Professor John Rawls - Political Liberalism (1993, Columbia University Press) PDF
Professor John Rawls - Political Liberalism (1993, Columbia University Press) PDF
Professor John Rawls - Political Liberalism (1993, Columbia University Press) PDF
P litical
Libera ism
Columbia
University
Press
New York
COLUMBIA UNIVERSITY PRESS
Rawls.John, 1921-
Political liberalism I Joh n Rawls.
p. cm. - (John Dewey essays in philosophy : no. 4)
Includes index.
ISBN 0-2 3 1 -05 248-0 (alk. paper)
ISBN 0-2 31-05 249-9 (pbk.)
I. Justice. 2 . Liberalism. 3. Political stability. I. Title.
IL Series.
JC578.R37 1 993 92-43224
320.5' 1-dc20 CIP
Casebound editions of
Columbia University Press books
ace printed on permanent and
durable acid-free paper.
Printed in the United States of .America
c 10 9 8 7 6 5 4
p 10 9 8 7 6 5 4 3 2 1
For
Anne,
Lee,
Alec,
and
Llz
Contents
Introduction xv
Introduction to the
Paperback Edition xxxvu
LECTURE I. Fundamental
Ideas 3
§ 1. Addressing Two
Fundamental Questions 4
§ 2. The Idea of a Political
Conception of J u stice 11
x
Contents
X1
Contents
xii
Contents
Index 435
xiii
Introduction
rwo, "Basic Liberties and Their Priority" ( 1 982) and "Social Unity
and Primary Goods" ( 1 982 ) , were either drafted or near comple
tion. But when these three additional lectures were finally done,
they lacked the kind of unity I wanted, either with themselves or
with the three preceding lectures. 1 I then wrote three further
lectures on political liberalism, 2 as I now refer to it, beginning
with "Political not Metaphysical" ( 1 98 5 ) , much of which is in
cluded in the first lecture, followed by "Overlapping Consensus"
( 1 987), "Ideas of the Good" ( 1 988), and "Domain of the Politi
cal" ( 1 989) . The last three, considerably redone and combined,
together with "Public Reason," which appears here for the first
time, make up the second three lectures.
The first six lectures are related this way: the first three set out
the general philosophical background of political liberalism in
practical reason, especially §§ 1 , 3, 7, 8 of II and all of III, while
the second three lay out in more detail several of its main ideas:
the idea of an overlapping consensus, the idea of the priority of
right and its relation to ideas of the good, and the idea of public
reason. The lectures now have the desired unity both among
themselves and with the spirit and content of A Theory of]ustice, 3
a unity given by their topic: the idea of political liberalism.
To explain this last remark: the aims of A Theory of justice
were outlined in its preface (paragraphs 2 - 3 ) . To paraphrase, I
began by noting that during much of the modern period of moral
philosophy the predominant systematic view in the English
speaking world had been some form of utilitarianism. One rea
son for this was that it had been represented by a long line of
brilliant writers, from Hume and Adam Smith to Edgeworth and
Sidgwick, who built up a body of thought truly impressive in its
scope and depth. Those who criticized it often did so on a narrow
1. The first two of these additional lectures are now reprinted here unchanged as
Lectures VII and VI I I .
2 . This term i s used i n "Overlapping Consensus," Oxford journal of Legal Studies 7
(February l 987):2 3f. , and "The Priority of Right and Ideas of the Good," Philosophy
and Public Affairs 17 (Summer 1988):2 71, 2 7 3 , 2 7 5 .
3 . A Theory ofjustice (Cambridge, Mass . : Harvard University Press, 1971.)
XVI
Introduction
xvu
Introduction
XV111
Introduction
X1X
Introduction
xx
Introduction
XXl
Introduction
7. See IV:4.l, repeating verbatim the matching paragraph from 'The Idea of an
Overlapping Consensus."
xxii
Introduction
xxm
Introduction
9. In these last two paragraphs I follow Terence Irwin, Classical Thought (New
York: Oxford University Prtess, 1989), esp. chap. 2.
XXlV
Introduction
religion people were not in doubt about the nature of the highest
good, or the basis of moral obligation in divine law. These things
they thought they knew with the certainty of faith, as here their
moral theology gave them complete guidance. The problem was
rather: How is society even possible between those of different
faiths ? What can conceivably be the basis of religious toleration ?
For many there was none, fo r i t meant the acquiescence i n heresy
about first things and the calamity of religious disunity. Even the
earlier proponents of toleration saw the division of Christendom
as a disaster, though a disaster that had to be accepted in view of
the alternative of unending religious civil war.
Thus, the historical origin of political liberalism (and of liber
alism more generally) is the Reformation and its aftermath, with
the long controversies over religious toleration in the sixteenth
and seventeenth centuries. 10 Something like the modern under
standing of liberty of conscience and freedom of thought began
then. As Hegel saw, pluralism made religious liberty possible,
certainly not Luther's and Calvin's intention. 1 1 Of course, other
controversies are also of crucial importance, such as those over
limiting the powers of absolute monarchs by appropriate princi
ples of constitutional design protecting basic rights and liberties.
Yet despite the significance of other controversies and of
principles addressed to settling them, the fact of religious divi
sion remains. For this reason, political liberalism assumes the fact
of reasonable pluralism as a pluralism of comprehensive doc
trines, including both religious and nonreligious doctrines. This
pluralism is not seen as disaster but rather as the natural outcome
of the activities of human reason under enduring free institu
tions. To see reasonable pluralism as a disaster is to see the
exercise of reason under the conditions of freedom itself as a
10. Judith Shklar, in her Ordinary Vices (Cambridge, Mass. : Harvard University
Press, 1 984 ), speaks of the liberalism of fear, represented by Montaigne and Montes
quieu, and described in that work as born out of the cruelties of the religious civil
wars. See p. 5.
l l. See Grund/inien der Phi/osophie des Rechts ( 1 82 1 ), §270, near the end of the
long comment.
XXVl
Introduction
XXVll
Introduction
the conquest of people, not simply for their land and wealth, and
co exercise power and dominion over chem, but to save their
souls. The Reformation turned chis possibility inward upon itself.
What is new about chis clash is chat it introduces into people's
conceptions of their good a transcendent element not admitting
of compromise. This element forces either mortal conflict mod
erated only by circumstance and exhaustion, or equal liberty of
conscience and freedom of thought. Except on the basis of these
last, firmly founded and publicly recognized, no reasonable polit
ical conception of justice is possible. Political liberalism scares by
caking to heart the absolute depth of that irreconcilable latent
conflict.
On the relation between political liberalism and the moral
philosophy of the modern period, while moral philosophy was,
of course, deeply affected by the religious situation within which
it developed after the Reformation, by the eighteenth century
leading writers hoped to establish a basis of moral knowledge
independent of ecclesiastical authority and available to the ordi
nary reasonable and conscientious person. This done, they wanted
to develop the full range of concepts and principles in terms of
which co characterize the requirements of moral life. To this end
they studied basic questions of moral epistemology and psychol
ogy, such as:
Is the knowledge or awareness of how we are co act directly
accessible only to some, or to a few (the clergy, say), or
is it accessible to every person who is normally reason
able and conscientious ?
Again, is the moral order required of us derived from an
external source, say from an order of values in God's
intellect, or does it arise in some way from human nature
itself (either from reason or feeling or from a union of
both), together with the requirements of our living to
gether in society ?
Finally, must we be persuaded or compelled to bring our
selves in line with the requirements of our duties and
XXV111
Introduction
1 3 . The last two paragraphs above follow ). B. Schneewind, Moral Philosophy from
Montaigne lo Kant: An Anthology, 2 vols. (Cambridge: Cambridge University Press,
1 990). See the introduction to the first volume, p. 1 8 . I am much indebted to these
volumes and to Schneewind's many essays, among them in particular: "Natural Law,
Skepticism, and the Method of Ethics," journal of the History of Ideas 52 ( 1 99 1 ):2 89-
308.
14. Schneewind says this of Kant, Moral Philosophy, p. 29, but I believe it holds of
Hume as well.
XXlX
Introduction
xxx
Introduction
Other major matters are omitted, for example, the justice of and
in the family, though I do assume that in some form the family is
just. The underlying assumption is that a conception of justice
worked up by focusing on a few long-standing classical problems
should be correct, or at least provide guidelines for addressing
further questions. Such is the rationale of focusing on a few main
and enduring classical problems.
Of course, the conception of justice so arrived at may prove
defective. This underlies much of the criticism of Theory. This
criticism holds that the kind of liberalism it represents is intrin
sically faulty because it relies on an abstract conception of the
person and uses an individualist, nonsocial, idea of human na
ture; or else that it employs an unworkable distinction between
the public and the private that renders it unable to deal with the
problems of gender and the family. I believe that much of the
objection to the conception of the person and the idea of human
nature springs from not seeing the idea of the original position
as a device of representation, as explained in 1:4. I believe also,
though I do not try to show in these lectures, that the alleged
difficulties in discussing problems of gender and the family can
be overcome.
Thus, I still think that once we get the conceptions and prin
ciples right for the basic historical questions, those conceptions
and principles should be widely applicable to our own problems
also. The same equality of the Declaration of Independence
which Lincoln invoked to condemn slavery can be invoked to
condemn the inequality and oppression of women. I think it a
matter of understanding what earlier principles require under
changed circumstances and of insisting that they now be honored
in existing institutions. For this reason Theory focused on certain
main historical problems in the hope of formulating a family of
reasonable conceptions and principles that might also hold for
other basic cases.
To conclude, in the remarks above I have tried to set out how
I now understand justice as fairness as a form of political liberal
ism and why changes in it were necessary. These remarks empha-
xxxi
Introduction
XXXll
Introduction
XXX111
Introduction
XXXIV
Introduction
xxxv
Introduction
and page proofs, I thank my wife Mard and our daughter Liz, and
Michelle Renfield and Matthew Jones.
John Rawls
October 1 992
xxxv i
Introduction to the
Paperback Edition
all kinds and the term conception for a political conception and its component parts,
such as the conception of the person as citizen. The term idea is used as a general
term and may refer to either as the context determines. References to Theory and PL
are given by lecture, section, or page numbers in parentheses.
3. This is the fact that a plurality of reasonable comprehensive doctrines, religiou s,
philosophical, and moral, is the normal condition of democratic culture given its
free instirutions.
4. A comprehensive doctrine is defined ( 1 3). It is distinct from a political concep
tion of justice, since it applies to all subjects and its virrues cover all parts of life.
xxxv m
Introduction to the Paperback Edition
XXX1 X
Introduction to the Paperback Edition
xi
Introduction to the Paperback Edition
xli
Introduction to the Paperback Edition
xiii
Introduction to the Paperback Edition
so turned out that for the time being at least, the balance of
forces keeps all sides supporting the current arrangements,
which happen to be j ust to each of them. However, when two
salvation religions clash, can there be any resolution of the con
flict that goes beyond that? I have noted (§ 1 above) that some
times a m(Jdus vivendi might develop into an overlapping consen
sus of reasonable doctrines (IV:6-7). As explained in IV: 3 , the
idea of an overlapping consensus is moral in its obj ect and moti
vation, rendering the consensus stable over the distribution of
doctrines. This gives stability for the right reasons ( 1 4 3ff.), and
this distinguishes the idea of such a consensus from a modus vi
vendi.
3 . Thus, a main aim of PL is to show that the idea of the well
ordered society in Theory may be reformulated so as to take
account of the fact of reasonable pluralism. To do this it trans
forms the doctrine of justice as fairness as presented in Theory
into a political conception of justice that applies to the basic
structure of society. 7 Transforming j ustice as fairness into a polit
ical conception of justice requires reformulating as political con
ceptions the component ideas that make up the comprehensive
doctrine of j ustice as fairness. 8 Some of these components may
seem in Theory to be religious, philosophical, or moral, and
indeed may actually be so, since Theory does not distinguish
between comprehensive doctrines and political conceptions. This
transformation is done in all of part I of PL and in lecture V of
7. By the basic structure is meant society's main political, constitutional, social, and
economic institutions and how they fit together to form a unified scheme of social
cooperation over time ( 1 1 f). This structure lies entirely within the domain of the po
litical.
8. Not very much of the content of the doctrine of justice as fairness needs to be
changed. For example, the meaning and content of the two principles of justice and
of the basic structure are much the same except for the framework to which they
belong. On the other hand, as I note later in the text above, PL stresses the difference
between political autonomy and moral autonomy (11:6) and it is careful to emphasize
that a political conception of j ustice covers only the former. This distinction is
unknown to Theory , in which autonomy is interpreted as moral autonomy in its
Kantian form, drawing on Kant's comprehensive liberal doctrine (Theo ry , §§40,
78, 86).
xliii
Introduction to the Paperback Edition
xliv
Introduction to the Paperback Edition
xiv
Introduction to the Paperback Edition
1 4 . I note that there is, strictly speaking, no argument here. The preceding para
graph in the text simply describes an institutional context in which citizens stand in
certain relations and consider certain questions, and so on. It is then said that from
that context a duty arises on those citizens to follow the criterion of reciprocity. This
is a duty arising from the idea of reasonableness of persons as characterized at pp.
49f. A similar kind of reasoning is found in T. M. Scanlon's "Promises and Practices,"
Philosophy and Public Affairs 1 9 : 3 (Summer 1 990). Of course, the particular cases
and examples are entirely different.
1 5 . The last two paragraphs summarize pp. 1 3 5ff.
16. The terminology here follows footnote 2 above. Both Theory and PL speak of a
(comprehensive) conception of the good. From here on, it is referred to as a doctrine.
xlvi
Introduction to the Paperback Edition
j ust political society. (Their capacity for the other virtues and
moral motives beyond this is not of course denied . )
4 . Two ideas that are not found i n Theory are needed to meet
the fact of reasonable pluralism, namely, the ideas of a reasonable
overlapping consensus ( 1 5 , 39ff. , IV: 3 ) and of public reason
(Vl : 4 , 7, 8). Without these ideas we do not see the role a political
conception of j ustice has (or, as we shall see, a family thereof
has) in specifying the public reason of a well-ordered society
when it is regulated by a political conception. In carrying out this
conceptual task, justice as fairness (as now transformed) is used
as the main example.
I shall not try to describe here the idea of an overlapping
consensus beyond what I have occasionally said. I note instead
two points related to it. One is that it is the fact of reasonable
pluralism that leads-at least me-to the idea of a political con
ception of j ustice and so to the idea of political liberalism. For
rather than confronting religious and nonliberal doctrines with a
comprehensive liberal philosophical doctrine, the thought is to
formulate a liberal political conception that those nonliberal doc
trines might be able to endorse. To find this political conception
we do not look at known comprehensive doctrines with the aim
of striking a balance or average between them, nor do we attempt
to strike a compromise with a sufficient number of those d oc
trines actually existing in society by tailoring the political concep
tion to fit them. Doing that appeals to the wrong idea of consen
sus and makes the political conception political in the wrong way
( 3 9ff. ) . 1 7 Rather, we formulate a freestanding political concep
tion having its own intrinsic (moral) political ideal expressed by
the criterion of reciprocity. We hope in this way that reasonable
comprehensive doctrines can endorse for the right reasons that
political conception and hence be viewed as belonging to a rea
sonable overlapping consensus.
The other point about a reasonable overlapping consensus is
that PL makes no attempt to prove, or to show, that such a
xlvii
Introduction to the Paperback Edition
18. The text of PL refers to these as features. The term conditions is better than
features, since they define a liberal political conception, as I understand it.
19. This term refers to primary goods, as defined in V:4.
20. This is not to deny that certain changes must be made in justice as fairness. For
example, leer. VIII revises the account of the basic liberties in view of H. L. A.
Hart's criticisms. Lecture V: 3-4 revises the account of primary goods to meet the
criticisms of K. ) . Arrow and Amartya Sen, Joshua Cohen and T. M. Scanlon, and
ochers. Also I would revise the just savings principle and its derivation, as suggested
by Thomas Nagel and Derek Parfit, and Jane English (VI l : 274n). I believe that these
and other changes leave justice as fairness substantially intact, since its basic ideals
xiviii
Introduction to the Paperback Edition
and principles remain and only their finer formulation has been, and no doubt will
continue to be, revised and adj usted.
2 1 . This definition and suggested basis of unity is not spelled out in PL. I mention
it here explicitly for the first time and in "Reply to Habermas," XI: 2 : 1 .
xlix
Introduction to the Paperback Edition
22. Public reason in political liberalism and Habermas's public sphere are not the
same thing. See IX: 1 : 382n.
23. Constitutional essentials concern questions about what political rights and liber
ties, say, may reasonably be included in a written constitution, when assuming the
constitution may be interpreted by a supreme court, or some similar body. Matters
of basic justice relate to the basic structure of sociery and so would concern questions
of basic economic and social j ustice and other things not covered by a constitution.
Introduction to the Paperback Edition
li
Introduction to the Paperback Edition
lii
Introduction to the Paperback Edition
liii
Introduction to the Paperback Edition
reasons fall. The famous case of the debate in the Virginia House
of Delegates in 1 7 8 5 between Patrick Henry and James Madison
over the establishment of the Anglican Church and involving
religion in the schools was argued almost entirely by reference
to political values alone. 28
Perhaps others think public reason is too restrictive because it
may lead to a stand-off 29 and fail to lead to agreement of views
among citizens. It is alleged to be too restrictive since it doesn't
supply enough reasons to settle all cases. This, however, happens
not only in moral and political reasoning but in all forms of
reasoning, including science and common sense. But the relevant
comparision for public reasoning is to those cases in which some
political decision must be made, as with legislators enacting laws
28. The most serious opposmon to Jefferson's "Bill for Establishing Religious
Freedom," which was adopted by the Virginia House of Delegates in 1 7 86, was
provided by the popular Patrick Henry. Henry's argument for keeping the religious
establishment was based on the view that "Christian knowledge hath a natural ten
dency to correct the morals of men, restrain their vices, and preserve the peace of
society, which cannot be effected without a competent provision for learned teach
ers." See Thomas }. Curry, The First Freedo ms (New York: Oxford University Press,
1986), with ch. 4 on the case of Virginia. Henry did not seem to argue for Christian
knowledge as such but rather that it was an effective way to achieve basic political
values, namely, the good and peaceable conduct of citizens. Thus, I take him to mean
by "vices, at least in part, those actions violating the political virtues found in
n
liv
Introduction to the Paperback Edition
30. I use the term grounding reaiom since many who might appeal to these reasons
view them as the proper grounds, or the true basis, religious or philosophical or
moral, of the ideals and principles of public reasons and political conceptions of
j ustice.
3 1 . Some have quite naturally read the footnote (24 3f. ) as an argument for the
right to abortion in the first trimester. I do not intend it to be one. (It does express
my opinion, but an opinion is not an argument.) I was in error in leaving it in doubt
that the aim of the footnote was only to illustrate and confirm the following statement
in the text to which the footnote is attached : "The only comprehensive doctrines that
Iv
Introduction to the Paperback Edition
run afoul of public reason are those that cannot support a reasonable balance [or
ordering} of political values [on the issue}. To try to explain what I meant, I used
n
three political values (of course, there are more) for the troubled issue of the right to
abortion, to which it might seem improbable that political values could apply at all. I
believe a more detailed interpretation of those values may, when properly developed
at public reason, yield a reasonable argument. I don't say the most reasonable or
decisive argument; I don't know what that would be, or even if it exists. (For an
example of such a more detailed interpretation, see Judith Jarvis Thomson's, "Abor
tion: Whose Right?" Boston Rtfliew 2 0 : 3 [Summer 1995}; though I would want to add
several addenda to it. ) Suppose now, for purposes of illustration, that there is a
reasonable argument in public reason for the right of abortion but there is no equally
reasonable balance, or ordering, of the political values in public reason that argues
for the denial of that right. Then in this kind of case, but only in this kind of case,
does a comprehensive doctrine denying the right of abortion run afoul of public
reason. However, if it can satisfy the proviso of the wide public reason better, or at
least as well as other views, it has made its case at public reason. A comprehensive
doctrine can be unreasonable on one or several issues without being simply unrea
sonable.
3 2 . For such an argument, see Cardinal Bernadin's view in "The Consistent Ethics:
What Sort of Framework?n Origim 1 6 (Oct. 30, 1 986), pp. 3 4 5 , 347-50. The idea of
public order the Cardinal presents includes these three political values: public peace,
essential protections of human rights, and the commonly accepted standards of moral
behavior in a community of law. Further, he grants that not all moral imperatives are
to be translated into prohibitive civil statutes and thinks it essential to the political
and social order to protect human life and basic human rights. The denial of the right
to abortion he hopes to justify on the basis of those three values. I don't assess his
argument here, except to say it is clearly cast in the form of public reason. Whether
it is itself reasonable or not, or more reasonable than the arguments on the other
side, is another matter. As with any form of reasoning in public reason, the reasoning
may be fallacious or mistaken.
lvi
I ntroductio n to the Paperback Edition
the right of abortion in their own case. They can recognize the
right as belonging to legitimate law and therefore do not resist it
with force. To do that would be unreasonable (60ff.): it would
mean their attempting to impose their own co�prehensive doc
trine, which a majority of other citizens who follow public reason
do not accept. Certainly Catholics may, in line with public rea
son, continue to argue against the right of abortion. That the
Church's nonpublic reason requires its members to follow its
doctrine is perfectly consistent with their honoring public rea
son. 33 I do not pursue this question since my aim is only to stress
that the ideal of public reason does not often lead to general
agreement of views, nor should it. Citizens learn and profit from
conflict and argument, and when their arguments follow public
reason, they instruct and deepen society's public culture.
6. In section 4 above we saw that a liberal conception com
bines and orders the two basic values of liberty and equality in
terms of three features. The first two state the basic rights and
liberties and their priority; the third is the assurance of sufficient
all-purpose means to enable all citizens to make intelligent and
effective use of their freedoms. This third feature must, of
course, satisfy the criterion of reciprocity and thus enjoins a
basic structure that prevents social and economic inequalities
from being excessive as specified by that criterion. Without the
institutions (a) to (e) listed below, or similar arrangements, rea
sonable political liberalisms hold that these excessive inequalities
tend to develop. This is an application of common sense politi
cal sociology.
At three places PL briefly considers such an application. It
does so in part II, lecture IV. It takes up in IV:6 how a constitu
tional consensus might gradually arise from an earlier period in
3 3 . As far as I can see, this view is similar to Father John Courtney Murray's
position abouc che scand che Church should cake in regard to concracepcion in We
Hold These Truths (New York: Sheed and Ward, 1 960), pp. 1 5 7f. See also Mario
Cuomo's lecrure on abortion in his Nocre Dame lecrure of 1 984 in More Than Words
(New York: Sc. Martin's, 1 993), pp. 3 2 - 5 1 . I am indebted co Leslie Griffin and Paul
Weichman for discussion and clarification abouc points involved in this and che cwo
preceding footnotes and for acquaincing me wich Facher Murray's view.
lvii
Introduction to the Paperback Edition
34. Hegel, Marxist, and socialist writers have been quite correct in making this ob
jection.
3 5 . See also VII:4,9.
lviii
Introduction to the Paperback Edition
36. The requirement is far more than provision for food, clothing, and housing, or
simply for basic needs. Basic freedoms are defined by the list of basic liberties
and opportunities, and these include the political liberties and fair access to the
political process.
lix
Introduction to the Paperback Edition
3 7 . I believe also that such a regime may also fairly deal with differences of culture
and nationality (separating the latter idea from that of state). Here I follow Yael
Tamir in her Liberal Nationalism (Princeton : Princeton University Press 1 993), esp.
ch. 3.
Ix
Introduction to the Paperback Edition
38. I agree here with Michael Walzer in his review of Benjamin Barber's The
Conquest of Politi's in the New York Rniew of Books, February 2, 1 989, pp. 42f.
lxi
Introduction to the Paperback Edition
39. See Carl Schmitt's The Crisis of Parliamentary Democracy, trans. Ellen Kennedy
(Cambridge: M IT Press, 1 988). See especially the preface to the second edition
( 1 926) and ch. 2. On Weimar, see the instructive works by Dedev Peukert, The
Weimar Republic, trans. Allen Lane (Boston: Penguin, 1 99 1 ), esp. chs. 1 1 - 1 4 ; and
Klaus Fischer, Nazi Germany (New York: Continuum, 1995), ch. 7 and conclusion,
pp. 25 8-263.
40. "If j ustice perishes, then it is no longer worthwhile for men to live upon the
earth" (Rechtslehn, in remark E following §49, Ak:VI : 3 3 2).
4 1 . For this psychology see Theory, Pt. III, esp. ch. 8 and PL: II : l - 3 .
lxii
POLITICAL
L I B E RALISM
P A R T O N E
Political
Liberalism:
Basic
Elements
L E C T U R E
Fundamental Ideas
4
Fundamental Ideas
1. See "Liberty of the Ancients Compared with that of the Moderns," ( 1 8 19), in
Benjamin Constant, Political Writings, translated and edited by Biancamaria Fontana
(Cambridge: Cambridge University Press, 1 988). The discussion in the introduction
of the difference between the problem of political philosophy in the ancient and
modern worlds illustrates the significance of Constant's distinction.
2. The conception of justice presented in Theory.
3. The statement of these principles differs from that given in Theory and follows
the statement in ''The Basic Liberties and Their Priority," Tannff' Lectures on Human
Values, vol. III (Salt Lake City: University of Utah Press, 1 982), p. 5. The reasons for
these changes are discussed on pp. 46- 5 5 of that lecture. They are important for the
revisions in the account of the basic liberties found in Theory and were made to try
to answer the forceful objections raised by H. L A. Hart in his critical review in the
University of Chicago Law Review 40 (Spring 1 9 7 3 ) : 5 3 5 - 5 5 . In this volume, see VIII,
pp. 29 1 , 3 3 1 -34, respectively.
5
B A S I C E L E M E N T S
6
Fundamental Ideas
S. There are a number of questions that arise concerning the intended interpreta
tion of the difference principle. For example, the least advantaged members of
society are given by description and not by a rigid designator (to use Saul Kripke's
term in Naming and Necessity [Cambridge, Mass. : Harvard University Press, 1 9 7 2}).
Further, the principle does not require continual economic growth over generations
to maximize upward indefinitely the expectations of the least advantaged. It is com
patible with Mill's idea of a society in a just stationary state where (real) capital
accumulation is zero. What the principle does require is that however great inequali
ties are, and however willing people are to work so as to earn their greater return,
existing inequalities are to be adj usted to contribute in the most effective way to the
benefit of the least advantaged. These brief remarks are hardly clear; they simply
indicate the complexities that are not our concern in these lectures.
6. I make this comment since some have thought that my working out the ideas of
political liberalism meant giving up the egalitarian conception of Theory. I am not
aware of any revisions that imply such a change and think the surmise has no basis.
7. For the statement of such a principle, as well as an instructive fuller statement in
four parts of the two principles, with important revisions, see Rodney Peffer's
Marxism, Morality, and Socia/justice (Princeton: Princeton University Press, 1 990),
p. 14. I should agree with most of Peffer's statement, but not with his 3(b), which
7
B A S I C E L E M E N T S
8
Fundamental Ide as
9
B A S I C E L E M E N T S
10
Fundamental Ideas
1 1 . In saying that a conception is moral, I mean, among other things, that its
content is given by certain ideals, principles and standards; and that these norms
articulate certain values, in this case political values.
1 2 . See Theory, §2 and the index, and also ''The Basic Strucrure as Subject," in this
volume, pp. 2 5 7-88.
11
B A S I C E L E M E N T S
12
Fundamental Ideas
13
B A S I C E L E M E N T S
1 5 . I comment that I use "ideas" as the more general term and as covering both
concepts and conceptions. This pair is distinguished as they were in Theory, pp. 5f.
Roughly, the concept is the meaning of a term, while a particular conception includes
as well the principles required to apply it. To illustrate: the concept of j ustice, applied
to an instirution, means, say, that the instirution makes no arbitrary distinctions
berween persons in assigning basic rights and duties, and that its rules establish a
proper balance berween competing claims. Whereas a conception includes, besides
this, principles and criteria for deciding which distinctions are arbitrary and when a
balance berween competing claims is proper. People can agree on the meaning of the
concept of j ustice and still be at odds, since they affirm different principles and
standards for deciding those matters. To develop a concept of j ustice into a concep
tion of it is to elaborate these requisite principles and standards. Thus, to give
another example, in § 3 . 3 I consider the concept of the person in law and in political
philosophy, while in §5 I set out the further necessary elements of a conception of the
person as a democratic citizen. This distinction berween concept and conception I
took from H. L A.. Hart's, The Concept of Law (Oxford: Clarendon Press, 1 96 1 ), pp.
1 5 5- 59.
1 6. Two other fundamental ideas are those of the basic strucrure, discussed in § 2 . 1 ;
14
Fundamental Ideas
and of the original position, discussed in §4. These are not seen as ideas familiar to
educated common sense but rather as ideas introduced for the purpose of presenting
justice as fairness in a unified and prespicuous way.
1 7. The idea of an overlapping consensus, or perhaps better the term, was intro
duced in Theory, pp. 387f. , as a way to weaken the conditions for the reasonableness
of civil disobedience in a nearly j ust democratic society. Here and later in these
lectures I use it in a different sense and in a far wider context.
15
B A S I C E L E M E N T S
16
Fundamental Ideas
18. This thought is expressed by Allan Gibbard in his review of Brian Barry's
Theories of]11stice (Berkely: University of California Press, 1 989). Barry thinks justice
as fairness hovers uneasily between impartiality and mutual advantage, where Gib
bard thinks it perches between on reciprocity. I think Gibbard is right about this.
See his "Constructing Justice," Philosophy and P11blic Affairs 20 (Summer 1 99 1 ): 2 66f.
17
B A S I C E L E M E N T S
with this are covered by nonideal theory and not by the princi
ples of j ustice for a well-ordered society. 19
3. Now consider the fundamental idea of the person.20 There
are, of course, many aspects of human nature that can be singled
out as especially significant, depending on our point of view.
This is witnessed by such expressions as "homo politicus" and
"homo oeconomicus," "homo ludens" and "homo faber. " Since
our account of justice as fairness begins with the idea that society
is to be conceived as a fair system of cooperation over time
between generations, we adopt a conception of the person to go
with this idea. Beginning with the ancient world, the concept of
the person has been understood, in both philosophy and law, as
the concept of someone who can take part in, or who can play a
role in, social life, and hence exercise and respect its various
rights and duties. Thus, we say that a person is someone who qm
be a citiz�.n , that is, a normal and fully cooperating me rii'ber �f
society over a complete life. We add the phrase "over a complete
life" because society is viewed not only as closed (§2 . 1 ) but as a
more or less complete and self-sufficient scheme of cooperation,
making room within itself for all the necessities and activities of
life, from birth until death. A society is also conceived as existing
in perpetuity: it produces and reproduces itself and its institu
tions and culture over generations and there is no time at which
it is expected to wind up its affairs.
Since we start within the tradition of democratic thought, we
19. Allen Buchanan has an instructive discussion of these points in his Marx and
Justice (Totowa, N.J . : Rowman and Littlefield, 1 982), pp. 1 4 5 -49.
20. It should be emphasized that a conception of the person, as I understand it
here, is a normative conception, whether legal, political, or moral, or indeed also
philosophical or religious, depending on the overall view to which it belongs. In the
present case the conception of the person is a moral conception, one that begins
from our everyday conception of persons as the basic units of thought, deliberation,
and responsibility, and adapted to a political conception of justice and not to a
comprehensive doctrine. It is in effect a political conception of the person, and given
the aims of justice as fairness, a conception suitable for the basis of democratic
citizenship. As a normative conception, it is to be distinguished from an account of
human nature given by natural science and social theory and it has a different role in
justice as fairness. On this last, see 11:8.
18
Fundamental Ideas
also chink of citizens as free and equal persons. The basic idea is
chat in virtue of their two moral powers (a capacity for a sense of
justice and for a conception of the good) and the powers of
reason (of judgment, thought, and inference connected with these
powers), persons are free. Their having these powers co the
requisite minimum degree co be fully cooperating members of
society makes persons equal.211
To elaborate: since person s can be full participants in a fair
system of social cooperation, we ascribe co chem the two moral
powers connected with the elements in the idea of social coop
eration noted above: namely, a capacity for a sense of justice and
· "
a c�acicy for a conception of the good. A sens e o(j usci�� i� ch e
c apadcy ·co understand, to apply, · ·a:ii<I co ace from the public
conception of justice which characterizes the fair terms of social
cooperation. Given the nature of the political conception as
specifying a public basis of justification, a sense of justice also
exp�esses a willingness, if not the desire, co ace in relation co
ochers on terms chat they also can publicly endorse (II: 1 ) . Th�
c �pacicy for a conception of the good is the capacity co form, co
re�ise, and rationally co pursue a conception of one's rational
advantage or good .
. ,lo addition co having these two moral powers, persons also
hav.e at any given time a determinate conception of the good chat
they cry co achieve. Such a conception muse not be understood
narrowly but rather as including a conception of what is valuable
in human life. Thus, a conception of the good normally consists
of a more or less determinate scheme of final ends, chat is, ends
we wane co realize for their own sake, as well as attachments co
ocher persons and loyalties co various groups and associations.
These attachments and loyalties give rise co devotions and affec
tions, and so the flourishing of the persons and associations who
are the objects of these sentiments is also pare of our conception
of the good. We also connect with such a conception a view of
our relation co the world-religious, philosophical, and moral-
19
B A S I C E L E M E N T S
22. The account in Theory, §44, i s defective. A better approach i s one based on an
idea given to me by Thomas Nagel and Derek Parfit, I believe in February of 1972.
The s am e idea w as proposed independently later b y Jane English in her "Justice
Between Generations," Philosophical Studies 3 1 ( 1 97 7):98. This better account is
indicated in "The Basic Structure as Subject," included in this volume. See VII:6 and
20
Fundamental Ideas
n. 1 2 . I simply missed this better solution, which leaves the motivation assumption
unchanged.
2 3 . See Theory, §58.
24. S e e V : 3 . 5 and the writings o f Norman Daniels there referred to.
21
B A S I C E L E M E N T S
22
Fundamental Ideas
26. For the veil of ignorance, ibid. , §§4 and 24 and the index.
23
B A S I C E L E M E N T S
2 7. Not allowing the parties to know people's comprehensive doctrines is one way
in which the veil of ignorance is thick rather than thin. (This contrast is discussed in
"Kantian Constructivism" [ 1 980}, pp. 5 49f.) Many have thought a thick veil of
ignorance without j ustification and have queried its grounds, especially given the
great significance of comprehensive doctrines. Since we should j ustify, or at least
explain, fearures of the original position when we can, consider the following. Recall
our problem stated at the beginning. We seek a political conception of justice for a
democratic society viewed as a system of fair cooperation between free and equal
citizens who, as politically autonomous (11:6), willingly accept the publicly recognized
principles of justice specifing the fair terms of cooperation. However, the society in
question is one in which there is diversity of comprehensive doctrines, all perfectly
reasonable. This is the fact of reasonable pluralism, as opposed to the fact of plural
ism as such (§6.2 and 1 1 : 3 ) . Now if all citizens are freely to endorse the political
conception of j ustice, that conception must be able to gain the support of citizens
24
Fundamental Ideas
people's race and ethnic group, sex and gender, and their various
native endowments such as strength and intelligence, all within
the normal range. We express these limits on information figura
tively by saying the parties are behind a veil of ignorance. Thus,
the original position is simply a device of representation: it de
scribes the parties, each of whom is responsible for the essential
interests of a free and equal citizen, as fairly situated and as
reaching an agreement subject to conditions that appropriately
limit what they can put forward as good reasons. 28
4. Both of the above mentioned difficulties, then, are over
come by viewing the original position as a device of representa
tion: it models what we regard-here and now-as fair condi
tions under which the representatives of free and equal citizens
are to specify the terms of social cooperation in the case of the
25
B A S I C E L E M E N T S
basic structure of society; and since it also models what, for this
case, we regard as acceptable restrictions on reasons available to
the parties for favoring one political conception of justice over
another, the conception of justice the parties would adopt iden
tifies the conception of justice that we regard-here and now
as fair and supported by the best reasons.
The idea is to use the original position to model both freedom
and equality and restrictions on reasons in such a way that it
becomes perfectly evident which agreement would be made by
the parties as citizens' representatives. Even should there be, as
surely there will be, reasons for and against each conception of
justice available, there may still be an overall balance of reasons
plainly favoring one conception over the rest. As a device of
representation the idea of the original position serves as a means
of public reflection and self-clarification. It helps us work out
what we now think, once we are able to take a clear and unclut
tered view of what justice requires when society is conceived as
a scheme of cooperation between free and equal citizens from
one generation to the next. The original position serves as a
mediating idea by which all our considered convictions, whatever
their level of generality-whether they concern fair conditions
for situating the parties or reasonable constraints on reasons, or
first principles and precepts, or judgments about particular insti
tutions and actions-<an be brought to bear on one another. This
enables us to establish greater coherence among all our judg
ments; and with this deeper self-understanding we can attain
wider agreement among one another. '
5 . We introduce an idea like that of the original position
because there seems no better way to elaborate a political con
ception of j ustice for the basic structure from the fundamental
idea of society as an ongoing and fair system of cooperation
between citizens regarded as free and equal. This seems particu
larly evident once we think of society as extending over genera
tions and as inheriting its public culture and existing political and
social institutions (along with its real capital and stock of natural
resources) from those who have gone before. There are, how-
26
Fundamental Ideas
29. See the important work of Michael Sandel, Liberalism and the Limits ofjustice
(Cambridge: Cambridge University Press, 1 982). This metaphysical conception of
the person is attributed to Theory in the introduction and criticized from various
standpoints in much of the book. I believe the reply found in chap. 4 of Will
Kymlicka's Liberalism, Community, and Culture (Oxford : Clarendon Press, 1 989) is
on the whole satisfactory, modulo ad justments that may need to be made to fit it
within political liberalism as opposed to liberalism as a comprehensive doctrine.
27
B A S I C E L E M E N T S
30. Many have made this error. I tried to identify it more clearly and set it to rest
in "Fairness to Goodness," Philosophical Review 84 (October 1975): 542£.
28
Fundamental Ideas
29
B A S I C E L E M E N T S
3 2 . I am indebted to Erin Kelly for the distinction between the two kinds of aims
that characterize peoples' moral identity as described in this and the next paragraph.
30
Fundamental Ideas
political institutions and social policies. They also work for the
other values in nonpublic life and for the ends of the associations
to which they belong. These two aspects of their moral identity
citizens must adj ust and reconcile. It can happen that in their
personal affairs, or in the internal life of associations, citizens
may regard their final ends and attachments very differently from
the way the political conception supposes. They may have, and
often do have at any given time, affections, devotions, and loyal
ties that they believe they would not, indeed could and should
not, stand apart from and evaluate objectively. They may regard
it as simply unthinkable to view themselves apart from certain
religious, philosophical, and moral convictions, or from certain
enduring attachments and loyalties.
These two kinds of commitments and attachments-political
and nonpolitical-specify moral identity and give shape to a
person's way of life, what one sees oneself as doing and trying to
accomplish in the social world. If we suddenly lost them, we
would be disoriented and unable to carry on. In fact, there would
be, we might think, no point in carrying on. 33 But our concep
tions of the good may and often do change over time, usually
slowly but sometimes rather suddenly. When these changes are
sudden, we are likely to say that we are no longer the same
person. We know what this means: we refer to a profound and
pervasive shift, or reversal, in our final ends and commitments;
we refer to our different moral (which includes our religious)
identity. On the road to Damascus Saul of Tarsus becomes Paul
the Apostle. Yet such a conversion implies no change in our
public or institutional identity, nor in our personal identity as
this concept is understood by some writers in the philosophy of
mind . 34 Moreover, in a well-ordered society supported by an
31
B A S I C E L E M E N T S
32
Fundamental Ideas
3 5 . For the idea of social death, see Orlando Patterson's Slavery and Soria! Death
(Cambridge, Mass . : Harvard University Press, 1 982), esp. pp. 5-9, 38-4 5 , 3 3 7 .
3 6 . See further V:3-4 , esp. 3.6.
33
B A S I C E L E M E N T S
34
Fundamental Ideas
35
B A S I C E L E M E N T S
3 7 . I am graceful to Joshua Cohen for instructive discussion on chis point; and also
for insisting on the importance of the distinction between reasonable pluralism and
pluralism as such, as specified in the paragraphs immediately below in §6. 2 , and lacer
in I l : 3 . These matters he discusses in illuminating detail in "Moral Pluralism and
Political Consensus," in The Idea of Democracy, edited by David Copp, Jean Hampton,
and John Roemer (Cambridge: Cambridge Universiry Press, 1 993).
36
Fundamental Ideas
They are not simply the upshot of self- and class interests, or of
peoples' understandable tendency co view the political world
from a limited standpoint. Instead, they are in pare the work of
free practical reason within the framework of free institutions.
Thus, although historical doctrines are not, of course, the work
of free reason alone, the face of reasonable pluralism is not an
unfortunate condition of human life. In framing the political
conception so chat it can, at the second stage, gain the support of
reasonable comprehensive doctrines, we are not so much adjust
ing chat conception to brute forces of the world but co the
inevitable outcome of free human reason. 3 8
A second and related general face is chat a continuing shared
understanding on one comprehensive religious, philosophical, or
moral doctrine can be maintained only by the oppressive use of
state power. If we chink of political society as a community
united in affirming one and the same comprehensive doctrine,
then the oppressive use of state power is necessary for political
community. In the society of the Middle Ages, more or less
united in affirming the Catholic faith, the Inquisition was not an
accident; its suppression of heresy was needed co preserve chat
shared religious belief. The same holds, I believe, for any reason
able comprehensive philosophical and moral doctrine, whether
religious or nonreligious. A society united on a reasonable form
of utilitarianism, or on the reasonable liberalisms of Kant or Mill,
would likewise require the sanctions of state power co remain
so. 39 Call chis "the face of oppression. " 40
37
B A S I C E L E M E N T S
38
Fundamental Ideas
42 . The idea of primary goods is introduced in 11: 5 . 3 and discussed in some detail
in V:3-4.
39
B A S I C E L E M E N T S
40
Fundamental Ideas
41
B A S I C E L E M E N T S
44. The distinction made in this section between society and an association is in
many ways similar to the distinction made by Michael Oakeshott in the central essay
of On Human Conduct ((Oxford : Clarendon Press, 1 9 7 5 ) between a practical associa
tion and a purposive association. Terry Vardin, who explains and uses this distinction
to instructive effect in his Law, Morality and the Relations of States (Princeton: Prince
ton University Press, 1 983), might not agree. He thinks that Theory views society as
a purposive association, since it describes society as a scheme of cooperation (pp.
262-67 ). Yet this is not, I think, decisive. Rather, what is decisive is what persons
are cooperating as and what their cooperation achieves. As the text says, what
characterizes a democratic society is that people are cooperating as free and equal
citizens and what their cooperation achieves (in the ideal case) is a j ust basic structure
with background institutions realizing principles of justice and providing citizens
with the all-purpose means to meet their needs as citizens. Their cooperation is to
assure one another political j ustice. Whereas in an association people cooperate as
members of the association to achieve whatever it is that moved them to join the
association, which will vary from one association to another. As citizens they coop
erate to achieve their common shared end of j ustice; as members of associations they
cooperate to realize ends falling under their different comprehensive conceptions of
the good.
42
Fundamental Ideas
43
B A S I C E L E M E N T S
44
Fundamental Ideas
45
B A S I C E L E M E N T S
46
L E C T U R E
Powers of
Citizens
and Their
Representation
These lectures fill out the details of the answer as follows: the
basic structure of such a society is effectively regulated by a
political conception of justice chat is the focus of an overlapping
consensus of at lease the reasonable comprehensive doctrines
affirmed by its citizens. This enables chat shared political concep
tion to serve as the basis of public reason in debates about
political questions when constitutional essentials and matters of
basic justice are at stake (1:8. 1 ).
The ideas of the reasonable and the rational, and of a reason
able comprehensive doctrine, so important for an overlapping
consensus, play a central role in this answer. So far I have used
chose ideas without much explanation. I must now remedy chis
lack since they are difficult ideas, and the idea of the reasonable
especially, whether applied to persons, institutions, or doctrines,
easily becomes vague and obscure. I try co mitigate chis by fixing
on two basic aspects of the reasonable as a virtue of persons
engaged in social cooperation among equals. I then develop from
chose two aspects the content of the reasonable. I examine next
how doing this provides a basis for toleration in a society marked
by reasonable pluralism. With these things done (§§ 1 -3), I dis
cuss the way in which citizens' moral powers of the reasonable
and the rational are modeled in the original position as a device
of representation.
l . The disrincrion between rhe reasonable and rhe rational goes back, I believe, ro
Kane: ir is expressed in his disrincrion between rhe categorical and rhe hyporherical
48
The Powers of Citizens and Their Representation
imperative in the Foundations and his other writings. The first represents pure practi
cal reason, the second represents empirical practical reason. For the purposes of a
political conception of j ustice, I give the reasonable a more restricted sense and
associate it, first, with the willingness to propose and honor fair terms of cooperation,
and second, with the willingness to recognize the burdens of judgment and to accept
their consequences. The distinction between the reasonable and the rational was
- instructively discussed in a general way some time ago by W. M. Sibley in 'The
Rational Versus the Reasonable," Philosophical Review 62 (October 1 95 3) : 5 54-60.
My discussion accords with his basic distinction as summarized on p. 560: knowing
that people are rational we do not know the ends they will pursue, only that they will
pursue them intelligently. Knowing that people are reasonable where others are
concerned, we know that they are willing to govern their conduct by a principle from
which they and others can reason in common; and reasonable people take into
account the consequences of their actions on others' well-being. The disposition to
be reasonable is neither derived from nor opposed to the rational but it is incompat
ible with egoism, as it is related to the disposition to act morally. Sibley's account of
the reasonable is broader but consistent with that expressed by the two basic aspects
of being reasonable used in the text.
2. I think both aspects of the reasonable ( discussed in this and the next two
sections) are closely connected with T. M. Scanlon's principle of moral motivation.
This principle is one of the three basic principles of his contractualism, as stated in
"Contractualism and Utilitarianism," in Utilitarianism and Beyond, edited by Amartya
Sen and Bernard Williams (Cambridge: Cambridge University Press, 1 982). I do not
attempt to show the connection here but simply remark that Scanlon's principle is
more than a psychological principle of motivation (though it is that) since it concerns
the fundamental question why anyone should care about morality at all. The principle
answers this by saying that we have a basic desire to be able to j ustify our actions to
others on grounds they could not reasonably reject-reasonably, that is, given the
desire to find principles that others similarly motivated could not reasonably reject.
See pp. 1 04f. , 1 1 Sf. The two aspects of the reasonable as a virtue of persons one may
see as two related expressions of this desire. To accept the connection between the
two aspects of the reasonable and Scanlon's principle is to include this form of
motivation in the conception of reasonable persons from which justice as fairness
starts. Doing this does not explain this motivation, or say how it comes about. For
the limited purpose of giving an account of stability, the moral psychology discussed
later in §7 may serve. See also Theory, p. 4 7 8 , where its analog appears at the end of
49
B A S I C E L E M E N T S
moral development of the morality of principles. The point is, though, that in setting
out justice as fairness we rely on the kind of motivation Scanlon takes as basic. In § 7
below the basic desire to b e able t o justify our actions t o others on grounds they
could not reasonably reject I characterize as a conception-dependent desire.
50
The Powers of Citizens and Their Representation
as they may balance final ends by their significance for their plan
of life as a whole, and by how well these ends cohere with and
complement one another. Nor are rational agents as such solely
self-interested: chat is, their interests are not always interests in
benefits co themselves. Every interest is an interest of a self
(agent), but not every interest is in benefits co the self chat has it.
Indeed, rational agents may have all kinds of affections for per
sons and attachments co communities and places, including love
of country and of nature; and they may select and order their
ends in various ways.
What rational agents lack is the particular form of moral sen
sibility chat underlies the desire co engage in fair cooperation as
such, and to do so on terms chat others as equals might reasona
bly be expected co endorse. I do not assume the reasonable is
the whole of moral sensibility; but it includes the pare chat con
nects with the idea of fair social cooperation. 3 Rational agents
approach being psychopathic when their interests are solely in
benefits co themselves.
3 . In justice as fairness the reasonable and the rational are
taken as cwo distinct and independent basic ideas. They are
distinct in chat there is no thought of deriving one from the
other; in particular, there is no thought of deriving the reason
able from the rational. In the history of moral thought some have
cried co do chis. They chink the rational is more basic, for who
does not endorse the (or an) idea of rationality (for there are
several) as specified by such familiar principles as chose above ?
They chink chat if the reasonable can be derived from the ra
tional, chat is, if some definite principles of justice can be derived
from the preferences, or decisions, or agreements of merely
3. Rational people lack what Kant calls in the Religion, Ak, VI:26, "the predisposi
tion to moral personality"; or in the present case, the particular form of moral
sensibility that underlies the capacity to be reasonable. Kant's merely rational agent
has only the predispositions to humanity and animality (to use his terms) ; this agent
understands the meaning of the moral law, its conceptual content, but is unmoved by
it: to such an agent it is simply a curious idea.
51
B A S I C E L E M E N T S
52
The Powers of Citizens and Their Representation
53
B A S I C E L E M E N T S
54
The Powers of Citizens and Their Representation
9. The idea of the burdens of judgment should not be confused with the idea of
the burden of proof in legal cases, whether, say, the burden of proof falls on the
plaintiff or the defendant.
55
B A S I C E L E M E N T S
56
The Powers of Citizens and Their Representation
57
B A S I C E L E M E N T S
58
The Powers of Citizens and Their Representation
1 2 . As stated in the introduction, that political liberalism must use in its formula
tion an idea of a reasonable comprehensive doctrine, I owe to Wilfried Hinsch. See
his account in §Ill of his introduction to a translation of my Gesamm11/1e AM/siitze,
1 9 78-1 989 (Frankfurt am Main: Suhrkamp, 1 992).
59
B A S I C E L E M E N T S
60
The Powers of Citizens and Their Representation
this was only an interpretation of Bossuet's thought by Preserved Smith in his History
of Modem Culture (New York: Henry Holt, 1932-34), p. 5 5 6 of Vol. II. I thank
Alyssa Bernstein for finding my error.
61
B A S I C E L E M E N T S
62
The Powers of Citizens and Their Representation
63
B A S I C E L E M E N T S
19. That there are doctrines that reject one or more democratic freedoms is itself a
permanent fact of life, or seems so. This gives us the practical task of containing
them-like war and disease--so that they do not overturn political justice.
64
The Powers of Citizens and Their Representation
ing considerations become all the more the urgent. At the first
stage, then, the contrast between the two pluralisms does not
affect the content of justice as fairness.
We can assume either fact as appropriate. To say that justice
as fairness has broad scope, the parties suppose that pluralism as
such obtains. To say that the content of justice as fairness is not
influenced by the existence of unreason, that is, by the existence
of unreasonable comprehensive doctrines, the parties suppose
that reasonable pluralism obtains. Having the same content in
each case shows both that justice as fairness is broad in scope and
that its principles are not determined by unreason.
7. How about the second stage ? The idea of an overlapping
consensus is not introduced until this stage because the question
of stability does not arise until the principles of justice are al
ready provisionally selected. Then we have to check whether,
when realized, just institutions as specified by those principles
can gain sufficient support. Now, as we saw in 1 :6, the problem
of stability for a democratic society requires t!Jat its political
conception can be the focus of an overlapping consensus of
reasonable doctrines that can support a constitutional regime.
We need to show how an overlapping consensus on a political
conception of justice, or parts thereof, such as a principle of
toleration, can first arise.
How this might happen I discuss in IV:6- 7 . And when it
does, then by the definition of such a consensus, the political
conception is supported by a plurality of reasonable comprehen
sive doctrines that persist over time and maintain a sizable body
of adherents. Views that would suppress altogether the basic
rights and liberties affirmed in the political conception, or sup
press them in part, say its liberty of conscience, may indeed exist,
as there will always be such views. But they may not be strong
enough to undermine the substantive justice of the regime. That
is the hope; there can be no guarantee.
What if it turns out that the principles of justice as fairness
cannot gain the support of reasonable doctrines, so that the case
for stability fails ? Justice as fairness as we have stated it is then in
65
B A S I C E L E M E N T S
66
The Powers of Citizens and Their Representation
67
B A S I C E L E M E N T S
68
The Powers of Citizens and Their Representation
delusions of ideology for society to work properly and for citizens to accept it
willingly. In this sense a well-ordered society may lack ideological, or false, con
sciousness.
22. This is a late scholastic doctrine much debated in the works of the Spanish
theologians from Vitoria ( 1 5 30) to Suarez ( 1 6 1 2). The deeper philosophical impor
tance of the doctrine is that it reflects a divide between those who make God's
intellect primary in determining law and those who make God's will primary. See
Thomas E. Davitt, SJ, The N1111m of Law (St. Louis: Herder, 1 9 5 1 ). The idea of pure
penal law seems to have been widespread among the poorer people in Spain as a way
to j ustify resistance to the sales and wood caxes imposed by the Crown as it sought
to recoup its losses following the expulsion of the Moors. See William Daniel, SJ,
The P1mly Pmal Law Theory (Rome: Gregorian University Press, 1 968), chap. 4. For
these references I am indebted to Paul Weichman and Seana Shiffrin.
69
B A S I C E L E M E N T S
70
The Powers of Citizens and Their Representation
what is the reason for limiting the parties in this way and not
allowing them to take into account all true beliefs ? Some com
prehensive religious, philosophical, or moral doctrines must be
true, even if they only deny false or incoherent doctrines. Why
isn't the most reasonable political conception of justice that which
is founded on the whole truth and not simply on a part of it,
much less on commonly based beliefs that happen to be publicly
accepted at any given time ? This is a leading objection to the
idea of public reason and I shall discuss it in VI.
A second comment is that the idea of publicity belongs to the
wide rather than the narrow role of a political conception of
justice. 2 4 The narrow role is restricted to achieving the more or
less minimum conditions of effective social cooperation, for ex
ample, to specifying standards to settle competing claims and to
setting up rules for coordinating and stabilizing social arrange
ments. Public norms are regarded as inhibiting self- or group
centered tendencies, and aimed at encouraging less limited sym
pathies. Any political conception or moral doctrine endorses
these requirements in some form.
Yet such requirements do not involve the publicity condition.
Once this condition is imposed, a political conception assumes a
wide role as part of public culture. Not only are its first principles
embodied in political and social institutions and in public tradi
tions of their interpretation, but the derivation of citizens' rights,
liberties, and opportunities also contains a conception of citizens
as free and equal. In this way citizens are made aware of and
educated to this conception. They are presented with a way of
regarding themselves that otherwise they would most likely never
be able to entertain. To realize the full publicity condition is to
realize a social world within which the ideal of citizenship can be
learned and may elicit an effective desire to be that kind of
person. This political conception as educator characterizes the
wide role.
24. The terms narrow and wide are suggested by a similar distinction drawn by ). L.
Mackie, Ethics (New York: Penguin, 1 9 7 7 ), pp. 1 06f., 1 34ff.
71
B A S I C E L E M E N T S
72
The Powers of Citizens and Their Representation
73
B A S I C E L E M E N T S
26. These grounds of the basic rights and libenies are discussed in '"lbe Basic
Libenies and Their Priority," pp. 3 1 0-24, 3 3 3-40.
74
The Powers of Citizens and Their Representation
75
B A S I C E L E M E N T S
76
The Powers of Citizens and Their Representation
77
B A S I C E L E M E N T S
78
The Powers of Citizens and Their Representation
79
B A S I C E L E M E N T S
2 7 . These are variations "above the line" as described in V: 3 . 5 . What is said there
amplifies the text above.
28. It is essential here to add that they are above reproach, politically and legally
speaking, and not above reproach, morally speaking, or all things considered. It
would be an error to say, for example, that the more fortunate or those lucky in life,
and who affirm and honor the principles of justice, may consider themselves above
reproach, just like that. After all, perhaps they can honor the requirements of public
justice more easily. Some would say we ought never to consider ourselves above
reproach, once we look at our life as whole from a religious, philosophical, or moral
point of view.
80
The Powers of Citizens and Their Representation
81
B A S I C E L E M E N T S
30. See V : 3 .
3 1 . It is important t o stress that the force, o r weight, o f principle-dependent desires
is given entirely by the principle to which the desire is attached, and not by the
82
The Powers of Citize ns and Thei r Rep resentatio n
psychological strength of the desire itself. This strength I assume to exist and it may
enter into explanations of how people in fact behave but it can never enter into how
they should behave, or should have behaved, morally speaking. A person with a good
will, to use Kant's term, is someone whose principle-dependent desires have strengths
in complete accordance with the force, or priority, of the principles to which they are
attached. This explanatory remark holds also of conception-dependent desires, men
tioned later in the text. In this case the many desires attached to the conception will
form a hierarchy given by the ordering of the various principles associated with the
conception in question. I am indebted to Christine Korsgaard for valuable discussion
on this and other points in this and the following section.
83
B A S I C E L E M E N T S
these are the most important, for reasons that will become clear.
These desires can be described by saying that the principles we
desire to act from are seen as belonging to, and as helping to
articulate, a certain rational or reasonable conception, or a polit
ical ideal.
For example, we may desire to conduct ourselves in a manner
appropriate to someone who is rational, whose conduct is guided
by practical reasoning. Desiring to be this kind of person in
volves having and acting from these principle-dependent desires,
and not only from object-dependent desires governed by custom
and habit. However, the principles specifying principle-depen
dent desires must be suitably related to the conception in ques
tion. Our reasoning about our future presupposes, let us say, a
conception of ourselves as enduring over time, from the past
into the future. To speak of our having conception-dependent
desires we must be able to form the corresponding conception
and to see how the principles belong to and help to articulate
it. 3 2
Plainly, for us the main case is the ideal of citizenship as
characterized in justice as fairness. The structure and content of
this conception of justice lay out how, by the use of the original
position, the principles and standards of justice for society's basic
institutions belong to and help to articulate the conception of
reasonable and rational citizens as free and equal. Thus we have
an ideal of citizens as such persons. When we say, as we said
above in c), that not only are citizens normal and fully cooperat
ing members of society, but further they want to be, and to be
recognized as, such members, we are saying that they want to
realize in their person, and have it recognized that they realize,
that ideal of citizens.
Note here the obvious non-Humean character of chis account
of motivation and how it runs counter to attempts to limit the
32. On this topic, see the instructive account by Thomas Nagel, Tin Possibility of
Altr11 ism
(Oxford: Clarendon Press, 1 970), pt. II, pp . 2 7-76, on which I rely here.
See also his Tin Vitw From Nowhtrr (New York: Oxford University Press, 1986), pp.
1 32ff.
84
The Powers of Citizens and Their Representation
85
B A S I C E L E M E N T S
86
The Powers of Citizens and Their Representation
87
B A S I C E L E M E N T S
36. Allan Gibbard, in his Wise Chaim, Apt Feelings (Cambridge, Mass.: Harvard
University Press, 1 990), surmises that the broad features of morality and its content
can be explained in this way.
3 7. I am indebted to Joshua Cohen for discussion on this point.
L E C T U R E I I I
Political
Constructivism
1 . This essay develops further some of the ideas in the third lecture entitled
"Construction and Objectivity" in the journal of Philosophy 77 (September 1 980).
The tide of the three lectures was "Kantian Constructivism in Moral Theory. " As
stated at the end of the introduction, this final version has been revised after corre
spondence with Tyler Burge, especially in §§ 1 , 2, and 5, with some modifications
elsewhere to make the whole consistent. Here I distinguish, as I should have done in
the original of 1 980, between moral and political constructivism; and I try to give
what I hope is a clearer statement of the features of a constructivist conception and
to remain throughout within the limits of a political conception of justice. I am
indebted also to Thomas Nagel and T. M. Scanlon for numerous instructive conver
sations on the topic of constructivism. The idea of constructivism has not been much
90
Political Constructivism
91
B A S I C E L E M E N T S
3 . For perception and intuition: Clarke, pp. 296f., § 2 2 7 ; Price, pp. 589, 596f. ,
§§672-74, 704 ; fo r comparison with mathematics: Clarke, pp. 295f. , §§226-2 7 ;
Price, pp. 592, §684 ; fo r the order o f values i n God's reason: Clarke, pp. 299, §230;
Price, pp. 598f. , §§ 709- 1 2 . Although intuitionists at times speak of moral judgments
as self-evident, I do not emphasize this. It is not essential.
92
Political Constructivism
S. For Kant's distinction, see Critique of Pr11ctfr11/ Reason, for example Ak:V: l Sf. ,
6Sf. , 89£.
93
B A S I C E L E M E N T S
94
Political Constructivism
95
B A S I C E L E M E N T S
tions to bear on each other and check its account of the order of
moral values against our considered judgments on due reflection.
Similarly, constructivism could not check the formulation of its
procedure by seeing whether the conclusions reached match
those judgments.
The difference in the views shows up in how they interpret
conclusions that are unacceptable and must be revised. The intu
itionist regards a procedure as correct because following it cor
rectly usually gives the correct independently given judgment,
whereas the political constructivist regards a judgment as correct
because it issues from the reasonable and rational procedure of
construction when correctly formulated and correctly followed
(assuming, as always, that the judgment relies on true informa
tion). 7 So if the judgment is not acceptable, intuitionism says that
its procedure reflects a mistaken account of the independent
order of values. The constructivist says the fault must lie in how
the procedure models the principles of practical reason in union
with the conceptions of society and person. For the constructiv
ist's conjecture is that the correct model of practical reason as a
whole will give the correct principles of justice on due reflec
tion. 8
Once reflective equilibrium is reached, the intuitionists will
say that their considered judgments are now true, or very likely
so, of an independent order of moral values. The constructivist
will say that the procedure of construction now correctly models
the principles of practical reason in union with the appropriate
conceptions of society and person. In so doing it represents the
order of values most suited to a democratic regime. As to how
we find the correct procedure, the constructivist says: by reflec
tion, using our powers of reason. But since we are using our
96
Political Constructivism
97
B A S I C E L E M E N T S
98
Political Constructivism
99
B A S I C E L E M E N T S
10. This is as important for political liberalism as is the endorsement of the rational
intuitionist.
1 00
Political Constructivism
from them a political conception that can gain free and reasoned
agreement in judgment, this agreement being stable in virtue of
its gaining the support of an overlapping consensus of reasonable
comprehensive doctrines. These conditions suffice for a reason
able political conception of justice.
Kant's aims are difficult to describe briefly. But I believe he
views the role of philosophy as apologia: the defense of reason
able faith. This is not the older theological problem of showing
the compatibility of faith and reason, but that of showing the
coherence and unity of reason, both theoretical and practical,
with itself; and of how we are to view reason as the final court of
appeal, as alone competent to settle all questions about the scope
and limits of its own authority. 1 1 Kant tries in the first two
Critiques to defend both our knowledge of nature and our
knowledge of our freedom through the moral law; he also wants
to find a way of conceiving of natural law and moral freedom so
that they are not incompatible. His view of philosophy as defense
rejects any doctrine that undermines the unity and coherence of
theoretical and practical reason; it opposes rationalism, empiri
cism, and skepticism so far as they tend to that result. Kant shifts
the burden of proof: the affirmation of reason is rooted in the
thought and practice of ordinary (sound) human reason from
which philosophical reflection must begin. Until that thought and
practice appears to be at odds with itself, it needs no defense.
Any one of these differences is far-reaching enough to distin
guish j ustice as fairness from Kant's moral constructivism. Yet
the differences are connected: the fourth, the difference of aim,
together with the fact of reasonable pluralism, leads to the first
three. Justice as fairness would, however, accept Kant's view of
philosophy as defense this far: given reasonably favorable condi
tions, it understands itself as the defense of the possibility of a
just constitutional democratic regime.
101
B A S I C E L E M E N T S
102
Political Constructivism
tions about numbers that are correctly derived from it are cor
rect.
2. To explain political constructivism we need to ask three
questions.
First, in this form of constructivism, what is it that is con
structed ? Answer: the content of a political conception of justice.
In justice as fairness this content is the principles of justice
selected by the parties in the original position as they try to
advance the interests of those they represent.
A second question is this: as a procedural device of represen
tation, is the original position itself constructed ? No: it is simply
laid out. We start with the fundamental idea of a well-ordered
society as a fair system of cooperation between reasonable and
rational citizens regarded as free and equal. We then lay out a
procedure that exhibits reasonable conditions to impose on the
parties, who as rational representatives are to select public prin
ciples of justice for the basic structure of such a society. Our aim
in doing this is to express in that procedure all the relevant
criteria of reasonableness and rationality that apply to principles
and standards of political j ustice. If we do this properly, we
conjecture that the correct working through of the argument
from the original position should yield the most appropriate
principles of justice to govern the political relations between
citizens. In this way the political conception of citizens as coop
erating in a well-ordered society shapes the content of political
right and justice.
3 . This leads to the third question: what does it mean to say
that the conceptions of citizen and of a well-ordered society are
embedded in, or modeled by, the constructivist procedure ? It
means that the form of the procedure, and its more particular
features, are drawn from those conceptions taken as its basis.
To illustrate: elsewhere we have said that citizens have two
moral powers. The first is a capacity for a sense of j ustice that
enables them to understand, apply, and to act from the reason
able principles of justice that specify fair terms of social cooper-
103
B A S I C E L E M E N T S
104
Political Constructivism
14. See On the Basis of Ethics ( 1 840), part II, §7, translated by E. F. J. Payne (New
York: Liberal Arts Press, 1 965), pp. 89-92 . I am indebted to Joshua Cohen for
pointing out to me that my previous reply to this criticism misses the force of
Schopenhauer's objection. See Theory, pp. 1 4 7f. , and "Kantian Constructivism," p.
'.5 30n. Thanks to him, I believe the reply in the text much improved and connects
with the revised account of primary good s. I am indebted also to Stephen Darwall's
"A Defense of the Kantian Interpretation," Ethics 86 (January 1 976).
105
B A S I C E L E M E N T S
1 06
Political Constructivism
107
B A S I C E L E M E N T S
1 08
Political Constructivism
a conception of the right and the good on the basis of which its
members accept the rules and procedures that guide their activi
ties. In justice as fairness this missing conception is constructed
using the principles of practical reason in union with political
conceptions of society and person. This is a special case in which
the members of society are citizens regarded as free and equal in
virtue of their possessing the two moral powers to the requisite
degree. This is the basis of equality. The moral agent here is the
free and equal citizen as a member of society, not the moral
agent in general.
Other societies take a different view founded on certain reli
gious or philosophical doctrines. Their conceptions of justice are
most unlikely to be constructivist, as we have used that term,
and they will probably be comprehensive and not political. I
need not here mention examples, but whatever these religious
and philosophical doctrines may be, I assume they all contain a
conception of the right and the good that includes a conception
of j ustice that can be understood as in some way advancing the
common good. It must be possible to understand this conception
so that when it is followed, society takes into account the good
of all its members and of society as a whole. Rules and proce
dures, joined with shared religious, philosophical, and other pub
lic beliefs, do not exclude this possibility. This idea of justice
may seem weak. Still, some such idea is necessary if we are to
have a society with a legal system imposing what are correctly
believed to be genuine obligations, rather than a society that
merely coerces its subjects who are unable to resist. 1 5 Definite
1 5 . I have in mind here that in order to be viable a legal system must have a certain
content, for example, H. L. A. Hart's minimum content of natural law discussed in
his The Concept of Law, pp. 1 89-9 5 . Or stronger than this, one might argue, as Philip
Soper does, that a legal system must honor certain rights if it is to give rise to morally
binding obligations and not merely to coerce: for example, a minimum right to the
securiry of life, liberry, and properry; a right to justice understood to support at least
formal equaliry, and a reciprocal relation between ruler and ruled allowing for mutual
respect; all this in turn requires a right of discourse and a good faith official claim to
administer justice. See Soper's A Theory of Law (Cambridge, Mass.: Harvard Univer
siry Press, 1 984), pp. 1 2 5-4 7 . I assume a sociery has a conception of justice that
1 09
B A S I C E L E M E N T S
meets conditions of this kind cohering with an idea of advancing the common good.
Otherwise we may not have a society but something else.
1 6. These essentials are widely recognized. There is nothing new in my rendering
of them here.
1 10
Political Constructivism
111
B A S I C E L E M E N T S
1 7 . This does not imply that we have a knowledge of this procedure; but rather we
•
can use the principles that issue from it.
1 12
Political Constructivism
113
B A S I C E L E M E N T S
1 14
Political Constructivism
115
B A S I C E L E M E N T S
19. See Thomas Nagel, The View from Nowhere (New York: Oxford University
Press, 1 986), pp. 1 38-43 and elsewhere.
20. Hume's judicious spectator in The Treatise, 111 : 3 .i, is an example of such an
individual.
1 16
Political Constructivism
117
B A S I C E L E M E N T S
Philosophy 70 (November 197 3). Here I should add that I assume that common sense
knowledge (for example, our perceptual judgments), natural science and social theory
(as in economics and history), and mathematics are (or can be) objective, perhaps
each in their own appropriate way. The problem is to elucidate how they are, and to
give a suitably systematic account. Any argument against the objectiviry of moral and
political reasoning that would, by parallel reasoning applied against common sense,
or natural science, or mathematics, show them not to be objective, must be incorrect.
The objectiviry of practical reasoning is an ill-chosen battleground to contest the
question of objectiviry in general.
2 3 . Quinn, in his essay "Reflections on the Loss of Moral Knowledge" (n. 20
above), argues against granting even this much ; and thinks it does not hold for
physics, or for science in general. I think he may be right about this but I don't need
to consider the point here.
1 18
Political Constructivism
24. I view this conception of objectivity for practical reasoning as essentially Kant
ian. A similar statement is found in Quinn's "Reflections," p. 1 99.
1 19
B A S I C E L E M E N T S
25. Here the parallel with mathematics is instructive: for in this case we have
objectivity without even knowing how to make sense of a wanted tie with a causal
process.
26. This Kantian point is made by Nagel, who says: ''The explanation of our
conviction can be given by the content and validity of the argument"; The View from
Nowhere, p. 1 4 5 . It is the Kantian point we noted earlier (at the end of §2) in saying
that he wanted to show the coherence and unity of reason, both theoretical and
practical, with itself; and that reason is the final court of appeal and alone competent
to settle the scope and limits of its own authority; and to specify its own principles
120
Political Constructivism
and canons of validity. We cannot ground these principles and canons on something
outside reason. Its concepts of judgment and inference, and the rest, are irreducible.
With these concepts explanations come to an end ; one of philosophy's tasks is to
quiet our distress at this thought.
2 7 . Nagel makes this point in "Moral Conflict and Political Legitmacy," p. 2 3 1 .
28. Here I revise considerably how I expressed this point i n the third lecture of
1 980. I am indebted to instructive criticism and comment by David Sachs and T. M.
Scanlon.
12 1
B A S I C E L E M E N T S
122
Political Constructivism
123
B A S I C E L E M E N T S
1 24
Political Co nstructivism
behind all the separate facts; it is simply the fact of those connec
tions now open to view and expressed by the principles free and
equal persons would accept when suitably represented.
5 . Finally, some may object to the idea of possibilities of
construction. Yet given the practice of arithmetic, they do not
presumably object to the idea of the possibilities of counting,
say, of counting from 1 to 1 00, or of counting the prime numbers
from 1 to 1 ,000. Similarly, given that we can understand, use,
and apply a constructivist procedure, then surely there are possi
bilities of construction associated with it. Without a clear idea of
such a procedure, without being able to understand and apply it,
the idea of the possibilities of construction is obscure. But granted
those things, these possibilities seem straightforward. They are
not offered as an explanation of there being the constructivist
procedure, or for our being able to understand and apply it. The
answer to these questions, so far as there is one, lies in the ideas
of practical reason and how we understand them.
Why introduce the idea of a possibility of construction at all?
It goes with the conception of j ustice we use to connect together
the various facts about justice. There are facts about justice that
may be discovered, as there are possibilities before anyone goes
through a construction, say the possibilities that certain princi
ples would be agreed to in the original position. Similarly, there
are no possibilities in other cases; for example, there is no possi
bility that a principle allowing slavery would be agreed to. That
is a fact related to the injustice of slavery.
125
B A S I C E L E M E N T S
34. I do not assume, however, that all comprehensive doctrines use the traditional
conception of a true moral judgment, or a modem variant thereof based on the
concepts of reference and satisfaction. They may use instead another concept of
correctness, say a concept of reasonableness that belonss to a comprehensive view in
that the concept of reasonableness is extended to cover a range of subjects beyond
the political, even if it is not fully universal. Thus, a form of conaacrualism can be a
comprehensive doctrine that uses a conception of reasonableness as its final criterion
of correctness.
1 26
Political Constructivism
3 � . These points are found in Joshua Cohen, "Moral Pluralism and Political
Consensus," pp. 283f. I have simply rephrased them here.
127
B A S I C E L E M E N T S
128
Political Constructivism
1 29
P A R T T W O
Political
Liberalism:
Three
Main
Ideas
L E C T U R E I V
The Idea of
an Overlapping
Consensus
1 34
The Idea of an Overlapping Consensus
135
T H R E E M A I N I D E A S
4. The appropriateness of this assumption rests in part on a fact I shall only mention
here: namely, that the right of emigration does not make the acceptance of political
authoriry voluntary in the way that freedom of thought and liberry of conscience
make the acceptance of ecclesiastical authoriry voluntary (Vl : 3 .2). This brings out a
further fearure of the domain of the political, one that distinguishes it from the
associational. Immigration is also a common fact but we can abstract from it to get an
uncluttered view of the fundamental question of political philosophy (1:3. 3). Of
course, immigration is an important question and must be discussed at some stage. I
surmise this is best done in discussing the appropriate relations between peoples, or
the law of peoples, which I don't consider in these lectures.
1 36
The Idea of an Overlapping Consensus
S . This paragraph can be stated more rigorously if we wish. One way to do this
is to look at the question of legitimacy from the point of view of the original position.
We suppose the parties to know the facts of reasonable pluralism and of oppression
along with other relevant general information. We then try to show that the princi
ples of justice they would adopt would in effect incorporate this principle of legiti
macy and would justify only institutions it would count legitimate. See, further,
VI :4.4.
137
T H R E E M A I N I D E A S
1 38
The Idea of an Overlapping Consensus
terized it, political liberalism is possible. That is, how can the
values of the special domain of the political-the values of a
subdomain of the realm of all values-normally outweigh what
ever values may conflict with them ? Put another way, how can
we affirm our comprehensive doctrine and yet hold that it would
not be reasonable to use state power to gain everyone's alle
giance to it?
The answer to this question, the various aspects of which we
shall discuss from now on, has two complementary parts. The
first part says that values of the political are very great values and
hence not easily overridden: these values govern the basic frame
work of social life--the very groundwork of our existence 6-and
specify the fundamental terms of political and social cooperation.
In j ustice as fairness some of these great values-the values of
justic e-are expressed by the principles of j ustice for the basic
structure: among them, the values of equal political and civil
liberty; fair equality of opportunity; the values of economic rec
iprocity; the social bases of mutual respect between citizens.
Other great political values-the values of public reason-are
expressed in the guidelines for public inquiry and in the steps
taken to make such inquiry free and public, as well as informed
and reasonable. We saw in 11:4. 1 that an agreement on a political
conception of justice is to no effect without a companion agree
ment on guidelines of public inquiry and rules for assessing
evidence. The values of public reason not only include the appro
priate use of the fundamental concepts of judgment, inference,
and evidence, but also the virtues of reasonableness and fair
mindedness as shown in abiding by the criteria and procedures
of commonsense knowledge and accepting the methods and con
clusions of science when not controversial. We also owe respect
to the precepts governing reasonable political discussion.
Together these values express to the liberal political ideal that
since political power is the coercive power of free and equal
citizens as a corporate body, this power should be exercised,
1 39
T H R E E M A I N I D E A S
7. These two stages correspond to the two parts of the argument from the original
position for the two principles of justice in Theory. In the first part the parties select
principles without taking into account the effects of the special psychologies while in
the second part they ask whether a society well ordered by the principles selected in
the first part would be stable: that is, generate in its members a sufficiently strong
140
The Idea of an Overlapping Consensus
14 1
T H R E E M A I N I D E A S
8. In this and the next several paragraphs I am indebted to helpful discussion with
Scanlon.
142
The Idea of an Overlapping Consensus
143
T H R E E M A I N I D E A S
1 1 . For this distinction, see Thomas Nagel's Equality and Partiality (New York:
Oxford University Press, 1 99 1 ), chap. 3, p. 2 3 .
144
The Idea of an Overlapping Consensus
145
T H R E E M A I N I D E A S
1 3 . Note that what is impracticable is not all values of community (recall that a
community is understood as an association or society whose unity rests on a compre
hensive conception of the good) but only political community and its values. Justice
as fairness assumes, as other liberal political views do also, that the values of commu
nity are not only essential but realizable, first in the various associations that carry on
their life within the framework of the basic structure, and second in those associations
that extend across the boundaries of political societies, such as churches and scientific
societies. Liberalism rejects political society as a community because, among other
things, it leads to the systematic denial of basic liberties and may allow the oppressive
use of the government's monopoly of (legal) force. Of course, in the well-ordered
society of j ustice as fairness citizens share a common aim, and one that has high
priority: namely, the aim of insuring that political and social institutions are just, and
of giving justice to persons generally, as what citizens need for themselves and want
for one another. It is not true, then, that in a liberal view citizens have no fundamen
tal common aims (V:7). Nor is it true that the aim of political justice is not an
important part of their noninstitutional, or moral, identity (as discussed in 1 : 5 .2). But
this common aim of political j ustice must not be mistaken for (what I have called) "a
conception of the good. " For a discussion of this last point, see Amy Gutmann,
"Communitarian Critics of Liberalism," Philosophy and P11b/ic Affairs 14 (Summer
1 98 5 ): 3 1 1 , footnote.
146
The Idea of an Overlapping Consensus
147
T H R E E M A I N I D E A S
14. See ). W. Allen, A History of Politica/ Tho11ght in the Sixteenth Cmt11ry (London:
Methuen, 1 94 1 ), pt. I, chap. S, pt. II, chap. 9, pt. III, Chaps. 4, 6, 8; and Quentin
Skinner, The Fo11ndatiom of MOtkm Political Tho11ght (Cambridge: Cambridge Uni
versity Press, 1 978), vol. II, esp. pt. III.
148
The Idea of an Ove rlapping Co nse nsus
justice for its own sake. But should this situation change, the
moral quality of political life will also change in ways that are
obvious and require no comment.
5. In conclusion I comment briefly on what we may call "the
depth and breadth of an overlapping consensus" and the specific
ity of its focus; that is, how deep does the consensus go into
citizens' comprehensive doctrines? How broad are the institu
tions to which it applies? And how specific is the conception
agreed to ?
The preceding account says that the consensus goes down to
the fundamental ideas within which justice as fairness is worked
out. It supposes agreement deep enough to reach such ideas as
those of society as a fair system of cooperation and of citizens as
reasonable and rational, and free and equal. As for its breadth, it
covers the principles and values of a political conception (in this
case those of j ustice as fairness) and it applies to the basic struc
ture as a whole. This degree of depth and breadth and specificity
helps to fix ideas and keeps before us the main question: consis
tent with plausibly realistic assumptions, what is the deepest and
widest feasible conception of political justice ?
There are, of course, other possibilities. I have not supposed
that an overlapping consensus on a political conception is neces
sary for certain kinds of social unity and stability. Rather I have
said that, with two other conditions, it is sufficient for the most
reasonable basis of social unity available to us (1:8. 1 ). Yet as
Baier has suggested, a less deep consensus on the principles and
rules of a workable political constitution may be sufficient for
less demanding purposes and far easier to obtain. He thinks that
in fact in the United States we have actually achieved something
like that. So rather than supposing that the consensus reaches
down to a political conception covering principles for the whole
of the basic structure, a consensus may cover only certain funda
mental procedural political principles for the constitution. 1 5 I
1 5 . These points are made by Kurt Baier in a valuable discussion, "Justice and the
Aims of Political Philosophy," Ethics 99 Ouly 1 989): 7 7 1 -90. His idea of a consensus
on constitutional principles (which he thinks we largely have), rather than on a
conception of justice, is found at pp. 7 7 5 f.
149
T H R E E M A I N I D E A S
1 50
The Idea of an Overlapping Consensus
1 6. To explain: when certain matters are taken off the political agenda, they are no
longer regarded as appropriate subjects for political decision by majority or other
plurality voting. For example, in regard to equal liberty of conscience and the
rejection of slavery and serfdom, this means that the equal basic liberties in the
constitution that cover these matters are reasonably taken as fixed, as correctly settled
once and for all. They are part of the public charter of a constitutional regime and
not a suitable topic for ongoing public debate and legislation, as if they can be
changed, one way or the other by the requisite majorities. Moreover, the more
established political parties likewise acknowledge these matters as settled. See Ste
phen Holmes, "Gag Rules or the Politics of Omission," in Constit11tiona/ Dem0<racy,
edited by ). Elster and R. Slagstad (Cambridge: Cambridge University Press, 1 987).
Of course, that certain matters are reasonably taken off the political agenda does
not mean that a political conception of justice should not provide the grounds and
151
T H R E E M A I N I D E A S
reasons why this should be done. Indeed, as I note above, a political conception
should do precisely this. But normally the fuller discussions of these questions
between various political doctrines and their roots in comprehensive doctrines is part
of the background culture ( 1 : 2 . 3).
Finally, in saying that certain matters are taken off the political agenda once and for
all, some may object that we can be mistaken, as we have been in the past about toleration
and slavery. Certainly we have been mistaken, but does anyone doubt for that reason
that the principle of toleration may be mistaken or that it is wrong to have abolished
slavery ? Who seriously thinks so ? Is there any real chance of a mistake? And surely
we don't want to say : we take certain matters off the agenda for the time being. Or
until the next election. Or the next generation. Why isn't "once and for all" the best
way to put it? By using that phrase citizens express to one another a firm commitment
about their common status. They express a certain ideal of democratic citizenship.
1 7 . As I said in 1 : 2 , a doctrine is fully comprehensive if it covers all recognized
values and virtues within one rather precisely articulated system; whereas a doctrine ·
is only partially comprehensive when it comprises a number of nonpolitical values
and virtues and is rather loosely articulated. This limited scope and looseness turns
out to be important with regard to stability in §6 below.
152
The Idea of an Overlapping Consensus
18. The idea of rationalist believers is adapted from Joshua Cohen's discussion,
"Moral Pluralism and Political Consensus. " My reply is similar to his, as I understand
it. Cohen also discusses the case of nonrationalist believers who do not claim that
reason supports their faith but who do claim that since their beliefs are true, state
power is properly used to enforce it. This claim is replied to in 1 1 : 3 . 3 .
19. Recall here the further important fact from 111:8. 3 : namely, that i f any o f the
reasonable comprehensive doctrines in the existing overlapping consensus is true,
then the political conception itself is true, or close thereto in the sense of being
endorsed by a true doctrine. The truth of any one doctrine guarantees that all
doctrines yield the right conception of political justice, even though all are not right
153
M A I N I D E A S
terms, is a separate question. I believe the conflicts implicit in the fact of reasonable
pluralism force political philosophy to present conceptions of justice that are abstract,
if it is to achieve its aims (1:8.2); but the same conflicts prevent those conceptions
from being general and comprehensive.
2 1 . For the distinction between a doctrine's being fully vs. partially comprehensive,
see 1 : 2 . 2 .
155
T H R E E M A I N I D E A S
156
The Idea of an Overlapping Consensus
2 3 . The term capital is appropriate in this connection because these virtues are
built up slowly over time and depend not only on existing political and social
institutions (themselves slowly built up), but also on citizens' experience as a whole
and their knowledge of the past. Again, like capital, these virtues depreciate, as it
were, and must be constantly renewed by being reaffirmed and acted from in the
present.
157
T H R E E M A I N I D E A S
24. For the idea of constitutional consensus I am indebted to Kurt Baier's views
cited in n. 1 5 above. I am indebted also to David Peritz for valuable correspondence
and for instructive comments on the text. But for them I would not have made this
revision in my original account as given in VI-VII of "The Idea of an Overlapping
Consensus," Oxford]01m1a/ of uga/ S111dies 7 (Februry 1 987).
1 58
The Idea of an Overlapping Consensus
1 59
T H R E E M A I N I D E A S
25. Note that here we distinguish between the initial allegiance to, or appreciation
of, the political conception and the later adjustment or revision of comprehensive
doctrines to which that allegiance or appreciation leads when inconsistencies arise.
These ad justments or revisions we may suppose to take place slowly over time as the
political conception shapes comprehensive views to cohere with it. For the main idea
of this approach I am indebted to Samuel Scheffler.
160
The Idea of an Overlapping Consensus
26. See the The Con"pt of Law (Oxford: Clarendon Press, 96 1), pp. 1 89-95, for
what Hart calls "the minimum content of natural law." I assume that a liberal
conception (as do many other familiar conceptions) includes this minimum content;
and so in the text I focus on the bases of allegiance such a conception generates in
virtue of the distinctive content of its principles.
161
T H R E E M A I N I D E A S
1 62
The Idea of an Overlapping Consensus
163
T H R E E M A I N I D E A S
1 64
The Idea of an Overlapping Consensus
165
T H R E E M A I N I D E A S
29. On this last see Frank Michelman, ''Welfare Rights in a Constitutional Democ
racy," Wmhington Unifln'lity Law Q11t1rttrly (Summer 1 979), esp. pp. 680-85.
1 66
The Idea of an Overlapping Consensus
167
T H R E E M A I N I D E A S
1 68
The Idea of an Overlapping Consensus
that the values of the political are very great values and not easily
overridden; and second, that there are many reasonable compre
hensive doctrines that understand the wider realm of values to
be congruent with, or supportive of, or else not in conflict with,
political values as these are specified by a political conception of
justice for a democratic regime. These two grounds secure the
basis of public reason, for they imply that fundamental political
questions can be settled by the appeal to political values ex
pressed by the political conception endorsed by the overlapping
consensus.
In these circumstances a balance of reasons as seen within
each citizen's comprehensive doctrine, and not a compromise
compelled by circumstances, is the basis of citizens' respect for
the limits of public reason. Any realistic idea of a well-ordered
society may seem to imply that some such compromise is in
volved. Indeed, the term "overlapping consensus" may suggest
that. We must show, then, that this is not the case. To see that
there need be no compromise, let us illustrate the different ways
in which a political conception can be related to comprehensive
doctrines by returning to the model case of an overlapping con
sensus similar to the one introduced in § 3 . 2 , except that for
Mill's view we substitute the utilitarianism of Bentham and Sidg
wick. This consensus consisted of four views. I put the religious
doctrine with its account of free faith aside for a bit and consider
the other three.
2. After the religious view the first was of Kant's moral philos
ophy with its ideal of autonomy. From within his view, or within
a view sufficiently similar to it, the political conception with its
principles of j ustice and their appropriate priority, can, let us say,
be derived. The reasons for taking the basic structure of society
as the primary subject of j ustice are likewise derivable. Here the
relation is deductive, even though the argument can hardly be
set out very rigorously. The point is that someone who affirms
Kant's doctrine, or one similar to it, regards that view as the
deductive basis of the political conception and in that way contin
uous with it.
1 69
T H R E E M A I N I D E A S
1 70
The Idea of an Overlapping Consensus
171
T H R E E M A I N I D E A S
1 72
L E C T U R E V
The Priority
of Right
and Ideas
of the Good
1 74
Priority of Right and Ideas of the Good
175
T H R E E M A I N I D E A S
§ 2 . Goodness as Rationality
1 . To spell out the meaning of the priority of right stated in
this general form, I consider how five ideas of the good found in
justice as fairness meet these conditions. In the order discussed,
these ideas are: a) the idea of goodness as rationality; b) the idea
of primary goods; c) the idea of permissible comprehensive con
ceptions of the good (those associated with comprehensive doc
trines); d) the idea of the political virtues; and e) the idea of the
good of a well-ordered (political) society.
The first idea-that of goodness as rationality 3-is, in some
176
Priority of Right and Ideas of the Good
sive moral doctrine. As such a doctrine both it and the full theory are inadequate,
but this does not make them unsuitable for their role in a political conception. The
distinction between a comprehensive doctrine and a political conception is unfortu
nately absent from Theory and while I believe nearly all the structure and substantive
content of justice as fairness (including goodness as rationality) goes over unchanged
into that conception as a political one, the understanding of the view as a whole is
significantly shifted. Charles Larmore in his Patterns of Moral Complexity (Cambridge:
Cambridge University Press, 1 987), pp. 1 1 8-30, is quite correct in vigorously criticiz
ing the ambiguity of Theory on this fundamental matter.
177
T H R E E M A I N I D E A S
basic idea from which, in conjunction with other ideas (for ex
ample, the political idea of the person), to elaborate in sequence
other ideas of the good when these are needed. As what I
referred to in that work as the thin theory of the good, goodness
as rationality provides part of a framework serving two main
roles: first, it helps us to identify a workable list of primary
goods; 4 and second, relying on an index of these goods, it en
ables us both to specify the aims (or motivation) of the parties in
the original position and to explain why those aims (or motiva
tion) are rational. The second role I discussed in 1 1 : 5 and so I
now take up the first.
4 . Theory, p . 396, says of the thin theory of the good that "its purpose is to secure
the premises about primary goods required to arrive at the principles of justice. Once
this theory is worked out and the primary goods accounted for, we are free to use
the principles of j ustice in the further development of . . . the full theory of the
good. "
5 . See the discussion i n 1 : 3 , 5 ; 1 1 : 1-2, 8.
1 78
Priority of Righ t and Ideas of the Good
6. The account of primary goods stated here and in the next section draws on my
essay "Social Unity and Primary Goods," in Utilitarianism and Beyond. However, in
adjusting to Sen's important criticisms, referred to in n. 12 below, I have made a
number of changes both from that account and also from the one that appeared in an
article with the same tide as this lecture in Philosophy and Public Affairs 1 7 (Summer
1 988). I hope that now our views are in accord on the topics that concern us here,
though his view has much broader aims than mine, as I note later.
7. In the case of a utilitarianism such as that of Henry Sidgwick in Methods of Ethics,
or of R. B. Brandt in The Good and the Right (Oxford: Clarendon Press, 1979), which
aims to be an account of the good of individuals as they must understand it, when
they are rational, and in which the good is characterized hedonistically, or in terms of
satisfaction of desire or interests, the claim in the text is, I think, correct. But as T.
M. Scanlon has maintained, the point of another idea of utility often found in welfare
economics is quite different: it is not to give an account of individuals' good as they
1 79
T H R E E M A I N I D E A S
1 80
Priority of Right and Ideas of the Good
The basic list of primary goods (to which we may add should
it prove necessary) has five headings as follows:
a. basic rights and liberties, also given by a list;
b. freedom of movement and free choice of occupation
against a background of diverse opportunities;
c. powers and prerogatives of offices and positions of re
sponsibility in the political and economic institutions of the
basic structure;
d. income and wealth; and finally,
e. the social bases of self-respect.
rational plan of life that requires for its fulfillment roughly the same kind of primary
goods. (As indicated in §2, in saying this we rely on various common sense psycho
logical facts about human needs, their phases of development, and so on. See Theory,
chap. 7, pp. 4 3 3 f. , 4 4 7 . ) This assumption is of great importance for it enormously
simplifies the problem of finding a workable index of primary goods. Without restric
tive assumptions of this kind, the index problem is known to be insoluble. Sen has
an instructive discussion of these matters in his "On Indexing Primary Goods and
Capabilities," July 1 99 1 (unpublished). At the same time, these restrictive assump
tions bring out that, unless otherwise stated, we address what I take as the fundamen
tal question of political justice : what are fair terms of cooperation berween free and
equal citizens as fully cooperating and normal members of society over a complete
life ( 1 : 3 . 4 ) ?
9. The question of how t o handle leisure time w as raised b y R . A. Musgrave in
"Maximin, Uncertainty, and the Leisure Trade-off," Quarterly journal of Economics 88
(November 1 974). I shall only comment here that rwenty-four hours less a standard
181
T H R E E M A I N I D E A S
working day might be included in the index as leisure. Those who were unwilling to
work under conditions where there is much work that needs to be done (I assume
that positions and jobs are not scarce or rationed) would have extra leisure stipulated
as equal to the index of the least advantaged. So those who surf all day off Malibu
must find a way to suppon themselves and would not be entitled to public funds.
Plainly, this brief remark is not intended as endorsing any panicular social policy at
all. To do that would require a careful study of the circumstances. The point is simply
to indicate, as do the comments in the text, that if necessary the list of primary goods
can in principle be expanded.
I O . Here I adopt a suggestion of T. M. Scanlon in his "Moral Basis of Interpersonal
Comparisons," p. 4 1 .
1 1 . See Richard Arneson's "Equality and Equal Opponunity for Welfare," Philo
sophical Studies 54 ( 1 988): 79-95, as an example. I believe this idea runs afoul of the
constraints in the text. In political life citizens cannot sensibly apply or follow it. See
Daniels's comments in "Equality of What: Welfare, Resources, or Capabilities ?,"
Philosophy and Pheno11Unologi<al Research I (supplement) (Fall 1 990):20f.
1 2 . See K. J. Arrow, "Some Ordinalist Notes on Rawls' 'Theory ofJustice,'" journal
of Philosophy ( 1 97 3), esp. pp. 2 5 3f. ; and Amartya Sen, "Equality of What?" ( 1 979)
reprinted in Choice, Welfare and Measurement (Cambridge, Mass. : MIT Press, 1 982),
esp. pp. 3 64-69; "Well-Being, Agency and Freedom," journal of Philosophy 82 (April
1985), esp. pp. 1 9 5 -202 ; and most recently ''.Justice: Means versus Freedoms,"
Philosophy and Public Affairs 19 (Spring 1 990): 1 1 1 -2 1 .
1 82
Priority of Right and Ideas of the Good
1 3. For these matters, see Sen's "Well-Being, Agency, and Freedom. "
183
T H R E E M A I N I D E A S
14. See the brief remarks in "Social Unity and Primary Goods," p. 1 68. Here I
should follow the general idea of the much further worked out view of Norman
Daniels in his "Health Care Needs and Distributive Justice," Philosophy and Public
Affairs 1 0 (Spring 1 98 1 ), and more completely developed in his just Health Care
(Cambridge: Cambridge University Press, 1 985), chaps. 1-3.
1 84
Priority of Right and Ideas of the Good
185
T H R E E M A I N I D E A S
1 86
Priority of Right and Ideas of the Good
16. The text of the last two paragraphs revises my earliest account of responsibiliry
for ends and primary goods in "Kantian Equaliry," Cambridge Reiiit1'1 (February 1 9 7 5 )
and i n doing s o I am much indebted t o Scanlon and t o Samuel Scheffler. I believe my
account now accords with Scanlon's "Preference and Urgency," journal of Philosophy
82 (November 1 9 7 5 ):655-69.
1 7 . This is not to say, as considered below in §6, that they can achieve a social
world without loss.
187
T H R E E M A I N I D E A S
1 88
Priority of Right and Ideas of the Good
the index does not approximate very accurately what many peo
ple most want and value as judged by their comprehensive views,
primary goods will surely be regarded by all, or nearly all, as
highly valuable in pursuing those views. Thus, they can endorse
the political conception and hold that what is really important in
questions of justice is the fulfillment of citizens' needs by the
institutions of the basic structure in ways the principles of justice,
acknowledged by an overlapping consensus, specify as fair. 20
3. The preceding account of primary goods includes what we
may call "a social division of responsibility": society, citizens as a
collective body, accepts responsibility for maintaining the equal
basic liberties and fair equality of opportunity, and for providing
a fair share of the primary goods for all within this framework;
while citizens as individuals and associations accept responsibility
for revising and adjusting their ends and aspirations in view of
the all-purpose means they can expect, given their present and
foreseeable situation. This division of responsibility relies on the
capacity of persons to assume responsibility for their ends and to
moderate the claims they make on their social institutions ac
cordingly.
We arrive, then, at the idea that citizens as free and equal are
to be at liberty to take charge of their lives and each is expected
by others to adapt their conception of the good to their expected
ment . . . its usefulness . . . stems from the fact that it represents, under the circum
stances [e.g., of reasonable pluralism], the best available standard of j ustification that
is mutually acceptable to persons whose preferences diverge."
20. I might add here that the idea of need used in the text views needs as relative
to a political conception of the person, and to their role and status. The requirements,
or needs, of citizens as free and equal persons are different from the needs of patients
or of students, say. And needs are different from desires, wishes, and likings. Citi
zens' needs are objective in a way that desires are not: that is, they express require
ments of persons with certain higher-order interests who have a certain role or status.
If these requirements are not met, they cannot maintain their role and status, or
achieve their essential aims. A citizen's claim that something is a need can be denied
when it is not a requirement. In effect, the political conception of the person and the
idea of primary goods specify a special kind of need for a political conception of
justice. Needs in any other sense, along with desires and aspirations, play no role.
See "Social Uniry and Primary Goods," p. 1 7 2f.
1 89
T H R E E M A I N I D E A S
2 1 . This does not deny that they may be, depending on the comprehensive view,
perfectly good reasons in other kinds of cases.
1 90
Priority of Right and Ideas of the Good
justice) and of the political virtues-I shall use the familiar idea
of neutrality as a way of introducing the main problems. I be
lieve, however, that the term neutrality is unfortunate; some of
its connotations are highly misleading, others suggest altogether
impracticable principles. For this reason I have not used it before
in these lectures. But with due precautions taken, and using it
only as a stage piece, as it were, we may clarify how the priority
of right connects with the above two ideas of the good.
2. Neutrality can be defined in quite different ways.22 One
way is procedural, for example, by reference to a procedure that
can be legitimated, or j ustified, without appealing to any moral
values at all. Or if this seems impossible, since showing some
thing justified appears to involve an appeal to some values, a
neutral procedure may be said to be one justified by an appeal to
neutral values, that is, to values such as impartiality, consistency
in application of general principles to all reasonably related cases
(compare to: cases similar in relevant respects are to be treated
similarly),23 and equal opportunity for the contending parties to
present their claims.
These are values that regulate fair procedures for adjudicating,
or arbitrating, between parties whose claims are in conflict. The
specification of a neutral procedure may also draw on values that
underlie the principles of free rational discussion between rea-
22. A number of these I discuss in the text. One I don't take up is William Galston's
view that some forms of liberalism are neutral in the sense that they use no ideas of
the good at all except ones that are purely instrumental (neutral means, as it were).
See his "Defending Liberalism," in American Political Science Review 72 (September
1 982):622. Contrary to his suggestion, j ustice as fairness is not neutral in this way, as
will become clear, if it is not clear already.
2 3 . Thus Herbert Wechsler, in his well-known discussion of principled judicial
decisions (he is concerned mainly with decisions of the Supreme Court), thinks of
neutral principles as those general principles that we are persuaded apply not only to
the present case but to all reasonably foreseeable related cases likely to arise given
the constitution and the existing political structure. Neutral principles transcend the
case at hand and must be defensible as widely applicable. Wechsler says little about
the derivation of such principles from the constitution itself or from precedent. See
''Towards Neutral Principles of Constitutional law," in Principles, Politics, and Fun
damental Law (Cambridge, Mass. : Harvard Universiry Press, 1 96 1 ).
191
T H R E E M A I N I D E A S
24. For this kind of view, see the instructive discussion of Charles Larmore, Pat
terns of Moral Complexity, pp. 5 3 - 59. He speaks of the "neutral justification of
political neutrality as one based on a universal norm of rational dialogue" (p. 5 3), and
he draws on (while modifying) the important ideas of Jiirgen Habermas. See the
latter's Legitimation Crisis, translated by Thomas McCarthy (Boston: Beacon Press,
1 976), pt. III; and "Discursethik-Notizen zu einem Begriindungsprogramm," in
Mor11/bew1mtsein 11ml komm11nikati11es H11ndeln (Frankfurt: Suhrkamp, 1983), pp.
53-125.
192
Priority of Right and Ideas of the Good
193
T H R E E M A I N I D E A S
1 94
Priority of Right and Ideas of the Good
29. Keep in mind here that the political virtues are identified and j ustified by the
need for certain qualities of character in the citizens of a just and stable constitutional
regime. This is not to deny that these same characteristics, or similar ones, might not
also be nonpolitical virtues insofar as they are valued for other reasons within various
particular comprehensive views.
195
T H R E E M A I N I D E A S
30. This was the second meaning of neutrality of aim noted in the previous section;
it is satisfied by a political conception.
3 1 . The next several paragraphs are adapted from my reply in "Fairness to Good
ness," Philosophical Review 82 (April 1975): 548-5 1 , to an objection raised by Thomas
Nagel in his review, same journal, 82 (April 1 9 7 3 ) : 226-29. In an instructive discus
sion that I shan't attempt to summarize here, Nagel argues that the set up of the
original position in Theory, although it is ostensibly neutral between different concep
tions of the good, is not actually so. He thinks this is because the suppression of
knowledge (by the veil of ignorance) required to bring about unanimity is not equally
fair to all parties. The reason is that primary goods, on which the parties base their
selection of principles of justice, are not equally valuable in pursuit of all conceptions
of the good. Moreover, he says that the well-ordered society of justice as fairness has
a strong individualistic bias, and one that is arbitrary because objectivity between
conceptions of the good is not established. The reply in the text above supplements
that in "Fairness to Goodness" in two ways. It makes clear first, that the conception
of the person used in arriving at a workable list of primary goods is a political
conception; and second, that j ustice as fairness itself is a political conception of
justice. Once we understand j ustice as fairness and the conceptions that belong to it
in this way, we can make a more forceful reply to Nagel's objection, provided of
course it is accepted that neutrality of influence is impracticable.
196
Priority of Right and Ideas of the Good
32. For a clear presentation of Berlin's view, see his essay ''The Pursuit of the
Ideal," in The Crooked Timber of Humanity (New York: Knopf, 1 99 1 ), esp. pp. 1 1 -
19. Thus, he says on p. 1 3 : "Some among the Great Goods cannot live together. That
is a conceptual truth. We are doomed to choose, and every choice may entail an
irreparable loss." See also ''Two Concepts of Liberty" ( 1 958), reprinted in Four Essays
on Liberty (New York: Oxford University Press, 1 969), pp. 1 6 7 ff. For Berlin the
realm of values is objective, but values clash and the full range of values is too
extensive to fit into any one social world; not only are they incompatible with one
another, imposing conflicting requirements on institutions; but there exists no family
of workable institutions that can allow sufficient space for them all. That there is no
social world without loss is rooted in the nature of values and the world, and much
human tragedy reflects that. A j ust liberal society may have far more space than other
social worlds but it can never be without loss. The basic error is to think that because
values are objective and hence truly values, they must be compatible. In the realm of
values, as opposed to the world of fact, not all truths can fit into one social world.
197
T H R E E M A I N I D E A S
198
Priority of Right and Ideas of the Good
199
T H R E E M A I N I D E A S
34. And chac of Raz in his The Morality of Freedom, esp. chaps. 14 and 1 5 , co
mencion a concemporary example.
200
Priority of Right and Ideas of the Good
201
T H R E E M A I N I D E A S
202
Priority of Right and Ideas of the Good
35. In Theory, §65, this psychology uses the so-called Aristotelian principle; other
views might adopt different principles to reach much the same conclusion.
203
T H R E E M A I N I D E A S
36. It may be asked , however, how far the good of political society is strictly
speaking a political good : it is granted that political institutions encourage the devel
opment of and provide scope for the exercise of the two moral powers and that this
is a good. But these powers are also exercised in many other parts of life for many
purposes and surely this wider exercise is not j ust a political good; rather political
institutions protect and secure this good. In reply, the point is that in political good
204
Priority of Right and Ideas of the Good
strictly speaking we suppose that the moral powers are exercised in political life and
in basic institutions as citizens endeavor to maintain these institutions and to use
them to conduct public business. Of course, it is true that the moral powers are also
exercised far more generally, and one hopes that the political and the nonpolitical
sides of life are mutually supporting. This can be granted without denying that as
defined political good exists.
3 7 . Machiavelli in The Discourses is sometimes taken as illustrating classical repub
licanism. See Quentin Skinner, Machianlli (New York: Hill and Wang, 1 98 1 ), esp.
chap. 3. A more appropriate example from our standpoint here would be Tocque
ville's Democracy in A11Urica.
205
T H R E E M A I N I D E A S
38. This interpretation of civic humanism I borrow from Charles Taylor, Philosoph
ical Pape,.s (Cambridge: Cambridge University Press, 1 985), vol. 2, pp. 334f. Taylor
is discussing Kant and attributes this view to Rousseau, but notes that Kant does not
accept it. So understood, a form of civic humanism is powerfully if pessimistically
expressed by Hannah Arendt (and, she thinks, the ancient Greeks), who holds that
freedom and worldliness, best realized in politics, are the only values that redeem
human life from the endless round of nature and make it wonh living. See her The
Human Condition (Chicago: University of Chicago Press, 1 958). I follow the percep
tive srudy of Arendt's view of the primacy of politics found in George Kateb, Hannah
Artndt: Politics, Conscience, E11il (Towanda: Rowman and Allanheld, 1 984), chap. I .
39. See Theory, §79, where the idea of a well-ordered society as a social union of
206
Priority of Right and Ideas of the Good
social unions is discussed . In sec. VI of ''The Basic Liberties and Their Priority," The
Tanner Lectures on Human Values (Salt Lake City: University of Utah Press, 1 982),
vol. III, I took up the idea again and sketched an argument to show that the two
principles of justice as fairness are especially suitable to society viewed as a social
union of social unions. I am not entirely satisfied with that argument but I think it
not without some force. See VIII:6, pp. 3 1 5-24.
40. This construction, so to speak, of a sequence of ideas of the good, beginning
with the good as rationality, has a parallel in the way Kant can be seen to construct
six ideas of the good in his moral view. I have tried to explain how Kant's construc
tion goes in §2 of ''Themes in Kant's Moral Philosophy," in Kant's Transcendental
Deductions, edited by Eckhart Forster (Stanford : Stanford University Press, 1 989).
207
T H R E E M A I N I D E A S
generates from within itself the requisite ideas so that all perform
their complementary roles with its framework.
2. A corollary of this completeness is that it brings out, in a
way we could not express before, why an overlapping consensus
is not a mere modus vivendi. In a society well ordered by the
principles mutually recognized in an overlapping consensus, citi
zens have many final ends in common and among them is giving
one another mutual political justice. Drawing on all five ideas of
the good, we may speak of the mutual good of mutual justice.
For goodness as rationality allows us to say that things are good
(within the political conception) if they have the properties it is
rational for us to want as free and equal citizens, given our
rational plan of life. From the point of view of the parties in the
original position, who represent our fundamental interests, mu
tual justice meets this condition. As citizens in society we nor
mally want justice from everybody else. Much the same holds
for the political virtues. 4 1 This deepens the idea that a political
conception supported by an overlapping consensus is a moral
conception affirmed on moral grounds (IV: 3.4).
A second corollary of completeness is that it strengthens the
account of how a modus vivendi with the content of a liberal
conception of justice might gradually develop over time into an
overlapping consensus (IV:6-7). There much depended on the
fact that most people's political conceptions are normally only
partially comprehensive. Usually we do not have anything like a
fully comprehensive religious, philosophical, or moral view, much
less have we attempted to study the other views that do exist in
society, or to work one out for ourselves. Hence that there are
significant intrinsic goods internal to political life means that the
political conception can win our initial allegiance more deeply
independently of our comprehensive views and prior to conflicts
with them. When conflicts do arise, the political conception has
4 1 . Of course, co show all this convincingly requires a long story. I have tried to
sketch some of it in Theory, §66, drawing on the full theory of the good.
208
Priority of Right and Ideas of the Good
209
T H R E E M A I N I D E A S
2 10
Priority of Right and Ideas of the Good
4 2 . A contrast will bring out what is meant here: consider Ronald Dworkin's view
as given in "Foundations of Liberal Equality," in Tanner Lectures on Human Values
(Salt Lake City: University of Utah Press, 1 990), vol. 1 1 . His aim is to show how the
principles of liberal j ustice (in his formulation) can be given an ethical foundation.
This means that those principles can be derived as the political principles for the
basic structure of society that best provide the conditions for people to live well, to
lead ethically good lives. To this end, he develops an account of the ethical value of
living well by presenting the challenge model of value as the correct account. This
model is said to be formal and not to rule out substantive conceptions of the good, as
most though not all such conceptions can be interpreted to fall under that model.
With the model of challenge on hand, he argues that in an original position, let us
say, where every one is a fully informed ethical liberal and hence accepts the chal
lenge model, the principles of liberal j ustice will be adopted. In this way, a general
account of what it means to live well-.n account that belongs to philosophical
ethics-provides the wanted philosophical foundation for the political principles of
liberalism. The point of the contrast is this: the constraints Dworkin imposes on
substantive conceptions of the good issue from an ethical conception of value (the
challenge model). Whereas in justice as fairness, the constraints imposed on reason
able comprehensive doctrines are either the general ones of theoretical or practical
reason or issue from the conceptions (e.g. , of citizens as free and equal persons with
the two moral powers) that belong to the account of political j ustice. I raise no
objection to Dworkin's view: like the comprehensive liberalisms of Kant and Mill it
has a proper place in the background culture and serves there in a supporting role
for political liberalism.
211
L E C T U R E V
The Idea
of Public
Reason1
2. The tide is suggested by Kant's distinction between public and private reason in
"What is Enlightenment?" ( 1 784), although his distinction is different from the one
used here. There are other relevant discussions in Kant's works, for example, Cri
tique of Pure Reason, 8767-97. For a valuable account, see Onora O'Neill, Comtruc
tiom of Reason, (Cambridge: Cambridge University Press, 1 989), chap. 2, "The Public
Use of Reason. " See also her recent essay, "Vindicating Reason,'' in The Cambridge
213
T H R E E M A I N I D E A S
and Public Affairs 20 (Winter 1 99 1 ), with Audi's reply in the same issue; and finally,
Lawrence Solum's instructive "Faith and Justice,'' DePaul Law Rt11iew 39 (Summer
1 990).
2 14
The Idea of Public Reason
215
T H R E E M A I N I D E A S
2 16
The Idea of Public Reason
4. On this last, see the instructive discussion by Amy Gutmann and Dennis Thomp
son in their "Moral Conflict and Political Consensus," Ethics 1 0 1 (October 1 990):
76-86.
217
T H R E E M A I N I D E A S
218
The Idea of Public Reason
2 19
T H R E E M A I N I D E A S
§ 3 . Nonpublic Reasons
1 . The nature of public reason will be clearer if we consider
the differences between it and nonpublic reasons. First of all,
there are many nonpublic reasons and but one public reason.
Among the nonpublic reasons are those of associations of all
kinds: churches and universities, scientific societies and profes
sional groups. As we have said, to act reasonably and responsibly,
corporate bodies, as well as individuals, need a way of reasoning
about what is to be done. This way of reasoning is public with
respect to their members, but nonpublic with respect to political
society and to citizens generally. Nonpublic reasons comprise
the many reasons of civil society and belong to what I have called
the "background culture," in contrast with the public political
culture. These reasons are social, and certainly not private. 7
Now all ways of reasoning-whether individual, associational,
or political-must acknowledge certain common elements: the
concept of j udgment, principles of inference, and rules of evi
dence, and much else, otherwise they would not be ways of
reasoning but perhaps rhetoric or means of persuasion. We are
concerned with reason, not simply with discourse. A way of
reasoning, then, must incorporate the fundamental concepts and
principles of reason, and include standards of correctness and
criteria of justification. A capacity to master these ideas is part of
common human reason. However, different procedures and
methods are appropriate to different conceptions of themselves
220
The Idea of Public Reason
22 1
T H R E E M A I N I D E A S
9 . Here I accept the Kantian (noc Kant's) view that what we affirm o n the basis of
free and informed reason and reflection is affirmed freely ; and that i,nsofar as our
222
The Idea of Public Reason
conduct expresses what we affirm freely, our conduct is free to the extent it can be.
Freedom at the deepest level calls upon the freedom of reason, both theoretical and
practical, as expressed in what we say and do. Limits on freedom are at bottom limits
on our reason: on its development and education, its knowledge and information,
and on the scope of the actions in which it can be expressed, and therefore our
freedom depends on the narure of the surrounding instirutional and social context.
223
T H R E E M A I N I D E A S
224
The Idea of Public Reason
225
T H R E E M A I N I D E A S
226
The Idea of Public Reason
227
T H R E E M A I N I D E A S
228
The Idea of Public Reason
10. On fair equality of opportunity, see Theory, pp. 7 2 f. On the difference princi
ple, ibid . , § 1 3 . Political discussions of the reasons for and against fair opportunity
and the difference principle, though they are not constitutional essentials, fall under
questions of basic justice and so are to be decided by the political values of public
reason.
229
T H R E E M A I N I D E A S
230
The Idea of Public Reason
1 1 . This is nor a definition. I assume that in a well-ordered society the two more or
less overlap. I am grateful to James Fleming for valuable guidance in formulating
many points in this section.
1 2 . Here I have found particularly helpful: Bruce Ackerman, "Constitutional Poli
tics/Constitutional Law," Yale Lawjournal 99 (December 1 989), as well as his recent
We The People: Foundations (Cambridge, Mass. : Harvard University Press, 1 99 1 ), vol.
I.
1 3 . Here I draw upon John Agresto, The Supreme Court and Constitutional Democ
racy (Ithaca: Cornell University Press, 1 984 ), esp. pp. 4 5 - 5 5 ; Stephen Holmes, "Gag
Rules or the Politics of Omission," and "Precommitment and the Paradox of Democ
racy," both in Constitutionalism and Democracy, edited by Jon Elster and Rune Slags
tad (Cambridge: Cambridge University Press, 1987); Jon Elster, Ulyues and the Sirens
(Cambridge: Cambridge University Press, 1 979), pp. 8 1 -86, 88- 1 0 3 . There is noth
ing at all novel in my account.
231
T H R E E M A I N I D E A S
1 4 . For these reasons, among others, I suppose that the principle of fair equality of
opportunity and the difference principle are not constitutional essentials, though, as
I have said, in justice as fairness they are matters of basic j ustice ( § 5 . 3 ) .
1 5 . In saying this I follow what I understand t o b e Lincoln's view as expressed i n
his remarks about Dred Scott ( 1 8 5 7 ) in his speeches and in his debates with Douglas
in Lincoln: Speeches and Writings, edited by Don Fehrenbacher (New York: Library of
232
The Idea of Public Reason
America, 1 989), vol. 1, pp. 392f. , 4 5 0ff., 5 24ff. , 7 1 4- 1 7 , 740f. ; and in his First
Inaugural ( 1 86 1 ), ibid . , vol. 2, 2 20f. For accounts of Lincoln's view see Alexander
Bickel, the Last Dt1ngerous Brt1nch (New York: Bobbs-Merrill, 1 962), pp. 65-69;
2 5 9-69; Agresto, the supreme court, esp. pp. 8<'r-9 5 , 1 0 5 , 1 2 8f. ; and Don Fehren
bacher, Lincoln: In Text t1nd Context (Stanford; Stanford University Press, 1987),
esp. pp. 20-2 3 , 1 2 5ff. , and 293.
16. Similarly, there is no procedure of inquiry, not even that of the investigations
of science and scholarship that can be guaranteed in the long run to uncover the
truth. As we commented at the end of III:8, we cannot define truth as given by the
beliefs that would stand up even in an idealized consensus, however far extended.
1 7 . See Ackerman, "Constitutional Politics/Constitutional Law," pp. 464f. and We
the People, pp. 6- 1 0 .
1 8 . It must be said that historically the court h as often failed badly in this role. It
upheld the Alien and Sedition Acts of 1 798 and one need only mention Dred Scott
( 1 8 5 7 ). It emasculated the Reconstruction amendments by interpreting them as a
charter of capitalist liberty rather than the liberty of the freed slaves; and from
Lochner ( 1 905) through the early New Deal years it did much the same.
233
T H R E E M A I N I D E A S
234
The Idea of Public Reason
2 1 . Robert Dahl, in his Democracy and Its Critics (New Haven: Yale University
Press, 1 989), discusses the relative merits of these forms of democratic instirutions.
He is in some ways critical of the British parliamentary system (the "Westminster
model") (pp. 1 5 6-5 7 ), and although he is also critical of judicial review (pp. 1 8 7 -
9 1 ), he thinks there is n o one universally best way t o solve the problem o f how to
protect fundamental rights and interests. He says: "In the absence of a universally
best solution, specific solutions need to be adapted to the historical conditions and
experiences, political culrure, and concrete political institutions of a particular coun
try" (p. 1 92). I incline to agree with this and thank Dennis Thompson for correcting
my earlier misunderstanding of Dahl's view.
22. The judiciary with a supreme court is not the only instirution that does this. It
is essential that other social arrangements also do the same, as is done for example
by an orderly public financing of elections and constraints on private funding that
achieves the fair value of the political liberties, or at least significantly move the
political process in that direction. See Tht0ry, pp. 224-27 and VIII:?, 1 2 at pp. 324-
3 1 and 3 56-63, respectively.
235
T H R E E M A I N I D E A S
2 3 . This account of what the justices are to do seems to be the same as Ronald
Dworkin's view as stated say in "Hard Cases" in Taking Rights Seriously (Cambridge,
Mass . : Harvard University Press, 1978) or in Law's Empire (Cambridge, Mass . : Har
vard University Press, 1 986), chap. 7, except for possibly one proviso. I have said
that the j ustices in interpreting the constitution are to appeal to the political values
covered by the public political conception of j ustice, or at least by some recognizable
variant thereof. The values the justices can invoke are restricted to what is reasonably
236
The Idea of Public Reason
But, as I have said (§4. 5), the idea of public reason does not
mean that judges agree with one another, any more than citizens
do, in the details of their understanding of the constitution. Yet
they must be, and appear to be, interpreting the same constitu
tion in view of what they see as the relevant parts of the political
conception and in good faith believe it can be defended as such.
The court's role as the highest j udicial interpreter of the consti
tution supposes that the political conceptions judges hold and
their views of constitutional essentials locate the central range of
the basic freedoms in more or less the same place. In these cases
at least its decisions succeed in settling the most fundamental
political questions.
4. Finally, the court's role as exemplar of public reason has a
third aspect: to give public reason vividness and vitality in the
public forum; this it does by its authoritative judgments on fun
damental political questions. The court fulfills this role when it
clearly and effectively interprets the constitution in a reasonable
way; and when it fails to do this, as ours often has, it stands at
the center of a political controversy the terms of settlement of
which are public values.
The constitution is not what the Court says it is. Rather, it is
what the people acting constitutionally through the other branches
eventually allow the Court to say it is. A particular understanding
237
T H R E E MAIN ID E AS
238
The Idea of Public Reason
27. See the late Judith Shklar's lucid brief account of this history in her American
Citizenship: The Quest for Inclusion (Cambridge, Mass. : Harvard University Press,
1 99 1 ).
28. This is the term Samuel Freeman uses in his "Original Meaning, Democratic
Interpretation, and the Constitution," pp. 4 lf., where he contrasts his view with
Ackerman's. I am indebted to his discussion.
2 39
T H R E E MAIN ID E AS
cares citizens to the use of public reason and its value of political
justice by focusing their attention on basic constitutional matters.
To conclude these remarks on the Supreme Court in a consti
tutional regime with j udicial review, I emphasize that they are
not intended as a defense of such review, although it can perhaps
be defended given certain historical circumstances and condi
tions of political culture. Rather, my aim has been to elaborate
the idea of public reason, and in order to make this idea more
definite, I have looked at the way in which the Court may serve
as its exemplar. And while the Court is special in this respect,
the other branches of government can certainly, if they would
but do so, be forums of principle along with it in debating
constitutional questions. 29
29. For this last aspect, see Dworkin, "The Forum of Principle," in A Matt" of
Principle (Cambridge: Harvard University Press, 1 985), pp. 70£.
30. Kent Greenawalt seems inclined to this view. See his detailed discussion in
240
The Idea of Public Reason
chaps. 6-7 of Religious Convictions and Political Choice (New York: Oxford University
Press, 1 988).
241
T H R E E MAIN ID E AS
242
The Idea of Public Reason
32. As an illustration, consider the troubled question of abortion. Suppose first that
the society in question is well-ordered and that we are dealing with the normal case
of mature adult women. It is best to be clear about this idealized case first; for once
we are clear about it, we have a guide that helps us to think about other cases, which
force us to consider exceptional circumstances. Suppose further that we consider the
question in terms of these three important political values: the due respect for human
life, the ordered reproduction of political society over time, including the family in
some form, and finally the equality of women as equal citizens. (There are, of course,
other important political values besides these. ) Now I believe any reasonable balance
of these three values will give a woman a duly qualified right to decide whether or
not to end her pregnancy during the first trimester. The reason for this is that at this
early stage of pregnancy the political value of the equality of women is overriding,
and this right is required to give it substance and force. Other political values, if
tallied in, would not, I think, affect this conclusion. A reasonable balance may allow
her such a right beyond this, at least in certain circumstances. However, I do not
discuss the question in general here, as I simply want to illustrate the point of the
text by saying that any comprehensive doctrine that leads to a balance of political
values excluding that duly qualified right in the first trimester is to that extent
unreasonable; and depending on details of its formulation, it may also be cruel and
243
T H R E E MAIN ID E AS
oppressive; for example, if it denied the right altogether except in the case of rape
and incest. Thus, assuming that this question is either a constitutional essential or a
matter of basic justice, we would go against the ideal of public reason if we voted
from a comprehensive doctrine that denied this right (see §2.4). However, a compre
hensive doctrine is not as such unreasonable because it leads to an unreasonable
conclusion in one or even in several cases. It may still be reasonable most of the
time.
3 3 . I believe the idea of public reason as explained here and elsewhere in the text
is consistent with the view of Greenawalt in his Religious Con11iction.r and Political
Choice. That he thinks to the contrary is due, I think, to his interpreting philosophical
liberalism and the requirements expressed by its ideal of liberal democracy as being
far stronger than those of what I have called "political liberalism." For one thing, the
requirements of public reason belong to an ideal of democratic citizenship and are
limited to our conduct in the public political forum and how we are to vote on
constitutional essentials and questions of basic justice. Moreover, as the text above
brings out, public reason does not ask citizens "to pluck out their religious convic
tions" and to think about those questions as if "they started from scratch, disregarding
what they presently take as basic premises of moral thought'' (Greenawalt, p. 1 5 5 ).
Indeed, this suggestion is altogether contrary to the idea of an overlapping consensus.
I think the text is consistent with Greenawalt's discussion at pp. 1 5 3 - 5 6 in the
imponant central chapter of the book and with what he says in pt. III, which deals
with such matters as the appropriate political discussion in a liberal society.
244
The Idea of Public Reason
34. See Keith Thomas, Man and the Natural World (New York: Pantheon, 1983),
for the view of Christian ages in chap. 1, while later chapters trace the devolopment
of modern attitudes beginning with the eighteenth century.
245
T H R E E MAIN ID E AS
35. Of course, these questions may become ones of constitutional essentials and
basic justice once our duties and obligations to future generations and to other
societies are involved.
246
The Idea of Public Reason
36. I am greatly indebted to Amy Gutmann and Lawrence Solum for discussion
and correspondence about these limits. At first I inclined to what I call the "exclusive
view"; they persuaded me that this was too restrictive, as the examples of the aboli
tionists (which is Solum's) and of Martin Luther King, Jr. , brings out. I have not
begun to cover the complexities of this question as shown in their correspondence.
247
T H R E E MAIN ID E AS
248
The Idea of Public Reason
One way this doubt might be put to rest is for the leaders of
the opposing groups to present in the public forum how their
comprehensive doctrines do indeed affirm those values. Of course,
it is already part of the background culture to examine how
various doctrines support, or fail to support, the political concep
tion. But in the present kind of case, should the recognized
leaders affirm that fact in the public forum, their doing so may
help to show that the overlapping consensus is not a mere modus
vivendi (IV:3). This knowledge surely strengthens mutual trust
and public confidence; it can be a vital part of the sociological
basis encouraging citizens to honor the ideal of public reason. 37
This being so, the best way to strengthen that ideal in such
instances may be to explain in the public forum how one's com
prehensive doctrine affirms the political values.
3. A very different kind of case arises when a society is not
well ordered and there is a profound division about constitu
tional essentials. Consider the abolitionists who argued against
the antebellum South that its institution of slavery was contrary
to God's law. Recall that the abolitionists agitated for the imme
diate, uncompensated, and universal emancipation of the slaves
as early as the 1830s, and did so, I assume, basing their argu
ments on religious grounds. 38 In this case the nonpublic reason
3 7. I am indebted to Lawrence Solum and Seana Shiffrin for stressing this point.
38. For an account of the abolitionists, see James McPherson, The Struggle for
Equality (Princeton: Princeton University Press, 1 964), pp. 1 -8 and passim. The
Antislavery Argument, edited by William Pease and Jane Pease (New York: Bobbs
Merrill, 1 965) contains a number of abolitionists writings. Characteristic is this from
William Ellery Channing's Slavery, 3d ed. ( 1 836): "I come now to what is to my own
mind the great argument against seizing and using a man as property. He cannot be
property in the sight of God and justice, because he is a Rational, Moral, Immortal
Being, because created in God's image, and therefore in the highest sense his child,
because created to unfold godlike faculties, and to govern himself by a Divine Law
written on his heart, and republished in God's word. From his very narure it follows,
that so to seize him is to offer an insult to his Maker, and to inflict aggravated social
wrong. Into every human being God has breathed an immortal spirit, more precious
than the whole outward creation . . . . Did God create such a being to be owned as a
tree or a brute?" (in Pease and Pease, The Antislavery Argument, pp. l l 5f.). While
the abolitionists often argued in the usual way, appealing to political values and
political considerations, I assume for purposes of the question that the religious basis
of their views was always clear.
249
T H R E E MAIN ID E A S
39. Thus, King could, and often did, appeal to Brown fl. Board of Ed11cation, the
Supreme Court's decision of 1 9 5 4 holding segregation unconstirutional. For King,
"j ust law is a man-made code that squares with the moral law or the law of God. An
unjust law is a code that is out of harmony with the moral law. To put it in the terms
of Saint Thomas Aquinas, an unjust law is a human law that is not rooted in eternal
and natural law. Any law that uplifts human personality is just. Any law that degrades
human personality is unj ust. All segregation starutes are unj ust because segregation
distorts the soul and damages the personality." In the next paragraph, a more con
crete definition: "Unjust law is a code that the majority inflicts on a minority that is
not binding on itself. This is difference made legal. . . . A just law is a code that a
majority compels a minority to follow that it is willing to follow itself. This is
sameness made legal. " The following paragraph has: "An unjust law is a code inflicted
on a minority which that minority had no part in enacting or creating because they
did not have the unhampered right to vote" (from paragraphs 14- 1 6, respectively, of
Lett" from Birmingham Cityjail (April 1 963), in A Testament of Hope: The Essential
Writings of Marlin Luth" King, edited by]. M. Washington [San Francisco: Harper
and Row, 1 986}, pp. 293f.). Other of King's writings and addresses can be cited to
make the same point. For example his "Give us the Ballot," (ibid. , pp. 197-200), his
address of May 1 9 5 7 on the third anniversary of Brown and "I Have a Dream," (ibid. ,
pp. 2 1 7-23), his keynote address o f the March o n Washington fo r civil rights, August
1963, both given in Washington before the Lincoln Memorial. Religious doctrines
clearly underlie King's views and are important in his appeals. Yet they are expressed
in general terms: and they fully support constirutional values and accord with public
reason.
250
The Idea of Public Reason
40. It seems clear from n. 3 1 that Channing could easily do this. I am indebted to
John Cooper for instructive discussion of points in this paragraph.
4 1 . This suggests that it may happen that for a well-ordered society to come about
in which public discussion consists mainly in the appeal to political values, prior
historical conditions may require that comprehensive reasons be invoked to strengthen
those values. This seems more likely when there are but a few and strongly held yet
in some ways similar comprehensive doctrines and the variety of distinctive views of
recent times has not so far developed. Add to these conditions another: namely, the
idea of public reason with its duty of civility has not yet been expressed in the public
culture and remains unknown.
25 1
T H R E E MAIN ID E AS
252
The Idea of Public Reason
253
T H R E E MAIN ID E AS
4 3 . Think not of an actual court but of the court as part of a constitutional regime
ideally conceived. I say this because some doubt that an actual supreme court can
normally be expected to write reasonable decisions. Also, courts are bound by
precedents in ways that public reason is not, and must wait for questions to come
before them, and much else. But these points do not affect the propriety of the check
suggested in the text.
254
PART THRE E
Institutional
Framework
L E C T U R E V I I
The Basic
Structure
as Subject1
2. In Theory the basic structure was regarded as the primary subject and discussion
focused on this case. See pp. 7ff. But the reasons for this choice of subject and its
consequences were not sufficiently explained. Here I want to make good this lack.
258
The Basic Structure as Subject
259
IN S TIT U TION AL F R A M EWO R K
3. I am grateful to Hugo Bedau for pointing out to me the need to emphasize this.
In his comments on the earlier version of this paper he noted that the last paragraph
of §2 of Theory is particularly misleading in this respect.
4. See MethodJ of Ethics, 7th ed. (London, 1 907).
260
The Basic Structure as Subject
26 1
I N S T I T U T I ON AL F R A M EWO R K
262
The Basic Structure as Subject
6. I follow che account in Robert Nozick, Anarchy, State, and Utopia (New York:
Basic Books, 1974).
263
I N S T I T U T I ON AL F R A M EWO R K
7. I distinguish here and elsewhere below between an as-if historical and an as-if
nonhistorical process (or procedure). In both cases the process is hypothetical in the
sense that the process has not actually occurred, or may not have occurred. But as-if
historical processes can occur: they are not thought to be excluded by fundamental
social laws or natural facts. Thus on the libertarian view, if everyone were to follow
the principles of justice in acquisition and transfer, and they can follow them, then
the as-if historical process leading to the formation of the state would be realized. By
contrast, an as-if nonhistorical process, for example, the procedure leading up to the
agreement in the original position, cannot take place. See below §6.
264
The Basic Structure as Subject
nant protection agency (the state) has agreed to use with its
clients, as it were, and these procedures may differ from client to
client depending on the bargain each was in a position to make
with the dominant agency. No one can be compelled to enter
into such an agreement and everyone always has the option of
becoming an independent: we have the choice of being one of
the state's clients, just as we do in the case of other associations.
While the libertarian view makes important use of the notion of
agreement, it is not a social contract theory at all; for a social
contract theory envisages the original compact as establishing a
system of common public law which defines and regulates politi
cal authority and applies to everyone as citizen. Both political
authority and citizenship are to be understood through the con
ception of the social contract itself. By viewing the state as a
private association the libertarian doctrine rejects the fundamen
tal ideas of the contract theory, and so quite naturally it has no
place for a special theory of justice for the basic structure.
By way of concluding these preliminary matters, the point of
noting these differences with libertarian and utilitarian doctrines
is to clarify by illustration and contrast the peculiar features of
justice as fairness with its emphasis on the basic structure. Similar
contrasts hold in regard to perfectionism and intuitionism and
other familiar moral views. The problem here is to show why the
basic structure has a special role and why it is reasonable to seek
special principles to regulate it.
265
IN S TIT U TIO N AL F R A M EWO R K
266
The Basic Structure as Subject
267
IN S T I T U TION A L F R A M EWO R K
268
The Basic Structure as Subject
269
I N S TIT U T I ON AL F R A M EWO R K
ties and talents cannot come to fruition apart from social condi
tions, and as realized they always take but one of many possible
forms. Developed natural capacities are always a selection, a
small selection at that, from the possibilities that might have been
attained. In addition, an ability is not, for example, a computer
in the head with a definite measurable capacity unaffected by
social circumstances. Among the elements affecting the realiza
tion of natural capacities are social attitudes of encouragement
and support and the institutions concerned with their training
and use. Thus even a potential ability at any given time is not
something unaffected by existing social forms and particular con
tingencies over the course of life up to that moment. So not only
our final ends and hopes for ourselves but also our realized
abilities and talents reflect, to a large degree, our personal his
tory, opportunities, and social position. There is no way of know
ing what we might have been had these things been different .
Finally, the preceding considerations must be viewed together
with the fact that the basic structure most likely permits signifi
cant social and economic inequalities in the life prospects of
citizens depending on their social origins, their realized natural
endowments, and the chance opportunities and accidents that
have shaped their personal history. Such inequalities, we may
assume, are inevitable, or else necessary or highly advantageous
in maintaining effective social cooperation. Presumably there are
various reasons for this, among which the need for incentives is
but one.
The nature of inequalities in life prospects can be clarified by
contrasting them with other inequalities. Thus imagine a univer
sity in which there are three ranks of faculty and everyone stays
in each rank the same length of time and receives the same
salary. Then while there are inequalities of rank and salary at any
given time, there is no inequality in life prospects between fac
ulty members. The same may be true when members of an
association adopt a rotation scheme for filling certain more highly
privileged or rewarded positions, perhaps because they involve
270
The Basic Structure as Subject
27 1
I N S T I T U T I ON A L F R A M EWO R K
9. The reason for doing chis is chac, as a firsc approximacion, che problem of social
juscice concerns che basic scrucrure as a closed background syscem. To scare wich che
sociecy of nacions would seem merely co push one seep furcher back che cask of
finding a cheory of background juscice. Ac some level chere muse exisc a closed
background syscem, and ic is chis subjecc for which we wane a cheory. We are beccer
prepared co cake up chis problem for a sociecy (illuscraced by nacions) conceived as a
more or less self-sufficienc scheme of social cooperacion and as possessing a more or
less complece culcure. If we are successful in che case of a sociecy, we can cry co
excend and co ad jusc our inicial cheory as furcher inquiry requires.
10. The normal range is specified as follows: since che fundamencal problem of
juscice concerns che relacions among chose who are full and accive parcicipancs in
sociecy, and direcdy or indirecdy associaced cogecher over che course of a whole life,
ic is reasonable co assume chac everyone has physical needs and psychological capaci
cies wichin some normal range. Thus che problem of special healch care and how co
creac che mencally defeccive are aside. If we can work ouc a viable cheory for che
normal range, we can accempc co handle chese ocher cases lacer.
272
The Basic Structure as Subject
1 1 . For this way of putting the distinction berween a thicker and a thinner veil of
ignorance I am indebted to Joshua Rabinowitz.
27 3
IN S T I T U TION AL F R A M EWO R K
1 2 . This formulation of the conditions for the agreement on a just savings principle
differs from that in Theory, pp. 1 2 8f. and 2 9 1 £. There it is not required that the
parties must want the previous generations to have followed the principle they adopt
as contemporaries. Therefore, assuming that generations are mutually disinterested,
nothing constrains them from refusing to make any savings at all. To cope with this
difficulry it was stipulated that the parties care for their descendants. While this is a
reasonable stipulation, the requirement above has the virtue that it removes the
difficulry without changing the motivation assumption. It also preserves the present
time of entry interpretation of the original position and coheres with the strict
compliance condition and ideal theory generally. I am indebted to Thomas Nagel and
Derek Parfit for this revision; it is also proposed by Jane English, who notes the
connection with ideal theory. See her "Justice Between Generations," p. 98.
274
The Basic Structure as Subject
27 5
I N S TIT U TIO N AL F R A M EWO R I(
276
The Basic Structure as Subject
277
IN S TIT U T I ON AL F R A M E WO R K
1 3 . These goods are defined as things that, from the standpoint of the original
position, it is rational for the parties to want whatever their final ends (which are
unknown to them). They serve as generalized means, so to speak, for realizing all, or
most all, rational systems of aims. See Theory, pp. 92-95 , 396f. , 433f.
1 4 . One aim of § § 7 -8 is to indicate a reply to David Gauthier's illuminating
critique of the difference principle, ''Justice and Natural Endowment," Social Theory
and Practice 3 ( 1 974 ) : 3 -26. I refer to his discussion here because his argument
depends on being able to distinguish between what is acquired by individuals as
members of society and what would have been acquired by them in a state of nature.
If this distinction has no useful meaning, then I believe that the way is cleared to
meeting Gauthier's objection. Of course, much more needs to be said. In any case, I
fully agree with his remarks on pp. 2 5 f. and much of my discussion is designed to
show how a Kantian contract view can be stated to accord with them.
278
The Basic Structure as Subject
279
I N S T I T U T I ON AL F R A M EWO R K
16. The worth of citizens in a well-ordered society is always equal because in such
a society everyone is assumed to comply with just institutions and to fulfill their
duties and obligations moved, when appropriate, by a sufficiently strong sense of
justice. Inequalities do not arise from unequal moral worth; their explanation lies
elsewhere.
1 7 . See below, the second paragraph of §9.
18. These remarks are stated a bit more fully in "Reply to Alexander and Mus
grave," Quarterly journal of &onomics 88 (November 1974):639-43.
280
The Basic Structure as Subject
19. On pure procedural justice, see Theory, pp. 84-89, 3 1 0- 1 5 ; and also pp. 64,
66, 72ff. , 79, 274-80, 30 5 - 1 0 .
28 1
IN S TIT U TION AL F R A M EWO R K
282
The Basic Structure as Subject
2 1 . For this and ocher measures of inequality, see A. K. Sen, On Economic Inequality
(New York: W. W. Norton, 1 9 7 3), chap. 2 .
283
IN S TIT U TIO N AL F R A M EWO R K
284
The Basic Structure as Subject
285
IN S T I T U T IO N AL F R A M EWO R K
286
The Basic Structure as Subject
287
IN S TIT U TION AL F R A M E WO R K
2 5 . For this way of seeing the historical aspect of Locke's theory I am indebted to
Quentin Skinner.
288
L E C T U R E V I I I
The Basic
Liberties and
Their Priority1
failings, two serious gaps. In this lecture I shall outline, and can
do no more than outline, how these gaps can be filled. The first
gap is that the grounds upon which the parties in the original
position adopt the basic liberties and agree to their priority are
not sufficiently explained. 2 This gap is connected with a second,
which is that when the principles of justice are applied at the
constitutional, legislative, and judicial stages, no satisfactory cri
terion is given for how the basic liberties are to be further
specified and adj usted to one another as social circumstances are
made known. 3 I shall try to fill these two gaps by carrying through
the revisions already introduced in my Dewey Lectures. I shall
outline how the basic liberties and the grounds for their priority
can be founded on the conception of citizens as free and equal
persons in conjunction with an improved account of primary
goods. 4 These revisions bring out that the basic liberties and
their priority rest on a conception of the person that would be
recognized as liberal and not, as Hart thought, on considerations
of rational interests alone. 5 Nevertheless, the structure and con
tent of j ustice as fairness is still much the same; except for an
the original version of what are now §§5 and 6. Kronman's comments have been
particularly helpful in revising § 7 . I must also thank Burton Dreben, whose instruc
tive advice and discussion have led to what seem like innumerable changes and
revisions.
I remark as a preface that my account of the basic liberties and their priority, when
applied to the constitutional doctrine of what I call "a well-ordered society," has a
certain similarity to the well-known view of Alexander Meiklejohn (see n. 1 2 ) . There
are, however, these important differences. First, the kind of primacy Meiklejohn
gives to the political liberties and to free speech is here given to the family of basic
liberties as a whole; second, the value of self-government, which for Meiklejohn
often seems overriding, is counted as but one important value among others ; and
finally, the philosophical background of the basic liberties is very different.
2. H. L A. Hart, "Rawls on Liberty and Its Priority," University of Chicago Law
Re11iew 40( 3 ) (Spring 1 9 7 3 ): 5 5 1 - 5 5 (hereafter Hart); reprinted in Reading Rawls,
edited by Norman Daniels (New York: Basic Books, 1 9 7 5), pp. 249- 5 2 (hereafter
Daniels).
3. Hart, pp. 542-50; see Daniels, pp. 2 39-44.
4. See "Kantian Constructivism in Moral Theory," journal of Philosophy 7 7(9) (Sep
tember 1 980) : 5 1 9- 30.
5 . Hart, p. 5 5 5 ; Daniels, p. 2 5 2 .
290
The Basic Liberties and Their Priority
6. The phrase "the most extensive" is used in the main statements of the principles
of j ustice on pp. 60, 2 50, and 302. The phrase "total system" is used in the second
and third of these statements.
29 1
I N S T I T U T I ON AL F R A M E WO R K
has a preeminent value and is the main if not the sole end of
political and social justice. There is, to be sure, a general pre
sumption against imposing legal and other restrictions on con
duct without sufficient reason. But this presumption creates no
special priority for any particular liberty. Hart noted, however,
that in Theory I sometimes used arguments and phrases which
suggest that the priority of liberty as such is meant; although, as
he saw, this is not the correct interpretation. 7 Throughout the
history of democratic thought the focus has been on achieving
certain specific liberties and constitutional guarantees, as found,
for example, in various bills of rights and declarations of the
rights of man. The account of the basic liberties follows this
tradition.
Some may think that to specify the basic liberties by a list is a
makeshift which a philosophical conception of j ustice should do
without. We are accustomed to moral doctrines presented in the
form of general definitions and comprehensive first principles.
Note, however, that if we can find a list of liberties which, when
made part of the two principles of justice, leads the parties in the
original position to agree to these principles rather than to the
other principles of justice available to them, then what we may
call "the initial aim" of j ustice as fairness is achieved. This aim is
to show that the two principles of justice provide a better under
standing of the claims of freedom and equality in a democratic
society than the first principles associated with the traditional
doctrines of utilitarianism, with perfectionism, or with intuition
ism. It is these principles, together with the two principles of
justice, which are the alternatives available to the parties in the
original position when this initial aim is defined.
Now a list of basic liberties can be drawn up in two ways. One
way is historical: we survey the constitutions of democratic states
7. Hart gives a perceptive discussion of whether the first principle of justice means
by "'liberry" what I have called "liberry as such." This question arises because in the
first statement of the principle on p. 60, and elsewhere, I use the phrase "basic
liberry," or simply "liberry" when I should have used "basic liberties." With Hart's
discussion I agree, on the whole; see pp. 5 3 7 -4 1 ; Daniels, pp. 2 34-3 7 .
292
The Basic Liberties and Their Priority
8. See "Kantian Constructivism in Moral Theory," Leet. I, pp. 5 3 3-34, Leet. III,
pp. 567-68.
293
IN S TIT U TION AL F R A M E WO R K
argument for the priority of liberty, like all arguments from the
original position, is always relative to a given enumeration of the
alternatives from which the parties are to select. One of these
alternatives, the two principles of justice, contains as part of its
specification a list of basic liberties and their priority. The source
of the alternatives is the historical tradition of moral and political
philosophy. We are to regard the original position and the char
acterization of the deliberations of the parties as a means of
selecting principles of justice from alternatives already pre
sented. And this has the important consequence that to establish
the priority of liberty it is not necessary to show that the concep
tion of the person, combined with various other aspects of the
original position, suffices of itself to derive a satisfactory list of
liberties and the principles of justice which assign them priority.
Nor is it necessary to show that the two principles of j ustice
(with the priority of liberty included) would be adopted from
any enumeration of alternatives however amply it might be sup
plemented by other principles. 9 I am concerned here with the
initial aim of j ustice as fairness, which, as defined above, is only
to show that the principles of justice would be adopted over the
other traditional alternatives. If this can be done, we may then
proceed to further refinements.
294
The Basic Liberties and Their Priority
295
I N S T I T U T I ON AL F R A M EWO R K
1 2 . See Alexander Meiklejohn, Free Speech and Its Relation to Self-Government (New
York: Harper and Row, 1 948), chap. 1, §6, for a well-known discussion of the
distinction berween rules of order and rules abridging the content of speech.
1 3 . The phrase "the public use of our reason" is adapted from Kant's essay "What
Is Enlightenment?" ( 1 784), where it is introduced in the fifth paragraph; Academy
edition of the Gesammelte Schriften, vol. 8 ( 1 9 1 2 ), pp. 36- 3 7 . Kant contrasts the
public use of reason, which is free, to the private use, which may not be free. I do
not mean to endorse this view.
2 96
The Basic Liberties and Their Priority
the list always have priority, as will often be clear from the
arguments for them.
The last point about the priority of liberty is that this priority
is not required under all conditions. For our purposes here,
however I assume that it is required under what I shall call
"reasonably favorable conditions," that is, under social circum
stances which, provided the political will exists, permit the effec
tive establishment and the full exercise of these liberties. These
conditions are determined by a society's culture, its traditions
and acquired skills in running institutions, and its level of eco
nomic advance (which need not be especially high), and no doubt
by other things as well. I assume as sufficiently evident for our
purposes, that in our country today reasonably favorable condi
tions do obtain, so that for us the priority of the basic liberties is
required. Of course, whether the political will exists is a different
question entirely. While this will exists by definition in a well
ordered society, in our society part of the political task is to help
fashion it.
Following the preceding remarks about the priority of liberty,
I summarize several features of the scheme of basic liberties.
First: as I have indicated, I assume that each such liberty has
what I shall call a "central range of application." The institutional
protection of this range of application is a condition of the ade
quate development and full exercise of the two moral powers of
citizens as free and equal persons. I shall elaborate this remark in
the next sections. Second, the basic liberties can be made com
patible with one another, at least within their central range of
application. Put another way, under reasonably favorable condi
tions, there is a practicable scheme of liberties that can be insti
tuted in which the central range of each liberty is protected. But
that such a scheme exists cannot be derived solely from the
conception of the person as having the two moral powers, nor
solely from the fact that certain liberties, and other primary
goods as all-purpose means, are necessary for the development
and exercise of these powers. Both of these elements must fit
297
IN S TIT U T I O N AL F R A M EWO R K
298
The Basic Liberties and Their Priority
important or prized for the same reasons. Thus one strand of the
liberal tradition regards the political liberties as of less intrinsic
value than freedom of thought and libei:ty of conscience, and the
civil liberties generally. What Constant called "the liberties of
the moderns" are prized above "the liberties of the ancients." 1 5
I n a large modern society, whatever may have been true i n the
city-state of classical times, the political liberties are thought to
have a lesser place in most persons' conceptions of the good. The
role of the political liberties is perhaps largely instrumental in
preserving the other liberties. 1 6 But even if this view is correct,
it is no bar to counting certain political liberties among the basic
liberties and protecting them by the priority of liberty. For to
assign priority to these liberties they need only be important
enough as essential institutional means co secure the other basic
liberties under the circumstances of a modern state. And if as
signing them this priority helps to account for the j udgments of
priority that we are disposed to affirm after due reflection, then
so far so good.
1 5 . See Constant's essay, "De la Liberte des Anciens comparee a celle des mod
ernes" ( 1 8 1 9).
16. For an important recent statement of this view, see Isaiah Berlin's "Two Con
cepts of Liberty" ( 1 958), reprinted in Pour Essays on Liberty (Oxford : Oxford Univer
sity Press, 1 969); see, for example, pp. 1 6 5 -66.
1 7 . In this and the next section I draw upon my "Kantian Constructivism in Moral
Theory," n. 4, to provide the necessary background for the argument to follow.
299
I N S T I T U T I ON AL F R A M EWO R K
300
The Basic Liberties and Their Priority
30 1
I N S T I T U T I O N AL F R A M EWO R K
302
The Basic Liberties and Their Priority
303
I N S T I T U T I O N AL F R A M EWO R K
20. On the original position, see Theory, the entries in the index; for how this
position models the conception of the person, see further "Kantian Constructivism
in Moral Theory. "
304
The Basic Liberties and Their Priority
305
IN S TIT U TIO N AL F R A M EWO R K
2 1 . I use the distinction between the two parts of the original position which
correspond to the reasonable and the rational as a vivid way to state the idea that this
position models the full conception of the person. I hope that this will prevent
several misinterpretations of this position, for example, that it is intended to be
morally neutral, or that it models only the notion of rationality, and therefore that
justice as fairness attempts to select principles of justice purely on the basis of a
conception of rational choice as understood in economics or decision theory. For a
Kantian view, such an attempt is out of the question and is incompatible with its
conception of the person.
306
The Basic Libenies and Their Priority
307
I N S TIT U T I ON AL F R A M EWO R K
have a certain structure and depend upon the primary goods for
their formation, revision, and execution. What are to count as
primary goods is not decided by asking what general means are
essential for achieving the final ends which a comprehensive
empirical or historical survey might show that people usually or
normally have in common. There may be few if any such ends;
and those there are may not serve the purposes of a conception
of justice. The characterization of primary goods does not rest
on such historical or social facts. While the determination of
primary goods invokes a knowledge of the general circumstances
and requirements of social life, it does so only in the light of a
conception of the person given in advance.
The five kinds of primary goods enumerated in Theory (accom
panied by an indication of why each is used) are the following:
a. The basic liberties (freedom of thought and liberty of
conscience, and so on) : these liberties are the background
institutional conditions necessary for the development and
the full and informed exercise of the two moral powers
(particularly in what later, in §8, I shall call "the two funda
mental cases"); these liberties are also indispensable for the
protection of a wide range of determinate conceptions of
the good (within the limits of justice).
b. Freedom of movement and free choice of occupation
against a background of diverse opportunities: these oppor
tunities allow the pursuit of diverse final ends and give
effect to a decision to revise and change them, if we so
desire.
c. Powers and prerogatives of offices and positions of
responsibility: these give scope to various self-governing
and social capacities of the self.
d. Income and wealth, understood broadly as all-purpose
means (having an exchange value) : income and wealth are
needed to achieve directly or indirectly a wide range of
ends, whatever they happen to be.
e. The social bases of self-respect: these bases are those
308
The Basic Liberties and Their Priority
22. For a fuller account of primary goods, see my "Social Unity and Primary
Goods."
309
IN S TIT U TIO N AL F R A M E WO R K
3 10
The Basic Liberties and Their Priority
23. In this and the next two paragraphs I state in a somewhat different way the
main consideration given for liberty of conscience in Theory, § 3 3 .
311
I N S T I T U T I ON AL F R A M EWO R K
3 12
The Basic Liberties and Their Priority
24. See ] . S. Mill, On Liberty, chap. 3, par. 5, where he says, ''To a certain extent it
is admitted, that our understanding should be our own; but there is not the same
willingness to admit that our desires and impulses should be our own likewise; or
that to possess impulses of our own, and of any strength, is anything but a peril and a
snare. " See the whole of pars. 2-9 on the free development of individuality.
31 3
I N S T I T U T I O N AL F R A M E WO R K
3 14
The Basic Liberties and Their Priority
3 15
I N S TIT U T I ON AL F R A M E WO R K
2 S . Here I restate the reasoning for the greater stability of justice as fairness found
in Theory, §76.
3 16
The Basic Liberties and Their Priority
the good of those they represent. That is, a scheme of just social
cooperation advances citizens' determinate conceptions of the
good; and a scheme made stable by an effective public sense of
justice is a better means to this end than a scheme which requires
a severe and costly apparatus of penal sanctions, particularly
when this apparatus is dangerous to the basic liberties.
The comparative stability of the traditional principles of jus
tice available to the parties is a complicated matter. I cannot
summarize here the many considerations I have examined else
where to support the second point, the thesis that the two prin
ciples of justice are the most stable. I shall only mention one
leading idea: namely, that the most stable conception of j ustice
is one that is clear and perspicuous to our reason, congruent with
and unconditionally concerned with our good, and rooted not in
abnegation but in affirmation of our person. 2 6 The conclusion
argued for is that the two principles of j ustice answer better to
these conditions than the other alternatives precisely because of
the basic liberties taken in conj unction with the fair value of the
political liberties (discussed in the next section) and the differ
ence principle. For example, that the two principles of j ustice are
unconditionally concerned with everyone's good is shown by the
equality of the basic liberties and their priority, as well as by the
fair value of the political liberties. Again, these principles are
clear and perspicuous to our reason because they are to be public
and mutually recognized, and they enjoin the basic liberties di
rectly--on their face, as it were. 27 These liberties do not depend
upon conjectural calculations concerning the greatest net balance
of social interests (or of social values). In j ustice as fairness such
calculations have no place. Observe that this argument for the
first ground conforms to the precautions stated in the opening
paragraphs of this section. For the parties in adopting the princi
ples of j ustice which most effectively secure the development
3 17
IN S TIT U TION AL F R A M EWO R K
and exercise of the sense of justice are moved not from the
desire to realize this moral power for its own sake, but rather
view it as the best way to stabilize just social cooperation and
thereby to advance the determinate conceptions of the good of
the persons they represent.
The second ground, not unrelated to the first, proceeds from
the fundamental importance of self-respect. 2 8 It is argued that
self-respect is most effectively encouraged and supported by the
two principles of j ustice, again precisely because of the insistence
on the equal basic liberties and the priority assigned them, al
though self-respect is further strengthened and supported by the
fair value of the political liberties and the difference principle. 2 9
That self-respect is also confirmed by other features of the two
principles besides the basic liberties only means that no single
feature works alone. But this is to be expected. Provided the
basic liberties play an important role in supporting self-respect,
the parties have grounds founded on these liberties for adopting
the two principles of j ustice.
Very briefly, the argument is this. Self-respect is rooted in our
self-confidence as a fully cooperating member of society capable
of pursuing a worthwhile conception of the good over a complete
life. Thus self-respect presupposes the development and exercise
of both moral powers and therefore an effective sense of j ustice.
The importance of self-respect is that it provides a secure sense
of our own value, a firm conviction that our determinate concep
tion of the good is worth carrying out. Without self-respect
nothing may seem worth doing, and if some things have value
for us, we lack the will to pursue them. Thus, the parties give
great weight to how well principles of j ustice support self-re-
28. Self-respect is discussed in Theory, §67. For its role in the argument for the two
principles of justice, see pp. 1 78-8 3 . For the equal political liberties as a basis of
self-respect, see pp. 234, 544-46.
29. The fair value of the political liberties is discussed in ibid. , pp. 224-28, 2 3 3 -
3 4 , 2 7 7-79, and 3 5 6. In the discussion o f the equal political liberties as a basis of
self-respect on pp. 544-46, the fair value of these liberties is not mentioned. It
should have been. See also § § 7 and 12 below.
3 18
The Basic Liberties and Their Priority
3 19
IN S TIT U TIO N AL F R A M E WO R K
Every human being . . . can act with only one dominant faculty
at a time: or rather, one whole nature disposes us at any given
time to some single form of spontaneous activity. It would,
therefore, seem to follow that man is inevitably destined to a
partial cultivation, since he only enfeebles his energies by
directing them to a multiplicity of objects. But man has it in
his power to avoid one-sidedness, by attempting to unite dis
tinct and generally separately exercised faculties of his nature,
by bringing into spontaneous cooperation, at each period of
his life, the dying sparks of one activity, and those which the
future will kindle, and endeavoring to increase and diversify
the powers with which he works, by harmoniously combining
them instead of looking for mere variety of objects for their
separate exercise. What is achieved in the case of the individ
ual, by the union of past and future with the present, is pro
duced in society by the mutual cooperation of its different
30. This notion is discussed in Theory, §79. There I didn't connect it with the basic
liberties and their priority as I attempt to do here.
320
The Basic Liberties and Their Priority
members; for in all stages of his life, each individual can achieve
only one of those perfections, which represent the possible
features of human character. It is through social union, there
fore, based on the internal wants and capabilities of its mem
bers, that each is enabled to participate in the rich collective
resources of all the others. 3 1
3 1 . This passage is quoted in ibid. , pp. S 2 3-24n. It is from The Limits of State
Action, edited by J. W. Burrow (Cambridge: Cambridge University Press, 1 969), pp.
1 6- 1 7 .
32 1
IN S TIT U TIO N AL F R A M EWO R K
322
The Basic Liberties and Their Priority
323
IN S T I T U T I ON AL F R A M E WO R K
324
The Basic Liberties and Their Priority
325
I N S T I T U T I ON AL F R A M E WO R K
34. The paragraph which begins on p. 204 of Theory can unfortunately be read so
asto give the contrary impression.
326
The Basic Liberties and Their Priority
3 5 . While the idea of the fair value of the equal political liberties is an important
aspect of the two principles of justice as presented in Theory, this idea was not
sufficiently developed or explained. It was, therefore, easy to miss its significance.
The relevant references are given in n. 29 above.
36. For fair equality of opportunity in ibid. , see pp. 72-74 and § 1 4 .
327
IN S TIT U TION AL F R A M EWO R K
3 28
The Basic Liberties and Their Priority
329
IN S TIT U TIO N AL F R A M EWO R K
330
The Basic Liberties and Their Priority
3 31
IN S TIT U TIO N AL F R A M E WO R K
42. I take it as obvious that acting from the best reasons, or from the balance of
reasons as defined by a moral conception, is not, in general, to maximize anything.
Whether something is maximized depends on the nature of the moral conception.
Thus, neither the pluralistic intuitionism of W. D. Ross as found in The Right and the
Good (Oxford : Clarendon Press, 1 930), nor the liberalism of Isaiah Berlin as found in
Four Essays on Liberty, specifies something to be maximized. Neither for that matter
does the economists' utility function specify anything to be maximized, in most cases.
A utility function is simply a mathematical representation of households' or economic
agents' preferences, assuming these preferences to satisfy certain conditions. From a
purely formal point of view, there is nothing to prevent an agent who is a pluralistic
intuitionist from having a utility function. (Of course, it is well known that an agent
with a lexicographical preference-ordering does not have a utility function.)
332
The Basic Liberties and Their Priority
333
I N S T I T U T I O N AL F R A M E WO R K
44. It is a central theme of Kane's doctrine that moral philosophy is not the study
of how to be happy but of how to be worthy of happiness. This theme is found in all
his major works beginning with the First Critique; see A806, B834.
334
The Basic Liberties and Their Priority
society. (The political liberties, assured their fair value and other
relevant general principles, properly circumscribed, may of course
supplement the principles of j ustice.) These basic liberties re
quire some form of representative democratic regime and the
requisite protections for the freedom of political speech and
press, freedom of assembly, and the like. Liberty of conscience
and freedom of association are to secure the full and informed
and effective application of citizens' powers of deliberative rea
son to their forming, revising, and rationally pursuing a concep
tion of the good over a complete life. The remaining (and sup
porting) basic liberties-the liberty and integrity of the person
(violated, for example, by slavery and serfdom, and by the denial
of freedom of movement and occupation) and the rights and
liberties covered by the rule of law--<an be connected to the
two fundamental cases by noting that they are necessary if the
preceding basic liberties are to be properly guaranteed. Alto
gether the possession of these basic liberties specifies the com
mon and guaranteed status of equal citizens .in a well-ordered
democratic society.45
Given this arrangement of the basic liberties, the notion of the
significance of a particular liberty, which we need to fill the sec
ond gap, can be explained in this way: a liberty is more or less
significant depending on whether it is more or less essentially
involved in, or is a more or less necessary institutional means to
protect, the full and informed and effective exercise of the moral
powers in one (or both) of the two fundamental cases. Thus, the
4 5. The arrangement in this paragraph is designed co emphasize the role of the two
fundamental cases and to connect these cases with the two moral powers. Thus this
arrangement belongs to a particular conception of justice. Other arrangements may
be equally useful for other purposes. Vincent Blasi, in his instructive essay "The
Checking Value in First Amendment Theory," Weaver Consti1111iona/ Law Series, no.
3 (American Bar Foundation, 1 9 7 7), classifies First Amendment values under three
headings: individual autonomy, diversity, and self-government, in addition to what
he calls "the checking value." This value focuses on the liberties protected by the
First Amendment as a way of controlling the misconduct of government. I believe
the arrangement in the text covers these distinctions. The discussion in § 7 and below
in § § 1 0- 1 2 indicates my agreement with Blasi on the importance of the checking
value.
335
I N S T I T U T I O N AL F R A M EWO R K
336
The Basic Liberties and Their Priority
337
I N S T I T U T I O N AL F R A M EWO R K
338
The Basic Liberties and Their Priority
339
I N S T I T U T I O N AL F R A M EWO R K
340
The Basic Libenies and Their Priority
49. Hart argues that a strictly quantitative criterion of how to specify and adjust
the basic liberties cannot account for this fact, or so I interpret his argument, pp.
5 5 0-5 1 ; Daniels, pp. 2 4 7 -48. I agree that some qualitative criterion is necessary and
the notion of significance is to serve this role.
34 1
IN S TIT U TIO N AL F R A M EWO R K
50. See The Negro and the First Amendment (Chicago: University of Chicago Press,
1 966), p. 1 6.
342
The Basic Liberties and Their Priority
securely won, the other essential fixed points are much easier to
establish. The history of the use by governments of the crime of
seditious libel to suppress criticism and dissent and to maintain
their power demonstrates the great significance of this particular
liberty to any fully adequate scheme of basic liberties. 5 1 So long
as this crime exists the public press and free discussion cannot
play their role in informing the electorate. And, plainly, to allow
the crime of seditious libel would undermine the wider possibil
ities of self-government and the several liberties required for its
protection. Thus the great importance of New York Times v.
Sullivan in which the Supreme Court not only rejected the crime
of seditious libel but declared the Sedition Act of 1798 unconsti
tutional now, whether or not it was unconstitutional at the time
it was enacted. It has been tried, so to speak, by the court of
history and found wanting. 52
The denial of the crime of seditious libel is closely related to
the two other fixed points noted above. If this crime does exist,
it can serve as a prior restraint and may easily include subversive
advocacy. But the Sedition Act of 1798 caused such resentment
that once it lapsed in 180 1, the crime of seditious libel was never
revived. Within our tradition there has been a consensus that the
discussion of general political, religious, and philosophical doc
trines can never be censored. Thus the leading problem of the
freedom of political speech has focused on the question of sub
versive advocacy, that is, on advocacy of political doctrines an
essential part of which is the necessity of revolution, or the use
of unlawful force and the incitement thereto as a means of polit
ical change. A series of Supreme Court cases from Schenck to
Brandenburg has dealt with this problem; it was in Schenck that
Holmes formulated the well-known "clear and present danger
rule," which was effectively emasculated by the way it was under-
,
5 1 . See Blasi, ''The Checking Value in First Amendment Theory," pp. 5 29-44,
where he discusses the history of the use of seditious libel to show the importance of
the checking value of the liberties secured by the First Amendment.
52. New Yo,.k TimeI v. Sullivan, 3 7 6 U.S. 2 54 ( 1 964) at 2 7 6. See Kalven's discus
sion of this case, The Neg,.o and the Firit Amendment, pp. 56-64.
343
I N S T I T U T I ON AL F R A M EWO R K
5 3 . Here and throughout this section and the next I am much indebted to Kalven's
discussion of subversive advocacy in A Worthy Tradition: Frudom of Speech in America
(New York: Harper and Row, 1 987). I am most grateful to James Kalven for letting
me read the relevant pan of the manuscript of this very important work.
344
The Basic Liberties and Their Priority
345
I N S TIT U T I O N AL F R A M EWO R K
346
The Basic Liberties and Their Priority
347
IN S TIT U TION AL F R A M EWO R K
6 1 . M y account o f the clear and present danger rule h as been much influenced by
Kalven, A Worthy Tradition, and by Meiklejohn's Fm Spuch and Its Relation to Sel/
Govemment, chap. 2.
348
The Basic Liberties and Their Priority
349
IN S TIT U TIO N AL F R A M EWO R K
350
The Basic Liberties and Their Priority
35 1
I N S T I T U T I ON AL F R A M E WO R K
66. Ibid. , at 3 7 7 .
67. Ibid. , at 3 7 8.
68. Ibid. , at 3 79.
69. 34 1 U.S. 494 at 5 1 0, citing 183 F. 2d. at 2 1 2 .
352
The Basic Liberties and Their Priority
70. The basis of Brandeis's own view is best expressed, I think, in the well-known
paragraph which begins: 'Those who won our independence believed that the final
end of the State was to make men free to develop their faculties; and that in its
government the deliberative forces should prevail over the arbitrary. " This paragraph
ends: "Believing in the power of reason as applied through public discussion, they
eschewed the silence coerced by law-the argument of force in its worst form.
Recognizing the occasional tyrannies of governing majorities, they amended the
Constitution so that free speech and assembly should be guaranteed. " It is no
criticism of this fine paragraph to recognize that by itself it does not remedy the
defect of Brandeis's formulation of the clear and present danger rule.
353
I N S T I T U TIO N AL F R A M EWO R K
what I shall call "a constitutional crisis of the requisite kind" and
an emergency in which there is a present or foreseeable threat of
serious injury, political, economic, and moral, or even of the
destruction of the state. For example, the fact that the country is
at war and such an emergency exists does not entail that a consti
tutional crisis of the requisite kind also exists. The reason is that
to restrict or suppress free political speech, including subversive
advocacy, always implies at least a partial suspension of democ
racy. A constitutional doctrine which gives priority to free polit
ical speech and other basic liberties must hold that to impose
such a suspension requires the existence of a constitutional crisis
in which free political institutions cannot effectively operate or
take the required measures to preserve themselves. A number of
historical cases illustrate that free democratic political institutions
have operated effectively to take the necessary measures in seri
ous emergencies without restricting free political speech; and in
some cases where such restrictions have been imposed they were
unnecessary and made no contribution whatever to meeting the
emergency. It is not enough for those in authority to say that a
grave danger exists and that they are taking effective steps to
prevent it. A well-designed constitution includes democratic pro
cedures for dealing with emergencies. Thus as a matter of consti
tutional doctrine the priority of liberty implies that free political
speech cannot be restricted unless it can be reasonably argued
from the specific nature of the present situation that there exists
a constitutional crisis in which democratic institutions cannot
work effectively and their procedures for dealing with emergen
cies cannot operate.
In the constitutional doctrine proposed, then, it is of no partic
ular moment whether political speech is dangerous, since politi
cal speech is by its nature often dangerous, or may often appear
to be dangerous. This is because the free public use of our reason
applies to the most fundamental questions, and the decisions
made may have grave consequences. Suppose a democratic peo
ple, engaged in a military rivalry with an autocratic power, should
decide that the use of nuclear weapons is so contrary to the
354
The Basic Liberties and Their P ri ori ty
355
IN S T I T U T I ON A L F R A M E WO R K
356
The Basic Liberties and Their Priority
7 1 . See § 7 .
357
I N S T I T U T I O N AL F R A M EWO R K
358
The Basic Liberties and Their Priority
7 2 . Buckley 11. Valeo, 424 U.S. 1 ( 1 9 76), and First National Bank 11. Bellotti, 4 3 5
U . S . 765 ( 1 978). For discussions o f Buckley, see Tribe, American Constitutional Law,
chap. 1 3 , pp. 800- 1 1 ; and Skelly Wright, "Political Speech and the Constitution: Is
Money Speech ?," Yale Law journal 8 5 (8) Uuly 1976) : 1 00 1 -2 1 . For an earlier discus
sion, see M. A. Nicholson, "Campaign Financing and Equal Protection," Stanford
Law Review 26 (April 1974):8 1 5-54. In First National Bank the Court, by a 5-to-4
decision, invalidated a Massachusetts criminal law which prohibited expenditures by
banks and corporations for the purpose of influencing the outcome of voting on
referendum proposals, unless these proposals materially affected the property, busi
ness, or assets of the corporation. The statute specified that no referendum question
solely concerning the taxation of individuals came under this exception. In a dissent
joined by Brennan and Marshall, Justice White said that the fundamental error of the
majority opinion was its failure to recognize that the government's interest in prohib
iting such expenditures by banks and corporations derives from the First Amend
ment-in particular, from the value of promoting free political discussion by prevent
ing corporate domination; see 4 3 5 U.S. 765 ( 1 978) at 803-4. My discussion in the
text is in sympathy with this dissenting opinion, and also with White's dissent in
Buckley at 2 5 7 -66, and with Marshall's at 287 -90.
7 3 . Buckley 11. Valeo, at 5 8-59.
359
I N S T I T U T I ON AL F R A M E WO R K
360
The Basic Liberties and Their P riority
36 1
IN S T I T U T I O N AL F R A M EWO R K
362
The Basic Liberties and Their Priority
363
IN S TIT U TION AL F R A M E WO R K
364
The Basic Liberties and Their Priority
365
IN S TIT U TION AL F R A M EWO R K
366
The Basic Liberties and Their Priority
82. There are many other reasons why citizens in certain situations or at certain
times might not put much value on the exercise of some of their basic liberties and
might want to do an action which limited these liberties in various ways. Unless these
possibilities affect the agreement of the parties in the original position (and I hold
that they do not), they are irrelevant to the irialienabiliry of the basic liberties. I am
indebted to Arthur Kuflik for discussion on this point.
367
I N S T I T U T I O N AL F R A M E WO R K
368
The Basic Liberties and Their Priority
369
IN S TIT U TIO N AL F R A M EWO R K
8 3 . Hart, p. S S S ; Daniels, p. 2 S 2 .
370
The Basic Liberties and Their Priority
84. Here I refer to the errors in pars. 3-4 of §82 of Theory, the section in which
the grounds for the priority of liberty are discussed explicitly. Two main errors are
first, that I did not enumerate the most important grounds in a dear way; and second,
in par. 3, pp. 542-4 3 , that I should not have used the notion of the diminishing
marginal significance of economic and social advantages relative to our interest in the
basic liberties, which interest is said to become stronger as the social conditions for
effectively exercising these liberties are more fully realized. Here the notion of
marginal significance is incompatible with the notion of a hierarchy of interests used
in par. 4, p. 543. It is this latter notion, founded on a certain conception of the
person as a free and equal person, which is required by a Kantian view. The marginal
changes I could have spoken of in par. 3 are the marginal, or step-by-step, changes
reflected in the gradual realization of the social conditions which are necessary for
the full and effective exercise of the basic liberties. But these changes are a different
matter altogether from the marginal significance of interests.
37 1
L E C T U R E X
Reply to Habermas
have finally got right the three ideas of justification. The reply is far better as a result
of their unflagging interest and suggestions. To others I indicate my indebtedness as
we proceed.
373
I N S T I T U T I O N AL F R A M EWO R K
1 . I do not know of any liberal writers of an earlier generation who have clearly
put forward the doctrine of political liberalism. Yet it is not a novel doctrine. Two
contemporaries who share with me this general view, if not all its parts, and who
developed it entirely independently, are Charles Larmore-see for example his "Po
litical Liberalism," Political Theory 1 8 , no. 3 (August 1 990); and the late Judith
Shklar-see her "The Liberalism of Fear," in Nancy Rosenblum, ed. , Liberalism and
the Moral Life (Cambridge: Harvard University Press, 1 989). At least rwo aspects of
it are also found in Bruce Ackerman's Social justice in the Liberal State (New Haven:
Yale University Press, 1 980). On pp. 3 5 7 - 6 1 , Ackerman states the relative auton
omy of political discussion governed by his principle of neutrality and then considers
various ways of arriving at this idea of political discourse. To be mentioned here also
is the related view of Joshua Cohen in his account of deliberative democracy; see his
"Deliberation and Democratic Legitimacy," in Alan Hamlin and Philip Pettit, eds . ,
The Good Polity (Cambridge: Blackwell, 1 989), and his "Notes o n Deliberative De
mocracy" (unpublished, 1989). It is a great puzzle to me why political liberalism was
not worked out much earlier: it seems such a natural way to present the idea of
liberalism, given the fact of reasonable pluralism in political life. Does it have deep
faults that preceding writers may have found in it that I have not seen and these led
them to dismiss it?
2. This raises the question whether the doctrine of the divine rights of kings or of
dictatorship could be plausible without in some way moving outside the political.
Does the answer throw any light on the conditions leading to democracy?
374
Reply to Habermas
375
I N S TIT U TIO N AL F R A M EWO R K
376
Reply to Habermas
377
I N S T I T U T I O N AL F R A M EWO R K
378
Reply to Habermas
379
IN S T I T U TION AL F R A M EWO R K
modest than the other's. fH e sees his view as more modest than
mine, since it is purportedly a procedural doctrine that leaves
questions of substance to be decided by the outcome of actual
free discussions engaged in by free and rational, real and live
participants-as opposed to the artificial creatures of the original
position. fie proposes, he says, to limit moral philosophy to the
clarificatio n of the moral point of view and to the procedure of
democratic legitimation, and to the analysis of the conditions of
rational discourses and negotiation. In contrast, he thinks that
my view takes on a more ambitious task, since it hopes to formu
late a political conception of justice for the basic structure of a
democracy, all of which involves fundamental substantive con
ceptions, which raise larger questions that only the actual dis
course of real participants can decide. \
At the same time, Habermas thinks I see my view as more
modest than his: it aims to be solely a political conception and
not a comprehensive one. He believes, though, that I fail in
doing this. My conception of political justice is not really free
standing, as I would like it to be, because whether I like it or
not, he thinks that the conception of the person in political
liberalism goes beyond political philosophy. Moreover, he claims
that political constructivism involves the philosophical questions
of rationality and truth. And he may also think that, along with
Immanual Kant, I express a conception of a priori and metaphysi
cal reason laying down in j ustice as fairness principles and ideals
so conceived. J
I deny these things. The philosophical conception of the per
son is replaced in political liberalism by the political conception
of citizens as free and equal. As for political constructivism, its
task is to connect the content of the political principles of j ustice
with the conception of citizens as being reasonable and rational.
The argument is set out in 111: 1-3. It does not rely on a Platonic
and Kantian reaso n� r if so, does so in the same way Habermas
does. No sensible view can possibly get by without the reason
able and rational as I use them. If this argument involves Plato's
380
Reply to Habermas
and Kant's view of reason, so does the simplest bit of logic and
mathematics. I come back to this in §2.
3. As I have said, the stage for the second difference between
Habermas's position and mine is prepared for by the first. This is
because the differences between the two analytical devices of
representation-the ideal discourse situation and the original
position 1 1-reflect their different locations, one in a comprehen
sive doctrine, the other limited to the political. J
,
The original position is an analytical devi � used to formulate
a conjecture. The conj ecture is that when we ask-What are the
most reasonable principles of political justice for a constitutional
democracy whose citizens are seen as free and equal, reasonable
and rational ?-the answer is that these principles are given by a
device of representation in which rational parties (as trustees of
citizens, one for each) are situated in reasonable conditions and
constrained by these conditions absolutely. Thus, free and equal
citizens are envisaged as themselves reaching agreement about
these political principles under conditions that represent those
citizens as both reasonable and rational. That the principles so
agreed to are indeed the most reasonable ones is a conjecture,
since it may of course be incorrect. We must check it against the
fixed points of our considered j udgments at different levels of
generality. We also must examine how well these principles can
_ be applied to democratic institutions and what their results
would be, and hence ascertain how well they fit in practice
with our considered j udgments on due reflection. 1 2 In either
direction, we may be led to revise our j udgments.
Habermas's theory of communicative action yields the analyti-
1 1 . I have not always been clear about this and thought for a time that a more
useful comparison might be berween the ideal discourse situation and the position of
citizens in civil sociery, you and me. On the latter, see "Kantian Constructivism in
Moral Theory,n the journal of Philosophy 77 (September 1 980): 5 3 3f. ; and 1:4.6. I am
indebted to Jon Mandie for valuable correspondence on this topic.
1 2 . See fn. 16 at the end of this section for further remarks on reftective equi
librium.
38 1
I N S T I T U T I O N AL F R A M EWO R K
382
Reply to Habermas
original position are properly laid out and whether the principles
selected are to be endorsed. In the same way, the claims of the
ideal of discourse and of its procedural conception of democratic
institutions are considered. Keep in mind that this background
culture contains comprehensive doctrines of all kinds that are
taught, explained, debated one against another, and argued
about-indefinitely without end as long as society has vitality and
spirit. It is the culture of the social, not of the publicly political.
It is the culture of daily life with its many associations: its univer
sities and churches, learned and scientific societies; endless polit
ical discussions of ideas and doctrines are commonplace every
where.
The point of view of civil society includes all citizens. Like
Habermas's ideal discourse situation, it is a dialogue; indeed, an
omnilogue. 1 4 There are no experts: a philosopher has no more
authority than other citizens. Those who study political philoso
phy may sometimes know more about some things, but so may
anyone else. Everyone appeals equally to the authority of human
reason present in soCiety. So far as other citizens pay attention
to it, what is written may become part of the ongoing public
discussion-A Theory of ]ustice 1 5 along with the rest-until it
14. I blame this term on Christine Korsgaard. Habermas sometimes says that the
original position is monological and not dialogical; that is because all the parties have,
in effect, the same reasons and so they elect the same principles. This is said to have
the serious fault of leaving it to "the philosopher" as an expert and not to citizens of
an ongoing society to determine the political conception of j ustice. See Habermas's
Moralbewusstsein and kommunikatives Handeln (Frankfurt am Main: Suhrkamp, 1983).
The third essay is entitled: "Diskursethik: Notizen zu einen Begriindungsprogramm. •
I refer to the English translation entitled Moral Consciousness and Communicative
Action, C. Lenhardt and S. W. Nicholsen, trans. (Cambridge: MIT Press, 1 990) and
refer to the third essay as "Notes.• The reply I make to his objection ("Notes," pp.
66ff.) is that it is you and I-and so all citizens over time, one by one and in
associations here and there-who judge the merits of the original position as a device
of representation and the principles it yields. I deny that the original position is
monological in a way that puts in doubt its soundness as a device of representation.
There is also his Erliiuterungen zur Discursethik (Frankfurt am Main: Suhrkamp,
1 99 1 ); a translation by Ciaran Cronin with his introduction is entitled ]uitification
and Application (Cambridge: MIT Press, 1 993).
1 5 . Cambridge: Harvard, 1 9 7 1 (hereafter Theory).
383
IN S TIT U TION AL F R A M E WO R K
16. I add here two remarks about wide and general reflective equilibrium. Wide
reflective equilibrium (in the case of one citizen) is the reflective equilibrium reached
when that citizen has ca,efully considered alternative conceptions of justice and the
force of various arguments for them. More specifically, the citizen has considered the
leading conceptions of political j ustice found in our philosophical tradition (including
views critical of the concept of justice itself) and has weighed the force of the
different philosophical and other reasons for them. We suppose this citizen's general
convictions, first principles, and particular judgments are at last in line. The reflective
equilibrium is wide, given the wide-ranging reflection and possibly many changes of
view that have preceded it. Wide and not narrow reflective equilibrium (in which we
take note of only our own judgments) is plainly the important philosophical concept.
Recall that a well-ordered sociery is a sociery effectively regulated by a public
political conception of justice. Think of each citizen in such a society as having
achieved wide reflective equilibrium. Since citizens recognize that they affirm the
same public conception of political justice, reflective equilibrium is also general: the
same conception is affirmed in everyone's considered judgments. Thus, citizens have
achieved general and wide, or what we may refer to as full, reflective equilibrium. In
such a sociery, not only is there a public point of view from which all citizens can
384
Reply to Habermas
adjudicate their claims of political justice, but also this point of view is murually
recognized as affirmed by them all in full reflective equilibrium. This equilibrium is
fully intersubjective: that is, each citizen has taken into account the reasoning and
arguments of every other citizen.
1 7 . I have gained much from valuable discussion with Wilfried Hinsch and Peter
de Marneffe on earlier drafts of this section.
385
I N S TIT U TIO N AL F R A M EWO R K
18. Some citizens might not have a comprehensive doctrine, except possibly a null
doctrine, such as agnosticism or skepticism.
386
Reply to Habermas
19. This phrase was used twice in 1 : 2 . 2 , IV: 3. 1 . One might also mention the way
in which, in algebra, a group may be included as a subgroup in each group of a certain
class of groups.
20. Here I assume that the existence of reasonable comprehensive doctrines and
of their forming an overlapping consensus are facts about the political and cultural
nature of a pluralist democratic society, and these facts can be used like any other
such facts. Reference to these facts, or making assumptions about them, is not
reliance on the religious, metaphysical, or moral contents of such doctrines.
387
IN S T I T U T I O N A L F R A M E W O R K
2 1 . I refer to public j ustification as a basic case for political liberalism because of its
role in that doctrine and of its connection with the ideas of a reasonable overlapping
consensus, stability for the right reasons, and legitimacy. That idea of justification is
a part of the rebuilding of a fundamental conception of Theory III, and expressed in
section 79 on the conception of a social union of social unions and its companion
idea of stability, which depends on the congruence of the right and the good. (On
this last, see Samuel Freeman's account in the Chicago-Kent Law Review 69, no. 3
( 1 994): 6 1 9-68, sects. 1-11.) This conception depends, however, on everyone's
holding the same comprehensive doctrine and so it is no longer viable as a political
ideal once we recognize the fact of reasonable pluralism, which characterizes the
public culture of the political society required by the two principles of justice. Now
we face a different problem and the ideas of a reasonable overlapping consensus and
the rest are used instead. Once we see the different nature of the task, the reasons
for the introduction of these further ideas fall into place. We see why, for example,
political j ustification must be pro tanto. One is not replying to objections but rather
trying to fix a basic inherent conflict (recognized later) between the cultural condi
tions needed for justice as fairness to be a comprehensive doctrine and the require
ments of freedom guaranteed by the two principles of j ustice. With this understood,
I believe the complexities-if such they are--are no longer surprising.
2 2 . By this I mean that there is no political body that acts by vote on the political
conception. That is contrary to the idea of the reasonable. The conception of political
justice can no more be voted on than can the axioms, principles, and rules of
inference of mathematics or logic.
2 3 . See my remarks in fn. 16 above in § 1 .
388
Reply to Habermas
389
IN S TIT U TION AL F R A M EWO R K
24. Here I am speaking from within political liberalism. Whether a citizen will say
the same within that citizen's comprehensive doctrine depends on the doctrine.
2 5 . As I noted in § 1 , Habermas's comprehensive doctrine violates this.
26. In this paragraph, I am indebted to Thomas Hill's discussion in Los Angeles,
April 1 994, of how the concern with stability connects with the ideas of public
justification and overlapping consensus. He stressed aspects of the matter I had not
so clearly addressed.
390
Reply to Habermas
27. In I : 1 . 3-4, the aim of the view so named is not, I now think, stated in the best
way. There the text seems to focus on how stability can be achieved under conditions
of reasonable pluralism but that question has an uninteresting Hobbesian answer.
Rather, this text tries to answer the question as to the most reasonable basis of social
unity given the fact of reasonable pluralism; see PL IV: Preface, V: 7 . 1 -2 . Once we
answer this question, we can also answer the other two questions I asked : What is
the most appropriate conception of justice for specifying the fair terms of social
cooperation between citizens of a democratic regime regarded as free and equal ?
What is the basis of toleration, given the fact of reasonable pluralism as the inevitable
outcome of free institutions ?
28. Once stability for the right reasons is attained and supports this basis of social
unity, political liberalism hopes to satisfy the traditional liberal demand to justify the
social world in a manner acceptable Mat the tribunal of each person's understanding."
So Jeremy Waldron put it in his Liberal Rights (New York: Cambridge University
Press, 1 993), p. 6 1 .
39 1
IN S TIT U TION AL F R A M EWO R K
29. There are several statements co this effect in IV: 5 . If one fails co note this
background condition of a reasonable overlapping consensus, the assertion in the
text taken alone appears co express a comprehensive moral point of view that ranks
the duties owed co j ust basic institutions ahead of all ocher human commitments.
How otherwise is it possible chat values of the political, a subdomain of all values,
normally ourweighs whatever ocher values may conflict with chem? A troubling
assertion, however, occurs only when one forgets chat a reasonable overlapping
consensus is assumed co obtain and chat the text is commenting on the public
justification of the political conception carried out by the members of society.
392
Reply to Habermas
30. It is unreasonable to expect in general that human statutes and laws should be
strictly just by our lights. I cannot discuss here the extent of reasonable deviation al
lowed.
3 1 . Stuart Hampshire rightly stresses this point; see his review of this text in the
New York Review of BookJ (August 1 2 , 1 993), p. 44.
39 3
IN S TIT U TION AL F R A M EWO R K
iring their engaging in war does not put their allegiance in doubt.
Yet our religion may enjoin many things. It may require our
support of constitutional government as that which, of all feasible
political regimes, is most in accord with the religious inj unction
to be equally concerned with the basic rights and fundamental
interests of others as well as our own. As with any reasonable
doctrine, many political and nonpolitical values are represented
and ordered within it. With that granted, allegiance to a j ust
and enduring constitutional government may win out within the
religious doctrine. 32 This illustrates how political values can be
overriding in upholding the constitutional system itself, even if
particular reasonable statutes and decisions may be rejected, and
as necessary protested by civil disobedience or conscientious re
fusal.
What we have said elaborates the idea of a j ustified and free
standing political conception and enables us to answer Ha
bermas's first question: whether the idea of an overlapping con
sensus adds to the j ustification of the political conception, or
simply lays out a necessary condition of social stability. The
answer to his first question is given by the third idea of j ustifica
tion-that of public j ustification-and by how it connects with
the three further ideas of a reasonable overlapping consensus,
stability for the right reasons, and legitimacy.
2. We can now briefly discuss Habermas's second question :
Does political liberalism use the term 'reasonable' t o express the
truth or validity of moral judgments, or simply to express a
reflective attitude toward tolerance ?
I have nothing to add beyond what has been said already.
Political liberalism does not use the concept of moral truth ap
plied to its own political (always moral) j udgments. Here it says
that political j udgments are reasonable or unreasonable; and it
lays out political ideals, principles, and standards as criteria of
the reasonable. These criteria in turn are connected with the
32. The same considerations, duly modified, hold in the case of those who reject
abortion rights supported by a democratic regime.
394
Reply to Habermas
395
IN S T I T U T I O N A L F RA M E W O R K
396
Reply to Habermas
34. Here there is a formidable complication that I can only mention here, namely,
that there is an imponant distinction between legislation dealing with constitutional
essentials and basic justice, and legislation dealing with political bargaining between
the various interests in civil society which takes place through their representatives.
The latter kind of legislation is required to have a framework of fair bargaining both
in the legislature and in civil society. The complication is formidable because it is a
difficult wk to spell out the criteria needed for drawing this distinction and illustrat
ing it by instructive cases.
397
IN S TIT U TIO N A L F R A M E WO R K
3 5 . I use these dates to include the whole period from the constitutional conven
tion through the ratification of the Bill of Rights. In this and the next sections, I am
grateful to James Fleming for this and many other valuable suggestions bearing on
constitutional law, all of which I have gladly followed.
398
Reply to Habermas
36. On the two points of this and the preceding paragraph, see Theory, §3 1 , pp.
196f. and 200f.
3 7 . In the last two paragraphs, I hope to address Habermas's concerns about
the framework of the four-stage sequence. I thank McCarthy and Michelman for
instructive discussion.
399
IN S T I T U T I ON AL F R A M E WO R K
( 1 28). The idea is put more fully in the second part of the
passage. So after 'beyond their control' we have:
400
Reply to Habermas
40 1
IN S T I T U T I O N AL F R A M EWO R K
402
Reply to Habermas
403
I N S T I T U T I ON AL F R A M E WO R K
39. Here Habermas quotes from VIII: 2 : 2 99, "Basic Liberties and Their Priority. "
The point o f the paragraph from which his citation is taken i s t o say that not all basic
liberties are important or prized for the same reasons. I mention that one strand of
the liberal tradition prizes what Benjamin Constant called "the liberties of the mod
erns" above the "liberties of the ancients," and in which the role of the political
liberties is perhaps largely instrumental in preserving the other liberties. Then I say
that "even if this view is correct, it is no bar to counting certain political liberties
among the basic liberties and protecting them by the priority of liberty. For to assign
priority to these liberties they need only be important enough as essential institu
tional means to secure the other basic liberties . . . . " I do not say that the political
liberties are solely instrumental, nor that they have no place in the lives of most
people. Indeed, I would insist that the political liberties have intrinsic political value
in at least two ways: first, in playing a significant or even a predominant role in the
lives of many citizens engaged in one way or another in political life; and, second,
they are, when honored, one of the social bases of citizens' self-respect and in this
way, among others, a primary good. See V:6, and also Theory 2 3 3f. , where I say: "Of
course, the grounds for self-government are not solely instrumental." Then, after
noting briefly the role of the political liberties in promoting citizens' self-respect, the
moral quality of civic life, the exercise of our moral and intellectual sensibilities, and
the like, I conclude by remarking: "[These considerations} show that equal liberty is
not solely a means." (In this passage I actually say 'self-esteem' and not 'self-respect'
but I now realize, thanks to David Sachs, that self-esteem and self-respect are
different ideas. I should have selected one term as appropriate and stuck with it, style
be damned.) I meant to take no stand there on what the features of the public
political space should be for the role of the people. This is a question that belongs to
a constitutional convention, in the sense of the four-stage sequence, and I saw it not
at issue.
404
Reply to Habermas
40. Here I draw upon Ackerman's instructive We The Peopk, Volume I: Foundations
(Cambridge: Harvard University Press, 199 1). A conception of constitutional democ
racy, however, can be dualist in the general sense of the text above without endorsing
Ackerman's more specific sense of dualism that allows for "structural amendments"
to the constitution outside of formal amending procedures of Article V. A political
movement like the New Deal may be importantly influential in shifting the dominant
interpretations that judges, say, give of the constitution, but amendments are some
thing else again. I would also not accept his distinction between dualism and rights
foundationalism (as he understands them). He thinks that dualism requires, although
rights foundationalism does not, that any amendment in accordance with the proce
dures of Article V be constitutionally valid. In 2 38f. I argue otherwise. I cannot
discuss these matters and aim to say only what bears on Habermas's concern. See
further Freeman, "Original Meaning, Democratic Interpretation, and the Constitu
tion," Philosophy and Public Affairs 2 1 (Winter 1 992): 3-4 2 ; and Fleming, "Con
structing the Substantive Constitution," Ttxas Law Rlfliew 72 (December 1993):
2 1 1 -304 ; 287n380, 290n400. I am grateful to Fleming for valuable advice and
correspondence clarifying these matters, from which I have learned much.
405
I N S T I T U T I ON AL F R A M EWO R K
406
Reply to Habermas
44. This accords with Michelman's view in his essay "Law's Republic," The Yale
Law]ourna/ 97 Quly 1 988): 1 493- 1 5 3 7 , pp. 1499f., when he says: "I take American
constitutionalism--as manifest in academic constitutional theory, in the professional
practice of lawyers and judges, and in the ordinary self-understanding of Americans
at large--co rest on two premises regarding political freedom: first, that the American
people are politically free insomuch as they are governed by themselves collectively,
and second, that the American people are politically free in that they are governed
by laws rather than men. I take it that no earnest, non-disruptive participant in
American constitutional debate is quite free to reject either of these two professions
of belief. I take them to be premises whose problematic relation to each other, and
therefore whose meaning, are subject to an endless contestation."
407
I N S T I T U T I ON AL F R A M E WO R K
45. See Thomas Jefferson: Writings, Merrill Peterson, ed. (New York: Viking,
1 984), pp. 1 399f. and 1 40 1 f. , respectively. See also his letter to James Madison,
September 6, 1 7 89, in which he says that "the earth belongs in 11s11fr11<t to the living, and
that the dead have neither rights or powers over it" (ibid. , p. 959). One generation of
men cannot bind another. In this connection, Hannah Arendt refers to the seemingly
insolvable perplexity of a revolutionary spirit that strives to establish a constitutional
government. The perplexity is how to house a revolutionary spirit within a perma
nent regime. She also suggests that Jeffersons' antagonism toward those who regard
constitutions with sanctimonious reverence rests on a feeling of outrage about the
injustice that his generation alone should be able "to begin the world over again," a
phrase from Thomas Paine's Common Sense; see her On Revolution (New York: Viking,
1 963), p. 2 3 5 . Yet this feeling of injustice is entirely misplaced and cannot sensibly
be entertained. (I might as well spend my life whining that I am not Kant, Shake
speare, or Mozart.) As for the perplexity of finding an appropriate public political
space for giving scope to the political autonomy of the people, I believe, as the text
above says, that the question is one of constitutional design; any feeling of insolvable
perplexity is illusory, not that Arendt would disagree.
408
Reply to Habermas
46. The summary begins with the words 'A theory of justice' ( 1 30) and ends with
the words 'in the present context' ( 1 3 1 ).
47. See David Rasmussen's review in Philosophy and Social Criticism, 20, no. 4
( 1 994):2 1 -44, p. 4 1 .
48. The "Postscript" (dated September 1 993) was added to a later printing (A11/lage)
of FG 66 1 -80. A translation by Rehg is now in Philosophy and Social Criticism, 20,
no. 4 (October 1 994): 1 3 5-50. I thank Rasmussen for sending me the page proofs
of this.
49. I refer to Rehg's translation of the Postscript by section and paragraph number.
The main section summarizing the central argument is in III. It has eight paragraphs:
the first four state the central argument, while the next four reply to two critics,
Otfried Hoffe and Larmore, each in two paragraphs.
409
IN S TIT U TIO N AL F R A M EWO R K
50. I insert this because justice as fairness does not include the right to ownership
of the means of production; see Theory 2 70-74.
5 1 . The translator's term. The German is "eine anonyme Herrschaft der Gesetze," by
which I believe he means the rule of law as such. That is, it is anonymous or nameless
(in economics it can mean goods lacking a brand name); it is not the law of a king or
a legislative body.
4 10
Reply to Habermas
41 1
IN S T I T U T I O N A L F RA M E W O R K
412
Reply to Habermas
413
IN S TIT U TION AL F R A M EWO R K
414
Reply to Habermas
59. For Locke's view of the people's constituent power, see Second Treatise: 1 34,
1 4 1 . I might add that this fits the Federalist doctrine of the people. See Gordon
Wood's splendid account in The Creation of the American Republic, 1 7 76- 1 787 (New
York: Norton, 1 969); chs. 7-9 and 1 3 give a good part of the picture.
60. On this see Julian Franklin, Sovereignty of the People (New York: Cambridge
University Press, 1 9 7 8), tracing Locke's view in the Second Treatise to Lawson's
treatise of the 16 50s.
415
I N S T I T U T I ON AL F R A M EWO R K
416
Reply to Habermas
62. I mention here that the concept of the rational here is wider and deeper than
the concept of it used in the original position, where it has a narrower meaning. I
cannot pursue the difference here.
6 3 . This refers to uBasic Liberties and Their Priority" ( 1 982), included unchanged
as VIII.
417
IN S TIT U TIO N AL F R A M EWO R K
64 . The aim of Theory is to sketch these institutions. It says on p. 1 9 5 that the aim
of part II (Institutions) is to illustrate the content of the principles of justice by
describing a basic structure of institutions that satisfies them. They define, as the text
says, a workable political conception, that is, one that can be set up in actual
institutions and made to work given what citizens can be expected to know and how
they can be expected to be motivated, with this last discussed in part III. I mention
this because Habermas says in FG, ch. 2 . 2 , that Theory is abstract and ignores
these matters.
418
Reply to Habermas
6 5 . Admittedly, I have not done much o f this myself, but certain basic liberties and
the cases to which they applied were discussed a bit in VIII, "Basic Liberties.n
419
I N S T I T U T I O N A L F RA M E W O R K
420
Reply to Habermas
42 1
IN S TI T U TIO N AL F R A M EWO R K
422
Reply to Habermas
70. See Rohen Dahl, Democracy and Its Critics (New Haven: Yale University Press,
1989), pp. 1 67ff.
42 3
IN S TIT U TION AL F R A M E WO R K
7 1 . I say 'may' here because some may hold the majoriry-rule principle to be itself
the final and governing norm. I am not considering that case.
72. I think this is the kind of argument Dahl intends to make in his Democracy and
Its Critics. He is not denying the great significance of the nonpolitical rights and
liberties; rather, he questions, as a general political view, the effectiveness and need
for the familiar constitutional devices; see chs. 1 1 - 1 3 .
424
Reply to Habermas
42 5
IN S TIT U TION AL F R A M EWO R K
7 4. I thank Baynes for calling my attention to the importance of this final passage.
7 5 . This agrees with McCarthy who says, in comparing Habermas's view and mine,
that for Habermas the difference between procedural and substantive justice is a
matter of degree. See his "Kantian Constructivism and Reconstructivism: Rawls and
Habermas in Dialogue," Ethics 1 0 5 , no. 1 (October 1 994) : 44-63, p. 59, fn. 1 3 . I
thank Baynes also for instructive correspondence including this point. In his discus
sion of FG for the Cambridge University Press Companion lo Habermas (forthcoming)
he has further comments on this question.
426
Reply to Habermas
42 7
IN S T I T U TION AL F R A M EWO R K
428
Reply to Habermas
76. I am indebted to Hinsch for valuable discussion about the meaning and role of
legitimacy, and its distinction from the idea of j ustice; see his Habilitationschrift
( 1 995 ) on democratic legitimacy. I am indebted also to David Estlund for his valuable
unpublished paper on this concept as it is used in this text, especially IV-VI.
77. I think Habermas would agree with this distinction between political justice
and legitimacy, since at one point he discusses the legitimacy both of particular
enactments and of the constitution itself, both of which depend on j ustice, or on
justification. Or as he says in The Theory of Comm11nicati11e Action, Vo/11me 2: System
and Li/eworld, McCarthy, trans. (Boston: Beacon, 1 987), p. 1 7 8 : "the principle of
enactment and the principle of justification reciprocally require one another. The
legal system as a whole needs to be anchored in the basic principles of legitimation."
Habermas appears here to argue against Max Weber, who understood legitimacy as
acceptance by a people of its political and social institutions. Acceptance alone
without j ustification Habermas rightly holds is not enough, since it allows for far too
much. I would add only (Habermas I think would agree) that these institutions need
not be perfectly j ust, and may, depending on the situation, be unjust and still be
legitimate. I thank Peria, whose understanding of Habermas has been invaluable,
for pointing me to this reference.
429
IN S TIT U TION AL F R A M EWO R K
78. See Cohen's review of Dahl's Democracy and Its Criti�s. in journal of Politi�s 5 3 ,
no. 1 (October 1 99 1 ): 22 1 -2 5 , p . 223f.
430
Reply to Habermas
43 1
IN S T I T U TION AL F R A M EWO R K
79. Habermas is not speaking of ethics, or of the ethical values of individuals and
groups. These may be pursued within the scope of legitimate and justified law.
80. For example, in the first essay ofjustification and Application, entitled "On the
Pragmatic, the Ethical, and the Moral Employments of Practical Reason," he sets out
the form of four kinds of practical reason; see pp. 1 - 1 7 .
8 1 . A related objection i s made b y Larmore i n a penetrating review o f Habermas's
FG in the Deutsche Zeitschrift fiir Philosophie 4 1 ( 1 993): 32 1 -2 7 . A longer English
version is to appear in the European journal of Philosophy (April 1 995).
432
Reply to Habermas
§ 6. Conclusion
There is one related question that I have not discussed in
detail, and that is the question of how exactly the political institu
tions associated with constitutional democracy can be understood
to be consistent with the idea of popular sovereignty. If we
associate popular sovereignty with something like majority rule
following free, open, and wide discussion, then there is at least
an apparent difficulty. This difficulty may be an aspect of what
Habermas is referring to when he says that "(t}he form of politi
cal autonomy . . . does not fully unfold in the heart of the justly
constituted society" ( 1 2 8). The consistency of constitutional de
mocracy with popular sovereignty I indicated with the idea of
dualist democracy as discussed in § 3 . 4 , where a discussion of it
could naturally arise. It is too great a question to have under-
433
I N S TIT U TIO N A L F R A M EWO R K
82. I thank Dworkin, Thomas Nagel, and Lawrence Sager for pressing this ques
tion. I am grateful to Sager for instructive later discussion.
_
434
Index
( 1 9 1 9), 3 5 0
Ackerman, Bruce, 2 3 l n, 2 3 3n, 2 34n,
2 3 8n, 2 39n, 3 74n, 405n, 406n
Adams, Robert, 2 5 3n
Addressing two fundamental ques
tions, 1 : 1 , 4- 1 1 : first such question
focuses on settling conflict of two
democratic traditions, Locke vs.
Rousseau, 4f. ; two principles of j us
tice stated, 5 f. , 2 7 1 ; three features
of content of political liberalism, 6,
1 5 6f. ; three aspects of two princi
ples of justice as egalitarian, 6f. ;
how political philosophy might find
public basis of justification, 8- 1 1 ;
j ustice as fairness as practical, 9f. ;
Index
436
Index
327-3 1 359, 3 6 1 f.
Basic needs, principle of: defined, 7 ; Burdens of j udgment, 1 1 : 2 , 54-58:
presupposed b y the two principles two roles of in political liberalism,
of j ustice, 7; their satisfaction to xliv; willingness to recognize de
requisite degree a constitutional es fined as second basic aspect of the
sential, 1 66, 228ff. reasonable, 54, 8 1 ; defined, 5 5 ;
Basic structure of society: defined, how reasonable disagreement is
1 1 , 3 5 , 20 1 f. , 30 1 ; primary subject possible as disagreement of reason
of justice, 1 1 , 1 6; assumed to be able persons, 5 5 ; three kinds of
that of a closed of society, 1 2 , 40f. , judgments noted, 56; six sources of
68, 1 3 5 f. ; original position and these burdens, 5 6f. ; not incompati
deep long-term effects on citizens' ble with prejudice and bias as expla
character and aims, 68; two coordi nations, 5 8 ; explains fifth general
nate roles of, 229; see also Lecture fact, defined, 5 8 ; significance of for
Vll : 3-5 democratic idea of toleration, 60ff. ;
Basis of moral motivation in the per account of not a skeptical argu
son, 1 1 : 7 , 8 1 -86: basic elements of ment, 62f. ; role in failure of judg
citizens as reasonable and rational, ments to converge, 1 1 9, 1 2 1
8 1 f. ; three kinds of desires: object-, Burge, Tyler, xxxi ii, 90n
principle-, conception-dependent, Burger, T., 3 8 2 n
82ff. ; ideal of citizenship in justice Burkert, Walter, xxiii
as fairness specifies conception-de Burrow, J. W . , 3 2 1 n
pendent desire, 84 ; non-Humean
character of this motivation, 84f. ; Calvin, John, xxvi, Ii
elements of reasonable moral psy Channing, William Ellery, 249n, 2 5 1 n
chology, 86; basic form of, 1 24 Christian tradition, 1 34
Baynes, Kenneth, 3 7 2 n, 426n Circumstances of j ustice, two kinds :
Bedau, Hugo, 2 5 7 n, 260n objective v s . subjective, 6 6
Beitz, Charles, 4 2 2 n Citizens: as reasonable, xliv; intellec
Benacerraf, Paul, 1 1 7 n tual and moral powers of, xlvif. ; in
Bentham, Jeremy, 1 3 5 , 1 6 3 , 1 7 0 political conception of viewed as
Berlin, Isaiah, 299n, 3 0 3 n, 3 3 2 ; no so- free and equal persons, 1 9, 30,
cial world without loss, 5 7 , 1 8 7 n, 202f. ; as fully cooperating members
1 9 7 , 1 98n of society over complete life, 20,
Bernadin, Cardinal, lvin 8 1 , 1 7 8, 1 8 3f., 202f. ; their overall
Bernstein, Alyssa, xxxvi view has two parts: a political con
Bickel, Alexander, 2 3 3 n ception of j ustice and a comprehen
Blasi, Vincent, 3 3 5 n, 343n sive doctrine, xxi, 1 2 , 3 8 , 1 3 5 , 140,
Bossuet, Bishop of Meaux, 6 1 n 1 50f. , 24 1 ; have an equal share of
Brandeis, Louis D., 349, 3 5 l ff. corporate political power, 6 1 , 68,
Brandenburg v. Ohio, 3 9 5 U. S. 444 1 36ff. , 2 1 6f. ; special features and
( 1 969), 3 4 3 , 344(, 348, 349 endowments not relevant to their
Brandt, R. B . , l 79n status as equals, 79f. ; role of speci
Brennan, William, 3 5 9n fied by democratic institutions,
43 7
Index
438
Index
4 39
Index
440
Index
441
Index
442
Index
44 3
Index
444
Index
44 5
Index
446
Index
tion of, 64f. , 1 3 3f. , 1 40f. ; not pro 9 1 , 93, 1 2 2 , 1 2 5 , 1 4 5 , 1 69, 222n,
cedurally neutral but tries to be 265n, 296n, 334, 3 7 5n, 380f, 400,
neutral in aim, 1 9 2 ff. ; three paral 402, 406n, 4 1 0, 4 1 1 ; distinction be
lels with Habermas's view, 4 1 2 - 1 9 tween reasonable and rational goes
Justice as fairness as a constructivist back to, 2 5 n, 48nf. ; on predisposi
view: ll1 : 3 , 1 02-7 : found by reflec tion to moral personality lacking in
tion, using powers of reason, 96f. ; solely rational agents, 5 l n ; compre
affinity with constructivism in phi hensive liberalism of, 7 8 , 99, 1 2 5 ,
losophy of mathematics and Kant's 1 99f. , 206n; account o f a good will
moral philosophy, 1 02f. , 1 2 3 ; con specifies conception-dependent de
tent of political conception (its prin sire, 8 5 n ; distinction between prac
ciples) is (are) constructed , 1 0 3 ; tical and theoretical reason, 9 3 ,
procedure o f not constructed but 1 1 7 ; transcendental idealism and
laid out, 1 0 3 f. ; form of procedure constitutive autonomy, 99; as foun
drawn from conceptions of citizen dation of conceptions of person and
and society, 1 03f. ; not open to society, 1 00; procedural account of,
Schopenhauer's criticism of Kant, 102, 285
1 04- 7; see also Idea of constructivist Kant's moral constructivism, I l l : 2 ,
conception 99ff. : contrasted with political con
Justice as fairness is complete, V:8, structivism, 99ff. ; as comprehensive
207- 1 2 : ideas of good are gener moral view, 99, 1 2 5 ; as asserting
ated by and have their role within constitutive autonomy, 99, 1 2 5 ; can
the political conception, 2 0 7 f. ; how endorse political constructivism,
they are built up in sequence, 2 0 7 ; 1 00; sees reason as self-originating
overlapping consensus on political and self-authenticating and alone
conception establishes mutual good competent to settle questions about
of mutual j ustice, 208f; complete its own authority, l OOf, 1 2 0f. ; as de
ness of justice as fairness strength fense of reasonable faith, 1 0 1 , 1 7 2 ;
ens its stability, 209; ideas of the account o f moral reasoning, 1 0 2 ; ac
good do not imply truth of this or count of objectivity, 1 1 0, 1 1 2- 1 5 ,
that comprehensive doctrine, 2 09£. ; 1 1 9n, 1 2 0nf; objective point of
j ustice as fairness allows sufficient view as that of persons as members
space for ways of life worthy of citi of realm of ends, 1 1 5 ; holds differ
zens' devoted allegiance, 1 8 7 , ent conceptions of objectivity ap
1 98n, 209f. ; limits on content o f propriate for theoretical and practi
comprehensive conceptions of cal reason, 1 1 7f.
good are reasonable, 2 1 Of. ; see also Kateb, George, 2 06n
Completeness of a political concep Kavka, Gregory, 96n
tion of j ustice Kelly, Erin, xxxvf. , xxxv iin, liin, 30n,
Justification, see Overlapping Consen 60n, 1 74n, 3 7 2 n
sus and justification Kercheval, Samuel, 408
King, Martin Luther, Jr. , Iii, 2 4 7 n,
250
Kalven, Harry: on freedom of speech Korsgaard, Christine, 83n, 8 5 n, 3 8 3 n
and seditious libel, 342, 344ff. , Kripke, Saul, 7 n
348n Kronman, Anthony, 289nf
Kant, Immanuel, xxix., xxxi v, xxxix , Kuflik, Arthur, 3 6 7 n
xiii, xliiin, xiv, !xii, 3 7 ,. 44n, 83n, Kymlicka, Will, 2 7 n
447
I n d ex
448
Index
thought of justice as fairness, 397f. ; tice and ideal of public reason are
second essential point: institutions mutually supponing, 2 5 2 ; summary
citizens find themselves under are of main points, with two possible in
the work of past generations, 399; novations noted, 2 5 2ff. ; further
Habermas's objection about mean questions remain, 2 5 4
ing of political autonomy and how Lincoln, Abraham, xxxi , 4 5 , 2 3 2 nf,
it is realized considered, 399-403 ; 2 5 4 , 420
political liberalism shares his view Lloyd, Sharon, 2 1 2n
of a just constitution as a project, Lochner v. New York, 1 98 U . S . 4 5
40 l f. ; nor does it see restrictions ( 1 90 5 ) , 362
on majority rule as an external con Locke, John, xxxi x, 4 , 1 4 5 n ; 405 ,
straint, 403ff. ; constitutional and 4 1 0, 4 1 2 , 4 1 5 ; on dualist idea of
normal politics distinguished, 405f. ; constitutional government, 23 l ff. ;
liberties o f moderns subject to con his contract view open to idealist
stituent will of the people, 406f. ; critique, 2 8 7 f. ; on natural political
Habermas's ideas perhaps analo vinue, 3 4 7 f.
gous to those of Jefferson, 407f. ; Luther, Martin, xxvi
appropriate design o f constitution Lyons, David, 2 1 4n
not settled by philosophy alone,
408f.
Liberty of conscience: as derived from Macedo, Stephen, 2 3 8n
burdens of judgment, 5 8-6 1 ; Machiavelli, Niccolo, 2 0 5 n
makes acceptance of authority of as Mackie, }. L. , 7 l n, 1 2 2 nf.
sociations over their members vol Madison, James, liv, 406, 408n
untary, 1 36n, 2 2 l f. ; scope of lets Majority rule democracy vs. constitu-
citizens settle how the two parts of tional democracy, 4 2 3 f.
their overall view are related, 1 40, Maintaining fair value of political lib
15 3 f. , 2 4 3 ; takes truths of religion enies: VIII : 1 2 , 3 56-6 3 : lviii; 5 , 6;
off political agenda, 1 5 1 ; protects basic libenies cannot be specified
both individuals and associations, individually since their significance
2 2 l n ; three grounds for, 3 1 0- 1 5 ; is tied to their role within basic
and second fundamental case, 3 3 2 ; structure, 3 5 7 ; political speech may
as basic liberty, 3 3 5 , 3 3 7f. ; self-lim be regulated subject to three re
iting, 34 1 strictions, 3 5 7f. ; mutual adj ustment
Limits of public reason, Vl : 8 , 1 5 3 , of basic libenies j ustified by prior
2 4 7 - 5 4 : tw o understandings of ity of liberties as family, 3 5 7f. ; ad
these limits defined, exclusive and justments vs. balancing of interests,
inclusive view, 2 4 7 ; inclusive view 3 5 8f. ; coun fails to recognize what
seems correct, 2 4 7 f. ; three kinds of j ust political procedure requires,
cases to illustrate this, 248ff. ; did 360f. ; it risks endorsing view that
the Abolitionists before the Civil fair representation is according to
War violate the ideal of public rea the influence effectively exened ,
son ? 2 5 0f. ; it seems not, since ap 36 1 ; cenain regulations on political
propriate limits of public reason de speech j ustified to establish just po
pend on historical and social condi litical procedure, 3 6 2 ; results of
tions, 25 l f. ; political liberalism electoral process and of economic
assumes political conception of j us- competition acceptable only if con-
44 9
Index
450
Index
New York Times v. United States, 403 307 ff. ; aim to explain why, given
U . S . 7 1 3 ( 1 97 1 ), 3 4 5 conception person, basic liberties
Nicholson, M. A . , 3 5 9n are such goods with priority, 308;
Nonpublic reason, V I : 3 , 220ff. : one different basic liberties have prior
public reason, but many nonpublic ity for different reasons, 309f.
reasons, those of the many associa Overlapping consensus and justifica
tions of civil society, 2 2 0 ; public vs. tion, IX: 2, 3 8 5 - 9 5 : Habermas's
nonpublic not the same as public two questions and three kinds of
vs. private, 220n; ways of reasoning justification, 3 8 5 f. ; pro tanto j usti
have certain common elements, yet fication takes account o nly political
different procedures and methods values, 386; full j ustification is j usti
are appropriate for different corpo fication by individual citizens taking
rate bodies, 2 20f. ; in democratic so into account their comprehensive
ciety authority of associations over doctrines, 3 86f. ; public justification
their members are freely chosen, by political society works together
2 2 l f. ; but government's authority with overlapping consensus, stabil
cannot in parallel fashion be freely ity for the right reasons, and legiti
accepted, 2 2 2 ; outer limit of our macy, 3 8 7 ff. ; two different ideas of
freedom specified, 2 2 2 consensus, one of which is the idea
of a reasonable such consensus,
Oakeshott, Michael, 42n 389; reasonable overlapping con
Objectivity : independent of causal sensus may achieve deepest and the
theory of knowledge, III:6, 1 1 6ff. : most reasonable basis of social
causal view defined, 1 1 6f. ; different unity, 390ff. ; why reasonable over
conceptions of objectivity appro lapping consensus is not unrealistic,
priate for theoretical and practical 392ff. ; Habermas's first question
reason, 1 1 7f. ; reasons for moral answered by third idea of j ustifica
and political j udgments require no tion, 394; reply to second question
support from cognitive psychology, is that political liberalism does not
1 1 8, 1 2 0 ; parallel argument for ob use the idea of moral truth and re
jectivity, 1 1 8nf. ; see also Three con gards the idea of the reasonable as
ceptions of obj ectivity sufficient, 394f.
O'Neill, Onora, 9 l n, 2 1 3 n Overlapping consensus not indiffer
Order of deduction vs. order of sup ent or skeptical, IV:4, 1 5 0- 5 4 ; no
port distinguished, 242n proof of, xlviif; such consensus lays
Original position, VI I I : 4 , 304- 1 0 : basis for answering second funda
connects tw o companion concep mental question, 1 Of. ; defined, 1 5 ,
tions of person and social coopera 39f. ; idea o f i n Theory, 1 5 n ; role in
tion with specific principles of j us justifying thick veil of ignorance,
tice, 304 f. ; how this done sketched, 24nf. ; as necessary condition for re
305ff.; models conception of per alism and stability of well-ordered
son and the two moral powers, society, 38f. , 44, 6 5 ; idea of easily
305f. ; parties as rational representa misunderstood because of its use in
tives, 306f. ; their motivation ex everyday politics, 39f. ; possibility
plained in terms of primary goods; of, aim of parties in adopting princi
how these singled out, with list of, ples of justice, 7 8 ; implications of
45 1
Index
452
Index
Political agenda: taking off, 1 5 l f. , sibility for their ends, 3 3f. ; weight
1 5 7, 161 of citizens' claims not given by psy
Political authority, not mysterious, chological intensity of desire, 34,
43 1 1 90 ; the third respect implied in ca
Political capital, 1 5 7 pacity to engage in social coopera
Political, category of, 3 7 4f. tion over complete life, 3 4 ; part of
Political conception need not be com background specifying primary
prehensive, IV: 5 , 1 5 4 - 5 8 : third ob goods, 7 5 ff. , 1 7 8
j ection: political conception must Political liberalism: topic o f gives
be comprehensive; 1 54 ; reply uses unity to these lectures, xvi, 7; as
pluralist (partially comprehensive) sumes the fact of reasonable plural
view of model case, 1 5 5f. ; political ism as normal result of exercise of
wisdom explained in terms of plu human reason under free institu
ralist doctrine, 1 5 6; role of political tions, xix, xxvi, 4, 36f. , 1 29, 1 3 5 ,
conception in, 1 5 6 ; most reason 1 4 4 ; addresses two fundamental
able political conception for demo questions, xxif. , 3 f. , 4 7 , 1 3 3 ; aims
cratic regime is liberal, 1 5 6f. ; vir to find a reasonable public basis of
tues of political cooperation very justification on such questions, xxii,
great virtues, making social cooper 2 2 7 - 30; seeks a political concep
ation possible, 1 5 7 ; overlapping tion of j ustice for a constitutional
consensus reduces conflicts be regime, xxi, 1 0 , 1 1 - 1 5 ; its use of
tween political and other values, reasonable rather than true judg
1 5 7 ; two things done by public rea ments, xxii, 1 2 6- 1 29 ; dualism in,
son given reasonable pluralism, conjecture as to how arose histori
1 5 7f. cally, xxiii-xxviii; not comprehen
Political conception of the person, sive liberalism, xxix; philosophical
1 : 5 , 29- 3 5 : goes with idea of fair so question it addresses, xxx ixff. ; con
cial cooperation, 1 8ff. , 34; two siders how citizens of faith may en
moral powers of makes persons dorse it, xxxixf. ; not a form of En
free, 1 9 ; having two moral powers lightenment liberalism, xi; consid
to requisite degree makes persons ers whether in circumstances of
equal, 1 9 , 79, 1 09 ; determinate pluralism, democratic government
conception the good, defined, 1 9f. , is possible, and even coherent, xii;
7 4 , 1 08 ; relation to metaphysical transforms the doctrine of Theory
doctrine, 2 7 , 2 9 ; citizens are into a political conception of j us
viewed as free in three respects, 29, tice, xliii; also concerned with a de
72; in first respect, as having moral mocracy's deepest basis of social
power to have a conception of the unity, xlixf; 3 f. , 4 7 , 1 3 3 ; combined
good, 30ff. ; involves right to view question of, 3f. , 44, 4 7 ; applies
oneself as independent of any par principle of toleration to philoso
ticular conception, 30; public, or in phy itself, 1 0 ; defined, 4 4 ; see also
stitutional, vs. noninstitutional, or How is political liberalism possible ?
moral, identity, 30f. ; two aspects of Political, not metaphysical, 1 0 , 97
moral identity, 30f. , 202; in second Political philosophy: problem of sta
respect, as self-authenticating bility, fundamental to, xx; in politi
source of valid claims, 3 2 f. ; in third cal liberalism has its own subject
respect, as capable of taking respon- matter, xxx ; how might find shared
45 3
Index
454
Index
455
Index
Public basis of j ustification (Cont. ) macy and noting two special fea
10, 99, 1 3 5 , 1 5 0f. ; j ustice as fair tures of political relationship, 2 l 6f. ;
ness aims to uncover, 9f. , l OOf. ; es that principle imposes moral (not
sentials of objectivity make possi legal) dury of civiliry, 2 1 7 ; not
ble, l 1 4 f. ; given by political con enough that limits of public reason
ception as focus of reasonable apply only to officers in official fo
overlapping consensus, 44, 48, rums, 2 1 7; holds between citizens
1 2 6f. , 144; respecting limits of in their exercise of power, 2 l 7 f. ;
public reason in achieving, 1 5 3 ; paradox o f dissolves once political
guidelines of inquiry necessary for conception supported by an over
and role of completeness in, 2 2 3 - lapping consensus, 2 1 8 ; this shown
26 by familiar cases, 2 1 8f. ; public rea
Public political culture: Bf. ; as shared son rejects common ideas of vot
fund of basic ideas and principles, ing, 2 1 9f.
8, 1 4 , 2 5 , 4 3 , 1 7 5 ; may be of two Publiciry condition, its three levels,
minds at a very deep level, 9 II:4, 66-7 1 : well-ordered sociery
Public reason: ideal of stated, If. ; role exists under circumstances of j us
of reciprocity in as specifying the tice, 66; three levels defined, 66f. ;
nature of the political relation, Ii; well-ordered sociery satisfies all
wide view of and its proviso, lif. ; three as full condition, 6 7 ; political
content of defined by family of rea sociery distinctive in two ways,
sonable political conceptions, liif. ; 67f. , 1 3 5f. , 2 1 6; why fitting that
does not settle questions of law or well-ordered sociery satisfies full
policy, liiif. ; sees office of citizens condition, 68; on the absence of
as analogous to that of j udges, livf. ; false consciousness, 68nf. ; how first
when standoffs occur citizens tend level is modeled in original posi
to invoke comprehensive doctrines, tion, 69; second level is modeled
Iv; outcome of vote reasonable by veil of ignorance and general be
when accords with, lvf. ; as public liefs used by parties, 70; point of
deliberation, lixf. ; limits of reconcil view of you and me models third
iation by, Ix; as component idea of level, 7 0 ; wide and narrow role of
political liberalism, 7; expressed by political conception of j ustice, de
a political conception of j ustice, 9f. ; fined, 7 1 ; wide role of the political
as citizens' reasoning about consti conception as educator to ideal of
tutional essentials and basic j ustice, citizenship, 7 1 , 8 5 f. , 1 6 3 , 2 3 6 ,
1 0, 2 1 4 ; reconciliation by, 1 5 7f. ; 2 39f.
and maxim of j ustice, 1 6 2 n ; defined Pure penal law, 69
as public in three ways, 2 1 3 ; as Pure procedural justice, defined, 7 2 f. ,
shared reason of equal citizens who 2 8 2 ; contrasted with perfect and
exercise final and coercive political imperfect, 7 2 f.
power, 2 1 4, 2 1 7 ; when complete,
2 2 5 , 24 1 , 244; ideal of, 226, 24 1 , Quakers, 3 9 3
24 3 Question o f stability, I V : 2 , 1 40-44:
Public reason and ideal of democratic justice as fairness presented in two
citizenship, V I : 2 , 2 1 6-20: paradox stages, 64f. , 1 3 3f. , 1 40ff. ; stability
of public reason, 2 1 6; resolved by involves two questions, 1 4 l ff. ; ex
stating liberal principle of legiti- plicit discussion of begins only at
456
Index
457
Index
458
Index
tion of the right and the good, Rousseau, ). ) . , xxxix , 5, 86n, 206n,
1 08f. ; in j ustice as fairness princi 2 1 9, 396, 402, 4 1 0, 4 1 1
ples of practical reason, in union
with political conceptions of society Sachs, David, xxxi v, 1 2 l n, 404n
and person, construct conceptions Sager, Lawrence, 4 3 4 n
of right and good, 1 09f. ; common Sandel, Michael, 2 7 n
good conception of j ustice nec Santas, Gerasimos, 2 1 2 n
essary for political society, Saul of Tarsus vs. St. Paul the Apos
1 09f. tle, 3 2 n
Role of j ustice as fairness, VIIl : l 4 , Scanlon, T. M . , xxxi ii, xxxv iin, xlvin.
368-7 1 : as guiding framework, xlviiin, 46n, 90nf. , 1 2 1 , 1 24 , 1 4 2n,
368; when a conception of j ustice l 80n, l 82n, l 8 7 n, 2 5 7n, 3 4 5 n ; re
fulfills its social role, 368; addresses lation of two aspects of the reason
citizens in a constitutional regime able to his principle of motivation,
and considers the basis of toleration 49nf. ; principle of motivation as
and social cooperation therein, 369; yielding conception-dependent de
ideal of the person used is different sire, 8 5 n ; intrinsic action-guiding
than Hart thought, 369-7 1 ; correc properties accounted for by con
tion of Theory's argument for prior tructivism, 1 2 2 nf. ; his interpreta
ity of liberty, 3 7 1 n tion of utility as often found in
Roots o f the liberties, IX:4, 409-2 1 : welfare economics, 1 7 9nf. ; his natu
Habermas thinks that in philosophi ralist and conventionalist interpreta
cal tradition, public and private au tions of urgency, 1 88nf.
tonomy marked by unresolved com Scheffler, Samuel, xxxv , 89nf. , l 87 n,
petition, while he sees them as co idea used to explain shift to consti
original and of equal weight, 409ff. ; tutional consensus, 1 5 9f.
political liberalism can agree public Schenk v. United States, 249 U.S. 4 7
and private autonomy are co-origi ( 1 9 1 9), 3 4 3 , 349ff. , 3 5 5
nal and of equal weight, as seen Schmitt, Carl, lxiin
from three parallels: first, they are Schneewind , ). B . , xxixn, xxx n, 9 l n
unranked in the first principle and School prayer, question of, liiif.
joined with the two moral powers, Schopenhauer, Arthur: criticism of
4 1 2 f. ; second parallel, justice as Kant, 1 04-7
fairness has a two stage construc Scope of moral and political concep
tion as Habermas's view does, tions, and how they differ, 1 3 , 1 7 5
4 1 3ff. ; question of significance is Scope o f political constructivism,
that of constitutional design and IIl:8, 1 2 5 -30: limited to political
one not resolvable by philosophy values that characterize domain of
alone, 4 1 5f. ; third parallel, public the political, 1 2 5 ; when political
and private autonomy connected in constructivism holds a conception
j ustice as fairness by way political of j ustice reasonable for constitu
conception is constructed, 4 1 6- 1 9 ; tional regime, 1 2 6f. ; political con
even i f private autonomy may be structivism does not criticize meta
based on political autonomy, it is physical views of truth of moral
not based on that relation alone, judgments, though uses reasonable
4 1 9ff. ness as its standard of correctness,
Ross, W. D., 9 1 , 3 3 2 n xx, 12 7; relation of reasonable and
459
Index
460
Index
46 1
Index
Supreme Court as exemplar (Cont. ) tion of the argument for the prior
of constitutionalism, 2 3 1 ff. ; consti ity of liberty, 3 7 l n
tutional democracy is dualist: role Thin theory of the good: two roles of,
of Supreme Court in this scheme, 178
2 3 3f. ; merits of dualist democracy, Thomas, Keith, 2 4 5 n
parliamentary democracy, and en Thomson, Judith Jarvis, lvin
trenchment clauses of bills of Thompson, Dennis, xxxv, xxxvi i, liin,
rights, to be settled by values of 1 94n, 2 1 7 n, 2 3 5 n
public reason, 2 3 4 f. ; Supreme Three conceptions o f objectivity,
Court gives effect to public reason: Ill : 5 , 1 1 0- 1 6: five essentials of con
it is the sole reason the court exer ceptions of, 1 1 0- 1 6 ; ( 1 ) to estab
cises, 2 3 5f. ; the court's reasoned lish public framework of thought
opinions serve the wide educative and judgment, 1 l Of. ; (2) to specify
role of public reason, 2 3 6 ; question concept of correct judgment, 1 1 1 ;
of valid amendments, 2 3 7 ff. ; aim ( 3 ) to specify order of reasons,
not to defend judicial review but to 1 1 l f. ; (4) to establish objective vs.
elucidate idea of public reason by particular point of view, 1 1 1 ; ( 5) to
seeing the Court as its institutional account for agreement in judgment,
exemplar, 240 1 1 2 ; different conceptions of objec
tivity explain these essentials differ
ently, 1 1 2 ; how done in rational in
Tamie, Yael, lxn tuitionism, 1 1 2f. ; rational intuition
Taylor, Charles, 206n ism can accept argument from
Theory ofjustice, A, 2 l f. , 2 7 l n, 2 7 8n, original position, 1 1 3 ; political con
2 7 9n, 2 8 l n, 282n, 284n; aims of, structivism compatible with rational
xviif. ; justice as fairness in, xvii; se intuitionism, 1 1 3f. ; essentials of
rious internal problem of: view of objectivity make possible public
stability of j ustice as fairness incon basis of j ustification, 1 1 4ff. ; in
sistent with that idea as a whole, constructivism objective point of
xviiif. , xliv; unrealistic idea of well view as that of reasonable and
ordered society in, xviii; ambiguous rational persons suitably specified
whether justice as fairness is a polit vs. impersonal point of view, l 1 5 f. ;
ical conception of j ustice, xix; treats see also Kant's moral constructivism
only classical problems concerning and When do objective reasons
modern democratic state and sup exist?
poses study of those problems will Three features of an overlapping con
be sufficient, xxxif. ; no obstacle to sensus, I V : 3 , 1 44-50: two points
reading of, xxxi x; two ideas not about: ( 1 ) such consensus com
found in, needed to meet fact of prised of reasonable doctrines,
reasonable pluralism, xlvii; reflec 144f. ; ( 2 ) political conception
tive equilibrium in characterized, viewed as constituent part of differ
8n, 28, 4 5 ; analogue of Scanlon's ent doctrines, 1 44f. ; model case of,
principle of motivation in, 49nf; its 1 4 5 f. ; first objection that it aban
error of suggesting the reasonable dons hope of political community
derivable from the rational cor for mere modus vivendi, 146; why
rected, 5 3 ; two gaps in its account that hope abandoned and such con
of liberty, 290, 299, 3 3 1 ; correc- sensus not a modus vivendi, 1 46f. ;
462
Index
modus vivendi defined , and three the political and is free standing,
ways such consensus differs: in its 3 7 3-76; Habermas aims to give a
object, ground, and stability, 1 4 7 f. , general account of both meaning
208; stability defined as consensus and reference, truth and validity,
unchanged under shifts in political for both theoretical and practical
power, 1 4 8 ; toleration in sixteenth reason, 3 7 6-79; he denies that po
century example of modus vivendi, litical liberalism is free standing,
1 4 8f. ; depth, breadth, and specific 380f. ; second difference, original
ity of consensus defined, 1 4 9 ; con position an analytical device formu
trast with Baier's constitutional con lating a con jecture concerning rea
sensus, 1 49f. ; see also Overlapping sonable political principles, while
consensus neither indifferent nor Habermas's ideal discourse is used
skeptical to analyze the presuppositions of ra
Three points of view, 2 8 ; of you and tional discourse, 3 8 1 f. ; neither of
me, 6 7 , 7 0 ; how modeled in the these devices is monological and
original position, 69f. both debated from standpoint of
Tocqueville, Alexis de, 205n, 3 0 3 citizens in civil society, 382-85
Toleration: religious, 8, 1 96f. ; a s ori Two principles of j ustice: stated 5 f. ,
gin of liberalism, xxviff. ; in political 2 7 1 ; first has priority over the sec
liberalism principle of applied to ond, 6; exemplify content of a lib
philosophy itself, 1 0 , 1 54 ; how bur eral conception of justice, 6; pre
dens of judgment give rise to, 58- supposes citizens' basic needs are
62 ; as a political virtue, 1 94f. met, 7; three egalitarian features of,
Transcendent values, as true grounds 6f; designed to form a social world
of political values, 24 l ff. in which our person is realized and
Transition, process of and its ques give priority to basic freedoms of
tions, 1 7f. civil society, 4 1 ; selection of not af
Tribe, Laurence, 3 5 9n, 4 2 2 n fected by distinction between two
Truth of moral j udgments: in political kinds of pluralism, 64ff. ; must lead
conception of justice left to com to a social world congenial to citi
prehensive doctrines, xxii, 94, 1 1 6, zens' exercising their moral powers,
1 2 6f. , 1 5 3 f. ; in rational intuition 77
ism, 92 , 1 1 1 - 1 4 ; not all compre Two stages of the exposition of j us
hensive doctrines must use this con tice as fairness, 3 7 , 64f. , 1 3 3 f. ,
ception, 1 26n; in reasonable over 1 40ff.
lapping consensus, truth of any one
doctrine implies political concep Unity by appropriate sequence,
tion is sound, 1 2 8f. , 1 5 3nf; truth in V I I : 2 , 2 5 9-62 : developed starting
the paradox of public reason, 2 1 6, from basic structure, 2 5 9f. ; contrast
2 1 8f. ; the whole truth as we see it, with utilitarianism: principle of util
2 1 6, 2 1 8, 2 2 5 , 242; politics in a de ity applies equally to all social
mocracy cannot be guided by the forms and universal in scope, 260;
whole truth, 2 4 3 first principles of j ustice as fairness
Two main differences, IX: l , 3 7 3-8 5 : not suitable for general theory,
first difference, Habermas's view is 2 6 1 ; idea of appropriate sequence
comprehensive whereas political for specifying principles, 2 6 2 ; unity
liberalism falls under category of given by structure of such a se-
46 3
Index
464
I N POLITICAL LIBERALISM J O H N RAWLS CONTI N U E S A N D REVISES THE IDEA O F
J U STICE AS FAI R N E SS H E P R E S E NTED I N A THEORY OF J USTICE, BUT CHANGES ITS
P H I LOSOPHICAL INTE R PR ETATION IN A F U N DAME NTAL WAY . H I S EARLIER WORK
ASSUMED WHAT RAWLS CALLS A "WE LL-O R D E R E D SOC I ETY, /1 O N E THAT I S STABLE,
RELATIVELY HOMOGENOUS I N ITS BASIC MORAL BELIEFS, AN D IN WHICH THERE IS BROAD
AGREEMENT ABOUT WHAT CONSTITUTES THE GOOD LIF E .
Y E T I N MOD E R N DEMOCRATIC SOC I ETY A PLU RALITY OF I NCOMPATI BLE A N D
I R R E C O N C I LABLE DOCTR I N E S-R ELIGIOUS, P H I LOSOPH ICAL, A N D MORAL-COEXIST
WITH IN THE FRAMEWORK OF DEMOCRATIC IN STITUTION S . I N DEED, FREE INSTITUTIONS
THEMSELVES ENCOURAGE THIS PLURALITY OF DOCTRINES AS THE NORMAL OUTGROWTH
OF F R E E DOM OVER TIME . RECOG N I Z I N G T H I S AS A PE RMAN ENT C O N D ITION OF
DEMOCRACY, RAWLS THEREFORE ASKS, HOW CAN A STABLE AND JUST SOCIETY OF FREE
AND EQUAL CITIZENS LIVE I N CONCORD WHEN DEEPLY DIVIDED BY THESE REASONABLE,
BUT INCOMPATIBLE, DOCTRINES?
HIS ANSWER IS BASED ON A REDEFINITION OF A "WELL-ORDERED SOCIETY . " IT IS
N O LON G E R A SOC I ETY U N ITED I N ITS BAS I C MORAL B E L I E F S BUT I N ITS POLITICAL
C O N C E PTION O F J U ST I C E , AND THIS J U STI C E I S T H E FOCUS OF AN OVE R LAPPING
CONSENSUS OF REASONABLE COMPRE H E NSIVE DOCTR I N E S . J U STICE AS FAIRNESS IS
NOW PRESENTED AS AN EXAMPLE OF SUCH A POLITICAL CONCEPTION; THAT IT CAN BE
THE FOCUS OF AN OVER LAPPING CONSENSUS MEAN S THAT IT CAN BE E N DORSED BY
THE MAIN RELIGIOUS, PHILOSOPHICAL, AND MORAL DOCTRI N ES THAT ENDURE OVER TIME
IN A WELL-ORDERED SOCIETY .
S U C H A C O N S E N S U S , RAWLS BELIEVES, R E P R E S E NTS T H E MOST LIKELY BAS I S O F
SOCIAL U N ITY AVA I LABLE I N A CON STITUTIONAL DEMOC RATIC REGIME . WERE IT
AC H I EVED, IT WOULD EXTE N D A N D COMPLETE THE MOVEMENT OF THOUGHT THAT
BEGAN THREE C E NTU RIES AGO WITH TH E GRADUAL IF RELUCTANT ACCE PTANCE OF THE
P R I N C I PLE OF TOLE RATION . THIS PROCESS WOULD END WITH THE F U LL ACC E PTANCE
AND UNDERSTANDING OF MODERN LIBERTIES .
POLITICAL LIBERALISM REPRESE NTS A DISTINCTIVE FORM OF LIBE RALISM RESTING
ON AN IDEA OF FREE PUBLIC REASON THAT YIELDS NEW INSIGHTS INTO THE QUESTIONS
OF J USTICE I N OUR PLURALISTIC SOCIETY .
C O LU M B I A U N I V E R S I TY P R E S S • NEW YORK
9 78 0 2 3 1 0 5 24 9 8