since there will be no objective criteria for making that judgment (Unger, 1975, p. 32) This is problematic for liberals when attempting to create and apply impersonal laws, since it follows from this that there are no obvious criteria for defini ng general categories of acts and persons when we make the rules and there are no clear standards by which to classify the particular instances under rules when we come to the stage of applying the rules we have made (Unger, 1975, p. 80). He concludes that the rejection of the doctrine of intelligible essences prevents us from being able to use natural rights as a basis for creating laws. Further, he claims that even if we were able to create laws from an impersonal standpoint, the rejection of the doc trine of intelligible essences (combined with the rejection of groups as the source of values) prevents us from being able to apply laws impersonally. Unger claims that a liberal theorist might try to address this problem by using the second strategy for c reating and applying laws from an impersonal standpoint: they might claim that we can assign certain rights to all individuals as a convention with the aim of ensuring everyones mutual advantage. This strategy assumes that there exists some procedure for lawmaking on the basis of the combination of private ends, to which procedure all individuals might subscribe in self interest. Self interest means the intelligent understanding of what we need in order to achieve our own individual and subjective goals (Unger, 1975, pp. 85 86). If it is possible to use this strategy successfully, it has the advantage of being consistent with the rejection of the doctrine
1 36 of intelligible essences, since everyone could subscribe to such a procedure from the point of view of their own comprehensive theories and values. Unger claims that it is not possible to use this strategy successfully, however, because no procedure that is concrete enough to provide us with legislation would gain the consent of all citizens (Unger, 1975, p. 87) Unger concludes that liberalism cannot solve the problems of freedom and order within their societies. In order to solve the problem of order, they must create laws that will give more freedom to some individuals than others (hence causing a problem of domination). In order to solve the problem of freedom, they must avoid creating the laws needed to maintain order in society. My Response to Unger Once again, Unger thinks Rawls procedure either (a) avoids appealing to shared values or (b) appeals to shared values when making and applying laws. Unger complains that the first option is problematic because it fails to yield legislation and hence it does not solve the problem of freedom and order. He claims the second option, on the other hand, goes against the liberal view that a group cannot be considered the source of values, and that any shared values will be contingent and may change at any time. In this section, I will argue that Rawls method appeals to the shared values of fairness and of equal respect and concern in its formulation, and that appealing to this shared value does not necessarily violate any of the commitments associated with liberal theory I will then argue that once Rawls method is formulated in this way, it does in fa ct provide the hypothetical participants to the bargaining that transpires from the original position with the standards they need to formulate the laws that make up the basic structure of society.
137 The Value of Equal Respect and Concern as Underlying Raw ls Theory Rawls original position and his overlapping consensus requirement are based on the value of equal respect and concern, the acceptance of which, as Dworkin puts it, is a condition of adm ission to the original position (Dworkin, 1978a p. 181) Rawls claims that the conditions that exist in his interpretation of the original position are based on judgments we make in reflective equilibrium and that we, upon reflection, actually accept. He writes, [T]he conditions embodied in the description of the original position are ones that we do in fact accept. Or if we do not, then perhaps we can be persuaded to do so by philosophical reflection. Each aspect of the contractual situation can be given supporting grounds. Thus what we shall do is to col lect together into one conception a number of conditions on principles that we are ready upon due consideration to recognize as reasonable. These constraints express what we are prepared to regard as limits on fair terms of social cooperation (Rawls, 1971, p. 587) It is not entirely clear who Rawls is referring to when he says that we accept the conditions present in his interpretation of the original position. Ronald Dworkin points out that this claim might be interpreted in a couple of different ways According to the more narrow interpretation, we refers to a particular range of societies that comprise the audience for his book. According to the more wide interpretation, we refers to all humans in virtue of their neural structure and the ways i n which they naturally think about morality (Dworkin, 1978a p. 158) I suspect that while Rawls intends to use the more narrow interpretation of we, perhaps we should accept his above claims even if he intended to use we in the broader sense. I will first address the narrow interpretation.
138 The Narrow Interpretation of We Recall that Rawls claims we arrive at the moral principles that underlie his description of the initial situation by engaging in a process of reflective equilibrium until our princ iples and judgments coincide. When Rawls first introduces this idea, he introduces it as a group project rather than merely an individual project. Individuals in a specific society are supposed to start out with generally shared and preferably weak cond itions and work from there until they arrive at a reflective equilibrium between their principles and judgments (Rawls, 1971, p. 20) He then claims that this equilibrium is not necessarily stable. It is liable to be upset by further examination of the conditions which should be imposed on the contractual situation and by particular cases which may lead us to revise our judgments. Yet for the time being we have done what we can to render coherent and to justify our convictions of social justice (Rawls, 1971, pp. 20 21) Since society as a whole is supposed to arrive at the principles underlying the description of the initial position, it looks like those principles will depend on the principles and judgments generally accepted by those in the society utilizing the process of reflective equilibrium. These principles and judgments will likely depend on the knowledge and experiences that members of the society have, and may change as they have new knowledge and experiences. In our society, our reflective equilibrium yields the principle of equal respect and concern that underlies Rawls description of the original position. Unger claims that Rawls procedure for formulating just laws cannot appeal to shared values, since liberals are committed to the view that a group cannot be considered the source of values, and that any shared values will be contingent and may change at any time. When Unger says a group cannot be considered the source of values, I think he means that liberals understand a group of people to be simply a
139 collection of individuals, and the group cannot be assigned any sort of essence. This means that a group of people cannot be defined in terms of any specific value or set of values, since the values of a group are reducible to the (cont ingent) values of its members. Unger is right to claim that if peoples values change, a reflective equilibrium may produce different conc lusions at different times; but t his could be consistent with Rawls theory. While it seems unlikely, it is at leas t theoretically possible that further examination of the conditions embodied in the original position and knowledge of new sorts of cases arising in society could yield a principle that differs from Rawls principle of equal respect and concern. Also, whe n we see shared values as emerging from a group process of reflective equilibrium in this way, we can see that a group is only seen as the source of values in the sense that it arrive s at the list of shared values through a process of reflection and negoti ation that can happen again, and yield different results, at some other time. This concept of the group as a source of shared values is distinct from a much more problematic concept that involves the claim that some values are essential to a group. When we understand shared values in this way, there is no inconsistency between using shared values as the standard for creating laws and a commitment to the idea that a group cannot be defined by unchanging values. Unger might object to this reply in two w ays. First, he might claim that the process of reflective equilibrium artificially excludes those who do not already accept the principle of equal respect and concern by demanding that those participating in the process abandon contrary values. Second, h e might claim that the process of reflective equilibrium is problematic because the process itself already seems to rely on some
140 notion of equality that requires us to include everyone into the process. I will address each of these objections in turn. Li ke Rawls overlapping consensus requirement, the reflective equilibrium does not exclude any people; rather, it simply excludes certain types of considerations That being said, Unger could simply rearticulate his objection as follows: the process of ref lective equilibrium artificially excludes any considerations that conflict with the principle of equal respect and concern. It is true that the process of reflective equilibrium ends up excluding considerations that conflict with that principle; however, it does not exclude such considerations on the basis of the fact that such considerations conflict with the principle. Rawls argues that we can toss out certain judgments in the process leading to a reflective of equilibrium because they were not made in circumstances that lend themselves to making good judgments. He writes, Considered judgments are simply those rendered under conditions favorable to the exercise of the sense of justice, and therefore in circumstances where the more common excuses and ex planations for making a mistake do not obtain. The person making the judgment is presumed, then, to have the ability, the opportunity, and the desire to reach a correct decision (or at least, not the desire not to). Moreover, the criteria that identify t hese judgments are not arbitrary. They are, in fact, similar to those that single out considered judgments of any kind. And once we regard the sense of justice as a mental capacity, as involving the exercise of thought, the relevant judgments are those given under conditions favorable for deliberation and judgment in general [my emphasis] (Rawls, 1971, pp. 47 48) This passage indicates that Rawls does not claim that we should omit certain judgments from the reflective equilibrium because they conflict w ith his favored principle; rather, he claims that we should omit judgments that were not made under conditions favorable to making good judgments.
141 I have some worries about the specific conditions that Rawls claims are favorable to making good judgments. He claims, for example, that we can discard those judgments made with hesitation, or in which we have little confidence. Similarly, those given when we are upset or frightened, or when we stand to gain one way or the other can be left aside (Rawls, 1971 p. 47). I worry about discarding those judgments made with hesitation, for example, because it may exclude judgments of those who have little self esteem (a problem that may have resulted from oppression). I also worry about discarding judgments made w hen we are upset or frightened, since it may exclude people who are constantly fearful or upset because of societal oppression. Justice seems to require both good judgments and the inclusion of oppressed groups. While I think this may be a problem with R awls argument, I do not think it undermines his idea that we can systematically exclude some judgments from the reflective equilibrium because they were not made in conditions consistent with making good judgments; we may just have to put more thought int o the appropriate conditions of good judgment. A better list of conditions under which judgments are likely to be good might look like the following: People tend to make good judgments when they have experience and knowledge of the details regarding the s ituation being addressed, when they are free from biases and not dogmatic, and when their results are based on their findings (as opposed to their findings being based on the results they hope to get). It is interesting to note that the conditions for the original position also make it more likely that these conditions will be met. Since people do not know any of the specifics of their identities, they must imagine themselves in the shoes of each person in order to ensure
142 the best possible outcome. This helps them acquire the knowledge of the details of each situation and the experience needed to make a good judgment. Once again, regardless of how we formulate the conditions consistent with making good judgments, the important point in my response to Un gers objection is that Rawls does not omit certain judgments from the reflective equilibrium because they conflict with his favored principle. Rather, Rawls claims that we should omit judgments that were not made under conditions favorable to making good judgments. It just so happens that omitting judgments not made under conditions favorable to making good judgments has the effect of omitting judgments that conflict with the principle of equal respect and concern. Unger might offer a second objection t o my above argument. He might claim that the process of reflective equilibrium is problematic because the process itself already seems to rely on some notion of equality since it requires us to include everyone into the process. However, it seems that th e conditions of good judgment specified by Rawls can also address that complaint. Suppose we ask each individual person to engage in a process of reflective equilibrium to see whether their considered individual judgments can accommodate the idea that everybody should be able to participate in a process of reflective equilibrium to yield the conditions of the original position. It seems that any reasons for excluding a person or group of people from this process would result from making judgments under co nditions that tend to yield erroneous judgments (under either my description of conditions consistent with good judgments or Rawls). This brings me to the reason I think we should interpret the we in Rawls reflective equilibrium in the broader sense ( perhaps contrary to Rawls intention).
143 The Wide Interpretation of We When Rawls says that we accept the positions present in his interpretation of the original position, I think he may be referring only to a particular range of societies that comprise the audience for his book. However, I think this statement may still com e out true if we accept the wide r interpretation, according to which we refers to all humans in virtue of their neural structure and the ways in which they naturally think about mor ality. Unfortunately, I can only offer an inductive argument in support of this claim. However, in absence of a deductive or a stronger inductive argument to the contrary, my argument should carry some weight. As I stated above, it seems that any reaso ns for excluding a person or group of people from the process of reflective equilibrium result from judgments made under conditions that tend to yield erroneous judgments. For example, these judgments seem to occur when we stand to gain one way or the ot her from the outcome of the judgment (Rawls, 1971, p. 47). Even objectors like Friedman and Unger, for example, seem to accept the principle of freedom and equality; they are simply troubled by the fact that some do not accept that principle. Recall th at the convictions tossed out most quickly in the reflective equilibrium are those that fail to meet the requirements of considered judgments we discussed above. As we all know, some people believe that belonging to a certain class, race, or gender, giv es a person the right to subordinate people who do not belong to that group. Unless these convictions meet the requirements of considered judgments, they will quickly be tossed out so we can focus on bringing reasonable judgments and principles into a ref lective equilibrium.
144 So we now confront the question: do we have reason to believe that the convictions justifying exclusion of some groups from the group process of reflective equilibrium count as considered judgments? I can think of none. Recall that I argued for the following list of conditions under which a judgment can count as a considered judgment. The person must have experience and knowledge of the details regarding the situation being addressed. He must be free of biases and not dogmatic. H is results need to be based on his findings rather than his findings being based on the results he hopes to get. I have seen no reasons justifying the exclusion of some groups from political debate that meets these conditions of considered judgments even from the most ardent objectors to Rawls. It is interesting to note, too, that even Unger and Friedman do not support the exclusion of some groups from having bargaining power in a political debate; instead, they worry that there is no politically neutral way to rule out such discrimination. It appears, then, that a commitment to the principle of equal respect and concern would likely arise from the reflective equilibrium between cons idered judgments produced by any society and not just democratic societi es. To succe ssfully demonstrate that Rawls unfairly excludes convictions favoring inequality from playing a serious role in the reflective equilibrium, Unger would have to either show that judgments in favor of inequality count as considered judgments, or he would have to show that there are no grounds for excluding any judgments from playing a serious role in the reflective equilibrium. In any case, it looks like the burden of proof is still on Unger.
145 The Original Position as a Procedure for Testing Laws Now that I have shown that Rawls appeal to shared values is not problematic in the way Unger claims it is, I will show that the conditions of Rawls method are sufficient to provide the participants with the standards they need to formulate the laws that make up the basic structure of society. As Dworkin points out, the degree or character of a partys ignorance in the contractual situation [is such] that this ignorance has the same force on his decision as the limited nature of his rights would have in the political situation (Dworkin, 1978a p. 177). Because people in the original position do not know the details about their social status, unique desires, or identities, they do not have the knowledge they need to make the laws that are in their actual self interest. Instead, they can only make laws that are in their antecedent self interest. Dworkin highlights the difference between these two types of self interest, and the importance of this distinction in the operation of the original position, in the following passage. He writes, It is in my antecedent interest to make a bet on a horse that, all things considered, offers the best odds, even if, in the event, the horse loses. It is in my actual interest to bet on the horse that wins, even if the bet was, at the time I made it, a silly one. If the original position furnishes an argument that it is in everyones interest to accept the two principles over other possible bases for a constitution, it must be an argument that uses the idea of antecedent and not actual interest (Dworkin, 1978a p. 153) Unger seems to ignore the role that antecedent self interest can play in the form ation of specific legislation He writes, The less concreteness we allow to the persons in the ideal position, the less they will have standards by which to legislate specific laws, leaving the problem of legislation unsolved. But the more they become like actual human beings, with their own preferences, the more will they be forced to choose among individual, subjective v alues in the ideal situation itself (Unger, 1975, p. 87) However, if Dworkin is correct, i ndividuals do not have to know their own specific preferences in order to come up with a plan for the basic structure of society; that
146 information merely helps them to come up with legislation that would be in their actual self interest. To sum up, Ungers general concern was that it is impossible to make laws from an impersonal standpoint, and t hat t he liberal attempt to do so results in liberal governme nts making arbitrary laws that will provide unjust advantages for some groups of people. In this section I argued that Rawls bases his argument on shared values rather than a completely impersonal standpoint. I then argued that the conditions of the original positi on that are based on these shared values can allow individuals to make decisions based on their antecedent self interest. Because individuals do not know what is in their actual self interest, and they want to prevent outcomes that will harm them, the conditions of the original position should prevent the endorsement of arbitrary laws that provide unjust advantages for some groups of people. Feminist Critiques Some feminists offer worries similar to Ungers regarding how problems of domination can occur in liberal governments. These theorists, like Unger, claim that it is not possible to make and apply laws that are neutral between all conceptions of the good, and that any attempt to do so will result in laws that unfairly disadvantage some and unfairly ad vantage others. Iris Marion Young argues that the ideal of impartiality that guides liberal thinking involves creating a view from nowhere, which is not possible. Since it is not possible to form an impartial point of view, Young claims that the attemp t to formulate an impartial point of view simply involves giving a greater status to a particular subjective point of view, and justifying the exclusion of other subjective points of view from that status by claiming that they are bad. She argues that thi s process has the effect of reproducing relations of domination and oppression by
147 implying that those in power occupy the universal position. This process then justifies the exclusion of some people and concerns from political discussion by claiming that these people and concerns do not meet the requirement of impartiality. Seyla Benhabib echoes Youngs worry, arguing that the construction of a universal standpoint is particularly harmful to women. She claims that the universal viewpoint privatizes wo mens experience, making it irrelevant to questions about how to make and apply laws. By ignoring womens experience in this way, liberal governments make laws that unfairly disadvantage women. In this section, I will explain these arguments in more detai l. I will then argue that while Young and Benhabib are right in claiming that attempts to create a universal viewpoint are dangerous for the reasons they specify, Rawls procedure can avoid these pitfalls. I will show how successful execution of Rawls p osition relies on the consideration of all points of view rather than the exclusion of non dominant points of view. Because this is the case, Youngs and Benhabi bs warnings can be used to supplement Rawls procedure rather than undermine it. General Worr ies about Constructing a Universal Position Iris Marion Young argues that the ideal of impartiality is problematic because it abstracts from the particularities of situation, feeling, affiliation, and point of view that need to be included in good moral r easoning. She claims that abstracting from these particularities serves to create and perpetuate domination and oppression by allowing the situated perspective of dominant groups to masquerade as a universalist perspective that includes the justified interests of all other groups. Young claims that according to the ideal of impartiality, good moral reasoning consists in abstracting from ones particularities, such as feelings, history, conception of the good, etc. She argues
148 that following this ideal is b oth impossible and harmful. Young claims it is impossible to follow this ideal because any attempt to bring the diversity of points of view into a universal perspective from which we can proceed impartially involves creating a single category meant to ac commodate all of those points of view without being identi cal with any one of them. She claims that it is impossible for a single category to accommodate all interests and points of view; a point of view distinct from our particular contexts and commitmen ts is a view from nowhere, which we cant achieve from within our already situated perspectives (Young, 1990, p. 103) Young claims that because we cannot truly achieve a view from nowhere, in attempting to do so we will instead end up creating a category that denies difference. Young claims that pursuing the ideal of impartiality denies the moral relevance of differences between people in a couple of ways First, it denies differences between situations by assuming that a single principle or set of ru les can be applied to all situations. It assumes that like cases should be treated alike and requires us to determine how to apply the universal principles and rules according to the universalist perspective, which ignores the particular perspectives of those affected by the application of those rules. Second Young thinks the ideal of impartiality denies the moral relevance of difference by requiring us to reason from a point of view that any rational person can adopt and ignoring any viewpoints outside of the point of view that has been deemed impartial (Young, 1990, pp. 100 101) She writes, Reducing differences to unity means bringing them under a universal category, which requires expelling those aspects of the different things that do not fit int o the category. Difference thus becomes a hierarchical opposition between what lies inside and what lies outside the category, valuing more what lies inside than what lies outside (Young, 1990, p. 102).
149 Young thinks that because people have many point s of view and different reactions to the same situation, there is no single point of view that can accommodate all viewpoints. Young thinks that the attempt to create a truly universal point of view is therefore impossible. She claims that the attempt to do so is dangerous because it will deem anything that does not fit into the universal perspective as merely part ial and particular (Young, 1990, pp. 102 103) Young argues that this process helps create and reproduce domination and oppression in three w ays. First, it represents the state as being capable of neutrality, which supports the distributive paradigm of justice. Young thinks this creates and reproduces domination and oppression by focusing exclusively on the distribution of material goods and ignoring the way in which the structure of our institutions perpet uates injustice (Young, 1990, p. 102). Presumably, Young thinks the idea of impartiality supports this paradigm by representing the structure of our institutions as neutral between differen t points of view and hence in no need of restructuring. Second, Young thinks the attempt to achieve impartiality legitimizes hierarchical decision making processes by making it look possible for one person to take on a universal perspective that takes all interests into account. If this were in fact possible, there would be no need for discussion, since the impartial perspective is meant to produce decisions that everyone would make if they reasoned correctly (Young, 1990, p. 112). Third, the belief in t he possibility of impartiality allows the point of view of the privileged group to masquerade as the universal perspective (Young, 1990, p. 112) Young argues that, since true impartiality is in fact impossible, the attempt to create a neutral perspective involves universalizing the particular. This means that
150 any view that is represented as impartial is in fact a situated point of view, which comes from a particular history and set of experiences. This is perhaps the most harmful effect of the ideal of impartiality because it dismisses interests excluded from the universal point of view as arbitrary and self interested, while legitimizing the interests included in the universal point of view. This establishes a political discourse that allows the domin ant group (whose interests are represented as part of the universal point of view) to ignore the demands of the oppressed groups (whose interests are represented as subjective and arbitrary). Young writes, Where social group differences exist, and some gr oups are privileged while others are oppressed, this propensity to universalize the particular reinforces that oppression. The standpoint of the privileged, their particular experience and standards, is constructed as normal and neutral. If some groups experience differs from this neutral experience, they do not measure up to those standards, their difference is constructed as deviance and inferiority. Not only are the experience and values of the oppressed thereby ignored and silenced, but they become disadvantaged by their situated identities. It is not necessary for the privileged to be selfishly pursuing their own interests at the expense of others to make this situation unjust. Their partial manner of constructing the needs and interests of others or of unintentionally ignoring them, suffices. If the oppressed groups challenge the alleged neutrality of prevailing assumptions and policies and express their own experience and perspectives, their claims are heard of those of biased, selfish special interests that deviate from the impartial general interest (Young, 1990, p. 116) Young argues that it is not possible to const ruct an impartial point of view, and a ny attempt to do so will involve positing a situated point of view as universal. Such an activity will serve to create and perpetuate oppression by shaping the political discourse around the point of view that has been deemed universal. This process gives unfair advantages to those who accept the situated point of view that established the di scourse and unfair disadvantages to those who accept situated points of view that did not play a part in establishing that discourse.
151 Domination of Women Caused by Constructing a Universal Position Seyla Benhabib echoes Youngs worry, applying it specifi cally to feminist concerns, by arguing that universalistic theories privatize womens experience and hence exclude their interests from the universal point of view. She claims that universal theories of morality and politics advocated by liberal theories posit the point of view of a particular group (usually white male professionals) as paradigmatic for all humans and representative of a universal point of view that is neutral between individual interests. Any interests that are not included in this par adigmatic point of view are deemed subjective and hence not relevant to political or moral discussion (Benhabib, 1986, p. 81) In this section, I will explain the distinction Benhabib makes between assuming the standpoint of the generalized other and ass uming the standpoint of the concrete other. Next, I will explain why she thinks liberal theory primarily involves assuming the standpoint of the generalized other. I then will explain why she thinks good moral reasoning requires that we sometimes assume the standpoint of the concrete other. Finally, I will explain why she thinks the point of view associated with the generalized other excludes the experience and concerns of women. Benhabib outlines two approaches to treating others fairly we can assume th e standpoint of the generalized other or of the concrete other. Assuming the standpoint of the generalized other involves abstracting from characteristics that differentiate individuals, establishing commonalities between all rational agents. Theorists w ho rely exclusively on the standpoint of the generalized other assume that the moral dignity of all individuals consists in their possession of these common features. According to liberal theory, this commonality between all rational agents consists in th e ability to
152 choose between various plans of life. Once we establish this basis for moral dignity, we commit ourselves to relations of formal equality and reciprocity. Formal equality and reciprocity requires us to give everyone the same set of rights an d duties, and no individuals rights and duties will differ from the rights and duties of another individual (Benhabib, 1986, p. 87) Assuming the standpoint of the concrete other, on the other hand, involves affirming rather than abstracting from the other persons specific characteristics and assuming that a persons moral dignity at least partially consists in his or her individuality. Once we establish this basis for moral dignity, we commit ourselves to relations of equity and complimentary reciprocit y. Equity and complimentary reciprocity regulate our relationships by requiring us to respond to the specific needs and capacities held by each individual. Everyone is entitled to equal treatment in the sense that everyone is entitled to expect and to assume from the other forms of behavior through which the other feels recognized and confirmed as a concrete, individual being with specific needs, talents, and capacities (Benhabib, 1986, p. 87). This approach to equality is different from the approach t aken from the standpoint of the generalized other, since equity an d complimentary reciprocity do not require everyone to have an identical set of rights and duties. Benhabib claims that good moral reasoning sometimes requires assuming the standpoint of the concrete other, and that liberal theory is flawed because it only assumes the standpoint of the generalized other. She argues that liberal theory defines individuals simply in terms of their agency; their capacity to choose is the source of moral dig nity for all individuals rather than the actual choices they make or the desires
153 and characteristics they have. Benhabib thinks this liberal conception of moral dignity is reflected in the way Rawls spells out the original position, in which the other as different from the self disappears because we do not have access to information about the histories, desires, and characteristics that define us as individuals (Benhabib, 1986, p. 89). Benhabib complains that this concept of the self is both incoherent and harmful. It is incoherent because, without our individuating characteristics, we are unrecognizable as human persons (Be nh abib, 1986, p. 89) It is harmful because it relies on a notion of autonomy that ignores the context within which autonomy dev elops and operates a context where people (especially mothers) bear and raise children and in which people depend on one another in various ways. In doing so, liberal theorists take for granted the role women play in raising children. By taking that cont ext for granted, liberal theorists exclude these relationships of dependence from political discussion This is problematic because women often take on a disproportionately large portion of responsibility in raising children and a disproportionately small portion of the power to specify the conditions under which they carry out these responsibilities (Benhabib, 1986, pp. 82 95) To get a clearer idea of how Benhabib thinks liberal theory excludes the experience of women from political discussion, consider her analysis of the liberal attempt to treat everyone equally. She claims that liberal theorists assume that like cases ought to be treated alike in order to treat everyone as equals. However, she claims that by failing to pay attention to the concret e differences between others, liberals will fail to properly carry out any universalizability test. This is because the
154 failure to pay attention to the differences between individuals (and hence between situations) will prevent us from knowing what consti tutes a like case. She writes, While every procedure of universalizability presupposes that like cases ought to be treated alike or that I should act in such a way I should also be willing that all others in a like situation act like me, the most diffic ult aspect of any such procedure is to know what constitutes a like situation or what it would m e an for another to be exactly in a situation like mine. When we morally disagree, for example, we do not only disagree about the principles involved; very often we disagree because what I see as a lack of generosity on your part you construe as your legitimate right not to do something; we disagree because what you see as jealousy on my part I view as my desire to have more of your attention. Universalis tic moral theory neglects such everyday, interactional morality and assumes that the public standpoint of justice, and your quasi public personalities as right bearing individuals, are the center of moral theory (Benhabib, 1986, p. 90 91) Since participants in the original position do not have access to knowledge about the concrete particulars of individuals that would allow the participants in the original position to determine what counts as a like case, they must rely on the concrete point of view Rawls has provided them with in order to make judgments about fairness. Because these individuals lack information about their histories and identities, their perspectives resemble the perspective of Hobbesian mushrooms, who spring from the earth in full maturity and who have no relationships of dependence with others (Benhabib, 1986, pp. 84, 90) This perspective is particularly problematic for women, because it fails to critically examine unfair power relationships existing in the domestic and private spher es within which women live their lives as the primary caregivers of children (Benhabib, 1986, p. 95) The problem might be now summarized as follows. Rawls procedure, or any procedure involving universalization presupposes that treating individuals as equals involves treating like cases alike. However, unless we know the specifics about the
155 individuals in each situation, we cannot determine what constitutes a like case. Since Rawls procedure does not allow us to know this information, it fails to give us the criteria we need to determine what counts as a like case. In lieu of providing us with the information we need to make judgments about fairness, Rawls provides us with a concrete point of view that of a being that is fully mature and autonomous and that lacks a history and relationships of dependence. Benhabib claims that the exclusive use of this concrete point of view in deciding matters of fairness will create and reproduce oppressive relationships, however, because it fails to take into ac count womens experiences and the problems of oppression that often exist within domestic relationships. My Defense of Rawls In this section, I will argue that successful execution of Rawls procedure relies on the consideration of all points of view rath er than the exclusion of nondominant points of view. While Young and Benhabib are right to worry that attempts to create a universal and impartial point of view can result in the creation of a perspective that ignores the experiences and concerns of nondominant groups, they are mistaken in thinking that Rawls procedure makes this mistake. I will then argue that while Youngs and Benhabibs arguments do not undermine Rawls procedure for formulating principles of justice, their worries can be used to su pplement Rawls procedure by (a) contributing to a description of the original position that best reflects the principle of equal respect and concern and (b) contributing to the knowledge available to those participating in the original position. Recall that Rawls claims we arrive at the moral principles that underlie his description of the initial situation by engaging in a (group) process of reflective
156 equilibrium As I have already pointed out above, we (at least people living in modern western cultures) think that our description of the original position should be based on the principle of equal respect and concern. Because we dont think people should suffer from undeserved disabilities or be rewarded because of undeserved talents, we want to struc ture the debate occurring in the original position so everybody has equal bargaining power. If people cannot know whether they are naturally intelligent, or whether they belong to a majority group, they cannot use that information to support a system in w hich people in the naturally disadvantaged groups suffer from an unfair distribution of primary goods. The question still remains, however, which description of the original position best represents the moral equality of human beings; and we are supposed to use the reflectiv e equilibrium to answer this question. I see no reason why Young or Benhabib would reject this stage of Rawls procedure. Rawls treats the reflective equilibrium as a group project that should include everyone affected by the princi ples of justice. It follows that women would have as much of a right to participate in this project as men. I suspect that what Young and Benhabib question is the particular description of the original position that Rawls thinks would result from this pr ocess. According to Rawls description of the original position, individuals are not allowed to know any of the particulars about their own identity or the circumstances in which they live. He writes, [N]o one knows his place in society, his class posit ion or social status; nor does he know his fortune in the distribution of natural assets and abilities, his intelligence and strength, and the like. Nor, again, does anyone know his conception of the good, the particulars of his rational plan of life, or even the special features of his psychology such as his aversion to risk or liability to optimism or pessimism. More than this, I assume that the parties do not know the particular circumstances of their own society. That is, they do not know its economi c or political situation, or the level of civilization and culture it has been
157 able to achieve. The persons in the original position have no information as to which generation they belong (Rawls, 1971, p. 137) Rawls claims that we would accept these restrictions on knowledge in the original position because the possession of such knowledge would allow individuals to tailor the principles of justice to their particular situation so that they could derive unfair advantages from those principles while others derive unfair burdens from them. Rawls thinks we would therefore allow such restrictions on knowledge in the original position because those restrictions deny some individuals an unfair advantage over others in negotiation about principles of justice ( Rawls, 1971, pp. 18 19) Rawls thinks this description of the original position and the knowledge available to participants in it best represents the equality of human beings agreed upon in the reflective equilibrium by offering everyone equal bargaining power. To see whether these restrictions on knowledge prevent the voices of oppressed groups from being heard in the original position, let us first recall the knowledge that Rawls claims individuals can access in the original position. He writes, [T]hey know the general facts about human society. They understand political affairs and the principles of economic theory; they know the basis of social organization and the laws of human psychology. Indeed, the parties are presumed to know whatever general f acts affect the choice of the principles of justice (Rawls, 1971, p. 137) The question, then, is whether limiting the knowledge of those in the original position in the way Rawls suggests serves to exclude the concerns of some groups from political discu ssion. Young seems to think that the restrictions on reasoning in the original position create a single situated perspective that is then deemed impartial. She argues that this point of view then uses its claim to impartiality to justify the exclusion of other points of view from political discussion. Benhabib seems to think that the restrictions on
158 reasoning in the original position create a point of view that deems the concerns of women irrelevant to questions about how to make and apply laws. I will respond to each of these concerns in turn. Youngs criticism of Rawls result s from confusion about two aspects of his description of the original position. First, she think s that the restrictions on reasoning that define the original position are meant t o create a universal point of view. This is not the case; these restrictions on reasoning are instead meant to prevent people from using knowledge about their particular circumstances to bargain for greater advantages and fewer burdens than others would r eceive. It seems strange to ascribe a point of view to participants of the original position, given that they lack information (such as their positions in society and their conceptions of the good) that tend to define a specific point of view. By limitin g the knowledge available to participants in the original position, Rawls prevents even members of the dominant groups from specifying the principles of justice in a way that would give them unfair advantages over other groups. It is a mistake to think of the original position as creating a point of view that would be recognizable as the point of view of any particular person. We should instead think of the original position as imposing restrictions on everyones reasoning so that no point of view is priv ileged in the terms of negotiation for the principles of justice. That being said, Young might still worry that the restrictions on reasoning in the original position prevent the recognition of certain concerns faced by oppressed groups. Specifically, Young worries that the original position rules out forms of negotiation that involve the articulation of feelings and experiences, establishing a discourse that denies members of oppressed and minority groups the tools they need to voice their concern.
159 Th is brings me to the second aspect of Rawls theory about which Young seems to be confused the role of political discussion in forming the general knowledge available to those in the original position. Rawls claims that participants in the original posit ion should have access to knowledge about general facts about human society such as political affairs, the principles of economic theory, the basis of social organization, the laws of human psychology, and any other general information that would affect th e choice of the principles of justice. Rawls spells out what he means by general by claiming that it must be possible to formulate them without the use of what would be intuitively recognized as proper names, or rigged definite descriptions (Rawls, 19 71, p. 131). This seems to indicate that participants in the original position can have access to knowledge about the particularity of situations, identities, and concerns as long as they do not know which identity or context corresponds to a given indivi dual. This is in fact more information than the real life counterparts of participants in the original position have. Instead of trying to promote impartiality by representing a particular perspective as universal, the original position provides knowledge of all types of experiences and concerns without allowing individuals to know which experiences and concerns they will have once the veil of ignorance is lifted. This promotes fairness by failing to give individuals the tools they need to bargain for pr inciples of justice that wil l give them unfair advantages. I t is important to note that the general knowledge available to participants in the original position does not come out of thin air, even if Rawls fails to affirm or recognize that fact. This is where I think Youngs points can be used to supplement the liberal
160 position. The best way to acquire the knowledge we need about the basis of social organization, the laws of psychology, and other general information that would affect the choice of the principles of justice may be to facilitate the kind of political discussion Young suggests one that affirms differences between people and allows them to voice their experiences and concerns from their own point of view and in terms that reflect their own v a lues and experiences. We can only gain the general knowledge that would affect the choice of the principles justice, she claims, if we allow all groups to contribute to the debate and avoid privileging styles of expression that are more prominent in some groups than others. We should instead promote a more inclusive form of democratic communications in which people are able to express their own concerns in their own terms using the styles of expression they think will best allow them to express their int erests. She writes, Inclusive democratic communication assumes that all participants have something to teach the public about the society in which they dwell together and its problems. It assumes as well that all participants are ignorant of some aspects of the social or natural world, and that everyone comes to a political conflict with some biases, prejudices, blind spots, or stereotypes. Frequently in situations of political disagreement, one faction assumes that they know what it is like for others, or that they can put themselves in the place of the others, or that they are really just like the others. Especially in mass society, where knowledge of others may be largely mediated by statistical generalities, there may be little understanding of lived need or interest across groups. A norm of political communications under these conditions is that everyone should aim to enlarge their social understanding by learning about the specific experience and meanings attending to other social locations (Young, 2000, p. 77) Because people are unable to identify certain experiences or concerns as their own, this type of discussion cannot occur from within the original position. However, this type of discussion is essential to building up the general knowledge utilized in the original
161 position. Successful use of Rawls method for creating principles of justice therefore depends on political discussion that includes everyone. The fact that Rawls method relies on discussion that includes all points of view also addresses some of Benhabibs worries. Recall Benhabibs claim that Rawlss method involves using the point of view of a being that is fully mature and autonomous and that lacks a history and relationships of dependence to decide matters of fairness. She complains that this artificial point of view fails to take into account womens experiences and the problems of oppression that often exist within domestic relationships and excludes these concerns from political discussion. As I argued above, however the original position does not create a universal point of view from which we are meant to decide on issues of fairness. Instead, it prevents us from being able to access information about our points of view that would allow us to negotiate for principl es of justice that would be to our unfair advantage. In addition, because knowledge of womens experiences and the problems of oppression that often exist within domestic relationships would count as general information that would affect the choice of the principles of justice, it would have to be available to those in the original position. There is one additional worry, however, that Benhabib gestures toward that I have not yet respon ded to. She complains that liberal theory relies on a notion of auto nomy that ignores the context within which autonomy develops and operates a context where people (especially mothers) bear and raise children and in which people depend on one another in various ways. By ignoring these relationships of dependence, liberal theorists take for granted the labor of women in having children and
162 facilitating their development. They fail to affirm that children can only develop the ability to make qualitative assessments about what is worth valuing (which is an important part of what we value about autonomy) if adults spend time helping them develop the cognitive skills needed to make such assessments. By failing to affirm this, liberal theorists do not affirm the importance of fairly distributing the labor required to help chil dren develop these skills. In this way liberal theorists exclude these relationships of dependence from political discussion despite the fact that these relationships are often structured in ways that unevenly and unfairly distribute power among the acto rs (Benhabib, 1986, pp. 82 95) While Benhabib is not entirely clear about why she thinks liberal theorists are committed to this view of autonomy, she thinks it is implied by the image of the disembedded and disembodied male ego that she thinks is invo ked by the original position. I already argued in chapter two that liberalism is not committed to such a theory of autonomy However, Benhabibs and Youngs worries about the image of autonomy as self sufficiency are warranted, and it is worth noting h ow their description of relational autonomy can be used to supplement liberalism. Young and Benhabib are right that individuals rely on one another in various ways, and that an individual can only develop the capacity to reason within a community that nur tures him or her. Likewise, it is possible for certain social structures to undermine the autonomy of some through oppressive processes of socialization. For example, if women are raised to believe it is their duty to occupy care giving roles, and that they will only excel at tasks that are associated with those roles, then that social process will undermine their autonomy. Given that this is the case, it is important to include information about
163 relationships of dependence and oppressive processes of s ocialization in the general knowledge that should be made available to those participating in the or iginal position; otherwise, participants will not be equipped to choose principles of justice that maximize everyones access to primary goods. Conclusion In this chapter, I discussed the argument that the liberal attempt to be neutral between accounts of the good inevitably fails, and that the liberal attempt to be impartial results in unjust domination of women and of groups who do not accept the liberal vision of the good life. I argued that liberal theory is in fact based on the shared value of equal respect and concern, which is yielded by a group process of reflective equilibrium that includes people who accept a plurality of comprehensive views. Th e principle of equal respect and concern serves as the basis for Rawls description of the original position, which omits information that would allow people to bargain for principles of justice that would give them unfair advantages but includes informati on about the struggles and points of view of those affected by the principles of justice. I then argued that the accumulation of information needed in the original position will only occur through inclusive political communication similar to what Young su ggests.
164 CHAPTER 6 LIBERALISM AND THE D ISTRIBUTIVE PARADIGM In chapters three through five, I discussed several normative objections against liberal neutrality. According to these objections, the liberal commitment to the moral priority of the right over the good undermines the social structure that allows individuals to develop and maintain the ability to make qualitative assessments and act autonomously. I argued that all of these objections fail. In this chapter, I will discuss the objection that the liberal commitment to the priority of the right over the good also fails to promote substantive equality because it does not pay sufficient attention to the social relations in which domination occurs. Iris Marion Young, for example, argues that liberalis m focuses too heavily on matters of distributive justice. In doing this, it fails to address the social structure and institutional context that causes injustice (including distributive injustice) to occur in the first place (Young, 1990, p. 15) Amarty a Sen also worries about liberalisms strong focus on matters of distributive justice. However, unlike Young, Sen does not think liberalism presupposes an institutional context when analyzing questions of justice. Instead, Sen thinks the liberal approach is problematic because it fails to pay sufficient attention to the social structure its institutions are meant to regulate when it forms the institutions; in addition, he complains that liberal theories do not have a mechanism for revising those instituti ons if they fail to produce the desired results on the social structure. In this chapter, I will focus on these two arguments. While Young and Sen are not communitarians, their arguments depend to some extent on worries about liberal neutrality, and so i t is worth discussing their arguments in this dissertation.
165 Youngs Worries about the Distributive Paradigm Iris Marion Young claims that many contemporary theories of political justice, including liberalism, commit themselves to an account of social ju stice that focuses solely on a fair distribution of benefits and burdens among citizens (Young, 1990, p. 15) She claims that the liberal commitment to the distributive paradigm of justice is made apparent by the fact that liberal theorists always analyze justice by examining the distribution of benefits and burdens; and they fail to pay attention to other factors, such as the social structure of a society (Young, 1990, p. 18) She writes, Such a model implicitly assumes that individuals or other agents l ie as nodes, points in the social field, among whom larger or smaller bundles of social goods are assigned. The individuals are externally related to the goods they possess, and their only relation to one another that matters from the point of view of the paradigm is a comparison of the amount of goods they possess. The distributive paradigm thus implicitly assumes a social atomism, inasmuch as there is no internal relation among persons in society relevant to considerations of justice (Young, 1990, p. 18) Young identifies the source of this error in the process that yields the liberal principles of justice. In the original position, the characteristics that define real world individuals (such as their desires, relationships, and conceptions of the good) are not viewed as relevant to a discussion meant to yield principles of justice. As a result, individuals participating in this negotiation must proceed by understanding individuals merely as nodes among whom the government can distribute a greater or lesser am ount of benefits and burdens (Young, 1990, pp. 33 38). In doing so, it assumes that individuals are primarily consumers, desirers, and possessors of goods; or, in any case, it assumes that the capacity of individuals to act as consumers, des irers, and possessors of goods is the only human function that deserves protection under a system of justice (Young, 1990, p. 36)
166 Young argues that such a distributive paradigm will have one of two problems. First, if it focuses only on the distribution of material goods, it will ignore the institutional and social context that causes injustice (including distributive injustice) to occur. Even if the distributive paradigm can ensure a fair distribution of material goods, it will fail to ensure that ever yone has a fair say in the laws that govern them and that they have a fair opportunity to develop and exercise their capacities. Second, the attempt to extend the concept of distribution to include non material goods (such as rights, opportunities, and se lf respect) will fail because these goods do not exist in predetermined quantities, independent from social relationships, which can be distributed in specific amounts (Young 1990, p. 15 16) I will review Youngs discussion of each of these problems in t urn. Failure to Address Injustices in the Institutional and Social Context Young stresses that the demands of justice go beyond fair distribution of material goods, and that focus on the distribution of material goods and resources inappropriately restri cts the scope of justice, because it fails to bring social structures and institut ional contexts under evaluation (Young, 1990, p. 20). Young argues justice demands that we ensure individuals have the resources they need to (a) to develop an d exercise th eir capacities and express their experience to others, and (b) to participate in determining the conditions under which they act (Young, 1990, p. 37) These demands, as stated, are not entirely clear and Young fails to offer much elaboration on what she h as in mind when she offers them. It is not clear, for example, which capacities governments should ensure individuals have the ability to develop and exercise. It is also not clear what types of activities the government should protect to ensure that ind ividuals can express their experience to others and why justice requires this.
167 Finally, it is not clear what Young has in mind when she claims that people need to be able to participate in determining the conditions under which they act. Based on You ngs later illustrations of her point, I think Young means to claim that respecting the moral equality of human beings requires providing them all with social and institutional conditions under which they can (a) make reaso ned decisions about what ends the y want to pursue, and (b) engage in the activities and pursue the ends they endorse. She seems to share the communitarian view that making reasoned decisions about what ends we want to pursue requires social recognition and a conceptual background gained from ones community. However, she seems to go beyond the communitarian view in thinking the person should also have the power to participate in the social discussion producing that conceptual background. Many factors can interfere with these capabiliti es, including the existence of a social structure in which some people are only able to gain social recognition for a na rrow range of activities, or in which they are not given th e same opportunity to gain the knowledge they need to act on their ends, or t hey do not have the same power to shape the institutions that determine what options we have. Because these are the things that make our lives valuable, a government must work to create and sustain a social structure in which people do not have to confron t these barriers. Young points out that e ven if everyone has equal access to material resources, peoples ability to participate in determining the conditions of their actions and their ability to develop and exercise their capacities can be affected by other aspects of the social structure Young offers several examples to illustrate her point. First, state and federal laws often deny citizens the right to have a say in the creation and placement of
168 facilities that degrade the environment (Young, 1990, p. 19) A fair distribution of material resources will not by itself be sufficient to address injustices that arise from the harm to the health and happiness of citizens who were not given the opportunity to reject the placement of dangerous facilities in their neighborhoods. Young also points out that inequalities in distribution are partially caused by the fact that some citizens have no say in the legal framework that defines what counts as an entitlement and how entitlements can be used. Any attempt t o address issues regarding the fair distribution of material goods will be incomplete unless we also address the legal and social context that partially determines these distributions (Young, 1990, pp. 21 22) Second, clerical workers sometimes complain th at they have to spend all of their working hours performing mindless and unsatisfying tasks and that their careers offer them no opportunity to pursue personal or professional development. The problem here is not only that they find their work dull; the m ore serious problem is that such jobs do not give employees the opportunity to develop the skills they would need to seek more rewarding work elsewhere. To make a decent living, they often have to work long hours in a job that does not schedule in opportunities to learn new skills. Most peop le in these positions also do not have the time or energy to develop these skills on their own after they finish working and fulfilling their other responsibilities. These complaints highlight the importance of fair d ivision of labor and right to meaningful work rather than just a right to fair compensation ; so a redistribution of material goods will not fully address these complaints (Young, 1990, p. 20) Finally, b lacks often complain that the media too often represe nts them as uneducated criminals or laborers; it almost never represents them as virtuous or
169 glamorous, or as occupying positions of authority. Similarly, Arab Americans complain that Arabs are too often represented as sinis ter terrorists or gaudy princes (Young, 1990, p. 20). A fair distribution of material resources will not address injustices that arise from the use of cultural imagery to create a derogatory image of some groups. This is significant, since negative stereotypes can harm a persons ch ances to develop and exercise her capacities, express her experience to others, and participate in determining the conditions under which she acts. In addition, these negative stereotypes can also affect the distribution of material goods, since they can negatively affect a persons ability to get high paying and high status jobs Young argues that liberal theory fails to address t hese broader issues of justice. She claims it sometimes presupposes the existence of a certain legal and social context when c orrecting for issues of distributive injustice that arise from it without first evaluating whether that context is itself just. To better understand Youngs point, consider the distinction Will Kymlicka draws between correcting for ex post inequalities an d correcting for ex ante inequalities. Kymlicka points out that welfare programs and other ways of redistributing money only correct for ex post inequalities. As Rawls admits, people often become poor for reasons beyond their control. Some of these reas ons may include a lack of opportunity to get training for higher paying jobs, a disadvantage in getting and keeping work resulting from racial or gender discrimination, inferior access to public transportation (which can narrow a persons work and consumpt ion options), etc. The ex post inequalities of income, then, often result from a social structure that fails to give everyone an equal opportunity to compete for jobs in the marketplace or to act on their other ends in the larger society. Kymlicka calls the
170 inequalities of a social structure that fails to give everyone equal opportunities ex ante inequalities (Kymlicka, 2002, p. 89). Young argues that liberal theories fail because they only pay attention to ex post inequalities and fail to address some of the much more important ex ante inequalities. Consider for example, debates about the fair distribution of prestigious and high paying jobs. Such a debate presupposes the existence of a hierarchical division of labor in which some enjoy much a much higher income, authority, recognition, and degree of autonomy than others. Even if the social structure is organized so everyone has access to the resources they need to compete for the top jobs, a hierarchical division of labor is designed in such a way t hat it is not possible for everyone to acquire the most desirable jobs. This hierarchical structure necessitates that some will have less wealth and status than others This is significant, since a person who occupies a lower position in the hierarchy wi ll be less able to determine the conditions under which she act s and to develop and exercise her capacities than those who occupy more powerful and well respected positions Instead of ensuring that previously disadvantaged groups have an equal chance of acquiring desirable jobs, Young argues that perhaps we should abandon the current hierarchical job structure in which some jobs are much more desirable and prestigious than others and promote a more horizontal job structure in which more people can achieve prestige and job satisfaction. Young points out that the job structure in the United States is currently set up such that there is a division between prestige positions for which certification is difficult and costly to acquire, and a vast array of low skill, lowwage, low mobility positions that carry little autonomy and creativity (Young, 1990, p. 215). Young points out that those
171 who occupy the lower paying and lower status jobs suffer domination not only because their class often limited their opportunities to compete for the higher status jobs, but also because they have to perform actions whose rules and goals they have not participated in determining, under institutionalized conditions they have not had a part in deciding (Young, 1990, p. 218) Such domination is problematic for several reasons. First, people in these lower positions often have little opportunity to develop their capacities (Young, 1990, p. 220). Second, they rarely have many opportunities for advancement (Young, 1990, p. 221). Third, those occupying the higher positions are viewed as superior to those in the lower positions. This is because those in the lower positions are viewed as mindless persons who simply carry out the tasks described by their superiors (Young, 1990, p. 222). Young claims that we could improve this situation by ensuring that everyone can participate in determining the rules and goals of their occupation. She claims that all workers should be able to participate in the basic decisions of the enterpr ise as a whole and in the specific decisions that concern their immediate work situation (Young, 1990, 223). Such a horizontal structure could accommodate the possibility for everyone to have equal power and respect. She complains that the distri butive paradigm fails to consider this type of option. By failing to address the ex ante inequalities that may arise from the structure of our institutions and social relations, Young argues that liberalism deems them irrelevant to questions about justice. She claims that a more inclusive theory of justice will not only view individuals as consumers who wish to use material goods; it will also view them as doers and actors who wish to develop certain capacities, play a role in forming and
172 running institut ions, express themselves and form valued relationships with others, and gain recognition for all of these activities (Young, 1990, p. 37) Young affirms that liberal theory attempts to incorporate these considerations by extending the concept of distribut ion to include rights, duties, opportunities, and self respect as well as material goods. She claims that the liberal attempt to apply the logic of distribution to nonmaterial goods fails, however, because it mistakenly views these social goods as things that exist independently from the social relationships between individuals and as things that can be distributed in specific amounts (Young, 1990, pp. 24 25) Inability to Extend Concept of Distribution to NonMaterial Goods Young highlights the problems with viewing rights, opportunities, and self respect as distributable goods. She claims that rights refer to institutionally defined rules specifying what people can do in relation to one another rather than to some good that can be distributed in spec ific quantities (Young, 1990, p. 25) For example, the right to a fair trial specifies duties we ha ve to anyone accused of a crime and the right to free speech specifies constraints on our ability to censor the speech of others. Granting these rights to some does not necessarily involve taking some of that right away from others in the same way that granting material goods to some would involve taking some of those goods away from others (Young, 1990, p. 25) Viewing opportunities as a distributable good involves similar conceptual problems, Young claims. She claims that we might be able to view opportunities as distributable if we view them as easily quantifiable chances. Having opportunities, however, involves more than simply having a certain num ber of chances. When I go to the carnival I can buy three chances to knock over the kewpie doll, and my friend can buy six, and she will have more chances than I. Matters are rather different, however,
173 with other opportunities (Young, 1990, p. 26). In addition to having chances and lacking external interference, opportunity also requires that the person lives under conditions that enable her to perform the activities she wants to perform. Many factors, then, can promote or interfere with a persons opportunities, including the rules and practices that govern ones action, the way other people treat one in the context of specific social relations, and the broader structural possibilities produced in the confluence of a mul titude of actions and practic es (Young, 1990, p. 26). For example, education plays an important role in increasing opportunities; and the degree to which education increases opportunity depends on a variety of social factors beyond the distribution of material goods. For example, o ne might argue that the privileging of certain learning styles in the delivery of material and creation of assessments can affect students opportunities even if everyone is given an equal distribution of material goods. While some students may learn bett er from a lecture, others may learn better through conversation. While some students respond better to a visual presentation, others may do better with a hands on presentation, and so on. To equalize the opportunities afforded to citizens through educati on we need to address the social context in which education is delivered. We therefore cannot promote equal opportunity if we merely view individuals as nodes among whom opportunities can be distributed; we also need to consider the relationships between individuals and how those relationships impact peoples chances to carry out lives they have reason to value (Young, 1990, p. 26) Young claims that the idea of distributing self respect is perhaps even more problematic than the idea of distributing other nonmaterial social goods. She writes,
174 Self respect is not an entity or measurable aggregate, it cannot be parceled out of some stash, and above all it cannot be detached from persons as a separable attribute adhering to an otherwise unchanged substance. Self respect names not some possession or attribute a person has, but her or his attitude toward her or his entire situation and life prospects (Young, 1990, p. 27) Young points out that Rawls affirms it does not make sense to talk about distributing self respect. Instead, he claims that we can ensure equal access to the conditions of developing self respect by making sure other goods are distributed fairly. Young has already argued, however, that it does not make sense to talk about distributing righ ts and opportunities. She further stresses that a fair distribution of material goods is not sufficient for the development of self respect. Self respect requires a social structure in which one has an opportunity to develop her capacities and achieve rec ognition for her actions, and an equal distribution of material goods does not ensure that everyone will have the opportunity to do these things (Young, 1990, p. 27) Young claims that liberalism limits its analysis of justice to distributive matters because of its attempt to be neutral between various concepts of the good. She writes, Ancient thought regarded justice as the virtue of society as a whole, the well orderedness of institutions that foster individual virtue and promote happiness and harmony among citizens. Modern political thought abandoned the notion that there is a natural order to society that corresponds to the proper ends of human nature. Seeking to liberate the individual to define his own ends, modern political theory also restricted the scope of justice to issues of distribution and the minimal regulation of action among such self defining individuals (Young, 1990, p. 33) Young argues that liberalism was right to try to avoid basing its principles of justice on a narrow concept of the good life that many might reject. It would be better to create a more inclusive concept of justice that protects citizens who possess a wide range of desires, ends, and con cepts of the good. However, Young argues that any normative theory implicitl y or explicitly relies on a conception of human nature (Young, 1990, p.
175 36). In order to avoid ranking some lives as more worthy of protection than others, liberalism implicitly defines human beings as primarily consumers, desirers, and possessors of goods in hopes of focusing on giving individuals the means they need to achieve their desires, ends, and conceptions of the good (Young, 1990, p. 36) However, by viewing humans in this way, liberals ignore an important part of human nature (the fact that humans are doers and actors as well as consumers, desirers, and possessors of goods ). By failing to pay attention to these features of human nature, Young thinks liberals fail to recognize some of the means individuals need to achieve their ends (such as nonmaterial goods provided by a social structure that undermines relationships of domination and oppression) In addition to viewing humans as consumers, desires, and possessors of goods, Young claims we should view humans as doers and actors who have many goals that do not involve consumption. Young claims that humans wish to seek to promote many values of social justice in addition to fairness in the distribution of goods: learning and using satisfying and expansive skills in socially recognized settings; participating in forming and running institutions, and receiving recognition for such participation; playing and communicating with others, and expressing our experience, feelings, and perspective on social life in contexts where others can list en (Young, 1990, p. 37) Young argues that many liberals would accept the importance of viewing humans as doers and actors, but that they mistakenly think they can accommodate the needs of such humans within the distributive paradigm. My Response to You ng Youngs claim that Rawls theory treats individuals merely as consumers is incorrect. His theory already affirms that humans are also doers and actors. His first principle of justice is meant to ensure that individuals have the power to act on their
176 conceptions of the goodeven if their views of the good life involve more than accumulating material goods. Rawls use of primary goods in the original position to generate his principles of justice seems to mislead Young into thinking that Rawls is excl usively focused on material and other easily distributable goods. The fact that Rawls claims everyone in the original position should assume they want the maximum possible amount of primary goods does not imply, however, that those primary goods are easil y distributable, or that we can divide them up in easily quantifiable amounts. Additionally, Rawls description of the original position is consistent with the possibility that individuals cannot maximize their access to some primary goods unless they pay attention to issues arising within the social structure of society (such as the division of labor, power to affect government decisions, and representation of racial and cultural groups as worthy or unworthy of our respect) The original position is mean t to produce principles of justice that will be used t o create the institutions needed to regulate the basic structure of society, and those institutions need not only regulate the distribution of material goods; they can also regulate the division of labor, the political processes that determine the power of individuals to affect government decisions, and the representation of racial and cultural groups. To clarify my objection to Young, let us now consider some of the examples she uses to demonstrate that Rawls distributive paradigm is not equipped to promote fair access to both material and non material goods. Recall how Young attempts to show that Rawls theory presupposes the institutional context that disempowers some to pursue lives they value. She claims, for example, that Rawls theory fails to address the
177 ex ante inequalities arising from a social structure in which some enjoy a much higher income, authority, recognition, and degree of autonomy than others. She argues that instead of ensuring previously disadvantaged groups have an equal chance of acquiring desirable jobs, perhaps we should abandon the current hierarchical structure in which some jobs are much more desirable than others. When Young makes this complaint, however, she seems to forget Rawls second principle of justice, which says that social and economic inequalities are only permissible if they improve the situation of the person who is worst off. This principle is not necessarily limited to issues regarding material distribut ion. Because the division of labor can partially determine a persons access to (both material and nonmaterial) primary goods, the difference principle can also be used to evaluate whether a particular division of labor is acceptable or not. Young als o claims that Rawls distributive paradigm treats rights as things that can be distributed in specific quantities in such a way that giving rights to some involves taking them away from others. There is no reason to believe that Rawls is committed to such a conception of rights, however. In fact, Rawls discussion of public goods (which might include a clean and diseasefree environment) demonstrates that Rawls understands some primary goods cannot be distributed in specific quantities. He writes, [A] public good has two characteristic features, indivisibility and publicness. That is, there are many individuals, a public so to speak, who want more or less of this good, but if they are to enjoy it at all must each enjoy the same amount. The quantity pr oduced cannot be divided up as private goods can and purchased by individuals according to their preferences for more and less. There are various kinds of public goods depending upon their degree of indivisibility and the size of the relevant public. The polar case of a public good is full indivisibility over the whole society. A standard example is the defense of the nation against (unjustified) foreign attack. All citizens must be provided with this good in the same amount; they cannot be given varyin g protection depending on their wishes. The consequence of indivisibility and publicness in these cases is that the provision of public goods must be arranged for through the political process
178 and not through the market. Both the amount to be produced an d its financing need to be worked out by legislation (Rawls, 1971, pp. 266 267) Participants in the original position can be aware of the fact that some goods cannot be distributed in specific quantities as they are generating the principles of justice m eant to maximize everyones access to such goods. In addition, even if rights may specify rules regulating social relationships, we may be able to distribute them in the sense that we can specify that all persons have the same rights and are entitled to legal protection from violations of these rights. Young also tries to show that Rawls theory is not equipped to deal with the complex social relations that determine what kinds of opportunities people have. She claims that Rawls paradigm must treat opportunities as mere chances. Because of this, she claims his paradigm cannot deal with social factors such as cultural imagery and the context in which education is delivered. This is significant, since these social factors affect peoples ability to t ake advantage of the rights specified under a liberal government and to pursue lives they value. Once again, Young is mistaken. Rawls principles of justice can be used to create institutions that regulate (at least some of) the complex social relations hips that largely determine the power of individuals to pursue lives they value. For example, having education delivered in a way that caters to ones learning style and abilities counts as a primary good since it can affect a persons ability to pursue a life he or she values. Any rational person would want to be educated in a way that improved his ability to pursue a life he values. I see no reason to believe that Rawls principles of justice cannot be used to design institutions that can regulate the delivery of education so that they do not give some individuals unfair advantages over others. It seems, then,
179 that the main problem with Youngs argument is that she assumes Rawls is committed to a view of primary goods as things that can be divided up a nd distributed in specific quantities. Once we see that this is incorrect, Youngs objections lose much of their force. Sens Worries about Institutional Fundamentalism Amartya Sen also thinks Rawls focuses too heavily on issues of justice in distribution and not enough on the social relationships in which oppression and domination occur. He offers three objections to support this view. First, he claims that Rawls is mistaken in thinking that a society can generate a unique set of principles of justice. He argues that Rawls arrival at his principles of justice results from a hasty dismissal of certain types of impartial concerns from consideration in the original position. Second, Sen worries that liberalism selects its institutions without paying suf ficient attention to the effects those institutions have on the societies they are meant to govern given the actual patterns of behavior in those societi es. Sen argues that liberalism lacks a procedure that can be used to determine whether its institution s are generating desirable results and to revise those institutions if they fail to produce desirable results. Because of this, Sen argues that liberalism fails to ensure that everyone has an equal amount of freedom. Finally, Sen argues that Rawls focus es too heavily on distribution of primary goods. He claims substantive equality requires that people have an equal amount of freedom (as opposed to an equal amount of the means to freedom); that is, everyone should have an equal ability to live a life he or she has reason to value. In order to achieve this sort of substantive equality, we need to not only pay attention to the
180 distribution of wealth and other primary goods; we also need to pay attention to what prevents some people from functioning, including social relationships of domination and oppression (Sen, 1992) I will discuss each of these worries in turn. Conflicting Impartial Concerns Sen uses an illustration to demonstrate how conflicting (but still impartial) concerns might bear on the select ion of principles of justice. Suppose three children (Anne, Bob, and Carla) are fighting over a flute and we have to decide who should get it. Suppose Anne can make the best use of the flute, since she is the only one who knows how to play it. On the ot her hand, Bob is very poor and has no toys of his own to play with. Carla, however, created the flute with her own labor. Sen points out that there may be no disagreement about what constitutes individual advantage; we might agree that having the flute w ould promote each childs ends. However, we might disagree on what principles should determine who is entitled to the flute. The utilitarian might claim we should give the flute to Anne; since she is the only one who knows how to play it she is likely to gain greater enjoyment from playing it and more likely to promote the pleasure of those listening. The economic egalitarian might claim we should give the flute to Bob in order to achieve better economic equality between the children. Finally, the liber tarian might claim we should give the flute to Carla because she created the flute with her own labor. Each theorist will claim, from an impartial point of view, that each child deserves the flute for a different reason (Sen, 2009, pp. 12 15) My Respon se Presumably, Rawls would claim that Carla is only entitled to the flute if her keeping it improves the situation of Bob, the child who is the least well off. According to the difference principle, Carla is not necessarily entitled to the fruits of her l abor. Since
181 Carlas ability to make the flute results from an arbitrary distribution of natural talents, she is not necessarily entitled to what she was able to create because of those talents. Sen is concerned that those in the original position were o nly able to produce something as specific as the difference principle because of an arbitrary narrowing of impartial concerns that could be admitted into the debate. Utilitarian concerns are not admitted because individuals recognize that they are distinc t persons and are concerned about their own fates. Libertarian concerns are not admitted because Rawls assumes individuals are not entitled to resources they earn or produce because of their natural talents. Rawls writes the following argument for that c laim. It seems to be one of the fixed points of our considered judgments that no one deserves his place in the distribution of native endowments, any more than one deserves ones initial starting point in society. The assertion that a man deserves the sup erior character that enables him to make the effort to cultivate his abilities is equally problematic, for his character depends in large part upon fortunate family and social circumstances for which he can claim no credit. The notion of desert seems not to apply to these cases. Thus the more advantaged representative man cannot say that he deserves and therefore has a right to a scheme of cooperation in which he is permitted to acquire benefits in ways that do not contribute to the welfare of others. Th ere is no basis for making this claim. From the standpoint of common sense, then the difference principle appears to be acceptable both to the more advantaged and to the less advantaged individual (Rawls, 1971, p. 104) Rawls thinks that the process of r eflective equilibrium (at least when utilized by members of our society) yields the conclusions that individuals are distinct entities with their own desires, that the distribution of natural endowments is arbitrary, and that all people deserve equal respect and concern. These conclusions lead to a description of the original position that excludes (or at least gives little weight to) the utilitarian and libertarian concerns above. Therefore, it looks like Rawls thinks these concerns in fact can be dismis sed in the name of impartiality.
182 While Sen fails to respond directly to these arguments, presumably he thinks that a process of reflective equilibrium will not invariably yield the considerations Rawls uses in his argument against the utilitarian and liber tarian concerns. For the purpose of this chapter, I will focus on Rawls assumption that people are not entitled to the fruits of their natural talents because the distribution of those talents is arbitrary. I will consider Robert Nozicks argument again st this assumption and show why it fails to undermine Rawls theory. Robert Nozicks A rgument Robert Nozick challenges Rawls assumption that people are not entitled to the fruits of their talents. He complains that Rawls original position eliminates kno wledge about peoples histories and entitlements that are relevant to decisions about justice in distribution, and hence rigs the game in favor of endstate principles and arbitrarily rules out historical principles of justice in distribution. End state p rinciples of justice in distribution ignore how the pattern came about when evaluating the justice of a particular pattern of distribution; instead, endstate principles simply evaluate a distribution in terms of the amount of resources people have. Historical principles of justice in distribution evaluate the justice of a particular pattern of distribution by evaluating the fairness of how that distribution came about. Nozick writes, If things fell from heaven like manna, and no one had any special entit lement to any portion of it, and no manna would fall unless all agreed to a particular distribution, and somehow the quantity varied depending on the distribution, then it is plausible to claim that persons placed so that they couldnt make threats, or hol d out for specially large shares, would agree to the difference principle rule of distribution. But is this the appropriate model for thinking about how the things people produce are to be distributed? Why think the same results should obtain for situati ons where there are differential entitlements as for situations where there are not? A procedure that founds principles of distributive justice on what rational persons who know nothing about themselves or their histories would agree to
183 guarantees that en d state principles of justice will be taken as fundamental . But no historical principle, it seems, could be agreed to in the first instance by the participants in Rawls original position. For people meeting together behind a veil of ignorance to decide who gets what, knowing nothing about any special entitlements people may have, will treat anything to be distributed as manna from heaven (Nozick, 1974, pp. 198 199) Nozicks worry, then, is that Rawls original position rules out consideration of peoples histories, deeming them irrelevant to questions about justice. Nozicks challenge to Rawls highlights the fact that even if people agree to the principles of justice within the constraints of the original position, it is not clear that people wou ld unanimously agree to the constraints of the original position. One proble m with Nozicks argument is he ignores the fact that Rawls description of the original posi tion partially arises because Rawls thinks the reflective equilibrium leads to an agr eement on a particular way of spelling out the notion of equal respect and concern This way of spelling out the notion of equal respect and concern arises in part because of an awareness of the arbitrary distribution of natural talents. Rawls thinks tha t o nce people affirm the moral arbitrariness of the distribution of natural talents and the moral equality of all people, they have reason to acknowledge that a persons share of material goods should not depend on his natural talents. Nozick agrees that t he natural distribution of talents is arbitrary, but he does not think it follows that people are not entitled to the fruits of their talents. Nozick thinks that respecting the moral dignity of individuals requires treating people as ends in themselves. Because people own themselves, they cannot be used to promote the ends of others without their con sent. He argues that Rawls difference principle violates the requirement to treat people as ends in themselves because it uses the talented as a means to ac hieve the greater benefit of others. Rawls would agree that we should not
184 use anyone as a mere means to promote others ends. However, Rawls does not think his difference principle violates this Kantian principle. To see whether Nozicks accusation is w arranted, let us consider why Nozick might think Rawls difference principle violates Kants principle. Will Kymlicka offers a helpful analysis of Nozicks underlying assumptions. Kymlicka writes, According to Nozick Rawlss demand that goods produced by t he talented be used to improve the well being of the disadvantaged is incompatible with recognizing self ownership. If I own my self, then I own my talents. And if I own my talents, then I own whatever I produce with my self owed talents. Just as owning a piece of land means that I own what is produced by the land, so owning my talents means that I own what is produced by my talents. Hence the demand for redistributive taxation from the talented to the disadvantaged violates self ownership (Kymlicka, 2002, p. 109). Nozick seems to be assuming, then, that self ownership entails that people also own their natural talents, or any other features they were born with. If this were not the case, the self ownership claim would be meaningless. He writes, Wh ether any coherent conception of a person remains when the distinction [between the person and his talents] is so pressed is an open question. Why we, thick with particular traits, should be cheered that (only) the thus purified men within us are not rega rded as a means is also unclear (Nozick, 1974, p. 228). Nozick thinks a government fails to respect my self ownership if it gives others a claim to the fruits of my talents. He thinks that if the distribution of natural talents is arbitrary, others cannot legitimately claim the fruits of our talents, since doing so would involve violating the Kantian principle to treat everyone as ends in themselves. Kymlicka disagrees with Nozicks claim that Rawls difference principle fails to treat people as ends in themselves. To demonstrate his point Kymlicka claims that we need to understand when Nozick thinks initial acquisitions are legitimate and when he
185 thinks transfers are legitimate. When we examine Nozicks claims on both of these topics more closely, Kymlicka claims, we will see that self ownership does not yield property rights in either of these cases. Nozick claims that individuals can justly acquire property that was previously unclaimed as long as they leave enough and as good for everyone else. An initial acquisition is just, then, as long as it does not disadvantage individuals who can no longer use that resource as they choose (Nozick, 1974, pp. 178 182) Kymlicka claims that in order to evaluate Nozicks theory of initial acquisition, we ne ed to know two things: First, what does it mean to make someone worse off? Second, what are the alternatives Nozick is considering when he specifies the proviso? Once we answer these questions, we can see that Nozicks theory of acquisition is problemati c. To illustrate how Nozick answers these questions, and to show the problems with these answers, Kymlicka offers a case. Consider Amy and Ben, who both live off land which is initially under general use. Amy now appropriates so much of the land that Ben cannot live off the remaining land. That might seem to make Ben worse off. But Amy offers Ben a wage to work on her land which exceeds what he was originally producing on his own. Amy also gets more resources than she initially produced, due to the inc reased productivity arising from a division of labour, and the increase in her share is larger than the increase in his share. Ben must accept this, since there is not enough land left for him to live as he used to. He needs access to the land that she a ppropriated, and she is able to dictate the terms of that access, so that he gets less than half of the benefits of the division of labour ( Kymlicka, 2002, p. 115). Kymlicka points out that this satisfies Nozicks proviso. This is because it leaves Ben b etter off in terms of his access to material resources than he would have been if the land had been left un owned by anyone.
186 Kymlicka wishes to challenge Nozicks idea of what it means to make others worse off he does not think it is enough to consider material wealth. Kymlicka claims that Amys acquisition of the land makes Ben worse off because it undermines his ability to pursue his g oals. He no longer has any say over how the land is to be used (because it belongs to Amy), or how his own labor will b e used (because he needs to do whatever Amy requires him to do in order to earn a wage). Kymlicka also wishes to challenge the alternatives Nozick considers when he specifies the proviso. Nozicks proviso says that an act of appropriation must not make others worse off than they were when the land was in common use. But this ignores ma n y relevant alternatives ( Kymlicka, 2002, p. 117). Kymlicka says that it is possible that there are other ways of initially acquiring property that might make everyone better off than if we followed Nozicks suggestion for how to acquire property. If the proviso recognizes the full range of interests and alternatives that self owners have, then it will probably not generate unrestricted rights over substantially unequal amounts of resources (Kymlicka, 2002, p. 120). Kymlicka claims, for example, that we may do a better job of respecting self ownership if we view the world as jointly owned instead of initially un owned, and he complains that Nozick never considered this possibility. This account of initial acquisition may be more com patible with self ownership because it would require the consent of all who jointly own something before it could be privately acquired ( Kymlicka, 2002, p. 121). It would also require an agreement about what counts as an entitlement. If we viewed the world as jointly owned in this way, perhaps everyone would end up with principles of justice in distribution that are similar to Rawls rather than Nozicks.
187 While Rawls original position is set up in such a way that it does not allow information about what natural talents people have (information that Nozick deems relevant to a decision about principles of justice in acquisition), that exclusion is not groundless. Once we affirm that the dist ribution of natural talents is arbitrary, and that what we value in life is the ability to act on our ends, we want to come up with a description of the original position that will ensure that we produce principles of justice that will best promote everyon es ability to act on their ends. Institutions and Results Sens second concern about Rawls selection of the principles of justice is that he thinks it fails to pay attention to the results produced by institutions selected in line with those principles. Sen claims that the justice of a society depends on both the institutions and the actual behavior of those living in the society. In other words, it is not enough for institutions to embody the political conception of justice generated in the original position; they also need to promote just behavior in citizens. Sen worries that even if we can gain unanimous agreement on the principles of justice it is possible that the institutions selected in line with those principles will not produce just effects; the principles of justice may still be ineffective in regulating the behavior of individuals in the real world. If this is the case, it is not enough to be guided by the principles of justice when we select our institutions; we also need to determine whi ch institutions will best promote just behavior among citizens who may not always be motivated to regulate their own behavior according to the principles of justice. He writes, [T]here is no immediate jump from the acceptance of some principles of justice and a total redesign of everyones actual behavior in line with that political conception of justice. In general, the institutions have to be chosen not only in
188 line with the nature of the society in question, but also co dependently on the actual behavi oral patterns that can be expected even if and even after a political conception of justice is accepted by all. In the Rawlsian system, the choice of the two principles of justice is meant to ensure both the right choice of institutions as well as the eme rgence of appropriate actual behaviour on the part of everyone, making individual and social psychology thoroughly dependent on a kind of political ethics (Sen, 2009, pp. 68 69) Sen identifies the source of this error in Rawls use of a transcendental approach instead of a comparative approach when building a theory of justice. Sen claims that the transcendental approach is defined by two features. First, it attempts to define a situation that would count as perfectly just instead of attempting to rank various alternatives as more or less just than one another. Second, it treats institutions as manifestations of justice instead of as a means to promote justice; it judges institutions merely in terms of how they are defined and not in terms of the effect s the institutions produce in a given society. Sen contrasts the transcendental approach with the realization focused comparative approach, which focuses on ranking the justice of various societies that already exist or feasibly could exist instead of bui lding an image of the perfectly just society (Sen, 2009, pp. 5 6, 82 86) Sen claims that the transcendental approach fails to affirm that there is no immediate jump from the acceptance of some principles of justice and the total redesign of everyones actual behavior in line with that political con ception of justice (Sen, 2009, pp. 68 69). Ignoring this important fact about human behavior in Rawls theory prevents the transcendental approach from addressing the relationships of oppression and dominat ion that may arise even under perfectly just institutions. My Response Sens criticism of Rawls fails for at least two reasons. Sen thinks Rawls ideal approach to justice is problematic because it ignores the fact that individuals may not
189 always be mo tivated to act justly. However, Rawls allows information such as the general facts about human society and the basis of social organization and the laws of human psychology into the original position (Rawls, 1971, p. 137) Perhaps Rawls assumptions about peoples motivations are false, but e ven if Rawls assumptions about human nature are mistaken, that does not cut to the core of his theory. It does not show that Rawls use of the original position as a method for selecting the principles of justic e is problematic. Rather, it affects the assumptions that should be incorporated into the original position. Sens alternative account of human nature is therefore not sufficient to undermine Rawls theory; instead, it should (if correct) be used to refi ne or supplement Rawls theory. Second, even if Rawls procedure called for the selection the principles of justice without taking human nature into account, that does not mean it calls for the selection of institutions without considering the likely effe cts those institutions will have on human behavior. Sen concedes that both the conditions of society and the principles of justice guide the selection of actual institutions and legislation in the constitutional and legislative stages of Rawls theory of justice. Sen argues however, that it is not enough to consider these factors in the later stages of Rawls theory because the selection of the principles of justice so strongly affect all of the later stages. To make this objection successful, howev er, Sen would need to show why Rawls needs to consider more information in the selection of his principles of justice in order to create institutions that have a positive effect on human behavior. Someone might come to Sens defense at this point by offer ing the following objection. Perhaps Rawls procedure does call for us to consider the likely effect of
190 institutions on human behavior when selecting those institutions. However, such a move is not actually available to Rawls because of his commitment to liberal neutrality. This is because evaluating institutions in terms of the effects they produce on society violates liberal neutrality, since it would be favoring results that not everyone endorses. T his criticism still will not work, however. Once th e principles of justice are selected, they can be used to evaluate the effects of various institutions. If the institution in question promotes behavior that gives each person the most extensive basic liberty compatible with a similar liberty for others a nd the ability to carry out the distribution specified in Rawls second principle, then Rawls can affirm that those institutions produce desirable results. Rawls does not need to use a substantive theory of the good to determine what effects are desirable ; instead, he can use his principles of justice to determine whether various institutions are promoting liberty and equal access to primary goods. Equal Distribution of Primary Goods vs. Equal Distribution of Freedom Sens third criticism of Rawls theory of justice is that Rawls focuses too heavily on distribution of primary goods. Sen argues that everyone should have an equal ability to live a life he or she has reason to value. In order to achieve this sort of substantive equality, we need to not only pay attention to the distribution of wealth and other primary goods; we also need to pay attention to what prevents some people from functioning, including a persons physical environment, physical condition, and social settings (Sen, 1992) He writes, [I n] the difference principle, Rawls judges the opportunities that people have through the means they possess, without taking into account the wide v ariations they have in being ab l e to convert primary goods into good living. For example, a disabled person can do far less with the same level of income and other primary goods than can an able bodied human being. A pregnant woman needs,
191 among other things, more nutritional support than another person who is not bearing a child. The conversion of primary goods into the capability to do various things that a person may value doing can vary enormously with differing inborn characteristics (for example, propensities to suffer from some inherited diseases), as well as disparate acquired features or the divergent e ffects of varying environmental surroundings (for example, living in a neighbourhood with endemic presence, or frequent outbreaks, of infectious diseases) (Sen, 2009, pp. 65 66) In this passage, Sen indicates that people in bad circumstances can suffer f rom two disadvantages an income handicap and a conversion handicap. They have an income handicap because they are less able to earn money than people who do not suffer from such health issues, and they have a conversion handicap because their disadvantages make it more difficult for them to use their resources efficiently to reach their ends. For example, a person with a disability suffers from a conversion handicap because it is more expensive for him to get around, and a person who has a propensity to s uffer from inherited diseases may have a conversion handicap because he require s more resources to avoid becoming infected. The above passage makes it look like Sen understands Rawls suggested distribution as follows. Rawls thinks primary goods are dis tributable entities (such as wealth) that have no essential connection with the social structure of a society or to a persons physical condition and environment. Rawls second principle calls for an equal distribution of primary goods unless an unequal distribution of these goods gives the worst off person access to more primary goods than he or she would otherwise have. To clarify, let us imagine that primary goods are concrete entities that can be distributed in specific units. Under the veil of ignor ance, we do not know anything about the individuals among whom we are dividing these primary goods. Sen seems to think that Rawls is calling for us to distribute these units of primary goods equally among
192 individuals unless an unequal distribution gives t he worst off person more units of primary goods than he or she would otherwise have. Once the veil is lifted, we can see that some individuals (such as individuals with disabilities or individuals in a diseaseridden environment) do not have the same capability to use these primary goods to live lives they value as other individuals. Sen thinks this procedure makes a step in the right direction because it does not give those who were born with undeserved natural talents an unfair advantage in accumulat ing primary goods. Sometimes individuals are born with natural talents that are highly valued in their society, and the possession of those talents allows them to acquire a disproportionately large amount of s ome primary good (such as money ) Rawls seco nd principle of justice addresses this problem by redistributing some of the wealth from the talented person to others who do not have the same power to acquire it. Sen thinks that Rawls needs to take a step further, however, by giving more units of prima ry goods to individuals who have a lesser ability to convert those primary goods into freedom. My Response The first response I have to Sen is that we could make his suggested change in focus from primary goods to freedom without abandoning the core princ iples of Rawls theory. Sen, in fact, affirms this point (Sen, 2009, p. 66) Second, some of the problems Sen points out with primary goods go away once we understand that nonquantifiable goods and public goods can count as primary goods (as discussed i n m y response to Youngs objection) Sen argues that there are many things that can prevent a person from being able to convert primary goods into actual freedom. Such obstacles can include disabilities, or living in an environment ridden with disease or
193 environmental problems (Sen 2009, p. 66) A person who lives in an unclean or diseaseridden environment will indeed be less able to convert money and other material goods into freedom because she will have more expenses or more difficulty in using thos e resources to gain the benefit she wants. She may have to spend more money on medicine to help her combat illnesses she contracted as a result of the unhealthy environment, for example. Sen fails to affirm, however, that those barriers result from the l ack of another, nonmaterial primary good (namely, access to a clean and diseasefree environment). Admittedly, it will not be possible to ensure that everyone has an equally clean and diseasefree environment. However, we can try to compensate those who are in less desirable environments by giving them more primary goods of another type, such as money or medical care. Let us now consider how disabilities can prevent someone from converting material primary goods into freedom. One barrier disabled perso ns face when attempting to live lives they value is that it is more difficult for them to get around. A task like buying groceries can be much more expensive and timeconsuming for a person with a disability than for a person with no such disability. It is more difficult for disabled persons to drive vehicles or take public transportation. When we think of the barriers disabled persons face in completing their tasks, we tend to think that their problems result from a natural disadvantage rather than from a lack of primary goods. To some extent, this may be the case. However, some of the barriers they face are due to the way in which we design resources such as public transportation systems, cars, roads, and buildings for the average person. If most people in a society were unable to use their legs, for example, there would always conveniently located elevators and
194 curbs. Buses would not be designed so that people have to step up onto them, and car companies would mass produce vehicles that people could operate without their legs. These examples illustrate that many of the disadvantages faced by people with disabilities result from the fact that society is designed for the average person. Recall that Rawls says of primary goods that they are things that every rational person is presumed to want. These goods normally have a use whatever a persons rational plan of life (Rawls, 1971, p. 62). If I have the features of the average person for whom most of the resources in a society are designed, I c ertainly gain an advantage from that as I pursue my plan of life. It seems that any rational person would want such resources designed to fit their needs. Surely, then, access to resources designed in such a way that one can use them would count as a pri mary good. Therefore, many of the barriers disabled persons face when trying to use some primary goods (such as money) to pursue a life they have reason to value results from the fact that they lack access to other primary goods (such as resources designed for someone with their features ) One thing we can do to improve the plight of disabled persons is to design resources like buildings and public transportation in a more inclusive way, so that they are usable by a wider variety of people. Such an approach does not rely on Sens capability approach, however, since it involves improving everyones access to primary goods rather than giving more primary goods to people who face natural disadvantages. While Rawls primary goods approach may be able to deal with Sens worries about (some) disabled persons or persons who live in unclean or diseaseridden environments, it does not look like it can address problems arising from other disadvantages (such as severe disabilities or propensities to suffer from some inherited
195 diseases). Once again, Sen claims that people in bad circumstances can suffer from both income handicaps and conversion handicaps. Sen is concerned that Rawls focus on primary goods only deals with the problem of income handicaps, and he argues that a theory of justice should also deal with conversion handicaps (Sen, 2009, pp. 258 262) While an equal distribution of social primary goods might address some of the issues regarding conversion handicaps that Sen worries about, it will not ensure that nobody has conversion handicaps. Some people have such severe disabilities that it will be more costly for them to pursue their ends than it is for others even if we do design public resources so that they are more accessible to a broader range of people. I agree with Sen that a theory of justice should also address conversion handicaps and that focusing exclusively on the distribution of primary goods would not allow us to address this issue. I also agree with Sen, however, that shifting our focus f rom primary goods to capabilities is not a foundational departure from Rawls program. I think Sen is correct to claim that Rawls motivation for focusing on primary goods is to promote individual freedom. Therefore, if following Sens suggestion is a bet ter way to promote maximum freedom for individuals compatible with equal freedom for all, then Rawls would endorse it (Sen, 2009, p. 66). Conclusion In this chapter, I have responded to two objections attempting to show that the liberal commitment to the p riority of the right over the good fails to promote substantive equality because it does not pay sufficient attention to the social relations in which domination occurs. Iris Marion Young argued that liberalism focuses too heavily on matters of distributi ve justice. In doing this, it fails to address the social structure and institutional context that causes injustice (including distributive injustice) to occur in the
196 first place (Young, 1990, p. 15) Amartya Sen argued that the liberal approach is probl ematic because it fails to pay sufficient attention to the social structure its institutions are meant to regulate when it forms the institutions. I showed that both of these objections fail to undermine the fundamentals of Rawls theory, however, because they rely on a misunderstanding of primary goods.
197 CHAPTER 7 AFFIRMATIVE ACTION, COMMUNITY, AND INDIV IDUAL RIGHTS In Liberalism and the Limits of Justice, Michael Sandel criticizes John Rawls argument for the difference principle and Ronald Dworkins views about affirmative action by claiming that both views are incompatible with the liberal commitment to the distinction between persons. Sandel points out that Rawls and Dworkins arguments can only be successful if they can provide a successful argument for th e following two claims: (a) individuals are not necessarily entitled to all of the resources they ear n or produce, and (b) individuals are sometimes entitled to some of the resources that other individuals earn or produce. Sandel argues that Rawls a nd Dworkin cannot offer a successful argument for claims (a) and (b) unless they abandon their commitment to the distinction between individuals, which would involve a fundamental departure from the commitments of liberalism. In this chapter I will offer a brief summary of Rawls argument for his difference principle and Dworkins argument for affirmative action. I will explain how Sandel argues for his view that Rawls and Dworkin must abandon either their commitment to the distinction between individual s or their commitment to affirmative action and the difference principle. I will also explain why Sandel think s a system that treats individua ls as distinct undermines the existence of a community in which people can develop and live out a rational and co mplex plan of life Finally, I will object to Sandels argument by showing that a commitment to the distinctness of individuals is consistent with an endorsement of affirmative action and the difference principle. I will conclude the chapter by explaini ng some merits of Sandels argument. I agree with his claim that a persons ability to develop and live out a rational and
198 complex plan of life requires living in a certain type of community and that we should make it a priority to maintain such a communi ty. I will explain, however, that this view does not conflict with the commitments of liberal theorists. Instead, Sandels view provides us with more detailed guidelines for how best to protect individual rights. In doing this, Sandels view actually pr ovides support for Rawls difference principle and Dworkins views on affirmative action. Rawls Argument Rawls argues for his difference principle by claiming that participants in the original position would agree to such a principle given that they would not know the details about their identities or place in society. Rawls points out that under the veil of ignorance, individuals would be forced to protect themselves against the contingency that they would be among the worst off in a society. Because of this, he claims that participants in the original position would even want to protect themselves against a situation in which their power to accumulate primary goods was limited by the fact that they lacked natural talents valued by their society. Rawls a rgues that the original position will best represent the moral equality of human beings if the participants do not know details about their identities or place in society. He claims that the possession of natural talents is a matter of luck; and a distrib ution that depended on these contingencies would not be just because it would fail to treat individuals as moral equals (Rawls, 1971, p. 104) I offered a more detailed argument for this claim in the previous chapter. Rawls further points out that the di fference principle may even be justified to the fortunate after the veil of ignorance is removed as long as they accept the moral equality of human beings and the claim that the distribution of natural talents is largely a matter of luck. He writes,
199 Now w hat can be said to the more favored man? To begin with, it is clear that the well being of each depends on a scheme of social cooperation without which no one could have a satisfactory life. Secondly, we can ask for the willing cooperation of everyone only if the terms of the scheme are reasonable. The better endowed, or more fortunate in their social circumstances, could expect others to collaborate with them when some workable arrangement is a necessary condition of the good of all (Rawls, 1971, p. 103) According to Rawls, then, everybody is better off if there is a scheme of social cooperation that guides everyones behavior. However, not everyone will willingly be guided by the scheme of cooperation unless it is fair, and a fair scheme of cooperati on will not allow the distribution of primary goods to depend exclusively on the arbitrary distribution of natural talents Hence, even those born into favorable circumstances are better off when the distribution of primary goods does not depend exclusive ly on the arbitrary distribution of natural talents since that is what fairness requires. Rawls therefore thinks that the difference principle is to everyones advantage because it establishes a system of justice in distribution that treats individuals as moral equals. A system of distribution that depended on the arbitrary distribution of natural talents would be unjust because such a system would not tr eat individuals as moral equals. I nstead, it would treat those who have natural talents valued by the society as more worthy of respect and concern. Sandels Critique of Rawls Sandel begins his critique of Rawls argument for his difference principle by pointing out a criticism Robert Nozick makes of it. Nozick argues that requiring individuals to give the community some of the resources they own from their hard work and natural talents involves breaking Kants requirement to always treat individuals as ends i n themselves and never merely as a means (Sandel, 1982, pp. 77 78) Rawls thinks he answers thi s question by pointing out the arbitrary way in which (a) natural
200 talents are distributed among individuals, and (b) societies determine which natural talents they will reward. For example, the fact that people value Wilt Chamberlains ability to play bas ketball more than a schoolteacher ability to inspire children to learn is arbitrary; it does not indicate that Wilt Chamberlain has more moral worth than a schoolteacher, or that he deserves to earn more money than a schoolteacher. Sandel claims that this response is not sufficient, however. He argues that Rawls needs to offer one of two responses to demonstrate that his difference principle does not treat individuals as mere means. First, Rawls could offer a theory of the self according to which individuals are distinct from the attributes they happen to possess. Second, he could posit a common identity among those who share in the resources that individuals earn (Sandel, 1982, pp. 77 95) Sandel argues that the first response is problematic because, w hile it may show that individuals do not deserve the resources their natural talents allow them to require, it fails to show why the community as a whole is entitled to those resources. He then argues that while the second argument would allow Rawls to su ccessfully defend his difference principle, it would require him to abandon his commitment to the distinction between individuals and his idea that a society is nothing more than a collection of individuals with their own distinct desires and ends (Sandel 1982, pp. 77 103) I will elaborate on Sandels criticism of each response in turn. Nozick argues that even if people do not deserve their natural talents, they can have a right to the goods they earned or produced because they have such natural talents. He writes, It is not true, for example, that a person earns Y (a right to keep a painting hes made, praise for writing A Theory of Justice and so on) only if hes earned (or
201 otherwise deserves ) whatever he used (including natural assets) in the proces s of earning Y Some of the things he uses he just may have not illegitimately. It neednt be that the foundations underlying desert are themselves deserved all the way down (Nozick, 1974, p. 225). Nozick claims that a persons holding of a good or ass et is legitimate as long as he did not violate someone elses right to that asset. Most people do not acquire their natural talents by stealing them from others; rather, they come into the world already holding those assets. Therefore, Nozick thinks that even if people do not deserve their natural talents, and even if the distribution of natural talents is arbitrary, it does not follow that individuals do not have a right to the goods they earn or produce because of those natural talents. Sandel agrees that the arbitrary distribution of natural talents is not enough to demonstrate that people are not entitled to the goods they earn or produce with those talents. He argues that the only way to show that the difference principle does not violate individua l rights while maintaining the liberal commitment to the distinction between individuals would be to argue for a theory of the self according to which individuals are distinct from their natural talents. Rawls might claim that the various natural assets with which I am born may be said to belong to me in the weak, contingent sense that they reside accidentally within me, but this sense of ownership or possession cannot establish that I have any special rights with respect to these assets or any privileged claim to the fruits of their exercise (Sandel, 1982, p. 82) By doing this, Rawls might claim that individuals are distinct from the accidental features that they possess. If an individuals identity is distinct from his natural talents, considering n atural talents to be common assets of a community does not violate individual rights.
202 Sandel argues that such a move would be problematic for two reasons, however. First, Nozick and Sandel agree that this response relies on a counter intuitive view of the self. Sandel agrees with Nozicks claim that, Whether any coherent conception of a person remains when the distinction is so pressed is an open question. Why we, thick with particular traits, should be cheered that (only) the thus purified men within u s are not re garded as means is also unclear (Nozick, 1974, p. 228). Second, Sandel argues that even if we ignore the problems with the unencumbered theory of the self, such a response is still problematic because it removes all foundations for desert. I f an individuals behavior (which results from the individual features he happens to have) cannot serve as the foundation for desert, then it is not clear that anything can. This causes Rawls argument from the arbitrary distribution of natural talents to the difference principle to be underdetermined. Even if the arbitrary distribution of natural talents shows that individuals do not deserve their natural talents or the resources they earn or produce because of them, it does not show that society as a wh ole does deserve those resources. To further illustrate that Rawls argument for the difference principle is underdetermined if he relies on the unencumbered theory of the self, Sandel highlights three ways in which we might understand the relation between an individual and his attributes. 1) An individual can be the owner of the attributes. There is a strong and a weak sense in which one might own his attributes. According to the strong sense, one has absolute and exclusive rights to his endowments and what he produces with
203 them. According to the weak sense, one has limited rights to his endowments and what he produces with them. 2) An individual can be the guardian of the attributes. This means that a persons endowments are owned by another subject or group of subjects, and that I cultivate and exercise those endowments on behalf of the owner. 3) An individual can be the repository for the attributes. This description eliminates the question about who owns the endowments and simply specifies that the endowment s happen to reside in an individual (Sandel, 1982, pp. 96 97) Sandel points out that the unencumbered theory of the self merely rules out the first type of relation between an individual and his attributes, but it does not show why we should not simply le t the endowments (and benefits that flow from them) lie where they fall. The third type of relation is compatible with the claim that natural talents are arbitrarily distributed, and that the individual is not entitled to his talents and what he is able t o earn with them. However, it does not establish that the persons community is entitled to the fruits of his talents either. Sandel claims that only the second type of relation between individuals and their endowments justifies the difference principle because only that relation shows why the community is entitled to what individuals earn with their assets. Sandel argues, however, that if Rawls accepted that relation he would have to abandon his commitment to the distinction between individuals (Sandel, 1982, p. 97 103) He writes that for the community as a whole to deserve the natural assets in its province and the benefits that flow from them, it is necessary to assume that society has some pre institutional status that individuals lack, for only in this way could the community be said to possess its assets in the strong, constitutive sense of possession necessary to a desert base. But such a view would run counter to Rawls individualistic assumptions, and in particular to his view that society is not
204 an organic whole with a life of its own distinct from and superior to that of all its members in their relations with one another (264) (Sandel, 1982, p. 101). It seems, then, that Sandel means to make an argument like the following. To argue for t he difference principle, it is not enough to show that individuals do not deserve their natural talents and the fruits of those talents. One also has to show that the community deserves the fruits of those talents. Doing that requires showing that ther e is a thing called the community that exists as an entity in and of itself, not reducible to the individuals that make it up, that deserves the fruits of individuals talents. Sandel affirms that Rawls attempts to fill the gap between his claim about th e arbitrary distribution of natural talents and his conclusion that we should use the difference principle to regulate the distribution of goods by offering an account of the community. In The Idea of a Social Union, Rawls discusses two accounts of the community: the instrumental account and the sentimental account. Sandel claims that the instrumental account conceives community in wholly instrumental terms and evokes the image of a private society, where individuals regard social arrangements as a n ecessary burden and cooperate only for the sake of pursuing their own private ends (Sandel, 1982, p. 148). According to the sentimental account, the participants have certain shared final ends and regard the scheme of cooperation as a good in itself. Their interests are not uniformly antagonistic but in some cases complementary and overlapping (Sandel, 1982, p. 148) Rawls does not rule out the possibility that some people may have shared ends and view cooperation as a good in itself. Because of t his, Rawls accepts the sentimental account and rejects the instrumental account. Sandels description of Rawls view here is correct. Rawls argues that human beings have in fact shared final ends and they value their common institutions and
205 activities as good in themselves. We need one another as partners in ways of life that are engaged in for their own sake, and the successes and enjoyments of others are necessary for an d complementary to our own good (Rawls, 1971, pp. 522 523). Rawls illustrates th is point by offering the example of individuals who train to play an instrument in an orchestra. This is a joint goal that requires each to play a part in carrying out an excellent performance, and no single person could carry out the goal by himself (Rawls, 1971, p. 524) Sandel argues that neither the instrumental nor the sentimental account of the community is sufficient to support affirmative action programs or the difference principle. Sandel claims that these views can only be defended if we can pos it a wider subject of possession capable of laying legitimate claim to the assets necessary to its purposes without using some as a means to others ends and without collapsing into a radically situated subject. But neither the instrumental nor the sentim ental account of the community, presupposing as they do the antecedent individuation of the subject, can offer a way in which the bounds of the subject might be redrawn; neither seems capable of relaxing the bounds between the self and the other without pr oducing a radically situated subjec t (Sandel, 1982, p. 149). Sandel argues that both the instrumental and sentimental accounts of community are too individualistic to view the natural talents held by individuals as common assets. He claims that a successf ul argument for this view depends on a constitutive account of the community. According to the constitutive account, members of a society conceive their identity the subject and not just the object of their feelings and aspirations as defined to some ext ent by the community of which they are a part. For them, community describes not just what they have as fellow citizens but also what they are not a relationship they choose (as in a voluntary association) but an attachment they discover, not merely an attribute but a constituent of their identity (Sandel, 1982, p. 150) Sandel thinks a successful argument for the difference principle depends on an account of the community that reaches beyond the subjects motivations to the subjects very
206 identity. He thinks that unless we view individuals as the guardians of natural assets that are actually owned by the community, we cannot give the community the resources that individuals earn or produce with those endowments without violating Kants imperative to alw ays treat individuals as ends in themselves and never merely as a means. However, if Rawls views individuals as the guardians of natural assets that are actually owned by the community, he must abandon his commitments to the distinction between individual s, the priority of the self over its ends, and the view that a community is merely a collection of individuals and not an independent entity. My Defense of Rawls I agree with Sandel that it would be problematic for Rawls to defend the difference principle by positing a common identity among those who share in the resources that individuals earn, as doing so would involve denying the distinction between persons and the priority of the self over its ends. However, I think Sandel is wrong to claim that Rawls argument for the difference principle is underdetermined. Sandel and Nozick are right to claim that a mere reference to the arbitrary distribution of natural talents is insufficient to support the claim that some individuals are entitled to some of the resources that other individuals earn or produce. However, they fail to pay attention to two important aspects of Rawls argument his premise regarding the moral equality of human beings and his argument that even the naturally well endowed cannot meet th eir ends without a fair system of cooperation. In this section, I will argue that Rawls argument is not underdetermined once we understand the role of these claims. When Rawls discusses what Sandel calls the sentimental account of the community in The Idea of Social Union, he points out that human beings often have shared ends that can only be reached in cooperation with one another. Recall Rawls
207 exa mple of individuals wishing to play in a symphony to achieve the collective goal of giving an excellent performance as an orchestraa goal which nobody could achieve alone. This example illustrates how a smaller group of people can depend on one another to carry out a collective goal that is important to all of them; but Rawls thinks there are other collective goals that require a larger social union. For example, we wish to develop our moral and rational abilities, which requires calling on a huge body of knowledge developed throughout our community across many generations. We (at least those of us who are reasonable) wish to live in a society that gives everyone a fair chance of achieving their ends. Rawls claims that this collective goal requires of all the players that there should be a good play of the game. This shared end can be realized only if the game is played fairly according to the rules, if the sides are more or less evenly matched, and if the players all sense that they are playing well. But when this aim is attained, everyone takes pleasure and satisfaction in the very same thing. A good play of the game is, so to speak, a collective achievement requiring the cooperation of all (Rawls, 1971, pp. 525 526) Rawls points out that sometimes people can still have competing interests within a social union. When two people play chess, for ex ample, each player wants to win the gameand both cannot achieve their individual goals. Howev er, in order to achieve their goal of playing chess to begin with, they must both abide by the rules that define fair play of the game. If the players do not follow these rules, neither will achieve his goal to play and win the game, including the person who is more naturally talented at playing chess. Rawls also discusses the collective goal of fair play before his treatment of it in The Idea of Social Union. In The Tendency to Equality, Rawls points out the fact that
208 even those who were fortunate in the natural lottery can only achieve shared ends that require social cooperation under a fair system. Recall the following quote I cited above: Now what can be said to the more favored man? To begin with, it is clear that the well being of each depends on a scheme of social cooperation without which no one could have a satisfactory life. Secondly, we can ask for the willing cooperation of everyone only if the terms of the scheme are reasonable. The better endowed, or more fortunate in their social circumstances, could expect others to collaborate with them when some workable arrangement is a necessary condition of the good of all (Rawls, 1971, p. 103) Now th at we see why Rawls thinks even those who were fortunate in the natural lottery require a fair system of social cooperation to achieve some of their ends, we need to consider why Rawls thinks the difference principle is an essential part of such a system o f cooperation, given the arbitrary distribution of natural talents. Recall that in chapter five I discussed the way in which the reflective equilibrium is meant to yield the assumptions that determine the conditions under which individuals decide on the principles of justice. I argued that while some believe that belonging to a certain class, race, or gender, gives a person the right to subordinate people who do not belong to that group, such beliefs do not meet the requirements of considered judgment s. As I argued in chapter five, people tend to make good judgments when they have experience and knowledge of the details regarding the situation being addressed, when they are free from biases and not dogmatic, and when their results are based on their fin dings (as opposed to their findings being based on the results they hope to get). The judgment that belonging to a certain class, race, or gender, gives a person the right to subordinate people who do not belong to that group does not meet those requireme nts. It seems, then, that any reasons for excluding a person or group of people from this process would result from making judgments under conditions that tend
209 to yield erroneous judgments. This leads to two important conclusions. First, we should inclu de everyone in the process of reflective equilibrium that yields the description of the original position. Second, the original position should be described in such a way that it gives everyone bargaining power when negotiating for the principles of justi ce. Because no reasonable person can be excluded from the process of wide reflective equilibrium that yields the description of the original position, it will include individuals who have different natural abilities and different (and sometimes competin g) ends and conceptions of the good. All participants (including those who would otherwise face disadvantages because of a natural disability or because the majority of the population does not approve of t he i r choices) will want to ensure that the system of cooperation allows them to meet their ends. Individuals in otherwise disadvantageous circumstances will therefore push for a description of the original position that treats them all with equal respect and concern. The demands of the otherwise disadva ntaged to be granted equal bargaining power meet the requirements for considered judgments, while the demand to dismiss those demands do not meet the requirements for considered judgments. Therefore, the process of wide reflective equilibrium will yield a description of the original position that treats everyone with equal respect and concern. A description of the original position can only treat individuals with equal respect and concern if it gives all individuals equal bargaining power when negotiatin g for the principles of justice. The original position therefore cannot give members of an otherwise advantaged group (such as the naturally talented or members of the majority) an advantage when negotiating for those principles. To eliminate this advant age, Rawls claims that participants in the original position do not have any knowledge about their
210 desires, conceptions of the goods, talents, etc. Because participants in the original position want to ensure that they will be able to meet their ends (whatever they may be), and because it is possible that they will have natural disabilities or will be members of minority groups, they will design the principles of justice so that they maximize the advantage of the worst off person. In summary, Sandel seems to think Rawls argument for the difference principle could be outlined as follows: 1) The distribution of natural talents is arbitrary. 2) Because this is the case, people do not deserve their natural talents. 3) If people do not deserve their natural talents, th ey do not deserve the resources they were able to earn or produce because of those talents. 4) Therefore, the community as a whole deserves the resources individuals are able to earn or produce because of their natural talents. If this were in fact Rawls arg ument, Sandel would be right that it is invalid. It is invalid because it does not include a premise that shows why the community as a whole is entitled to the resources that individuals earn or produce with their natural talents. As Sandel rightly point s out, even if Rawls has shown that individuals do not deserve their natural talents or the resources they earn or produce with these talents, it does not follow that the community as a whole is entitled to those resources. However, Rawls argument is m ore accurately outlined as follows. 1) Reasonable individuals have some shared ends that can only be met under a fair system of cooperation. 2) A fair system of cooperation will treat individuals with equal respect and concern.
211 3) To treat individuals with equal respect and concern, we must give them equal bargaining power when formulating the principles of justice. 4) If individuals have equal bargaining power when formulating the principles of justice they will choose the difference principle. 5) Therefore, a fair syst em of cooperation will include the difference principle, which entitles some members of society to the resources others were able to earn or produce because of their natural talents. This argument is valid. It shows both that (a) individuals are not alway s entitled to the resources they were able to earn or produce because of their natural talents, and (b) some individuals are entitled to the resources others earned or produced; and it does so without compromising the liberal commitment to the distinction between persons Before closing this section, I wish to point out one additional problem with Sandels criticism of Rawls. Sandel occasionally uses misleading language to represent Rawls claims. Sandel repeatedly claims that the difference principle gi ves society as a whole the right to the resources individuals earn or produce (one example can be found in Sandel, 1982, p. 96) However, Rawls never claims that society as a whole deserves anything. Rawls writes, We see then that the difference pri nciple represents, in effect, an agreement to regard the distribution of natural assets as a common asset and to share in the benefits of this distribut ion whatever it turns out to be (Rawls, 1971, p.101). C alling the natural talents of individuals a com mon asset does not involve giving society as a whole the right to these assets as Rawls does not think society as a whole is an entity distinct from the individuals who make it up. Rather, it gives
212 individuals within the society the right to share in t he b enefits arising from that shared, or common, asset. Dworkins Argument Dworkin argues that we should use affirmative action programs because they promote the desirable social goal of relieving racial tension without violating individual rights in the process. Dworkin offers an empirical argument that affirmative action programs succeed in their goal of relieving social tension in Chapter 11 of Sovereign Virtue Because Sandel does not criticize that portion of his argument, however, I will not summari ze it. Instead, I will focus on summarizing Dworkins argument that affirmative action programs do not violate individual rights. To support his claim that affirmative action programs do not violate individual rights, Dworkin responds to what he sees as the two strongest arguments for the claim that affirmative action programs violate individual rights. First, some claim that affirmative action programs violate the right of the individual to be judged on the basis of merit. Second, some claim affirmati ve action programs violate the applicants right not be judged on the basis of race (Dworkin, 1978b pp. 223 239) I will summarize Dworkins responses to each of these arguments in turn. Consider the claim that individuals have the right to be judged on the basis of merit alone. One problem with this claim is that it is unclear what constitutes merit. Perhaps the most obvious interpretation of what constitutes merit for the sake of university admissions is intelligence, as indicated by the applicants grades and aptitude tests. Dworkin points out that using intelligence alone as a criterion for university or job admissions is problematic because such decisions should be based on forwardlooking
213 promise rather than backwardlooking achievements or natural properties. He claims that there are some cases where qualification is a matter of forward looking promise rather than backwardlooking achievement or natural property: a rational person does not choose a doctor as a tribute to her skill or to reward her for past cures: he chooses the doctor whom he expects to do the best for him in the future, and he takes the doctors innate talent or past achievements into account only because, and so far as, these are good indicators of the doctors value to him in the future (Dworkin, 2001, p. 401) Dworkin argues that instead of basing its admissions standards exclusively on backwardlooking achievements or natural properties, schools should choose the candidates that show promise of promoting the (legitimate) goals defined by the institution. Dworkin goes on to argue that universities (particularly public institutions) should not merely aim at the advancement of knowledge. They should also work to improve the collective life of the community by protecting and d eveloping the culture and by promoting justice and harmony in the community (Dworkin, 2001, pp. 402 403) Dworkin argues that accepting more black students promotes justice and harmony by giving minorities more resources to become successful professionals and community leaders, helping to eliminate minority stereotypes, providing more role models for future minorities, etc (Dworkin, 1977, p. 12) Just as universities should use intelligence as a factor to determine admissions decisions because it indicates that a student is more likely to advance knowledge, they should use race as a factor to determine admissions decisions because it indicates that a student is more likely to promote justice and harmony in a community. Therefore, while Dworkin agrees that a candidate has the right to be judged on the basis of merit, he challenges the idea that intelligence alone (or any other solely backwardlooking property) constitutes merit.
214 Consider now the claim that affirmative action programs violate the applicant s right not be judged on the basis of race. Dworkin argues that this claim can only be made plausible if there is a good reason to believe that all racial classifications (including those that would promote justice and equality in a community) violate a p ersons right to be treated as an equal. Because any standard puts some applicants at a disadvantage, the opponent of affirmative action needs to show why race is an unfair standard. One reason an opponent of affirmative action might argue that race is an unfair standard is because it is a feature that the applicant has no control over. However, Dworkin points out candidates also do not have control over their intelligence (Dworkin, 1977, p. 14) He writes that when someone is not accepted to medical sch ool on the basis of intelligence or race (with the goal of promoting social harmony), the person is being excluded not by prejudice but because of a rational calculation about the socially most beneficial use of limited resources for medical education (D workin, 1977, p. 14). One might object that Dworkins argument here relies on a utilitarian standard that ignores individual rights. To see how such a standard might be problematic, consider an alternative case in which a university might make its admis sions decisions on the basis of race. Dworkin asks us to imagine an admissions committee composed of members who do not hold any prejudices, but who decided that the Texas economy demanded more white lawyers than they could educate, but could find no use for black lawyers at all. That might have been, after all, a realistic assessment of the commercial market for lawyers in Texas just after World War II. Corporate law firms needed lawyers to serve booming business but could not afford to hire black lawy ers, however skillful, because the firms practices would be destroyed if they did. It was no doubt true that the black community in Texas had great need of skillful lawyers, and would have preferred to use black lawyers if these were available. But the committee might
215 well have thought that the commercial needs of the state as a whole outweighed that special need (Dworkin, 1978b p. 230) Many who object to the use of race as a standard for admissions are concerned that consistency demands that we can o nly rule out the use of racial discrimination for the betterment of a community if we also reject affirmative action. Dworkin argues that these cases are not analogous, however. He claims that a policy might attempt to promote the betterment of a commun ity in a utilitarian sense or in an ideal sense. A community is bettered in the utilitarian sense if the average collective welfare in the community is improved even though the welfare of some individuals falls (Dworkin, 1978b p. 232). A community bet tered in the ideal sense, on the other hand, if it is made to be closer to an ideal society, whether or not average welfare is improved (Dworkin, 1978b p. 232) An ideal society is one in which citizens are treated with equal respect and concern and in which the right to equal respect and concern is not contingent on the preferences of others. Dworkin writes, The ideal arguments do not rely upon preferences at all, but on the independent argument that a more equal society is a better society even if i ts citizens prefer inequality (Dworkin, 1978b p. 239). The decision of the admissions committee in the above case is made in attempt to promote the well being of the community in the utilitarian sense. It counts the racist preferences of individuals i n its calculations about what we should do to maximize utility. Affirmative action programs, on the other hand, attempt to promote the well being of a community in the ideal sense. They are motivated by the idea that people should be treated with equal r espect and concern, even if doing so fails to maximize utility. While utilitarian arguments focus on determining what course of action will maximize utility,
216 ideal arguments will focus on determining what course of action will promote the existence of a m ore just community, in which everyone is treated with equal respect and concern. Dworkin points out that utilitarian arguments confront problems about how to carry out utilitarian calculations that ideal arguments can avoid. For example, it is difficult to identify a psychological state of pleasure common to everyone. It is also problematic to use preferencesatisfaction to measure the welfare of a community instead of judging alternative options in terms of units of pleasure. Dworkin argues that the sec ond way of measuring utility is even more problematic than the first. He points out that people have both personal and external preferences. Personal preferences include only a persons desires for goods or opportunities for oneself. External preferences include a persons desire for the distribution of goods or opportunities to others (Dworkin, 1978b p. 234). Dworkin claims that counting external preferences in utilitarian calculations can interfere with treating people as equals because the chance t hat anyones preferences have to succeed will then depend, not only on the demands that the personal preferences of others make on scarce resources, but on the respect or affection they have for him or for his way of life (Dworkin, 1978b p. 235). Dworki n further points out that we cannot solve the problem by simply eliminating external preferences from our calculations, as personal and external preferences are inextricably tied together (Dworkin, 1978b p. 236). Dworkin concludes that ideal arguments are useful for determining what it means to benefit a community because such arguments respect the moral equality of individuals in a way utilitarian arguments do not.
217 In short, Dworkin argues that admissions decisions will have to put some applicants at an advantage over others, but that advantage is justified as long as applicants are treated with equal respect and concern. If the admissions standards are based on criteria that demonstrate the applicant has promise of promoting legitimate goals set by t he institution (such as a more harmonious and just society), then applicants are treated with equal respect and concern. Affirmative action programs utilize criteria that demonstrate that the applicant has promise of promoting a more just and harmonious s ociety. Therefore, Dworkin concludes, affirmative action programs are just. Sandels Critique of Dworkin Sandel claims that Dworkins argument for affirmative action relies on the assumption that we should be guided by utilitarian principles whenever doin g so does not cause us to violate individual rights. According to Sandel, Dworkin assumes that once he has shown an individual does not have any moral claim to a particular resource (such as a topnotch university education or a particular job), it follow s that we can use utilitarian calculations to determine who to hire or admit into universities. Sandel argues, however, that the second claim does not follow from the first. He writes, Although Dworkins argument assumes that where no individual rights a re at stake, social policy is properly decided on utilitarian grounds, he never says why this is so . Without some conception of a wider subject of possession, such as Rawls notion of common assets seems also to require, there would seem no obvious r eason why these assets should be made to serve general social ends rather than individual ones (Sandel, 1982, p. 140 141) If there is no such communal identity, Sandel thinks Dworkins proposal would involve using individuals as mere means to promote the ends of others. Sandel therefore thinks that Dworkins argument for affirmative action will not be successful unless he denies
218 the distinction between persons, which is one of Dworkins fundamental commitments as a liberal theorist. Sandel claims that Dwo rkins argument is also problematic on another count. He claims that Dworkin not only needs to show why the nation state as a whole is sometimes entitled to the goods and resources earned and produced by individuals; he also needs to provide an argument t hat the individuals country, rather than all of humankind, is entitled to those benefits. According to Sandel, Dworkin talks as if he thinks that the nationstate, rather than some wider subject, is entitled to the resources individuals produce because o f their natural talents. Sandel claims that in order to make plausible his claim that the nationstate is the relevant subject of possession, Dworkin needs to show two things. First, as already discussed above, he needs to show why we should define the s ubject of possession as wider than the individual. Second, Dworkin needs to show why we should define the subject of possession as narrower than humankind (Sandel, 1982, p. 145) Sandel writes, But if Dworkin means to claim that, for the sake of determin ing university admissions and career prospects, the purposes of the national community properly predominate, then he must say a good deal more about why this should be so. And part of this argument would have to include some evidence of the nations respo nsibility for having cultivated the qualities and endowments it would now enlist, its capacity to engage in the reflective self understanding of its members as the basis of their common identity, and its ability to claim if not agreement at least allegianc e to the purposes that would arise from this identity. It would need to demonstrate, in short, that of the various communities and forms of identity, the nation is the one that is properly entitled to define the common purpose and to deploy the common ass ets necessary to its pursuit, at least in so far as university education and the choice of certain professional careers are concerned (Sandel, 1982, pp. 145 146) Sandel argues that the success of Dworkins argument depends on an account of the nationstate that shows why it as opposed to a broader subject, should be responsible
219 for choosing the goals that guide our decisions about which natural attributes we should favor in admissions or hiring decisions. My Defense of Dworkin In this section, I will fir st respond to Sandels criticism that Dworkins argument requires a wider subject of possession, and that it will only be successful if he denies the distinction between individuals. I will then respond to his criticism that Dworkin needs to show why the nationstate, rather than all of humanity, is entitled to share in the resources individuals earn or produce because of their natural talents. Sandels first criticism of Dworkin is flawed for two reasons. First, Sandel misunderstands Dworkins claim tha t we should use affirmative action programs because they promote a desirable social goal without violating individual rights. Dworkins claim does not imply that we should be guided by utilitarian principles whenever doing so does not cause us to violate individual rights. Dworkin makes this clear when he distinguishes between two ways in which we can make a community better off. He writes, It may be better off in a utilitarian sense, that is, because the average or collective level of welfare in the com munity is improved even though the welfare of some individuals falls. Or it may be better off in an ideal sense, that is, because it is more just, or in some other way closer to an ideal society, whether or not average welfare is improved (Dworkin, 1978b p. 232) When Dworkin claims affirmative action programs make a community better off without violating individual rights, he is claiming such programs make a community better off in the ideal sense. Sandel might insist that this interpretation of better ing a community still requires a wider subject of possession, since Dworkin still needs to show why we should use the natural talents of individuals to promote social ends (even in the ideal sense) rather than
220 individual ones. Such an argument against Dwo rkin would resemble Sandels criticism of Rawls difference principle that I outlined above. Sandel might claim that even if people do not deserve a topnotch education, they can be entitled to that education in virtue of the abilities they possess or the things they have accomplished. Dworkin, the argument would continue, still needs to provide an argument for why we should judge candidates according to their ability to better the community instead of according to their intelligence or past accomplishments; and he could only do this by positing a common identity among members of a community. Unless he does this, his argument for affirmative action programs would be underdetermined in the same way Rawls argument for the difference principle is underdeter mined. Dworkin could defend himself against this criticism, however, in much the same way that Rawls can defend himself against the criticism that his argument for the difference principle is underdetermined. We need to take into account Dworkins accept ance of Rawls claims regarding the moral equality of human beings and the fact that the well being of even the naturally talented depends on a system of cooperation that guides everyones behavior. Unless the system of cooperation is fair and treats ever yone with equal respect and concern, not everyone will willingly follow its guidelines. As I discussed in the previous chapter, Rawls thinks a fair system of cooperation will not allow the distribution of primary goods to depend exclusively on the arbitra ry distribution of natural talents. Also, as I discussed in this chapter, Dworkin thinks a fair system o f cooperation will allow for affirmative action programs as long as they dont violate individual rights, because they promote a society that treats people with equal respect and concern. Once we take these things into account we can see
221 that Dworkins argument for judging job or university applicants in terms of their ability to promote social ends rather than just individual ends is not underdetermin ed. We might outline his argument as follows: 1) Because we all require a fair system of cooperation to meet our ends, it is in all of our interests to promote such a system. 2) Because we are moral equals, fair system of cooperation will treat us all with equal respect and concern. 3) Affirmative action programs make a community better in an ideal sense. That is, they promote justice by facilitating a system of cooperation that treats everyone with equal respect and concern. 4) Affirmative action programs are part of a fair system of cooperation. The argument for judging applicants in terms of their ability to promote social ends rather than just individual ends, then, is that doing so is part of a fair system of cooperation that is in each persons interest. It is important to note that this argument does not depend on a wider subject of possession and is consistent with the liberal commitment to the distinction between persons. Sandel might object to this argument by claiming that judging applicants according to their ability to better a community, even in the ideal sense Dworkin outlines, involves abandoning liberal neutrality. This is because the community needs to appeal to a concept of the good in order to determine what it means for a community to be bett er off. Dworkin could answer this objection, however, by pointing out that the goal is simply to make the community more just and to promote everyones ability to meet their ends and live according to their concepts of the good life. Striving to make a
222 community better in this sense simply involves ju dging outcomes according to Rawls principles of justice, which promote the ability of individuals to act on their own ends and concepts of the good life. Someone offer a second argument against this proposal One might claim that this proposal still works to promote a substantive end that relies on a particular vision of the good. However, such an objection can only be supported if one ignores the difference between the liberal attempt to ensure that people have the means or resources, they need to achieve their ends, and the perfectionist attempt to ensure that people can act on the ends endorsed by the community (Kymlicka, 2002, p. 219). Sandel makes a good point when criticizing Dworkin for failing to pr ovide grounds for limiting the common assets to the nation state. Because Rawls and Dworkin are committed to the moral equality of human beings, they should not merely be concerned with citizens of a single nation Because of that commitment, they cannot exclude people on the grounds of nationality. Perhaps one reason Dworkin limits his discussion to the nation state is because individuals across nations are sometimes limited in their ability to share resources or cooperate in meeting a social goal by th e policies of their own countries. I doubt Dworkin would be opposed to developing a foreign policy that facilitates cooperation across countries, but he should hardly be criticized for narrowing his discussion to cooperation among citizens of the United S tates. Sandel and Community Despite all of its problems, Sandels argument is not entirely without merit. This is because he highlights the way in which persons depend on their communities to provide them with a moral vocabulary to examine and re assess t heir current ends. Sandel also highlights how this dependency illustrates that we sometimes need to
223 require individuals to perform actions for the good of the community. Sandel objects that Rawls and Dworkins individualist theories of the community a nd the self are incompatible with their support of the difference principle and affirmative action programs. Sandel tries to offer alternative support for those programs, however, with his cognitive theory of the self and constitutive account of the commu nity. In this chapter, I have argued that Rawls and Dworkins commitment to the distinction between persons is consistent with their endorsement of the difference principle and affirmative action programs. While it is consistent to claim that individua ls are both distinct from one another and dependent on one another, liberal theorists sometimes do not pay attention to the way in which individuals depend on others in their communities for more than material goods If persons are rely on their communiti es and each other in the way that Sandel and Rawls agree they do, fairness may justify requiring individuals to perform actions for the good of the community more often than some liberals wish to admit. If individuals can only form and live out their plan s of life in a certain type of community, then access to that type of community is a primary good. Since liberal fairness requires us to give individuals equal access to primary goods, liberal fairness also requires us to maintain the type of community t hat will ensure that all individuals are given the tools they need to form and live out a plan of life they desire. Instead of showing that the liberal commitment to individual rights is incompatible with the endorsement of the difference principle or aff irmative action programs, the points Sandel highlights can allow us to strengthen Rawls and Dworkins arguments for these claims. This is because once we understand that the maintenance
224 of a community that allows one to form and live out his own concepti on of the good life is a primary good, we can see that affirmative action programs (if they work) and the difference principle should be seen as a means to protecting individual rights rather than as promoting goods that are in competition with individual rights. Community as a Primary Good Once we understand that the maintenance of a community that gives one the tools to form and live out his own conception of the good life is a primary good, we can see that the value of maintaining the good of the communi ty is not necessarily a value that conflicts with individual rights; rather, it is a value we must pay attention to when working to protect individual rights. We can therefore strengthen Dworkins argument for affirmative action programs by showing that t hey promote a more just distribution of primary goods among individuals. To push this line of argument, we need to (1) show that affirmative action programs are needed to facilitate fairness in the distribution of some pr imary good, and (2) that facilitating fairness in the distribution of the primary good in question does not come at the cost of sacrificing a fair distribution of another more important primary good. Doing this would be a good way for Dworkin to show that affirmative action programs impro ve a community in an ideal sense (i.e. make the community more just). In Taking Rights Seriously and Sovereign Virtue, Dworkin provides an argument for the claim that affirmative action programs are needed to facilitate fairness in the distribution of some primary good, though he does not necessarily frame it in the language of primary goods. He does this by first arguing that affirmative action programs successfully undermine the existence of racism within a community and that they create an atmosphere in which groups who are discriminated against are able to
225 view certain career goals as within reach. Dworkin argues that affirmative action programs successfully accomplish the goals for which they were created (Dworkin, 2000, pp. 386 408) Because this is an empirical question, and this chapter is focused on theoretical issues, I will not attempt to evaluate whether Dworkins argument for this empirical claim is successful. Dworkin also argues that promoting a less race conscious community does not com e at the cost of violating individual rights. He does this by considering the best arguments for the claim that affirmative action programs violate individual rights and showing that these arguments are unsuccessful Dworkin thinks the strongest argument s against affirmative action programs are that they violate the right of the individual to be judged on the basis of merit, and that they violate the applicants right not to be judged on the basis of race (Dworkin, 1978b pp. 223 239). Dworkin responded to the first objection by claiming that while we should judge applicants on the basis of merit, intelligence alone does not constitute merit. Merit includes the ability to promote certain social goals, and we can use race to help determine a persons abil ity to promote these goals. Dworkin responded to the second objection by claiming that we do not necessarily violate peoples rights by judging them on the basis of race if doing so promotes the existence of a more just society in which people are treated with equal respect and concern. Once Dworkin has shown that affirmative action programs do not violate individual rights, he can argue that they promote a more fair distribution of primary goods. He might do this by arguing that a community that gives on e the tools to formulate and live out ones plan of the good life is a primary good. If a community is
226 filled with people who make decisions from racist motivations, then groups who are discriminated against will not have the same resources to develop and live out their plans of life. They will not, for example, have the same educational opportunities or job opportunities. It is important to note that forbidding people to exclude others on the basis of race may not be sufficient to avoid this problem, s ince some people make decisions that unfairly advantage members of the dominant group without even knowing they are doing so. Iris Marion Young points out that oppression against women and people of color continues even when those in power have made a sin cere effort to avoid discriminatory practices. She writes, Although explicitly discriminatory policies are no longer legal, and many institutions have in good faith eliminated explicitly discriminatory practices, women and people of color continue to be subject to often unconscious stereotypes, reactions, and expectations of decisionmakers, who continue to be white or male, and usually both. Affirmative action procedures are a necessary and just means of combating such assumptions and perceptions, which persist in excluding and disadvantaging women and people of color (Young, 1990, p. 194). Affirmative action programs may be necessary, then, to undermine the unconscious stereotypes that people are guided by when they make decisions about who to give opportunities to. If women and people of color lose opportunities because people in power make decisions based on stereotypes, they do not have the same access to an important social good (a community that gives them the tools to formulate and live out their plans of life) as do individuals who are not victims of negative stereotypes. Given this understanding of a community as a primary good, Dworkin might outline his argument for affirmative action programs as follows.
227 (1) Having access to a community tha t gives one the tools to formulate and live out his or her own plan of life is a primary good. (2) Affirmative action facilitates the fair division of this primary good. They do so by creating an atmosphere more hospitable to groups that have historically faced discrimination. (3) A fair division of this primary good does not come at the cost of violating individual rights. (C) Therefore, we should use affirmative action programs. Dworkin can therefore satisfy Sandels demand for an explanation of why indi viduals sometimes have to sacrifice the benefits gained through their natural talents for the good of the community without resorting to utilitarian principles. He can do this by showing that affirmative action programs promote a more fair distribution of primary goods. Even if one agrees that a community that gives one the tools to develop and live out ones plan of life is a primary good one might challenge my argument by pressing me on how such a good could be distributed. A community like the one I described is not a material good that can be distributed in specific amounts. Instead, giving people equal acc ess to such a community alters aspects of the social structure that do not allow certain groups to have such opportunities. We know, for exampl e, that a sexist society will not give women the same opportunities to develop and live out their plans of life as it will to men. Working toward a more equitable distribution of the primary good of a community that gives one the tools to develop and liv e out ones plan of life therefore requires that we work to undermine sexism in that society.
228 It is important to note that a society free from sexism is a public good. It is not pos sible to divide up the good of sexism free society in specific amounts All citizens will be provided with this good in the same amount; there is no way to gi ve citizens varying degrees of a sexism free society according to peoples preferences for more or less of this good. Therefore, we cannot exactly distribute this pr imary good. Rather, we need to decide whether fairness requires that we ensure that this primary good is available. I have argued that justice does indeed require this. We can use a similar argument to argue for Rawls difference principle. Such an argu ment might be outlined as follows. (1) Having access to a community that gives one the tools to formulate and live out his or her own plan of life is a primary good. (2) The difference principle facilitates the fair division of this primary good. It does so by ensuring that all individuals (including those who do not happen to have natural talents va lued by the society they live in ) have access to the goods they need to live out their plans of life. (3) A fair division of this primary good does not come at the cost of violating individual rights. Because the distribution of natural talents is arbitrary, and nobody deserves her natural talents, nobody has a right to the resources they earn or produce because of their natural talents. (C) Therefore, the diff erence principle should be used to regulate decisions about how to distribute resources among members of a community.
229 Just as the plausible portions of Sandels argument can be used to strengthen Dworkins argument for affirmative action programs, they can also be used to strengthen Dworkins argument for the difference principle. Conclusion In this chapter, I argued that Sandel fails to prove his conclusion that Rawls and Dworkin need to abandon either their claim that some individuals are entitled to s ome of the resources that other individuals earn or produce or their commitment to individual rights and the distinction between individuals. I claimed that Sandels argument is not without merit because he makes it clear that we need to pay attention to the fact that individuals rely on their communities to develop and maintain the abil i ty to make decisions about what is worth valuing. While his claims in this area do not conflict with the commitments of liberalism, liberals sometimes do not focus on the way in which individuals depend on their communities as much as they should. However, instead of undermining Rawls and Dworkins arguments, Sandels claim that individuals depend on their communities can actually be used to strengthen their arguments for the difference principle and affirmative action programs. In my dissertation, I pointed out that many of the normative objections communitarians level against liberalism depend on the cognitive theory of agency. I distinguished between two interpretati ons of this theory. According to the stronger reading, persons determine what is worth valuing by means of a framework of social roles and commitments that are provided to them by their community, and they are unable to reevaluate or revise the framework itself. According to the weaker reading, persons have some ability to reevaluate or revise the values and ends that constitute
230 their frameworks. I argued that the stronger reading is implausible. I further argued that while the weaker reading is plaus ible, it is consistent with Rawls theory of justice, and so it fails to undermine Rawls theory. I then explained several normative objections the cognitive theory of agency is meant to support. I show ed that all of these objections fail because they eit her rely on the truth of the implausible strong reading of the cognitive theory of agency or on the false assumption that liberal governments are not equipped to maintain a community in which individuals can develop and exercise autonomy. According to all of these objections, the liberal commitment to the moral priority of the right over the good undermines the kind of social structure that allows individuals to develop and maintain the ability to make qualitative assessments and act autonomously. One fo rm of this objection which I discussed in chapter three, is that liberal neutrality undermines the ability of a community to maintain the shared values that can provide individuals with the frameworks they need to make qualitative assessments. Those who pose this objection worry that unless the government endorses a particular set o f values and protects these values from being rejected by future generations, individuals will not be able to gain the frameworks they need to determine what is worth valuing Another form of this objection, which I discussed in chapter four, is the claim that the liberal priority of the right over the good prevents communities from ensuring that individuals gain the social confirmation they need to make authoritative choices I also argued that several communitarian objections to Rawls rely on a misunderstanding of Rawls use of the original position as a bargaining procedure and his use of the reflective equilibrium to justify his description of the original position. In
231 chapter five, I discussed the objection that the liberal attempt to be neutral between accounts of the good inevitably fails, and results in unjust domination over groups who do not accept the liberal vision of the good life. These theorists claim that it is an illusion to think that law s can be made from a neutral standpoint, and the attempt to make laws that are not based on a substantive concept of the good affords greater freedom and power to some individuals than others. I argue d that this objection f ails because it relies on a misunderstanding of Rawls overlapping consensus requirement and his use of the original position as a bargaining procedure. In chapter six, I discussed the objection that the liberal commitment to the priority of the right ov er the good fails to promote substantive equality because it does not pay sufficient attention to the social relations in which domination occurs. I argued that this objection fails because it relies on a misunderstanding of the way Rawls notion of prima ry goods. Primary goods do not only include material and oth er easily distributable goods, but also social goods such as freedom from domination. In the last chapter, I discussed two more objections against the liberal commitment to the priority of the right over the good. First, some argue the priority of the right over the good is inconsistent with Rawls difference principle, which calls for a distribution that is to the greatest benefit of the person who is least welloff. Second, some argue that a commitment to the priority of the right over the good is inconsistent with the use of affirmative action programs to combat prejudice in the community. I argued that both of these objections fail.
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235 BIOGRAPHICAL SKETCH M Joy Hayes earned her B achelor of A rts from Columbia College in 2004 with a major in philosophy and a minor in English. She graduated summa cum laude and with honors. Joy earned her M aster of A rts from the University of Florida in 2007 and earned her Ph.D in 2010. She specializes in ethics and political p hilosophy.