by Gerald Gaus
A party of order or stability, and a party of progress or reform, are both necessary elements of a healthy state of political life; until the one or the other shall have so enlarged its mental grasp as to be a party equally of order and of progress, knowing and distinguishing what is fit to be preserved from what ought to be swept away. Each of these modes of thinking derives its utility from the deficiencies of the other; but it is in a great measure the opposition of the other that keeps each within the limits of reason and sanity.179
The philosophical quest for THE DETERMINATE SOLUTION, like ideal theory itself, expresses the desire for the intellectual comfort of convincing oneself that issues have been definitely settled (in one’s own mind) that are never definitely settled. We do not know what the possibilities are, or the real nature of our proposed solutions. Today’s solution is tomorrow’s problem. If we all agreed on what is settled our moral constitution would ossify—serving not as the framework of a dynamic open society but as a monument to our past aspirations.
1 Gauthier, Morals by Agreement, p. 233. Compare Rawls, A Theory of Justice, p. 511. John Thrasher and I consider this matter in far more depth in “Rational Choice and the Original Position.” See also the insightful analysis of Wolff, Understanding Rawls, part 2.
2 The standard Pareto condition is that a given allocation of goods is Pareto efficient when no one can gain more without someone else having less. Presently (§IV.1.2.1) I shall have recourse to a Pareto criterion for collective decisions: if everyone in some group holds that x is better than y, then by this Pareto rule the collective decision must be that x is better than y. While these two criteria may appear very different, both stem from the aim of being able to say that one social state is unambiguously better than another in a way that does not require trade-offs between gains for some and losses for others. In the allocation rule, if we can move from state S1 to state S2 and some gain and no one is worse off, then the Pareto criterion recommends it. We should keep on making such moves until the distribution is Pareto efficient in the sense described above—at that point changes can only be made by weighing gains for some against losses for others. In the collective choice context, if some people prefer x to y and others y to x, we need to weigh the two sets of preferences to arrive at an outcome; if, however, everyone agrees that x is better than y, we have a clear case of improvement without weighing preferences (or counting votes).
3 Rawls, “Distributive Justice,” p. 135. Compare Theory of Justice, p. 121.
4 Rawls, Political Liberalism, pp. 226–27. Emphasis added, paragraph break deleted.
5 Rawls, A Theory of Justice, p. 4. Emphasis added.
6 Freeman, Justice and the Social Contract, pp. 255–56.
7 As we shall see later in this chapter, to do this would require fundamental changes in the nature of argument from the original position, as it would introduce basic disagreement about justice into the choice situation. For an attempt to model such an original position see Muldoon et al., “Disagreement behind the Veil of Ignorance.”
8 Some might argue that political liberalism is concerned with legitimacy, not justice. Even if so, this would not show that a coherent theory of justice remains. A theory of legitimacy is supposed to analyze a citizen’s attitudes and obligations toward a state that is not fully just; but that very idea supposes that citizens have a coherent view of what social justice is in a society in which reasonable citizens disagree, as well as supposing that they have some grounds to seek to legislate their favored view over the reasonable objections of others. “It’s only about legitimacy” is not a magic phrase that can make these issues disappear. What is the liberal theory of justice?
9 Rawls, Political Liberalism, p. 381.
10 Rawls, “The Idea of Public Reason Revisited,” p. 578.
11 Rawls, Political Liberalism, p. 227. Notice the echoes of the Enlightenment View (§III.4.3). Given Rawls’s account of reasonable pluralism and its inevitability under free institutions, appealing to convergence of reasoning here looks, ad hoc, indeed desperate.
12 Sen, The Idea of Justice, pp. 12–15.
13 Though what he will do with a flute he cannot play isn’t obvious. Sen says the flute “will give him something to play with” (ibid., p. 13), rather suggesting that he will use it as fancy stick or like a party favor that can make a loud noise. If he learns to play it, then Anne’s case is weakened. If he does not learn to play it, it is unlikely to satisfy his needs for long.
14 That is, we do not share a mapping function (§II.1.1).
15 Sen, The Idea of Justice, p. 12. Emphasis added.
16 Adam Smith also suggests a plurality of impartial spectators. See Theory of Moral Sentiments, e.g., pp. 78, 82.
17 This is a simplification; Sen’s solution does not require that each spectator can give a complete ordering. Drawing on Sen, I have shown how such incompleteness can be addressed in The Order of Public Reason, pp. 303–10.
18 Sen, The Idea of Justice, p. 135.
19 Read “a is preferred to (or ranked as more just than) b.”
20 See, for example, Sen, “Maximization and the Act of Choice.”
21 See here David Estlund’s list of “primary bads,” Democratic Authority, p. 163.
22 Rawls, Political Liberalism, pp. 6, 7n.
23 Sen, The Idea of Justice, pp. 20–21, 210.
24 Ibid., p. x. Emphasis added. See also p. 410.
25 Ibid., p. 214. Emphasis added.
26 Of course, for Sen {X} need not include the ideal.
27 Where, of course a ≠ a′ and b ≠ b′.
28 As we shall later put it, {f} is the common projection of their different perspectives on this social world. See §IV.1.3.1.
29 It might seem that another alternative would be for them to characterize their joint (interperspectival) social worlds by the unions of the properties they each see. For world “a,” this would be Alf’s {f, g} and Betty’s {f, j}, so the interperspectival identity of world a is the world with properties {f, g, i}; in this case neither Alf nor Betty sees the world as having all three properties. This raises a number of deep puzzles. For one, Alf is committed to employing a criterion of individuation that relies on properties that he does not think world a possesses. Suppose his is a Marxist perspective: he may be committed to the interperspectival world a being characterized by property rights, exploitation (two features he sees), and the violation of God’s commands (a feature Betty “sees” that he thinks bizarre)! Leaving that puzzle aside, the union procedure still will not give a unique account of individuation. Suppose Betty continues to see a world with simply {f, j}, but Alf sees two worlds, one with {f, g} and one with {f, g, j}. On the union account, given Betty’s perspective, both of Alf’s worlds have the same interperspectival identity of {f, g, j}, but this fails to distinguish Alf’s {f, g} and {f, g, j} worlds, which he is apt to evaluate differently. Most puzzling of all, the union account “creates” a multitude of “new worlds” simply by combining the properties of the worlds identified by different perspectives. Because the perspectives see radically different features in these worlds, they will evaluate the union of their properties very differently, thus leading to almost unlimited diversity in the orderings of our impartial spectators, and so undermining the use of Sen’s Paretian rule.
30 Rawls, Political Liberalism, p. xxvi, 4. Emphasis added.
31 Ibid., p. 17.
32 Sen, The Idea of Justice, p. 237.
33 See Rawls, Political Liberalism, pp. 243–44n.
34 Wolff, The Poverty of Liberalism, pp. 23–24.
35 I am criticizing myself here. See my Social Philosophy, chap. 8.
36 Note that even Wolff appeals to both torturing the soul, which certainly depends on a religious categorization, and destroying sleep, which does not.
37 For a fascinating analysis of harms that presuppose controversial views of the social world, see Muldoon, “Perspective-Dependent Harm.”
38 Foucault, Discipline and Punish, pp. 177ff.
39 Similarly, those who reject feminist claims, or, more generally, feminist perspectives, are very often labeled “misogynistic,” normalizing feminism such that only a pathological emotional state could explain opposition. Normalization of one’s political position by depicting opposing perspectives as pathological is becoming something of a fashion; witness John Tomasi’s (idiosyncratic) labeling of classical libertarians, who believe social justice is normatively objectionable, or presupposes an erroneous view of the social world, as suffering from “Social Justicitis” (by which he means, oddly, “Social Justice–phobia”). Free Market Fairness, chap. 5. The very thesis of the present work has been described as a sort of illness; see Estlund’s “Utopophobia.”
40 The morality of this normalized world is what some call WEIRD—Western, Educated, Industrialized, Rich Democratic—morality. See Haidt, The Righteous Mind, chap. 5.
41 “Liberal peoples have three basic features: a reasonably just constitutional democratic government that serves their fundamental interests; citizens united by what Mill called ‘common sympathies’; and finally, a moral nature.” Rawls, The Law of Peoples, p. 23.
42 They are not aptly categorized as jokes at all; they are not jokes in that social world, but forms of domination.
43 Muldoon, Beyond Tolerance, chap. 3.
44 This is not to say that some of the problems with the common projection criterion that we explored in §IV.1.2.3 do not appear in Muldoon’s contract. It is possible that Alf will distinguish two different bargains that, as far as Betty is concerned, have the same projection. In terms of our shape example, Alf may sometimes see an oval and sometimes a cylinder, but if these always have the same projection for Betty—in both cases Betty sees a cylinder—she will think his valuations inconsistent, for she will not be able to see why he values (what looks to her as) the same cylinder differently at different times. His individuation of the bargain differs from hers.
45 Muldoon, “Justice without Agreement.”
46 There is considerable debate about the appropriateness of the Nash bargaining solution to moral justification. Ken Binmore defends it in Natural Justice. For a period David Gauthier endorsed the Nash solution, before abandoning the idea that moral contractarianism should be modeled on bargains. See his “Twenty-Five On.” For Rawls’s criticism, see “Justice as Fairness,” p. 58n. Rawls, as have many others, worried about the way that the Nash bargaining solution is sensitive to threat advantage: “To each according to his threat advantage is hardly the principle of fairness.” Although Muldoon relies on the Nash solution he is not adverse to alternative solutions so long as the equality of participants is respected. Muldoon, Beyond Tolerance, chap. 6. For a defense of a modified Nash bargaining solution that mitigates some fairness concerns, see Moehler, “The (Stabilized) Nash Bargaining Solution as a Principle of Distributive Justice.”
47 We can understand the idea of what can be “reasonably expected” as articulated by the relevant bargaining axioms—especially symmetry. See Thrasher, “Uniqueness and Symmetry in Bargaining Theories of Justice.”
48 As in Quong, Liberalism without Perfection, esp. chap. 1, part 2. See my “Sectarianism without Perfection? Quong’s Political Liberalism.”
49 See Haidt, The Righteous Mind, chap. 5.
50 On this point see Van Schoelandt’s analysis in “Justification, Coercion, and the Place of Public Reason.”
51 Muldoon, Beyond Tolerance, chap. 6.
52 Muldoon, “Expanding the Justificatory Framework of Mill’s Experiments in Living.”
53 See Rawls, “Justice as Fairness,” where uncertainty about the future is fundamental to the choice of the principles. Rawls insists that modeling the agreement as nonrevisable is fundamental to the contractual nature of the project. See his “Reply to Alexander and Musgrave,” p. 249.
54 For Hayek, see The Constitution of Liberty, pp. 23–24.
55 I consider this requirement more fully in The Order of Public Reason, pp. 299–301.
56 Rawls, “Justice as Fairness,” p. 53. Buchanan and Tullock also proposed such a veil of uncertainty in The Calculus of Consent, pp. 77ff.
57 Note that this argument seeks to secure some of the results that the veil of ignorance achieves in the later formulations. See Kohlberg, The Philosophy of Moral Development, pp. 190–201.
58 See Hayek, Law, Legislation, and Liberty, vol. 1, Rules and Order, esp. chaps. 2 and 3.
59 On the importance of individual planning, see Hayek, “The Use of Knowledge in Society.”
60 Muldoon, Beyond Tolerance, chap. 6. Muldoon recognizes that the challenge to his approach is that we have far fewer fixed points, and thus we are without stable principles of justice. He hopes, however, that his account provides for periods of stability.
61 Evaluative standards, the features of social worlds, a mapping relation, a similarity ordering, and a distance metric.
62 See Waldron, God, Locke and Equality, esp. chap. 3.
63 I say “eligible” because a theory will restrict the set as views of justice that should be taken seriously. What is important at present is that the set of eligible perspectives is assumed to be quite large. I turn in §IV.3 to the limits of what can be considered eligible.
64 Rawls, “Kantian Constructivism,” p. 306.
65 Rawls, A Theory of Justice, p. 7. Rawls sees this as a simplifying assumption that could be relaxed later; here we see that it may not be easy to relax given some methods of accommodating diversity.
66 Rawls, Justice as Fairness, p. 128.
67 Ibid., p. 118.
68 Rawls, Political Liberalism, p. 53. Emphasis added.
69 Ibid., pp. 41, 77.
70 There are a number of different ways of theorizing about these coordinated mental states; different accounts can underwrite the claims made in the text. For various approaches, see the essays in Lagerspatz, Ihäheimo, and Kotkavirta, eds., On the Nature of Social and Institutional Reality.
71 Rawls, “Kantian Constructivism in Moral Theory,” p. 326. See further my essay “Moral Constitutions.”
72 This is why it was deeply mistaken for Sen to accuse Rawls of “institutional fundamentalism” (The Idea of Justice, p. 82). It is only through institutions that those with deeply divergent perspectives can share a common, public social world. See further my “Social Contract and Social Choice.”
73 For a careful and insightful analysis of the importance of institutional structures, see Van Schoelandt, “Rawlsian Functionalism and the Problem of Coordination.”
74 The importance of shared rules for overcoming such dilemmas is confirmed not only by theoretical investigation, but by practical fieldwork. See, for example, Bicchieri, Norms in the Wild; Ostrom, “Collective Action and the Evolution of Social Norms.”
75 Rawls, “The Independence of Moral Theory,” p. 286.
76 This project commences with Buchanan and Tullock, The Calculus of Consent. On the assumptions necessary to that analysis, see Thrasher and Gaus, “The Calculus of Consent.” Cf. my essay “The Limits of Homo Economicus.”
77 The experimental literature confirming this is extensive. Much of the critical work has been done by Ernst Fehr and his colleagues; see, for example, Fehr and Fischbacher, “Third Party Punishment and Social Norms.” For an excellent overview, see Bowles and Gintis, A Cooperative Species, chap. 3. See also my “Retributive Justice and Social Cooperation.”
78 The most famous “fieldwork” in a large urban setting is that of Antanas Mockus in Bogotá, who, as mayor, devised a variety of methods to instill a sense of public responsibility for social rule violations. For a short overview, see “Building Citizenship Culture in Bogotá.” See further §IV.2.6.
79 Strawson, “Freedom and Resentment.”
80 Ibid., p. 197.
81 See further Bringhurst and Gaus, “Positive Freedom and the General Will”; and my The Order of Public Reason, chap. 4.
82 On justification, see §IV.3 below.
83 See Chwe, Rational
Ritual.
84 Contrary to what some have alleged, this claim does not involve a naturalistic fallacy. The social fact is necessary, not sufficient, for a normative public moral constitution. See my “On Dissing Public Reason.”
85 For excellent analyses of the overall project of the Ostroms and its relation to diversity of perspectives, see Aligica’s insightful Institutional Diversity and Political Economy. For a general overview, see Aligica and Boettke, Challenging Institutional Development.
86 On the importance of “reference networks” to actual rules, see Bicchieri, Norms in the Wild, chap. 2.
87 For a model of such a process see Boyd and Richerson, The Origin and Evolution of Cultures, chap. 12.
88 See Bicchieri, Norms in the Wild, chaps. 1–2; Bicchieri and Mercier, “Norms and Beliefs.”
89 See Aligica, Institutional Diversity and Political Economy, pp. 58ff.
90 Rawls, A Theory of Justice, pp. 300–301.
91 Mikhail, The Elements of Moral Cognition, §6.3.1.
92 See, for example, Feinberg, Harm to Others, p. 9; Rawls, Justice as Fairness, p. 44; Mill, The Subjection of Women, p. 262. See also Mill, On Liberty, p. 299.
93 Benn, A Theory of Freedom, p. 87.
94 Ibid.
95 A feature to which some object. See Wall, “On Justificatory Liberalism”; Hillinger and Lapham, “The Impossibility of a Paretian Liberal.” As Sen notes, to deny this asymmetry implies that “everyone’s right to do anything whatsoever is made conditional on non-opposition by others.” “Liberty, Unanimity and Rights,” p. 227.
96 As Gilbert Harman argues, the ideal of a belief system that is deductively closed, or complete under logical implication, is neither required by rationality nor realistic for humans. Reasoning, Meaning and Mind, pp. 21–23.
97 See May, “A Set of Independent Necessary and Sufficient Conditions for Simple Majority Decision,” p. 681.
98 For a discussion, see Sen, On Ethics and Economics, pp. 66ff.
99 Forst, “Political Liberty,” p. 242. Emphasis in original.
100 Dworkin, “Liberalism,” pp. 124–25. According to Macedo, “an account of basic liberties is itself a product of the justificatory enterprise. … No general presumption of liberty as non-interference forms a prior baseline.” “Why Public Reason?,” p. 13. Macedo’s reference to “basic” liberties makes it difficult to interpret his view, which he takes as constituting a rejection of natural liberty. A system of morality that accepts a principle of natural liberty can insist that important, basic liberties such as freedom of speech are specially justified, and that is why they are morally protected (a view that, indeed, Rawls seems to take). In relation to, say freedom of speech, one possesses not only a blameless liberty to speak in public, but a claim right to do so. Macedo’s deep worry, like Forst’s, seems to be that the Minimal Principle of Natural Liberty attributes to Alf a blameless liberty to ϕ that is itself exempt from the need to be morally justified, and that unacceptably biases the moral system toward liberty rather than, say, equality or claims of justice, which do face the burdens of justification. Quong has similar worries. See his “Three Disputes about Public Reason.”