Review Journal of Political Philosophy [1 ed.] 9781443802925, 9781443800228

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Review Journal of Political Philosophy

Review Journal of Political Philosophy Vol. 4

Edited by

J. Jeremy Wisnewski

CAMBRIDGE SCHOLARS PRESS

Review Journal of Political Philosophy, edited by J. Jeremy Wisnewski This book first published 2006 by Cambridge Scholars Press 15 Angerton Gardens, Newcastle, NE5 2JA, UK British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Copyright © 2006 by Jeremy Wisnewski and contributors

All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner. ISSN 1752-2056

REVIEW JOURNAL OF POLITICAL PHILOSOPHY VOLUME 4: TABLE OF CONTENTS Acknowledgements...........................................................................................vi Invited Essays: Ethics and Phenomenology 1. “Husserl and the Responsibility and Sacrifice of Derrida” Janet Donohoe......................................................................................................1 2. “Touching the Other in Myself: Merleau-Ponty, Tactility, and Care Ethics” Maurice Hamington ...........................................................................................17 Articles 3. “Weithman and Rawls on Liberal-Democratic Citizenship” James Boettcher ................................................................................................36 4. “Strained Bedfellows: The Relationship between Politics and Philosophy in Platonic Thought” James Harrigan..................................................................................................54 5. “Secrecy and Responsibility: Georges Bataille’s Philosophy of the Summit” Adam S. Miller..................................................................................................80 6. “Not Knowing Your Partners: An Argument Concerning Sexuality Within The Original Position” John Scott Gray.................................................................................................91 7. “Liberalism on Embryos: State Neutrality and the Stem-Cell Debate” Dov Fox ............................................................................................................99 8. “Moral Duties And International Justice: Developing Allen Buchanan’s Natural Duty Of Justice” Eric Roark .......................................................................................................113 Book Review Espen Hammer, Adorno & the Political Routledge, 2005, 205pp, $ 31.95 (pbk), ISBN 0-415-28913-0 (Reviewed by Mario Wenning).......................................................................133

ACKNOWLEDGMENTS All journals benefit from the good graces of those academics who volunteer their time to make journals run smoothly and professionally. Unfortunately, some journals find themselves harmed by those who only volunteer their absence of manners. This Journal has had more of its share of good grace, and has been (almost) completely free of offenders on the manners front. The lion’s share of thanks for the journal goes to members of the editorial board. In particular, I would like to thank the following individual members of the editorial board for their seemingly endless willingness to help: Thom Brooks, University of Newcastle R. D. Emerick, Palomar College Gordon Hull, Iowa State University Glen Pettigrove, Massey University Jose-Antonio Orosco, Oregon State University P.A. Woodward, East Carolina University In addition, thanks are due to Janet Donohoe and Maurice Hamington for accepting the invitation to bring their considerable expertise to the pages of this Journal. I would also like to thank Aida Tambor for her assistance in preparing the manuscript. Finally, I would like to thank the editorial staff at Cambridge Scholars Press, and in particular Andy Nercessian, for making the Journal’s transition to its new home such a pleasant one.

HUSSERL AND THE RESPONSIBILITY AND SACRIFICE OF DERRIDA JANET DONOHOE, UNIVERSITY OF WEST GEORGIA

As my nearly-three-year old son comes running into the house from the backyard crying over his skinned knee, my one-year-old awakens from his nap, stands in his crib and cries to be freed from the limitations the crib bars pose. I, sitting at my computer attempting to get some writing done in a quiet moment on this warm summer day, am confronted with a dilemma, an ethical dilemma. Whose demands do I see to first and what about my own work project on the computer screen? How do we grapple with such everyday dilemmas, such competing demands? Is there a right thing to do in such a situation? In the following, I will put forth a Husserlian approach to ethics that offers a way to think through such dilemmas. In so doing, I will also suggest some ways in which Husserl’s ethical theory can be viewed in conjunction with a Derridean presentation of sacrifice, responsibility and death. What are surprising in this are the elements of similarity between Derrida and Husserl. They are surprising for the most part because Husserl’s later ethics involving the historicity of the subject, as well as an incorporation of the less rational elements of the subject’s ethics are very often overlooked or simply not brought to light. In bringing this to light we will see that Husserl, while being a philosopher of consciousness, is also a philosopher who recognizes the sacrifice of the ego for the other that composes the daily existence of each member of humanity. Husserl explains that conflict arises because each individual has committed himself or herself to certain ways of life that set up for one what Husserl calls “absolute oughts.” He speaks of the absolute ought in terms of being called to a vocation. Each individual, he maintains, feels a personal love for a particular realm of value, for instance, academic philosophy, or child rearing. When a vocation is chosen in compliance with that love for a realm of value, an individual is claiming an authentic life. Such love for a realm of value gives life an encompassing, rational goal. One can realize a true self through developing

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habits and convictions in line with this goal. This is one’s personal telos.1 The vocation that is chosen, establishes an absolute ought and the absolute ought sets up a realm of subjective absolute value. As absolute, this value does not rank within a hierarchy of values, but is a value to which one adheres completely. It is a value that cannot be compromised. Husserl does not suggest that an absolute value is universally absolute. Rather, he retains the subjectivity of an absolute value by relating it to each individual’s absolute ought. It is personal in that it is unique to each individual, but absolute in that it fundamentally binds a person as who he or she is. It provides one with value by providing one with a personal identity that is preserved through adherence to that ought. Note that Husserl is not identifying anything as being a realm of value outside of personal will. In committing my rational will, I create an ought that establishes absolute values. The absolute ought places a burden upon the individual which requires that he or she make certain decisions or favor certain actions not necessarily universally upheld as being the best attainable in a situation. This means that there can often be a kind of reversal of values from how the general will might view certain goods. For instance, because my own children represent for me a realm of value that is absolute for me, I would be inclined to do my duty of feeding my one-year old as opposed to engaging in a more beautiful activity of singing Verdi’s Requiem. As Husserl suggests, There is an unconditioned ‘You ought and must,’ which is addressed to the person and which for the one experiencing this absolute affection is not submitted to a rational foundation nor is it dependent on an appropriate connection with such a foundation. This [affection] goes in advance of all rational analysis, even when such is possible.2

One’s position can be in opposition to the general will precisely because the identification of one’s values is not entirely rational or calculative, but instead depends upon what one has affection for. The values are individual and are decisively linked with personal identity. They are also linked with our singularity in that they are each person’s duties personally, not duties that can be fulfilled by any other person. They are duties that are constitutive of my person 1

Edmund Husserl, Aufsätze und Vorträge (1922-1937). Edited by Tom Nenon and Hans Reiner Sepp. Husserliana XXVII. The Hague: Martinus Nijhoff, 1989, p. 118. Hereafter referred to as Hua XXVII. 2 Edmund Husserl, Manuscript B I 21, 61a as quoted in James Hart, The Person and the Common Life, The Hague: Martinus Nijhoff, 1992, p. 325. All manuscripts are referenced with the designation provided by the Husserl Archives, Leuven, Belgium. My thanks to Rudolf Bernet, director of the archives, for permission to quote from the manuscripts.

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and can thus only be accomplished by me. Our vocation requires a commitment of our will, which establishes lasting convictions that might at times put us at odds with the more general will. But such lasting convictions result in a concrete personal identity. Each position that an ego freely takes in any practical situation contributes to a habitual sedimentation of convictions. Without the sedimentation of such position-takings, there is no habituation, and without habituation, there is no development of convictions. Without these convictions the ego would be fragmented, dissipated. The challenge is recognizing what our vocation and absolute oughts are. The relationship of the ego to its absolute ought is one that is not entirely rational. We come to an understanding of our vocation through active reflection upon our own identity and our own life. We must ask ourselves what it is that in our heart of hearts we really want. We must consider what is within our own capabilities that can bring us true joy. The answer to such questions is our absolute ought. Those are the things we should will above all others once we have settled upon them. But there is also the sense that this is a “calling.” Some realm of value calls to us as necessary and it calls to us in a way that makes it utterly evident. We are not attracted by just anything at all, but are drawn to those things that we must do if we are to remain ourselves. These things are evident to us as what supports our true self and what gives our lives lasting value. We also recognize those things that would be destructive of that true self and realize that we cannot engage in those activities without giving up our own identity. The idea of a calling that Husserl develops stands in tension with the idea of freely choosing a vocation or even any particular position. Are we truly free to choose a vocation if it is something we are called to? Husserl stresses that the calling comes from an internal love for a realm of value. We are drawn toward a vocation, but more fundamentally, we are drawn toward an ideal self that culminates in the ideal humanity. In being so drawn, we are compelled to choose the vocation that we love. Husserl’s understanding of freedom in this context is not an existential freedom, but a freedom to will one’s true self—a true self that is determined by nothing other than what I love.3 My willing is always driven by the desire to be me and that desire is only fulfilled by choosing the vocation that represents for me the realm of value that I love. Even though Husserl does not view the values arising from one’s vocation as universal oughts, this does not mean that they are solely subjective. Anything that is identified as a realm of value involves traditions inherited from prior generations. In order to be what one is, one must engage in certain behaviors and appropriate certain values that arise from an inherited tradition which one 3

What I love cannot be determined in isolation from humanity, so it is not as independent as it might at first sound. It’s connection with the community and with humanity will be discussed below.

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has entered into. So to be a professor involves certain kinds of activities and values that one adopts from the tradition of a community that has certain expectations of professorial activity. Clearly, variation is possible as not every professor adopts the same professional values, but there are certain minimum values that are required in order to call oneself a professor or be recognized as a professor at all. Those values would, of course, be debatable, but they exist nonetheless. Still, it is not at first evident that a vocation is an ethical task. To choose a vocation is to choose who one is. It is intimately connected with every aspect of one’s life, not simply what one does for a living. It is how one chooses to be. Husserl claims that “we seek above all to develop genetically the ethical form of life as an (a priori) essential structure of possible human life, i.e. from the motivation which leads to it (the form of life) out of essential grounds.”4 Vocation, therefore, establishes the ethical form of life for each individual thereby defining his or her absolute ought. Vocational choice is what makes a human being truly human. Whatever our individual calling, we are each called to choose the best possible life from now on in all its acts and with its total content of mental processes, the life that would be my best possible life—my best possible—that is, the best possible that I can live…That ought is the correlate of the will, and indeed of a rational will. The ought is the truth of the will.5

And for Husserl, this equates to a life that admits of no regrets. It is the life that each and every one of us is called to in our singularity. While this may seem like a relativistic position, in fact it demands of the subject the best possible life absolutely and is thus an absolute imperative. Again, as the quotation above shows, Husserl’s position is that the absolute ought requires that all our acts from the moment of accepting a vocation be geared towards the best possible life that we can live.6 A complicating factor is that Husserl recognizes the possibility of multiple vocations each of which sets up an absolute ought. We think again of the example introducing this article. The choice of multiple vocations, the choice of motherhood and academia is possible on Husserl’s account. It is, after all, what 4

Edmund Husserl, Hua XXVII, p. 29. “Versuchen wir zunächst die ethische Lebensform als eine (apriorische) Wesensgestaltung möglichen Menschenlebens genetisch, d.i. aus der zu ihr aus Wesensgründen hinleitenden Motivation zu entwickeln.” 5 Edmund Husserl, Manuscript F I 28, p. 199b “…von nun ab in allen seinen Akten und mit seinem gesamten Erlebnisgehalt so Leben, daß es mein bestmögliches Leben sei, mein bestmögliches, das heißt, das bestmögliche, das ich kann…Das Sollen ist Korrelat des Wollens, und zwar eines vernüftigen Wollens, das Gesollte ist die Willenswahrheit.” 6 Edmund Husserl, Manuscript F I 28, 199b.

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we do. We commit ourselves to more than one realm of value. The values are absolute insofar as an individual is wholly committed to those values as constitutive of who he or she is. And our commitment to multiple vocations serves to increase the possibility that we will be confronted with ethical dilemmas that require sacrifice. There is no hierarchy of goods when absolute oughts come into conflict precisely because absolute oughts are absolute. Thus, one ought has to be sacrificed for another. Motherhood sets up an absolute ought, as does being an academic. When those things come into conflict, there must be sacrifice. There is no escape or compromise from this situation. One absolute must be sacrificed to the other. The sacrifice required is not one that is always based upon a rational determination of what is right, but is based upon the absolute love for a realm of value. Husserl’s working out of this theory of ethics is in part an attempt to accommodate that love which does not fit into a thoroughly rational and calculative ethics. The choice that one makes when faced with conflicting values is not one that can be calculated or placed into any kind of economy of exchange because the values to which one has committed oneself are absolute. They do not admit of degrees and cannot be placed in a hierarchy. Still, in making the choice to sacrifice one absolute value to the other, one is not forced to choose absolutely for one or the other. Often, we attempt to accommodate both values, but in doing so we sacrifice the absolute value of both, or we sacrifice one absolute value at one time and the other at another time. This is the result of the practical working out of the situation and it is inevitably a painful prospect for any individual. Its mark is left on the individual in conflict. The mark of sacrifice is the challenge to one’s singularity. If it is one’s vocational commitments that make one who one is, then any sacrifice of such commitments is a death of oneself. Thus, we are facing the death of self in each conflict of absolute oughts. The responsibility for such death lies with each individual. The absolute ought commits one to a position that requires absolute selfresponsibility. We cannot brush off decisions about our vocation as being answered by tradition. We cannot claim to subscribe to any particular way of life because we were born into a particular community. Rather, we must take upon ourselves the responsibility for our vocation, the values that it sets up, and the sacrifices it requires because we understand ourselves as beings who have chosen to accept or reject the culture to which we adhere. Husserl makes this clear in proposing that the human, who lives already in the consciousness of his capacity for reason, knows himself then to be responsible for the right and wrong in all

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Janet Donohoe his activities, be they cognitive activities or activities of valuing or 7 directed action with an intended actual effect.

Although we may think that vocation is important only for the identity of the individual human being, Husserl clearly maintains that the import is much more extensive. For it is only through the vocational commitments of each individual human that the culture of humanity is preserved. If one decides to become a professor, the realm of love defines one’s absolute ought as a professor. By entering the community of professors, that person takes up the tradition and should do so in a responsible rather than naïve way. This does not mean that when she leaves the campus each day and goes home to be a spouse, or a mother, that she leaves that vocation behind. Husserl is concerned with the unity of roles that an individual takes up; mother, academic, spouse are all one individual and being a professor involves being a mother involves being a spouse and vice versa, just as being a scientist may involve being a churchgoer, and so forth. These roles cannot be parceled out and isolated from one another. Without a unity of these various roles, we find a human in crisis. “The philosophical-scientific doing becomes itself a branch of ethical doing and at the same time a necessary means of each ethical doing in general.”8 Our selfresponsibility is a conscious maintenance of a united, ethical self. What if one doesn’t choose a vocation, is it possible to be mistaken about one’s vocation? Husserl maintains that we determine our vocation through reflection upon the ideal that encompasses the whole of our lives. The ideal is what is desirable through and through and meets the conditions of allowing us to promote the ideal whole of humanity as well. It is possible, however, to allow ourselves to be distracted, or to mistake the call. It is also possible to lack consistent commitment to a realm of value. Such people would then also be lacking a real sense of identity. But would this mean that all of these kinds of people cannot be ethical and cannot be responsible? It in fact seems quite rare actually to have found one’s “true calling.” There is a tension here for Husserl because he does not want our commitment to be simply for the sake of commitment and it cannot be a thoughtless commitment. So, in addition to being committed, a commitment to a realm of value can be authentic or inauthentic. An authentic commitment is when one chooses a vocation based upon the call one feels to love a particular realm of value. But if one binds 7

Edmund Husserl, Hua XXVII, p. 32. “Der Mensch, der schon im Bewußtsein seines Vermögens der Vernunft lebt, weiß sich danach verantwortlich für das Rechte und Unrechte in allen seinen Tätigkeiten, mögen es Erkenntnistätigkeiten oder Tätigkeiten des Wertens oder auf reales Wirken absehenden Handelns sein.” 8 Edmund Husserl, Manuscript F I 29, p. 6a as quoted in Ullrich Melle, “Develpoment of Husserl’s Ethics,” Études Phénoménologiques, 13-14 (1991): .p. 127.

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oneself to a realm of value without being called to that realm of value, then one is inauthentically committed. This doesn’t mean that we always recognize the call either though. We often have doubts about our choice of vocation. That is part of the struggle to be authentic, to be ethical. We are ever required to renew and critique our own vocational commitments. Husserl does not provide any kind of formula for how we would know that we are right about our vocation except that it arises from our love thereby appealing to our own true self. So, vocation provides one basis upon which we judge the rightness or wrongness of our actions, and that helps us to determine the reasonability of any option. But in addition to our vocation, we find ourselves with a telos that is beyond vocation, a telos that contributes to the ideal self we are trying to maintain. This means that our responsibility is not limited to the individual, but involves a responsibility to and for the other. The absolute ought applies to the other as much as it applies to the ego in that each person contributes to the identity of the other through a contribution to humanity. Each individual participates in the constitution of the identity of the community and so the telos for one and the telos for the other are simply different perspectives of the same higher-order telos. This means that the telos of each individual is inseparable from that of the community of which each individual finds itself a part. Further, it means that the telos of one is taken up by the other in the taking up of the telos of the community. The ideal telos of the community of humanity is founded upon universal ethical love, which is an infinite, absolute and universal love. It is an orientation of the will to live as a member of humanity; a will that cannot be usurped by any other will through the recognition by the ego that it can only realize its genuine life at that same time as it, as a member of the community of humanity, wills its own genuine humanity. Such a will is absolute. “Thereby is this will absolutely motivated. Or when I consider the possibility of a life such as I would love absolutely and unsurpassably, then I cannot help but decide to will such a life.”9 If the other is hindered in its struggle for its own identity and its own telos, then the telos of the community is also hindered and my telos too is hindered. These teleologies are inextricably linked. Clearly, the participation of an ego depends upon its telos as a member of humanity. That humanity is what Husserl refers to as the “higher-order we.”10 What all of this implies is that the goodness of the community is my concern. I have a responsibility to the community. Thus Husserl writes, “I not only must desire myself as good, but also must desire the whole community as a 9

Edmund Husserl, Manuscript E III 4, p. 20 as quoted in James Hart, The Person and the Common Life, p. 344. 10 For more on the higher-order we , see Janet Donohoe, Husserl on Ethics and Intersubjectivity: From Static to Genetic Phenomenology, New York: Humanity Books, 2004.

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community of good people and, insofar as I can, I must take it in my practical circle of volition and aims.” This is connected to my humanity. Being human, which is equated with the truth of the will that is my vocation, “includes within it the will to be a member of a ‘true’ humanity.”11 The good of the community, then, becomes something that I take within myself as part of my own responsibility. Self-responsibility is not only responsibility to the self and for the self. As such, it is also responsibility to and for the other. Part of that self-responsibility is a rational responsibility toward tradition, toward the sedimentation of norms and values. Each individual is responsible for taking up tradition in a way that at one and the same time renews the tradition for a new generation, but is also critical of that tradition. This means contributing to the tradition through self-examination and rationality. It means “we have continuously anew the living truth from the living source, which is our absolute life, and from the self-examination turned toward that life, in the constant spirit of self-responsibility.” 12 So, when one becomes a member of the community of professors and takes up that tradition, one has a responsibility to do so in a critical way. One cannot simply accept the tradition unthinkingly. One cannot simply adopt the values without critique and rational analysis. In adopting that vocation one follows one’s calling by acknowledging a love for the realm of values that compose being a professor, but not in such a way that the commitment of one’s will does not allow for critique. The balance between the identity of the community maintained through renewal and its constant challenge through critique is difficult to sustain. So what we see from Husserl’s ethical theory is a conception of the individual as choosing a vocation that has a double effect in establishing who one is as well as in aligning one with a community. Each individual is fully responsible for its own position-takings and for a larger sphere of the community that ultimately involves a self-responsibility for humanity. In claiming an authentic life, each human takes on a vocation that establishes for him or her a realm of absolute values and provides the identity and singularity of self. Responsibility for those values often confronts the individual with the 11 Edmund Husserl, Hua XXVII, p.46. “Es gehört also zu meinem echt menschlichen Leben, daß ich nicht nur mich als Guten, sondern die gesamte Gemeinschaft als eine Gemeinschaft Guter wünschen und, soweit ich kann, in meinen praktischen Willens-, Zweckkreis nehmen muß. Ein wahrer Mensch sein ist ein wahrer Mensch sein wollen und beschließt in sich, Glied einer ‘wahren’ Menschheit sien wollen oder die Gemeinschaft, der man angehört, als eine wahre wollen, in den Grenzen praktischer Möglichkeit.” 12 Edmund Husserl, Formal and Transcendental Logic, Translated by D. Cairns. The Hague: Martinus Nijhoff, 1969, pp. 247/279. German page numbers precede English translation page numbers.

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necessity of sacrifice when absolute values conflict. In aligning oneself with absolute values that are of such a personal nature, each individual can at times be seen to be in conflict with the general values of a community. The preservation of one’s singular identity through the habitual sedimentation of one’s convictions requires such opposition to the community while at the same time making one an authentic member of the community of humanity. It also entails the responsibility to and for the other. Sacrifice, then, is not just the sacrificing of one particular good to another good, but in each moment of such sacrifice, there is the larger sacrifice of one’s self to another. This is what Derrida will call the gift of death. In The Gift of Death, Derrida provides a reading of responsibility in the philosophy of Jan Patoþka.13 It is no secret that Patoþka was deeply influenced by Husserl’s phenomenology, so it is not surprising that much of Patoþka’s work on this issue may reflect certain Husserlian themes. It is possible, then, to read Derrida as responding in some part to the Husserlian ethics outlined above. Patoþka’s project, according to Derrida, involves an account of the mystery of the sacred as related to responsibility. He reads Patoþka as providing a genealogy of “the subject’s relation to itself as an instance of liberty, singularity, and responsibility, the relation to self as being before the other: the other in its relation to infinite alterity, one who regards without being seen but also whose infinite goodness gives in an experience that amounts to a gift of death.”14 Already we see the possibilities for overlap with Husserl. Husserl would describe the revelation of the sedimentation of history that makes up responsibility as possible through the genetic inquiring-back into the origins of the ego and the other. Through the genealogy, Patoþka shows the historicity of responsibility that we fail to acknowledge for fear of a conditionality that would be placed upon responsibility. At the same time, the history of responsibility must remain indeterminate; it must remain an open problem thereby resisting any kind of totalization. Derrida reads his argument as meaning that responsibility “exceeds mastery and knowledge.”15 Husserl describes much the same thing in terms of the need for a genetic inquiry into history to reveal the sedimented layers of meaning throughout history. Any self-responsible individual is called to unearth those sedimented notions through the process of 13

Derrida is specifically addressing Patoþka’s essay “Is Technological Civilization Decadent, and Why?” in Heretical Essays in the Philosophy of History, translated by Erazim Kohák, 95-118. Edited by James Dodd, Chicago: Open Court, 1996. I’m grateful to Dennis Keenan and his text The Question of Sacrifice, Bloomington: Indiana University Press, 2005 for directing me to Derrida’s essay. 14 Jaques Derrida, The Gift of Death, Translated by David Wills, Chicago: University of Chicago Press, 1995, p. 3. Hereafter referenced as GofD. 15 Jacques Derrida, GofD, p. 6

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renewal and critique. Derrida stresses in this reading that a very common understanding of responsibility is one that sees itself in isolation from Patoþka, however, acknowledges that historicity must be historicity.16 “admitted to.” In this admission history is seen neither as a “decidable object nor a totality capable of being mastered, precisely because it is tied to responsibility, to faith, and to the gift.”17 It is these questions of responsibility and gift that we will now explore in more detail. Derrida defines responsibility, according to Patoþka, in terms of a paradox. It is a paradox that is found in Husserl as well and one of which Derrida makes a great deal. Saying that a responsible decision must be taken on the basis of knowledge seems to define the condition of possibility of responsibility (one can’t make a responsible decision without science or conscience, without knowing what one is doing, for what reasons, in view of what and under what conditions), at the same time as it defines the condition of impossibility of this same responsibility (if decision-making is relegated to a knowledge that it is content to follow or to develop then it is no more a responsible decision, it is the technical deployment of a cognitive apparatus, the simple mechanistic deployment of a theorem).18

This paradox of responsibility is the impossibility of subordinating responsibility to knowledge, while at the same time the impossibility of responsibility without knowledge. One must know what one is doing, but one cannot do what one is doing because of what one knows. For Husserl, there must be room for the influence of feeling within the rational decision-making that transpires due to one’s vocation. Responsibility moves outside of the calculative reason that characterizes so many ethical theories. Furthermore, the concept of responsibility is ripe for thought, but one that resists thematization. Derrida asserts that responsibility is a concept that “presents itself neither as a theme nor as a thesis, it gives without being seen, without presenting itself in person by means of a ‘fact of being seen’ that can be phenomenologically intuited.” He indicates that the paradox of responsibility can be linked to what in certain religions would be called mystery. Thus, responsibility is always caught in a kind of double bind. It must be responsible to the tradition, authority, etc. while at the same time disrupting the tradition in making it our own. “There is no responsibility without a dissident and inventive rupture with respect to tradition, authority, orthodoxy, rule, or doctrine.”19 16

Jacques Derrida, GofD, p. 5 ibid. 18 Jacques Derrida, GofD, p. 24 19 Jacques Derrida, GofD, p. 27 17

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Husserl characterizes this as one’s responsibility for both of the activities of renewal and critique. One the one hand, one is responsible for one’s own choice of vocation to which one has been called. And yet, in adopting a vocation, one inserts oneself into a community that already has a tradition to which one commits oneself. At the same time, one has a responsibility not to commit oneself wholly to that tradition because one is responsible for critique of the same. Responsibility places us in conflict in other ways as well. Husserl discusses responsibility with respect to the adherence to the absolute values we take on due to our vocation. If any vocation that we take up places us in the position of having taken on an absolute because of its relationship to our identity, then we are faced with the economy of exchange that makes the sacrifice of goods that Husserl discusses impossible. For we would not truly be sacrificing goods since we would always be doing so for the sake of some aim to be achieved, some positive outcome that we ourselves would receive which by definition would make the sacrifice not truly a sacrifice, but a bargain that we are more or less willing to strike in order to preserve something we desire. But for Husserl that’s not why we take on vocation. We take on a vocation because we are called to a realm of value. We do not take on the responsibility in a calculative way, but due to this calling. When my children are each crying and each need my attention and comfort, what can I do but face the tragedy of choice at each moment? That tragedy places me in the position of having to engage in my own economy of exchange in order to justify my own actions to myself. I give the younger one attention now the older one attention later, or the more injured one attention now and the merely impatient one attention later. In making these decisions we are perhaps attempting to avoid true self-responsibility by entering into an economy of exchange with ourselves, a bartering system that avoids taking full responsibility for the decision. Yet, the decision does indeed still rest with me and I struggle on a daily basis with what motivates any given decision. Derrida insists that responsibility depends upon a relation and response to the other. It includes “an experience of personal goodness and a movement of intention.”20 Further, he indicates that this experience requires a movement of infinite love. Again, this parallels Husserl’s thinking about love as universal ethical love. This is the outcome of the development of the absolute ought of each individual. It has no boundaries, no restrictions to one community over another, but takes on the infinite nature of a universal love. In binding itself to the other in such a way, the ego is not adhering to a universal principle, but is actually acting to place the other in a position of a certain priority over itself. Moreover, this act is not a momentary gesture but an activity that requires 20

Jacques Derrida, GofD, p. 50.

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constant renewal and recommitment. Derrida’s claim is that this kind of infinite love, infinite requirement of response, responsibility, ushers in the concept of guilt. There is no possible way to respond to the infinite gift, no way to be responsible enough. Again, Husserl does not explicitly state as much, but he does say that the telos of universal ethical love of humanity is an infinite telos that serves more as something drawing us forth than as something that we can ever achieve. In the inability to reach the aim, we are left in the constant, failing activity that cannot help but leave us infinitely responsible, which means we are never able to claim that we have fulfilled our responsibility. We are always guilty of having further and still further responsibility. Derrida suggests in The Gift of Death that he’s attempting to work through the difference between sacrifice and suicide.21 He wants to know what makes putting oneself to death different from dying for another. He speaks in such stark, ultimate terms, but I would argue that Derrida’s discussion includes the kind of sacrifice of goods that Husserl has depicted as being related to the absolute ought of the self. This is not suicide in the most complete sense, but is closer to a kind of practicing for death that is associated with the Platonic lifestyle. That death is the gift of death that one gives oneself in taking the responsibility for the sacrifice. Most commentators read Derrida’s meditation on sacrifice as meaning “sacrifice” in the ultimate sense of the term, as Abraham sacrificed Isaac, as Jesus sacrificed for humanity, as Socrates sacrificed for philosophy. But, when we read Husserl’s position on sacrifice of goods, it lends another possibility to the idea of sacrifice that Derrida too acknowledges, but which many commentators ignore. Derrida’s acknowledgment of the less ultimate sense of sacrifice is found in his analysis of Kierkegaard. In The Gift of Death, Derrida provides a reading of Kierkegaard’s account of the story of Abraham and Isaac in Fear and Trembling. Derrida’s take on Kierkegaard is that the rendition of Abraham’s sacrifice indicates that “The absolutes of duty and of responsibility presume that one denounce, refute, and transcend, at the same time, all duty, all responsibility, and every human law.” Derrida argues that Kierkegaard shows that sacrifice on the order of Abraham’s sacrifice of Isaac requires a denial of the order of universality, a rejection of the general will. Instead, one’s duty at the level of the absolute requires a kind of irresponsibility on the level of the general without giving up the very values of the general. As Derrida describes, Kierkegaard asserts that “Absolute duty demands that one behave in an irresponsible manner (by means of treachery or betrayal), while still recognizing, confirming, and reaffirming the very thing one

21

Jacques Derrida, GofD, p. 10

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sacrifices, namely the order of human ethics and responsibility.”22 Further Derrida suggests that this sacrifice is not so outrageous or unique as we might at first suppose, but rather that it is “the most common and everyday experience of responsibility.” This more closely reflects what we’ve outlined in Husserl above. Just as Husserl sees our adherence to our absolute ought as binding us to our duty in our singularity, Derrida reads Kierkegaard too as making reference to our duty to the other in our utter singularity. “Duty or responsibility binds me to the other, to the other as other, and ties me in my absolute singularity to the other as other.”23 The absolute singularity of my adherence to my vocation also binds me to the universal ethical love of humanity. The result of this for Derrida reading Kierkegaard is that “what binds me thus in my singularity to the absolute singularity of the other, immediately propels me into the space or risk of absolute sacrifice. There are also others, an infinite number of them, the innumerable generality of others to whom I should be bound by the same responsibility, a general and universal responsibility (what Kierkegaard calls the ethical order). I cannot respond to the call, the request, the obligation, or even the love of another without sacrificing the other other, the other others.”24 This passage makes clear the infinite responsibility to every other that must be sacrificed in any responsibility to a singular other. Yet, what else can we do but act toward the other as singular while neglecting the other others? Husserl, too, sees this and yet, in his notion of the universal ethical love, he allows for the love of each member of humanity through the adherence to the absolute ought of universal ethical love. In loving one, I love all. My absolute commitment to the personality of the higher-order displaces me in prioritizing the other and in willing the true self of the other. Its focus is the infinity of others that requires of me a style of life. My cultivation of this style of life attempts to view all others as being within the horizons of my proper community. This is a position that I am constantly revising and critiquing. While Husserl tends to focus on the positive ideal and the telos of the individual in the communal we, the ramifications of his position on the sacrifice of goods leads us to a point that is not quite so rosy. It is not insignificant that Husserl’s most frequently used example when describing what he means by the absolute ought, sacrifice and ethical love is the vocation of motherhood. Let us return to the example at the opening of this paper. When confronted with the dilemma of my two children who are both equally needing my attention and the call of my work at the computer, I am faced with having to make a choice between absolute goods. I must sacrifice one or more absolute goods. And if we take the analysis of Husserl’s meaning seriously, then when I sacrifice a 22

Jacques Derrida, GofD, p. 66-7. Jacques Derrida, GofD, p. 67. 24 Jacques Derrida, GofD, p. 67-8. 23

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good, I am at the same time sacrificing myself since it is only because of my adherence to those absolute goods that I am who I am. In sacrificing myself, I am simply acknowledging the impossibility of complete self-identity, the impossibility of complete self-responsibility, the tragedy of human existence. To be human is to be committed to a realm of value, but it is at the same time to be confronted with the need to sacrifice that realm of value and oneself several times in any given day. Finally, Derrida introduces the idea of gift with respect to death and responsibility in the second chapter of his text on Patoþka, entitled “Beyond.” Here Derrida suggests that Patoþka recognizes a way of accepting responsibility that “gives the gift that transforms the Good into a Goodness that is forgetful of itself, into a love that renounces itself.”25 It is difficult to know what a love that renounces itself would be and what it could give. Patoþka’s position seems to be that “what is given—and this would also represent a kind of death—is not some thing, but goodness itself, a giving goodness, the act of giving or the donation of the gift.” Patoþka associates this giving of goodness with the giving of the gift of death. This is, of course, related to sacrifice—the giving of death in accord with a giving of goodness. For Patoþka, again, it is a gift that subjects the receivers to itself as goodness, but also to itself as the law. Here we see the arrival of responsibility, responsibility to the gift that gives itself as law. Derrida explains. In order to understand in what way this gift of the law means not only the emergence of a new figure of responsibility but also of another kind of death, one has to take into account the uniqueness and irreplaceable singularity of the self as the means by which—and it is here that it comes close to death—existence excludes every possible substitution.26

Derrida stresses that the irreplaceability that is the focus of Patoþka’s analysis, following Heidegger, is that of death. I’d like to argue for the irreplaceability that Husserl stresses—one that is the very foundation of one’s singularity—that is, one’s vocation, one’s calling. One is called to be as well as to die. Patoþka and Heidegger explain that one’s own death is the singularizing principle of one’s existence. It is the only thing that one cannot be replaced in. Certainly, another can die in my place, but that does not excuse me from my own death. It does not take my death away from me. For Husserl, one’s commitment to oneself is likewise unique. Another cannot perform my duties for me just as another cannot die for me. Even though another can place a band-aid on my child’s knee, it is my duty and not another’s and it can only fulfill me in my self 25 26

Jacques Derrida, GofD, p. 40. Jacques Derrida, GofD, p. 41.

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as who I am. Although another can do my duty in my place, it does not relieve me of my duty. My duty and my responsibility are singularizing principles that call me to be me. And just as Heidegger’s analysis of death as one’s own reveals, the only way that a gift of self can be conceived is if that self is utterly irreplaceable. In this respect, the ground of responsibility overlaps with Husserl.27 Still, the mode of responsibility defined by Derrida is “giving oneself death.” The irreplaceability that characterizes each of us in our duty underlines the depth and weight of our responsibility. If no other can replace me in my duty, no other can replace me in my responsibility. The weight of the competing demands of my vocations is mine and mine alone to bear. It is this weight that makes me who I am but that also confronts me with the necessity of infinite sacrifice of myself. It contributes to the wholeness (and tragedy) of my life. In conclusion, through this analysis we see that Derrida and Husserl have similar themes of responsibility and sacrifice that end in paradox. For Husserl, always the philosopher of the infinite task, these themes are explored through his description of the absolute ought of each individual that defines us in our identity and singularity, but which also bring us into conflict with ourselves and require sacrifice. Responsibility arises on the levels of both a responsibility for ourselves as well as a responsibility for and to the other. Derrida’s analysis of the themes through Jan Patoþka and Kierkegaard gives us a fruitful way to approach the Husserlian texts to draw out the rarely read difficulties located in his descriptions of a phenomenological ethics. What does it mean for us to acknowledge the historicity of responsibility, to face the paradox of responsibility and sacrifice, to suffer the impossibility of responsibility and identity, to recognize the infinite responsibility that places us in a position of singularity and of death of onself? The foregoing analysis points to the inadequacies of our attempts to respond ethically, but also to the inadequacies of our ethical theories. Too often in the practical ethics that prevail today we are faced with the theories of how to deal with this or that business, medical, or professional situation that treat our ethical responsibility as a matter of “doing the right thing.” Ethical actions and responsibility are treated as determinable through a variety of rational, calculative means without regard for our personal love or commitments. But what the previous investigation implies is the inability of these approaches to ethics to truly grasp the fundamental failure of any response. Husserl and Derrida remind us of the 27 Derrida, in Gift of Death, is careful to distinguish Patocka’s similarity with Heidegger on this very point. I too am not claiming that the Husserlian ground of responsibility in the irreplaceability of the ego with respect to its absolute ought is on the same level as the irreplaceability of death, but the similarity is there nonetheless. See Derrida, GofD, p. 43.

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intricacies of human identity, human responsibility, and human sacrifice that go beyond the calculative doing to the call to life and to death.

TOUCHING THE OTHER IN MYSELF: MERLEAU-PONTY, TACTILITY, AND CARE ETHICS MAURICE HAMINGTON, UNIVERSITY OF SOUTHERN INDIANA

The factual presence of other bodies could not produce thought or the idea if its seed were not in my own body. --Merleau Ponty, The Visible and The Invisible

Michael Rosing, a staff nurse in the progressive cardiovascular unit at Genesis Medical Center in Davenport, Iowa describes an encounter with a patient, Madge, age 92, who came in for a few days of testing, observation, and treatment. The night before she was to be discharged, Madge called Rosing to her room. Rosing recounts the exchange: “Madge was perched on the edge of the bed waiting for me. As I approached, she asked me to put my hands in hers and said, ‘you have the warmest hands of all the nurses who take care of me.’ She’d called me in simply to comment on my hands.” Madge went on to express her initial discomfort at having a male nurse take care of her, however his touch had subsequently put her at ease. These comments did not surprise Rosing, who acknowledges the significance of tactility for comforting, gathering embodied knowledge, and reciprocity: “touching can be a warming experience for both the patient and the nurse. It’s the reason I shake hands or take the patient’s hand in mine as I introduce myself. It’s also why I touch or rest my free hand on my patent’s shoulder while I listen, for example, to lung or bowel sounds.” Rosing uses anecdotal evidence to conclude that touch therapy is an effective means for assisting patients.1 How can we characterize the exchange between Rosing and Madge? Abstracted from the particulars of the context, the interchange between Rosing and Madge can be described as the contractual obligation between a professional health care worker and a client of his medical facility. However, this generalized description fails to capture the primal human connection inherent in the interaction as Rosing portrays it. Although largely accomplished 1

Michael W. Rosing, “Warm Hands, Warm Heart: My Patient Responded Positively to Touch. So Did I” Nursing 31, no. 12 (2001), 32.

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through an unspoken process of bodily contact, we have a sense that something was indeed exchanged when Rosing touched Madge and when Madge touched Rosing and that the exchange was good. This is both an epistemological and an ethical observation. The touch was functional in the moral meaning shared but the understanding implied in Rosing’s description is not a moral duty or right but something less determinate. The task of this article is to explore at least the contours of tacit embodied ethics: the relationship between touch and caring. Maurice Merleau-Ponty (1908-1961) undertook a comprehensive and radical philosophical inquiry into the human body. Ultimately, his project reframed traditional structures of meaning to give embodiment a unique epistemic privilege. Employing and extending the phenomenological method inherited from Edmund Husserl, Merleau-Ponty finds that the bracketing of phenomenal experience opens up the possibility for exploring the body’s relation to the lifeworld. His explorations find a perceptual continuity that transcends categorical understandings such as those of “subject” and “object.” In this manner, MerleauPonty embraces the indeterminacy of corporeal existence: “ambiguity is the essence of human existence, and everything we live or think has several meanings.”2 Accordingly, the traditional language of philosophy, with its desire to understand phenomenon through the application of precise labels that allow for thematic manipulation often appears inadequate to capture the life of the body. Merleau-Ponty is postmodernist in his rejection of categories and, of course, existentialist in his phenomenological account of the body. The combination lends itself to comfort with indeterminacy. For Merleau-Ponty, “our body is comparable to a work of art. It is a nexus of living meanings, not the law for a certain number of covariant terms.”3 Similarly, feminist care ethicists have embraced the ambiguities of relational existence to advocate a morality not solely grounded in rigid categories of adjudication—right and wrong action. Nel Noddings describes caring as a moral ideal grounded in affective reciprocal relations.4 Joan Tronto describes caring as labor that results in the flourishing of humans and their world.5 Selma Sevenhuijsen views care as an attentive responsiveness that allows for

2

Maurice Merleau-Ponty, Phenomenology of Perception, trans. Colin Smith, (London: Routledge, 1989), 169. 3 Ibid., 151. 4 Nel Noddings, Starting at Home: Caring and Social Policy (Berkeley: University of California Press, 2002), 13. 5 Joan C. Tronto, Moral Boundaries: A Political Argument for an Ethic of Care (New York: Routledge, 1993), 103.

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empathetic knowledge.6 None of these understandings directly answers the question, “what am I to do?” in a manner abstracted from context. Care ethics attends to the situatedness of particular agents including their relationships to other agents. Accordingly, it is extremely difficult to care for humanity in general, but specific individuals who exist in particular places and times, are much more easily cared about. It is suggested here that part of the full contextualization of individuals cared for is that they are embodied. They are flesh and blood human beings not abstract and easily interchangeable moral agents. Some philosophers are uncomfortable with care ethics and have categorized it as a subset of virtue theory or criticized it as relativistic. Philosopher Susan Hekman describes the discomfort surrounding care ethics as a result of it offering a new moral paradigm that “does not exist in the same epistemological space as that of Western moral theory. It stands not as a supplement to that tradition but in an other, incompatible theoretical space.”7 Hekman makes a case that concern for adjudication and justice in philosophy have overwhelmed the moral voice of care; a voice that has always existed but has historically been marginalized. Like a number of care theorists, she gestures at the role of the body: “Moral voices are connected to moral persons, persons who are concrete rather than disembodied.”8 It is my contention that Merleau-Ponty’s insights into the perceptual body provide the epistemic space for a comprehensive understanding of caring. Elsewhere, I have explored the general role of the body in caring9 to claim that through embodied knowledge and its perceptual posture, the body is built to care. In this article, the focus will be more specifically on the complex and central role of tactility in care ethics. I will suggest that Merleau-Ponty’s understanding of touch reframes a caring morality by grounding it in corporeal phenomenon rather than abstract categories. Most care ethicists begin, as Carol Gilligan did in the early 1980’s, by responding to the inadequacy of traditional moral categories and then positing an alternative voice. The need for fully integrating a philosophy of embodiment is claimed but is not entirely developed. Here, I propose to begin with Merleau-Ponty’s theory of the perceptual body and then establish caring as a potential of a tactile body. After reviewing the phenomenological method that Merleau-Ponty employed, we will inquire into how the body through tactility 6

Selma Sevenhuijsen, Citizenship and the Ethics of Care: Feminist Considerations on Justice, Morality and Politics (London: Routledge 1998), 83. 7 Susan Hekman, Moral Voices, Moral Selves: Carol Gilligan and Feminist Moral Theory, (University Park, PA: Penn State University Press, 1995), 25. 8 Ibid., 163. 9 Maurice Hamington, Embodied Care: Jane Addams, Maurice Merleau-Ponty, and Feminist Ethics (Urbana, IL: University of Illinois Press, 2004).

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constitutes the self, knowledge of the world, knowledge of others, and finally morality. Merleau-Ponty gives us the tools to interrogate the moral meaning of Rosing’s warm hands and how they brought comfort to Madge.

Phenomenology Numerous philosophical movements have begun with the call to make philosophy into an endeavor with the same certain footing as science. Descartes made such a claim and so did Edmund Husserl. What Husserl suggested was that given the cacophony of philosophical voices it was time for a radical new beginning to unify and energize philosophy.10 Although Husserl’s work failed to bring coherence to philosophy, it did influence some of the greatest minds of the twentieth century, not the least of which was Maurice Merleau-Ponty. MerleauPonty was an important literary critic and proponent of Marxism, but it was his extension of phenomenology to embodiment that marked his unique contribution to modern philosophy and what brings us insight into the possibility of understanding caring through the body. While Sartre declared that existence precedes essence, Merleau-Ponty suggested that phenomenology, “puts essences back into existence.” He describes the “bracketing out” of the natural attitude in Husserlian phenomenology as an effort to provide, “a direct description of our experience as it is, without taking account of its psychological origin and the causal explanations which the scientist, the historian or the sociologist may be able to provide.”11 For Merleau-Ponty, perception offers the central vehicle of the phenomenological method. Perception, “the common act of all our motor and affective functions” captures our primordial contact with the world without privileging the mind or body: “The soul is not merely in the body like a pilot in his ship; it is wholly intermingled with the body. The body, in turn, is wholly animated, and all its functions contribute to the perception of objects.”12 Given a philosophical tradition that has gone to great lengths to ignore the body, Merleau-Ponty’s attention to the perceptual body marks a new direction that has inspired a number of contemporary philosophers seeking to reintegrate the body into philosophy.

10

Edmund Husserl, Cartesian Meditations: An Introduction to Phenomenology, trans. Dorion Cairns (Norwell, MA: Kluwer Academic Publishers, 1995). 11 Merleau-Ponty, Phenomenology of Perception, vii. 12 Maurice Merleau-Ponty, “An Unpublished Text” trans. Arleen B. Dallery in Maurice Merleau-Ponty, The Primacy of Perception, ed., James M. Edie (Chicago: Northwestern University Press, 1964).

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Mark Johnson and George Lakoff acknowledge a philosophical debt to Merleau-Ponty’s work on perception. They find the very simple phenomenological claim that the mind is inherently embodied as not only profound, but allowing for a link to empirical scientific discoveries, particularly those found in cognitive science. If the mind is acknowledged as dependent upon its embodiment, then scientific studies about the brain become relevant in a field that usually eschews empirical data. Rationality, the cornerstone of many theorists concept of human ontology has historically been conceived as disembodied. However, rationality can be interrogated for its bodily basis given Merleau-Ponty’s notion of an “embodied mind.” As Johnson and Lakoff explain, “Reason is not disembodied, as the tradition has largely held, but arises from the nature of our brains, bodies, and bodily experience. This is not just the innocuous and obvious claim that we need a body to reason; rather, it is the striking claim that the very structure of reason itself comes from the details of our embodiment.”13 If Johnson and Lakoff, via Merleau-Ponty, are correct, and if furthermore morality is a rational endeavor, then it follows that a similar claim can be made about morality: the structure of morality itself comes from the details of our embodiment. Given Merleau-Ponty’s phenomenological approach, perception not only overcomes Cartesian dualism but reintegrates the mind and body around a perceptual function that reconceptualizes the body in a manner that will transform how we come to view epistemology, subjectivity, and, by extension, morality. If Descartes concludes that humans are “thinking things,” MerleauPonty’s phenomenological inquiry leads to the conclusion that we are indeed “perceiving things.”

Tactility In regard to perception, Merleau-Ponty often privileges the visual, but he also on occasion engages in extensive discussions of touch, which hint at an important role for tactility in the constitution of being. “Tactility” describes the reversibility of touch; a phenomenon that can be experienced actively and passively, as toucher and touched. While the skin provides the surface for touch, a full account of touching is more complex and involves other components including motility and the mind. Merleau-Ponty comparatively describes tactile perception: “the movement of one’s own body is to touch what light is to vision. All tactile perception, while opening itself to an objective ‘property’, includes a

13 Mark Johnson and George Lakoff, Philosophy in the Flesh: The Embodied Mind and Its Challenge to Western Thought (New York: Basic Books, 1999), 4.

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bodily component.”14 Because tactile information requires contact, bodily movement is usually involved in the touch process. This is particularly true with hands. While hands have more nerve receptors than most other parts of the body, they are also outfitted with greater motility, given the many small muscles and joints in the fingers, than other parts of the body to facilitate greater contact with surfaces. A singular instant of contact with a surface usually does not provide adequate sense data. To gain more information, the fingers move over the surface to enrich the sensory information. Our muscles know how to maximize contact by sweeping over an object without damaging it such as the light touch necessary to experience the surface of a rose petal. We can even experience sharp objects which as a pin or a cactus spine without hurting ourselves. The body has an amazing ability to maximize tactile experience through subtle movement. Merleau-Ponty recognizes the role of movement, “Even on the most sensitive parts of our tactile surface, pressure without movement produces a scarcely identifiable phenomenon.”15 Merleau-Ponty notes that touching involves both time and space to complete its task I will briefly emphasize two aspects of a phenomenological analysis of tactility: complexity and certainty. Philosopher Elizabeth Grosz suggests that touch may be the most complex of all the senses because “it is composed of so many interacting dimensions of sensitivity, involving a number of different functions (touch, pressure, texture, frequency, pain, and heat).”16 Unlike sight, smell, or hearing, touch requires contact and in that contact the body collects a broad range of data regarding the nature of the touched not possible through the other senses. For example, shape, density, size, and temperature of objects are quickly obtained through touch. While all the senses can be fooled, touch is in some ways the most certain. Visual cues are often deceptive in regard to size, temperature, and texture so we often seek tactile confirmation for sense data. A mug is steaming so I gingerly touch its side to see if it is too hot to drink. After shaving while looking at my face in a mirror, I feel my face to confirm its smoothness. In this manner our senses coordinate with one another to enrich the information of our perceptions. Merleau-Ponty refers to items for which we have coordinated our senses as intersensory entities: “any object presented to one sense calls upon itself the concordant occupation of all others.”17

14

Merleau-Ponty, Phenomenology of Perception, 315. Ibid. 16 Elizabeth Grosz, Volatile Bodies: Toward A Corporeal Existence (Bloomington, IN: Indiana University Press, 1994), 98. 17 Merleau-Ponty, Phenomenology of Perception, 318. 15

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Of course, touch also contains a high degree of cultural attribution. The phenomenological reduction begins with the bracketing out of the natural attitude, but is also attentive to the implications of the reinscription of social meaning given the establishment of essences. As Merleau-Ponty describes, the body “turns back on the world to signify it.”18 Our physical contact with our environment entails connections to an array of meanings that go far beyond the mere collection of data. Science fiction can be an excellent vehicle for exploring the human condition. By taking human beings out of the familiar and placing them in the unfamiliar, a form of phenomenological bracketing takes place in science fiction. In this manner particular aspects of human interaction that are taken for granted can be reexamined. The dialogue that follows exemplifies how humans give special status and meaning to touch. In the motion picture, Star Trek: First Contact, the crew of the starship Enterprise has traveled from the 24th century to the late 21st century, a time when creatures from another world war have overrun the planet. Captain Jean-Luc Picard (Patrick Stewart) and an android, Data (Brent Spiner), are inspecting an underground nuclear missile, the Phoenix, which would eventually be transformed into the means for interstellar travel and humanity’s first contact with aliens. The two characters are standing next to the missile when the Captain reflectively reaches out to touch the missile as the camera slowly pans over his hand and arm. Data observes his actions and looks at him quizzically. Captain: “It’s a boyhood fantasy Data. I must have seen this ship hundreds of times in the Smithsonian but I was never able to touch it.” Data: “Sir, does tactile contact alter your perception of the Phoenix.” Captain: “Oh yes, for humans touch can connect you to an object in a very personal way. Make it seem more real.” As an android, Data is incapable of accessing many of the subtle social constructions of meaning that humans attach to tactile experience. He also touches the missile but can only experience the raw phenomenon. Data is capable of bracketing the experience but not capable of the associative understanding. He describes his tactile experience, “I am detecting imperfections in the titanium casing . . . temperature variations in the fuel manifold. It is no more real to me now [after touching it] than it was a moment ago.” In a bit of comic relief, another officer, Deanna Troi (Marina Sirtis) interrupts the Captain and Data while they are touching the missile and quips, “Would you

18

Merleau-Ponty, “Unpublished Text,” 7.

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three like a moment alone?”19 The sexual innuendo is not foreign to the tactile experience: they both rely on carnal knowledge. As Captain Picard explained, to touch something is to have a unique, intimate understanding of the touched that we often valorize over the other senses. One might think of how fans value shaking the hand of a celebrity over seeing them or hearing their voice. Even if the tactile intimacy is fleeting and superficial, it carries a special status that indicates a personal connection. There is something special about touch that makes it important to us.

Tactile Knowledge, Tacit Knowledge Merleau-Ponty’s interrogation of the body has significant implications for epistemology. A perception is more than a sensorial experience; it is also integrated and filtered through memory in a dynamic process of storing and reconceptualizing information. As Merleau-Ponty describes, “Knowledge and the communication with others which it presupposes not only are original formations with respect to the perceptual life but also they preserve and continue our perceptional life even while transforming it.”20 In order to accomplish this understanding, Merleau-Ponty suggests that the body catches and holds perceptual experience. In this manner, the body can be said to contain knowledge—not a body separated from the mind but together. Merleau-Ponty proposes “habits” as one means for inscribing embodied knowledge. Habits are behaviors that do not require conscious attention because the body has acquired the requisite knowledge to place the habitual behavior in the background. In Phenomenology of Perception, Merleau-Ponty offers the example of using a stick to navigate space where vision is not available. After the initial conscious attempts to use the stick, proficiency is eventually obtained and the use of the stick requires less attending to. “Once the stick has become a familiar instrument, the world of feelable things recedes and now begins, not at the outer skin of the hand, but at the end of the stick.”21 Manipulating the stick has evolved into a bodily habit that extends the perceptual threshold employing both the tactile and motor knowledge of the body. Embodied knowledge need not entail only motor habits. Our body may store information about our world that has not been committed to linguistic categories of propositional knowledge. If asked what water feels like, I do not have to go find some water to touch to develop a response. My body contains past 19

Jonathon Frakes (director), Star Trek: First Contact (Hollywood: Paramount Pictures, 1996). 20 Merleau-Ponty, “Unpublished Text,” 7. 21 Merleau-Ponty, Phenomenology of Perception, 152.

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perceptions of touching water that are available to me to translate into words. Yet, the translation is not always easy. My initial response, “wet,” is not particularly descriptive and I search for words to enrich my description. What am I searching? I am reviewing my vocabulary to match my unarticulated perceptions of water. My body has tactile knowledge about water, and it has this prior to my ability to attach words to the knowledge. Between humans, there is a continuum of tactile relations that can range from the superficial and formal shaking of hands to the intimacy of sexual relations. Sex is the most comprehensive tactile relation and involves the fullest range of touching and movement between two bodies. Once again the tactile is privileged for although sex can involve all the senses, it is touch that is seen as primary. Touch requires proximity more than the other senses with the exception of taste. One’s level of intimacy with another often figures into proximity. Contact is the closest proximal experience. Furthermore the amount of physical contact between individuals, adjusted for cultural differences, indicates the level of intimacy. While sexual arousal can occur without touch, sexual activity cannot avoid the tactile. Sex could be described, in part, as an endeavor to gain tactile knowledge. Sex is, of course, a moment of heightened human experience that is charged with meaning. While sex can be pursued simply for the pleasure of the experience, humans often allocate additional considerations such as love and affection. Even those who engage in casual sex will acknowledge that sex has some impact on the relationship between two people. Given its heightened status, sexual experience has a greater impact than other sense data, but all tactile relations have implications for memory, imagination, and relationship. The body captures habits of love and therefore knows how to respond to various physical expressions of love and affection whether they are romantic, familial, or collegial. Tactility plays a powerful role in learning and communicating To summarize, the body is not only essential for knowledge collection, but the body knows more than is usually delineated into words. As Michael Polanyi claims, “We can know more than we can tell.”22 This is an important idea as we try to grasp what transpired between Rosing and his patient. How far can we push the boundaries of what our bodies know? Can we extend tactile knowledge to morality? Before addressing issues of ethics, we will explore how touch can establish the subject position. If tactility can establish subjectivity then the leap to moral agency is not that far.

22

Michael Polanyi, The Tacit Dimension (New York: Doubleday, 1966), 4.

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Tactile Subjectivity A crucial concern in philosophy is what constitutes subjectivity: What is it to be a subject? How does subjectivity constitute identity? What are subject-object relations? Like many feminist theorists, Rosi Bradotti is dissatisfied with traditional understandings of subjectivity as abstract, dualistic, and disembodied. She describes the traditional understanding of the subject of knowledge as “the subject in a series of dualistic oppositions: body/mind; passion/reason; nature/culture; feminine/masculine, and so on, which were organized hierarchically and provided the basic structure for the organization of knowledge.”23 The ultimate concern for feminists is that abstract notions of subjectivity can be unconsciously hijacked to privilege white, heterosexual, male experience. Merleau-Ponty offers feminist theorists one means for reconceptualizing subjectivity outside of traditional hierarchical categories. As Elizabeth Grosz describes, “This move to situate subjectivity in the lived body jeopardizes dualistic metaphysics altogether. There remains no basis for preserving the mutual exclusivity of the categories subject and object, inner and outer, I and world.”24 Nevertheless, Merleau-Ponty is not immune to privileging of male experience and a number of feminists have noted masculine bias in his construction of the body-subject. Luce Irigaray, for example, finds that MerleauPonty’s emphasis on the visual is an implicit valorization of the masculine perceiving subject.25 Merleau-Ponty’s work offers a means for understanding how touch constitutes subjectivity, but not an isolated subject clearly distinguished from objects or from other subject positions. This fluid subjectivity can ground the ability to care in the tactile knowledge contained in our bodies. Merleau-Ponty seemingly makes at least two claims about subjectivity simultaneously. One claim is that subject and object are not as clearly delineated as has been commonly understood. At the same time, Merleau-Ponty appears to point to tactility as creating the possibility of embodied subjectivity. I will begin with the first claim. Merleau-Ponty breaks with Husserl’s notion of the detached transcendental ego by using the phenomenological reduction to return to the primacy of embodied experience. In this manner, Merleau-Ponty defies the Western tradition’s construction of subjectivity as emanating from a 23

Rosi Bradotti, Nomadic Subjects: Embodiment and Sexual Difference in Contemporary Feminist Theory (New York: Columbia University Press, 1994), 45. 24 Iris Marion Young, Throwing Like a Girl and Other Essays in Feminist Philosophy and Social Theory (Bloomington: Indiana University Press, 1990), 161. 25 Luce Irigaray, “The Invisible of the Flesh,” trans. C. Burke and G. Gill, An Ethics of Sexual Difference (Ithaca, NY: Cornell University Press, 1993).

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disembodied mind. Merleau-Ponty claims that the body is both subject and object, the toucher and the touched. Moreover, subject/object claims are blurred as the body participates in the creation of the phenomenal world. Phenomenal perception constitutes the possibility of subjectivity at all. Iris Young expresses sentiments similar to Merleau-Ponty in the role of touch in constituting subjectivity: “touch immerses the subject in fluid continuity with the object, and for the touching subject the object touched reciprocates the touching, blurring the border between self and the other.”26 Even though Merleau-Ponty’s notion of subjectivity is fluid, tactility places a central role in constituting it. Judith Butler provocatively interrogates MerleauPonty’s analysis of the writings of 17th century theologian Nicolas Malebranche in an analysis conducted a decade before the publication of The Visible and the Invisible. According to Butler, Merleau-Ponty is particularly moved by Malebranche’s claim, “I can only feel that which touches me.” Malebranche, who is responding to Descartes, provides an interesting corollary to the Cartesian dictum “I think therefore I am” in the idea that “I am” because I have been touched. For Merleau-Ponty, Malebranche inspires the notion that the anonymous and pre reflective touch of the other initiates subjectivity, making the “I” possible. The infant who is touched has begun the sensory journey to understanding self and other having left the fluid subjectivity of the womb. Once again, perception is primary in Merleau-Ponty’s dynamic corporeal subjectivity. Bodily ability to perceive makes the life world possible. He described the body as the “stage director of my perception.”27 Sight, sound, smell, and touch constitute alterity through the body’s ability to turn outward and self efface to experience externalities. “My body does not perceive but it is as if it were built around the perception that dawns through it; through its whole internal arrangement, its sensory-motor circuits, the return ways that control and release movements, it is, as it were, prepared for a self-perception, even though it is never itself that is perceived nor itself that perceives.”28 Ironically, perception fosters subjectivity. The corollary to the formation of the outside world is the formation of the subject who is both distinct and continuous with that world. The distinction between subject and object can be experienced in one touching one’s own hand. My left hand can be the subject touching the right hand as object. We can then will a reversal whereby my right hand is the subject touching my left hand as object. This demonstrates tactile reversibility, but I can never perceive touching and being touched in the same hand simultaneously: the 26

Iris Young, Throwing Like A Girl, 182. Maurice Merleau-Ponty, trans. Alphonso Lingis, ed., Claude Lefort, The Visible and the Invisible (Evanston, IL: Northwestern University Press, 1968), 8. 28 Ibid., 9. 27

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experiences are distinct. A chiasm exists between the touching and the touched. “My left hand is always on the verge of touching my right hand touching the things, but I never reach coincidence; the coincidence eclipses at the moment of realization, and one of the two things always occurs.”29 The ambiguity of embodied existence emerges as tactility comprising both subject and objects experienced separately as toucher and touched. Nevertheless, subjectivity and objectivity are not unrelated experiences because both are “spanned by the total being of my body.”30 The two categories engage in an intertwined dance within corporeal experience. Accordingly they are complementary (contrasting experiences that help define one another) and supplementary (knowledge as the one touched helps imaginatively understand what it means when touching others). The touched other helps establish the contrasted experience of self as not other.

Care Ethics Born out of feminist analysis, care ethics as a distinctive moral category of inquiry is only a quarter of a century old (by comparison the language of virtue ethics is over 2500 years old). Given its infancy, a precise generally accepted definition of care ethics has yet to be established although a number of theorists have made helpful contributions to its understanding. Care ethics is a relational approach to morality predicated on the connected, social nature of human existence that values contextual and affective knowledge. Philosopher Virginia Held offers five features of care ethics: 1. An attention to the needs of others for whom we take responsibility. 2. A respect for emotion in the form of affective knowledge. 3. A valorization of moral particularism. 4. A reconceptualization of the distinction between public and private spheres. 5. An acknowledgement of the interdependence of human beings.31 It is Held’s fifth point, care ethic’s ability to transcend the Enlightenment legacy of liberal individualism that ultimately finds the most benefit from an interrogation of Merleau-Ponty’s work. What care ethics is not, is a closed system of adjudication. Unlike the moral calculus of Jeremy Bentham and John Stuart Mill, or the formulations of the categorical imperative by Immanual Kant, or the Decalogue of the Hebrew Scriptures, care ethics offers no clear rubric for determining right action. Care ethicists are not opposed to moral rubrics but they recognize that these are tools or shortcuts and do not constitute a comprehensive understanding of morality as 29

Ibid., 147-148. Ibid., 148. 31 Virginia Held, The Ethics of Care: Personal, Political, and Global (New York: Oxford University Press, 2006), 10-13. 30

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is often believed. Similarly, the body is not a closed vessel for Merleau-Ponty. The body opens up to the perceptual phenomena of the world in a radically continuous manner that defies traditional divisions between the knower and the known. Merleau-Ponty did not intend to construct an ethical theory as traditionally understood in philosophy. Yet, for Merleau-Ponty, the perceptual body points to primordial wisdom that can contribute to ethical understanding. In particular, Merleau-Ponty consistently employs language of connection such as when he describes the relation of the senses and the sensible as entering “into a sympathetic relation” that mirrors care ethicists attempt to valorize connectivity. The open-ended nature of care ethics and Merleau-Ponty’s philosophy of the body make for an intriguing synergy. In Embodied Care, I offered the following definition of care ethics to account for its corporeal dimension: “care denotes an approach to personal and social morality that shifts ethical considerations to context, relationships, and affective knowledge in a manner that can be fully understood only if care’s embodied dimension is recognized. Care is committed to the flourishing and growth of individuals yet acknowledges our interconnectedness and interdependence.”32 While this is not a generally accepted definition of care ethics either, it does capture the overlooked embodied dimension of care. Touch holds an important position in caring, albeit a relatively underexplored one. While care can be communicated through any number of embodied activities including voice inflection, posture, facial expressions, and gestures as well as articulated through language and activities, touch is an indispensable aspect of care. Expressions of intimate and genuine care in North America and many other cultures involves touch—a hand on the shoulder, an arm around the back, holding hands, hugging, caressing, kissing, etc. Nel Noddings addresses the implicit bodily dimension of care: “For Mothers (or fathers) who bottle-feed their infants, there is an overwhelming bodily connection. Holding the child as it nurses, inhaling its newborn fragrance, gazing at its physical perfections, mothers and fathers are moved by something that cannot be entirely captured in words. It is bodily response.”33 While some have been critical of privileging parent-child caring dyads within the literature of care ethics, the size differential between infants and adults facilitates touch as an originary experience of care. Holding babies is a functional action, allowing parents mobility so that attending the infant can take place simultaneously with other activities. However, within that functional activity is an intersubjective experience of care phenomenally transacted as the touching of two bodies. While it is possible to have a caring 32

Hamington, Embodied Care, 3. Nel Noddings, Starting At Home: Caring and Social Policy (Berkeley: University of California Press), 128.

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relationship without touching, it seems that touching plays a crucial role in caring both explicitly and imaginatively. Even when communicating with someone from a distance who one cares, even if this is not a romantically defined caring, past touch informs the bond between the two who care for one another. Metaphorically, people often describe being “touched” by the actions of others as an expression of profound personal impact. The metaphor works because we have embodied knowledge of how important touch is.

The Flesh: Between The Generalized and the Concrete Other Political theorist Seyla Benhabib posited one means for understanding the alternative notion of subjectivity offered by care ethics as the notion of the “generalized other” and the “concrete other.” Accordingly, traditional moral theory employs a generalized other: one that is an abstract interchangeable individual who comprises an ethical decision maker. In this manner, the normative question, “what is the right thing to do?” is substituted with “what should a moral person do?” to get at the general case. A morality that requires an “objective” standpoint disconnected from any particular bias demands such a move. Benhabib describes how this generalized other still involves a certain extrapolation from the self: “In assuming this standpoint, we abstract from the individuality and concrete identity of the other. We assume that the other, like ourselves, is a being who has concrete needs, desires and affects but what constitutes moral dignity is not what differentiates us form each other, but rather what we have in common.”34 Benhabib refers to this relation with others as governed by norms of formal equality and reciprocity. Moral subjects are treated as equally entitled to ethical categories as witnessed by Kant’s categorical imperative or Mill’s moral calculus. By comparison, care ethics reframes the other as concrete rather than generalized. The problem of alterity remains, but the imaginative extrapolation includes individuality. Benhabib describes the concrete other as comprehending, “the needs of the other, his or her motivations, what he or she searches for and desires. Our relation to the other is governed by the norms of equity and complementary reciprocity.”35 Benhabib’s intent is not to offer the concrete other as a superior notion of subjectivity over the generalized other, but, like care ethicists, is to name the previously unnamed. Ultimately, the position of the 34 Seyla Benhabib, “The Generalized and the Concrete Other: The Kohlberg-Gilligan Controversy and Moral Theory” in Eva Feder Kittay and Diana T. Meyers, Women and Moral Theory (Lanham, MD: Rowman and Littlefield, 1987), 163. 35 Ibid., 164.

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generalized other (standing outside of contextual experience) is a prerequisite for a notion of moral theorizing, but it should not be derived exclusive of concrete understandings of particular others. Some care ethicists go so far as to posit care as something different than an ethical theory as it is traditionally understood because of its resistance to abstraction.36 Without considering concrete others, Benhabib claims, “We lack the necessary epistemic information to judge my moral situation to be ‘like’ or ‘unlike’ yours.”37 In its effort to establish universal morality, the Western moral tradition has overlooked the particularity of human existence. As socially constituted individuals located within a web of relations as well as complex contexts, we are not easily interchanged moral agents. To ask whether I would steal a drug to save my dying spouse is to assume that moral agents are disembodied and decontextualized and thus capable of easily substituting positions.38 Merleau-Ponty’s tactile subjectivity challenges the objective position of the generalized other: “as the subject of touch, I cannot flatter myself that I am everywhere and nowhere; I cannot forget in this case that it is though the body that I go to the world.”39 To engage in the language of morality and avoid slipping into relativistic malaise, an ethical commonality is required. I suggest that Merleau-Ponty’s enigmatic notion of the flesh can provide the necessary mediation between the generalized and the concrete other. In his unfinished work, The Visible and the Invisible, Merleau-Ponty posits a complex understanding of flesh as the radical conflation of the subjective and objective world: of the perceived and the perceiving. This is both an inward and an outward directed perception as Grosz explains, “Flesh is being as reversibility, being’s capacity to fold in on itself, being’s dual orientation inward and outward, being’s openness, its reflexivity.”40 For Merleau-Ponty, the flesh is much more than skin. It is a primal reversibility: the perceived in the perceiver and the perceiver in the perceived. The tactile knowledge I have of that which is touched inhabits my fingers in a manner such that they can no longer be discretely understood as subject or object of tactile experience. Through this perceptual reversibility, the human body is continuous with the flesh of the world. Philosopher Gail Weiss describes Merleau-Ponty’s notion of reversibility as a process of “ongoing interaction between the flesh of the body, the flesh of 36

Hekman, Moral Voices, Moral Selves, 33. Benhabib, “The Generalized and the Concrete Other,” 167. 38 I am referencing the “Heinz Dilemma” used by Lawrence Kohlberg to determine moral maturity and which spawned Gilligan’s development of the alternative moral voice of care. Carol Gilligan, In A Different Voice: Psychological Theory and Women’s Development (Cambridge: Harvard University Press, 1982), 25. 39 Merleau-Ponty, Phenomenology of Perception, 316. 40 Elizabeth Grosz, “Merleau-Ponty and Irigaray in the Flesh” Thesis Eleven 36, 44. 37

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others, and the flesh of the world, a process in which corporeal boundaries are simultaneously erected and dismantled.”41 Here we can observe how MerleauPonty extends and evolves his understanding of the perceptive body. In The Phenomenology of Perception, he offered the perceptual body as outwardly radiating and actively involved in the process of constituting the life world. In The Visible and the Invisible, Merleau-Ponty radically reformulates the perceiver and the perceived as constituting one another: “This flesh of my body is shared by the world, the world reflects it, encroaches upon it and it encroaches upon the world.”42 Merleau-Ponty’s notion of the flesh reframes the categories of generalized and concrete others. The flesh matrix makes the other and myself much less distinct. My perceptual body is continuous with other bodies in a manner that my body understands the other. My perceptions about hunger, the force of gravity, and the cool hard feeling of stainless steel are filtered through cultural constructions but simultaneously experienced through a body with the same perceptual potential as other human bodies. In regard to morality, the body provides me with the requisite knowledge to imaginatively push the generalized other to the concrete other. If I have had sufficient diverse experience and if I transcend narratives that divide humanity, I can find the other in myself. There is knowledge to a varying degree of the other in our shared flesh. This knowledge may be incomplete, but the imaginative resources are there to create the possibility of caring and perhaps moral action. I may never have been the victim of domestic violence but my body knows what it is like to have been hit by another; it knows what it is like to be scared; it knows what it is like to be confused. I can draw these perceptions together to get a limited understanding of domestic violence. It is not the same as having the experiences of another, but it provides a starting point for moral imagination and an ethical imperative. The habits of our body include those that keep us whole and safe. Some of these habits are simple and reflexive actions such as blinking when something approaches our eyes. Other habits are more complex results of social and environmental conditions, such as physically seeking out a loved one for comfort when we have been emotionally hurt. If we take Merleau-Ponty’s notion of the flesh seriously, the moral imperatives that we have for ourselves to remain safe and whole, can be seen and understood in others—not just intellectually, but in our bodies. Accordingly, to be human is to share an embodiment that entails an ethical pull. Weiss describes this connection to others: “To be embodied is to be capable of being affected by the bodies of others and, therefore, to be embodied 41

Gail Weis, Body Images: Embodiment As Intercorporeality (New York: Routledge, 1999), 119. 42 Merleau-Ponty, The Visible and the Invisible, 248.

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is both a necessary and a sufficient condition for the generation of a bodily imperative.”43 Humanity is perceptually bound up with one another through our shared embodiment. This is not to deny the potency of socially constructed cultural, class, and gender differences to hinder the recognition of our embodied commonality. Nevertheless, the body remains what we ultimately share. When Rosing placed his hands on Madge, the action seems so mundane as to hardly be worth philosophical attention. Merleau-Ponty’s analysis however indicates that an intentional human touch carries with it enormous tacit meaning. In what took only a few fleeting instances a number of ideas passed between Rosing and Madge that we can only vaguely capture in words. Rosing’s touch established that Madge was both a subject and object—someone separate from Rosing but currently the object of his attention. This attention includes medical skill but also human care. The touch revealed a sense of understanding about fear over the unknown and unfamiliar of the circumstances yet the touch was also future-oriented in that it indicated some degree of togetherness in facing what would transpire. Removed from the experience, I can only speculate about the tacit knowledge shared but habits of care known to these bodies were invoked. This touch cannot erase tough decisions that have to be made or dire news that might have to be faced, but it is a perceptual reminder of a common connection through the flesh.

Conclusion: Care and Intercorporeality Alphonso Lingis describes a pervasive evasion of the body. “Modern society is a society of alienation, not only alienating man from the instruments and resources of his labor and from the fruits of his labor, but also alienating him from his own body parts, forcing him to sell his arms, his back, his brain, his imagination to another.”44 Modern alienation of the body includes a significant lack of intercorporeal touching partially reinforced by concerns over unintended sexual cues, homophobia, and notions of professional comportment that includes strict proximal boundaries. A number of different studies are reinforcing the idea that society should value tactility. Those involved in holistic medicine have been at the forefront of those contending that touch should be an integral part of healing and therapeutic regimens.45 Medical research indicates that touch may

43

Weiss, Body Image, 162. Alphonso Lingis, “Segmented Organisms” in Dorothea Olkowski and James Morley, eds. Merleau-Ponty: Interiority and Exteriority, Psychic Life and the World (New York: State University of New York Press, 1999), 172. 45 See, for example, “Jayne’s Story” Holistic Nursing Practice 19, no. 5 (2005): 211-216. 44

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assist in decreasing incidence of violence in at-risk children and adolescents46 as well as play a positive role in the development and well-being of infants.47 The evidence is mounting that part of our status as social beings is a need for some degree of intercorporeal tactile experience. Philosophy has not generally helped foster tactile experience. Ethical theories have alienated us from the moral knowledge of our bodies while simultaneously making ethics distinctively negative. At various times and in various ways, Aristotle, Kant, Mill, not to mention many Christian theologians/philosophers have denigrated aspects of human embodiment and particular the sensations that emanate from perceptual existence. One of the striking aspects of Nel Noddings’ early work on care ethics is that she includes a chapter on joy. Like the body, joy does not occupy a significant role in moral philosophy. Noddings suggests that there is joy in the receiving of the other that participates in care. This is not to say that all caring activity is joyous but in the open reciprocity to the other, positive feelings are often invoked. “The occurrence of joy as a willing transformation of self under the compelling magic of other subjectivities points to a receptive consciousness, one that is energized by engagement and enlightened by looking and listening.”48 What Noddings describes as “compelling magic” might be described as an extension of MerleauPonty’s intertwining of the flesh. We often delight in that which is familiar—a familiar tune, a familiar vacation spot—but most of all we revel in familiar faces. These familiar faces are what the body foregrounds in intercorporeal experience. However, it is a tacit embodied knowledge. Michael Polanyi observes, “We know a person’s face, and can recognize it among a thousand, indeed among a million. Yet we usually cannot tell how we recognize a face we know, so much of this knowledge cannot be put in words.”49 I see in the other something that I know in myself—about them and about me and about us together. In seeing a familiar face—and all faces carry a certain amount of familiarity—I know that we can engage in a dance of subjectivity and objectivity, through reflection and communication moving back and forth from “I” to “you” because we share human embodiment. However that “I” and “you” are linguistic categories that do not capture our continuity. Morality, then, still includes hard choices and self discipline, but it springs forth from the happy condition of our social reality: our intercorporeality. 46

Tiffany Field, “Violence and Touch Deprivation in Adolescents” Adolescence 37, no 148 (Winter 2002): 735-749. 47 Tiffany Field, “Infants’ Need Touch” Human Development 45 (2002): 100-103. 48 Nel Noddings, Caring: A Feminine Approach to Ethics and Moral Education (Berkeley: University of California Press, 1984), 144. 49 Polanyi, The Tacit Dimension, 4.

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Rosing’s description of his interaction with Madge is brief and somewhat vague. It is challenging to make the tacit explicit in our language which is unfamiliar with capturing the subtleties of embodiment. Rosing does convey, however, that touch has enormous epistemological and moral potential if we are willing to attend it. This is not a morality of rules and discipline, but one of care and connection that carries with it the potential for joy. Hospital visits are seldom pleasurable occasions, but even under the worst conditions, humans display a capacity to understand and comfort one another. This ability does not stem from advanced ethical training, although we can be trained to attend to it as Rosing does. Our tremendous capacity to care flows from our capacity to glimpse and touch others in ourselves. Stripped of divisive social narratives, we know we share an embodied existence.

WEITHMAN AND RAWLS ON LIBERALDEMOCRATIC CITIZENSHIP JAMES W. BOETTCHER, SAINT JOSEPH'S UNIVERSITY

Paul Weithman has long been one of the more sympathetic critics of John Rawls’ political liberalism. In a number of essays over the past decade which have tracked and responded to Rawls’ political turn, Weithman has devoted considerable attention to the question of the proper role of religion in political decision-making. But his criticisms of Rawls’ treatment of this question have generally arisen out of illuminating interpretations – and in some cases, necessary reconstructions – of basic claims and arguments of political liberalism which Weithman seems to support, at least in part.1 So it is not especially surprising to learn, in his more recent Religion and the Obligations of Citizenship, that Weithman still considers the Rawlsian ideal “very attractive.” 2 Moreover, he acknowledges in the book’s preface that he had initially hoped “to make room in the theory of liberal democratic citizenship for saints and heroes of the religious left” (ROC, ix). But Weithman’s hope, it turns out, was not to be realized by signing on to the dominant approaches to liberal-democratic theory. Weithman’s considered view, advanced in Religion and the Obligations of Citizenship, is that the problem of religion and politics must be met with an alternative conception of liberal-democratic citizenship, one which is both 1

See for example Paul J. Weithman, “Taking Rites Seriously,” Pacific Philosophical Quarterly 75 (September-December 1994): 272-94; Paul J. Weithman, “Liberalism and the Political Character of Political Philosophy,” in The Liberalism-Communitarian Debate, C. F. Delaney, ed. (Lanham, MD: Rowman & Littlefield, 1994): 189-211; Paul J. Weithman, “Religion and the Liberalism of Reasoned Respect,” in Religion and Contemporary Liberalism, Weithman, ed. (Notre Dame, IN: University of Notre Dame Press, 1997): 1-37; and, Paul J. Weithman, “Citizenship and Public Reason,” in Natural Law and Public Reason, Robert P. George and Christopher Wolfe, eds. (Washington, D.C.: Georgetown University Press, 2000): 124-70. 2 Paul J. Weithman, Religion and the Obligations of Citizenship (New York: Cambridge University Press, 2002), p. 213 [abbreviated hereafter as ROC ].

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empirically informed and more sensitive to the commitments and practices of actual religious citizens. In working out such an alternative, Weithman defends the thesis that it is permissible for citizens to rely solely on religious arguments in their voting and political advocacy. He also argues that liberal-democratic citizens have a rolespecific duty to act responsibly by adhering to the following principles: (5.1)

Citizens of a liberal democracy may base their votes on reasons drawn from their comprehensive moral views, including their religious views, without having other reasons which are sufficient for their vote – provided they sincerely believe that their government would be justified in adopting the measures they vote for. (5.2) Citizens of a liberal democracy may offer arguments in public political debate which depend upon reasons drawn from their comprehensive moral views, including their religious views, without making them good by appeal to other arguments – provided they believe that their government would be justified in adopting the measures they favor and are prepared to indicate what they think would justify the adoption of the measures.3

The defense of these principles is based largely on reflection on the empirical conditions associated with educating and socializing citizens, securing equal opportunities for political participation, and sustaining serious and fruitful political discourse and deliberation. Weithman argues that his principles of responsible citizenship (5.1-5.2) are most appropriate in societies like the United States where valuable contributions are made by churches in promoting these and other public goods. Perhaps the most important of these contributions is the role that churches are said to play in bringing about “realized citizenship” (ROC, 14). Citizenship is realized insofar as, subjectively, one effectively identifies with one’s status as a citizen, and, objectively, enjoys guaranteed and real opportunities to participate in social and political life. For Weithman, “[t]o maintain that churches should not be engaged in politics is, in effect, to require that they not facilitate the realized citizenship of large numbers of Americans” (ROC, 65). Weithman’s principles are thus presented as an alternative to what he calls the “standard approach” to religion and political decision-making. According to the standard approach, liberal-democratic citizens should provide “justifying reasons” in support of their political choices and advocacy, and they must redeem their politically relevant religious arguments with accessible and nonreligious justifying reasons. Citizens who satisfy these requirements are

3

See ROC, 3 and ROC, 121ff.

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considered to act responsibly as free and equal members of a liberal democracy. So according to the standard approach, [p]articipation can be responsible and the quality of citizens’ relations maintained…only if citizens rely and know that everyone else relies on accessible reasons, on reasons that they all recognize or would recognize as good reasons for deciding fundamental questions. Since religious reasons are not accessible to everyone in a pluralistic society, they conclude that appeals to them must be made good by appeal to reasons which are (ROC, 6).

Indeed the so-called standard approach is by now quite familiar. Liberal theories of political justification and proposals for restraints on reason-giving have been subject to much criticism in recent years, often under the banner of resisting the exclusion of religion from the public square. Some liberal philosophers may indeed celebrate the “privatization” of religion, endorsing Richard Rorty’s call for its general exclusion from political discussion.4 But many do not. A more plausible, inclusionist version of the standard approach would suggest that, in their political decision-making, citizens are only sometimes required to restrain their appeal to religious (and other comprehensive) doctrines, which are nevertheless understood to inform public political life in important ways.5 In my view, criticisms of liberalism which are motivated by an even more expansive, strong inclusionist account of the proper role of religion in political discourse and decision-making often fail to examine the standard approach in the best light. This is not true, however, of Weithman’s book, which leaves aside easier targets and confronts directly the most powerful versions of the standard approach, namely those of John Rawls and Robert Audi.6 Moreover, Weithman’s treatment of their respective theories is careful and generous. In the case of Rawls, this means that Weithman not only acknowledges the inclusionist dimensions to political liberalism, but also attends to the rather elaborate conceptual machinery that supports what Rawls eventually calls the “wide view” of public reasoning.

4

Richard Rorty, “Religion As Conversation-stopper,” in Philosophy and Social Hope (New York: Penguin Books, 1999): 168-74. 5 See James Boettcher, “Public Reason and Religion,” in The Legacy of John Rawls, Thom Brooks and Fabian Freyenhagen, eds. (London: Continuum, 2005): 124-51. 6 See John Rawls, Political Liberalism, 2nd ed. (New York: Columbia University Press, 1996), and Robert Audi, Religious Commitment and Secular Reason (New York: Cambridge University Press, 2000).

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In what follows, I examine Weithman’s view by focusing mainly on his criticism of Rawls’ idea of public reason. While I cannot here do justice to Weithman’s rich discussion of the role of churches in political life, I shall eventually return to this issue in comparing Weithman’s account of citizenship to that of Rawls. If the cost of the standard approach were the elimination of the many public goods promoted by churches and discussed by Weithman, then the standard approach would not be worth defending. But if, as I believe, the standard approach could be given a wide interpretation which accommodates church contributions to political discourse and participation, then the ideal that it presents remains attractive, and worthy of realizing in our political practices. Whether that ideal issues moral obligations to satisfy the requirements of public reason under the decidedly non-ideal conditions of actual, contemporary liberal democracies is a difficult question that Weithman’s book forces us to confront.

I. The nature of the public forum Before turning to the most important differences between Weithman’s view and political liberalism, we might begin with the issue of when and where principles of citizenship are supposed to apply. The requirements of Rawlsian public reason are said to govern the political discourse and choices of officials and citizens in the public political forum. Of course, as Weithman observes, ordinary citizens in actual societies – i.e., contemporary mass democracies – will typically encounter very few opportunities for deliberation and discussion within the official public political forum, as Rawls understands it.7 The Rawlsian distinction between the “public political forum,” where the requirements of public reason apply, and the “background culture,” where these requirements do not apply, is essentially institutional. The public political forum is defined in terms of the basic roles and settings associated with governance, including the roles of judge, legislator, campaign manager and citizen-voter. In defending his own principles of responsible citizenship, Weithman instead adopts a distinction between “public political discussion,” to which Weithman’s principle 5.2 applies, and “civic argument,” to which it does not apply. Weithman’s distinction is pragmatic, based on the “conversational pragmatics” of citizens who undertake various commitments when, in support of favored political outcomes, they address one another as citizens. As Weithman puts it, in addressing one another in the appropriate way, “[c]itizens…advocate publicly, instantiating the public forum” (ROC, 111).

7

On this problem, see Robert Goodin, Reflective Democracy (New York: Oxford University Press, 2003).

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The pragmatic approach to public political discussion works well to explain the “plausible intuition” that principles of responsible citizenship might sometimes apply to advocacy in what Rawls calls the background culture. As Weithman suggests, this intuition would seem to have been the basis of Rawls’ claims in Political Liberalism that Martin Luther King, Jr., in advancing the cause of civil rights, and Cardinal Joseph Bernardin, in criticizing abortion rights, satisfied the requirements of public reason (ROC, 185). From the standpoint of political liberalism, it is not entirely clear why, for Rawls, these requirements would need to have been satisfied in the first place, since neither King nor Bernardin were governmental officials and neither citizen was speaking in the public political forum. While Rawls would seem to have trouble explaining the significance of these cases as examples of public reasoning, Weithman’s “more capacious understanding of the public forum” better accounts for the idea that some discussions of fundamental questions by citizens in non-governmental fora are sufficiently important or “public” to warrant recognition of “an obligation to discuss those questions responsibly” (ROC, 185). Rawls’ distinction between the public political forum and the background culture appears, from this perspective, somewhat artificial. As I see it, Weithman’s pragmatic approach might also be used to explain another plausible intuition, namely, that certain discussions by political officials in the so-called background culture are subject to principles of responsible citizenship. Here we face the question of precisely which settings count as “public” fora for the discourse of governmental officials. Courts, legislatures and political campaigns are obvious instances of public fora. But, especially in light of Weithman’s emphasis on the conversational pragmatics of public political discussion, we can certainly imagine cases in which governmental officials ought to act and reason responsibly even in non-governmental settings.8 .

8

For example, Lt. Gen. William Boykin, a senior Pentagon official, did not seem to violate the requirements of Rawlsian public reason in a series of speaking engagements with Christian groups in non-governmental settings. Discussing U. S. foreign affairs in explicitly religious terms, Boykin is reported to have claimed that, despite losing the popular vote, George W. Bush had been chosen by God for the Presidency. Other remarks by Boykin, concerning the idolatry of non-Christian worship, Muslim hatred of Christians, and the struggle against Satan would seem, at the very least, irresponsible on grounds of diplomacy. But were Boykin’s remarks irresponsible simply in virtue of his official role as a high-ranking intelligence officer addressing an audience of citizens? Would they have been irresponsible during a campaign year? An answer to these questions would seem to depend in part on features of the situation which are either ignored or glossed over by the Rawlsian approach to public reason, such as Boykin’s status as a senior-level official, his decision sometimes to appear in uniform, and the purpose of his remarks. See Paul Richter, “General Apologizes for Remarks on Islam,”

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From the standpoint of political liberalism, the problem is that extending the requirements of public reason to special cases in the background culture would work against one of the inclusionist dimensions of Rawls’ wide view of public reasoning, namely, its insistence on an open background culture with no restrictions on discourse. I leave aside the difficult question of how to achieve the proper balance between valuing this openness and acknowledging the commitments that citizens and officials undertake in their everyday conversations with one another. But a final point is worth mentioning. The problems that Weithman identifies with the Rawlsian public political forum are connected, I think, to one of the methodological features of Rawls’ analysis of public reason. Rawls begins by theorizing the idea of public reason as a norm that applies to the choices and discourse of governmental officials, before extending, as an ideal of citizenship, the requirements of public reason to ordinary citizens qua voters and advocates.9 But in much of the exposition of the idea of public reason Rawls seems to use the term “citizen” broadly to designate both citizens and officials. For this reason, it is sometimes unclear how the requirements of public reason might apply differently, or more or less strictly, in the cases of various political officials and ordinary citizens. But we can also raise questions about Weithman’s principles in this regard: Do Weithman’s principles of responsible citizenship (5.1-5.2) apply only to citizens? Do they also apply in the same fashion to governmental officials? Or, should officials be held to more restrictive principles that would be associated with the standard approach? Specifically, would it be appropriate for an officeholder, politician or campaign manager to rely solely on a religious rationale in advocating for a law or policy, provided that she believes the law or policy to be justified and is prepared to supply the relevant religious justification? Is the appropriateness of advocacy on behalf of such a law or policy determined in part by the setting in which it is presented? One possibility is for a governmental official to appeal mainly or primarily to religious reasoning in advocating a law or policy in a church-related setting or in a conversation with religious leaders. A second possibility is for the same kind of advocacy to be advanced in a non-religious campaign setting or legislative debate. According to the Rawlsian version of the standard approach, advocacy of this kind should be governed by the proviso that sufficient public reasons accompany justificatory appeals to a comprehensive doctrine. Can Weithman’s principles of responsible citizenship accommodate this considered judgment Los Angeles Times (October 18, 2003), and “Words of Faith,” Online Newshour (October 21, 2003) [http://www.pbs.org/newshour/home.html ]. 9 Rawls, Political Liberalism, pp. 213-7 and Rawls, “The Idea of Public Reason Revisited,” in Collected Papers, Samuel Freeman, ed. (Cambridge, MA: Harvard University Press, 1999): 573-614, especially pp. 574-7.

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about one of the responsibilities of those citizens who serve as political officials? Finally, we might consider the case of a governmental official who both satisfies Weithman’s principles and votes for a law or policy solely because he or she sincerely believes that either casting a different vote or abstaining would compromise a fundamental religious commitment. Is the decision to vote on this basis consistent with responsible citizenship?10 In one of Weithman’s examples, a citizen, Mark, decides to vote against a referendum that would legalize physician-assisted suicide because he reads a letter by Cardinal Bernardin, considered by Mark to be a respected religious authority and reliable judge of moral issues (ROC, 129-30). Mark’s vote is permissible according to Weithman’s principle 5.1. Would the same vote be permissible if Mark were a state legislator voting for the same reasons on a similar question put before the legislature? As it stands, Weithman’s principles of responsible citizenship seem to leave this question unanswered. But if Weithman were to recognize that governmental officials must be held to moral standards for voting or advocacy which are more demanding than his own principles (5.1-5.2), then the difference between his view and the standard approach would not be as great as it may at first appear.

II. Reasonable Disagreement The best way to appreciate the difference between Weithman’s principles of responsible citizenship and Rawls’ idea of public reason is to examine Weithman’s answers to the two main questions he poses about Rawls’ view: (7.1) How must citizens think of their authority if they accept and comply with the [Rawlsian] duty of civility and the proviso? (7.2) Is it reasonable for some citizens to reject this view of their own collective authority? (ROC, 181).

It is Weithman’s affirmative answer to the second question that supports his conclusion that his own principles of responsible citizenship better accommodate the kind of disagreement characteristic of a religiously pluralistic liberal democracy like the United States. But let’s start with the first question: How are Rawlsian citizens supposed to think of themselves and their political authority?

10

For a discussion of this question, see Kent Greenawalt, Private Consciences and Public Reasons (New York: Oxford University Press, 1995), pp. 151-64, especially pp. 161-3.

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According to Rawls, a citizen who satisfies public reason’s ideal must be prepared to offer reasons for certain political choices that he or she reasonably thinks other citizens may reasonably accept. To offer reasons of this sort a citizen will typically draw on the values of a reasonable (i.e., liberal) political conception of justice, one which can be presented independently of the reasongiving agent’s comprehensive doctrine. In appealing to the values of a political conception, citizens are said to show respect for one another as persons with the capacity and fundamental interest in exercising basic moral powers, including the power to pursue a conception of the good. As Weithman puts it, citizens must respect one another as persons who lead “autonomous lives” (ROC, 201). In short, according to the Rawlsian model, a citizen’s political autonomy is respected when fundamental decisions are made on the basis of the values of a reasonable political conception, but threatened when these decisions are made solely on the basis of a comprehensive doctrine. Why do decisions of the latter kind threaten autonomy? One answer to this question would draw on what Weithman calls a “negative autonomy condition.” According to the negative autonomy condition, a citizen’s autonomous exercise of her moral powers is “compromised” when the basic political framework is established on the basis of another citizen’s comprehensive doctrine (ROC, 202). In that case, the political rules that govern the exercise of all citizens’ moral powers would depend on what are, to some citizens, “alien” doctrinal conceptions of the good. Weithman argues, however, that it is not clear why being subjected to an alien comprehensive doctrine threatens a citizen’s autonomy any more than being subjected to a rival conception of justice. In both cases, fundamental political decisions are being made on the basis of another citizen’s views. While I believe that more might be said on behalf of the so-called negative autonomy condition, Weithman is right to suggest that this condition does not fully explain the link between the idea of public reason and respect for others as persons with a fundamental interest in exercising their moral powers.11 According to Weithman’s interpretation of Rawls, the interest in the autonomous exercise of citizens’ moral powers requires the satisfaction of a positive autonomy condition as well. Citizens must not only be free from the imposition of alien comprehensive doctrines; they must also be able to recognize themselves as the authors of fundamental political decisions and the basic political framework that these decisions support. Specifically, the reasons for these decisions must be reasons that persons could accept as free and equal 11

It seems to me that, in many cases, reasoning based solely on a comprehensive doctrine is more likely to threaten both autonomy and mutual trust, since reasonable political conceptions are presumably already understood by the reason-giving agent and others to be suitably addressed to citizens in a diverse body politic.

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citizens capable of exercising their rational capacities.12 Where are such reasons to be found? Rawls claims that the political values of a reasonable political conception of justice supply the reasons that citizens could accept as suitably connected to their own rational capacities. Such reasons are in principle independent of the commitment to any particular comprehensive doctrine. Of course, it is likely that citizens will continue to disagree about matters of law and policy, as well as the arguments and reasoning that lead to various proposals. As Weithman realizes, the Rawlsian requirement is not for each to locate reasons that all other citizens will in fact consider fully convincing. Rather a citizen should seek reasons that reasonable citizens could accept as consistent with a reasonable political conception, and which thereby assure others of the reason-giving citizen’s reasonableness (ROC, 196, 198 and 206). And with this idea we arrive at an answer to Weithman’s first question about Rawls. Citizens who accept and comply with the requirements of Rawlsian public reason must see themselves as having rational capacities which, at least in regard to political decision-making, confer political legitimacy to laws and policies. In other words, citizens must see themselves as having “the authority collectively to determine what considerations count as reasons for settling questions about the conditions which impinge most fundamentally on the autonomous fashioning of their own lives” (ROC, 208). Recall that Weithman’s second question is whether it is reasonable for some citizens to reject this view of their citizenship. Weithman claims that it is, but much depends on how we understand the idea of reasonableness. A first point is that, from the standpoint of political liberalism, it would be by definition unreasonable for citizens to reject the understanding of persons as free and equal citizens, with an interest in exercising basic moral powers. Along with the ideas of society as a fair system of cooperation and human judgment as subject to various limitations, this political conception of the person is part of the very meaning of reasonableness. One can no more reasonably reject it than one could reasonably reject being reasonable. Insofar as the view of collective authority that answers Weithman’s question 7.1 is implied by political liberalism’s underlying ideas of the person, society and judgment, it would be unreasonable, at least from the standpoint of political liberalism, for a citizen to reject that view of her collective authority. Weithman surely recognizes this implication, and does not rely on the normative content of political liberalism’s idea of the reasonable in claiming that it would be reasonable for citizens to reject the Rawlsian account of their citizenship and collective authority. But what does Weithman mean by “reasonable”? Weithman claims that “[t]here is reasonable disagreement about 12

See also Weithman, “Citizenship and Public Reason,” pp. 130-9.

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some subject when reasonable people endorse different conclusions about it” (ROC, 136). Specifically, …whether a disagreement is reasonable depends upon whether some parties to the disagreement satisfy plausible standards of reasonability and whether they had adequate evidence available to them, whether they took adequate account of the evidence or whether their reasoning was in some way faulty or corrupted, and, most important, what explains their divergent opinions if their evidence and reasoning was adequate (ROC, 136).

This passage includes what we might call a minimally epistemic standard of reasonableness, concerning the adequate use of evidence and the likelihood of mistakes in reasoning. We may assume that some citizens who meet the minimally epistemic standard by employing the available evidence and avoiding obvious errors and biases will still reject the Rawlsian view of collective authority and/or the requirements of public reason. But it seems just as likely that some citizens who meet the minimally epistemic standard will also reject Weithman’s principles of responsible citizenship (5.1-5.2), as well as some of the underlying moral-political ideas that inform these principles. The minimally epistemic standard may show how citizens can reasonably reject the Rawlsian account of citizenship and collective authority. But it does not support a judgment about which view – Weithman’s or Rawls’ – is most appropriate. What then are the additional “plausible standards of reasonability” that are implied by Weithman’s discussion of reasonable disagreement? Weithman suggests that citizens might reasonably identify with different conceptions of citizenship which are consistent with basic liberal-democratic commitments. According to Weithman, these reasonable citizens: …impute a common interest conception of legitimate aims to their liberal democratic government, think that government must respect the usual rights and liberties, think government should be responsive to the will of the people and…when deliberating about measures to advocate and vote for, are guided by what they think liberal democratic government may justifiably do” (ROC, 137).13

Call this the “common interest” view of liberal democracy. Presumably a citizen might consistently affirm the common interest view and the Rawlsian ideas of society, the person and judgment, along with a liberal conception of justice and the requirements of public reason. But another citizen might affirm the common interest view and reject the requirements of public reason and at 13

See also ROC, 124-5, where Weithman also suggests that “government must equally respect the essential interests of all its citizens.”

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least some of the ideas that comprise Rawls’ notion of reasonableness, opting instead for alternative ideas of the person or society, along with Weithman’s principles of responsible citizenship. Such a citizen might, for example, understand society not as a fair system of cooperation, but more broadly as a social whole that includes the participation of all in their common life together, with each participant partaking of and contributing to the social product.14 By treating the common interest view of liberal democracy as a kind of minimally normative standard of reasonableness, Weithman is able to conclude that citizens might reasonably reject the Rawlsian account of citizenship and collective authority. I am not convinced that this conception of reasonableness is the right one or that the common interest view is the proper normative starting point for theorizing principles of reasoning for citizens. I suspect that there are valuable dimensions of liberal-democratic citizenship that are best interpreted by also including in the starting point Rawls’ ideas of the person and society, as well as the account of collective authority that these ideas imply. Rights, liberties and opportunities are important because they protect the exercise of citizens’ basic moral powers and secure a measure of fairness and reciprocity in social life. And a reasonable political conception lays out the necessary conditions for the protection of these moral powers in a democratic political community. To pursue this issue further, we would need to examine more carefully the moralpolitical ideas that support liberal democratic practices, including the idea of equal concern and respect for persons. Thus a complete defense of Weithman’s common interest view would show that a minimally normative standard of reasonableness need not include one or more of the Rawlsian fundamental moral-political ideas of the person, society, and judgment. Of course, even if we accept the Rawlsian ideas of the person, society, and judgment, we are still left with the question of precisely which requirements follow from a commitment to them. In order to avoid begging the question, we would need to identify a sound argument connecting these ideas to principles of reasoning for citizens, with the available candidates including, among others, Weithman’s principles of responsible citizenship and Rawls’ idea of public reason with its duty of civility. In sum, if we were to articulate fully the moral-political ideas 14 Weithman proposes a distinction between participation and cooperation. “[P]eople can be mere participants in society even if they are not engaged in social cooperation…Someone can participate even if she is incapable of cooperation, like children and the severely mentally disabled, or even if the voluntariness of her participation is in question, like a prisoner’s” (ROC, 19). On this distinction, and on the distinction between “participation” and the more robust status of “full participation,” see ROC, 17-22.

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that provide a normative starting point for understanding citizenship and collective authority, we might then be able to decide which principles of reasoning for citizens are most appropriate and whether the Rawlsian requirements of public reason can be reasonably rejected. As readers of Religion and the Obligations of Citizenship discover, Weithman takes a different tack. He focuses less on the fundamental ideas or ideals of liberal democracy, and more on the empirical conditions associated with realized citizenship. This focus enables Weithman to examine topics often ignored by proponents of the standard approach, and to develop a distinctive viewpoint from which to assess philosophical debates about the proper role of religion in political decision-making. And, to return to our main line of analysis, this focus also supports Weithman’s conclusion that citizens can reasonably reject the Rawlsian account of citizenship and collective authority. As we have seen, that conclusion is not adequately supported by the minimally epistemic standard of reasonableness or the minimally normative standard of reasonableness. The minimally epistemic standard is too minimal to decide in favor of one set of principles over another. And, a philosophical defense of the common interest view as a minimally normative standard remains incomplete in Religion and the Obligations of Citizenship. But the conclusion that citizens can reasonably reject the Rawlsian account of citizenship and collective authority is also said to be supported by what is most original in Weithman’s book, namely, his philosophical reflection on empirical data concerning the actual role played by churches in political life.

III. Realized citizenship and public reason Weithman maintains that, at least in the case of the United States, churches make valuable contributions to civic argument, public political debate, the realization of citizenship and opportunities to participate in political life.15 Many persons become better citizens through churches, which provide civic skills, knowledge, confidence, and opportunities, and which sometimes serve as the primary bulwark against forces of political inequality. Moreover, the political activities of churches also inform civic argument and public political debate by tracking legislation, lobbying, representing the marginalized and providing needed information and valuable perspectives on important issues. Weithman argues that it is often because of these contributions that citizens in a 15 See also Paul Weithman, “Religious Reasons and the Duties of Membership,” Wake Forest Law Review 36 (Summer 2001): 511-34. For a recent empirical analysis of the relationship between religious participation and civic engagement, see especially Pippa Norris and Ronald Inglehart, Sacred and Secular: Religion and Politics Worldwide (New York: Cambridge University Press, 2004), especially pp. 180-95 and 227-9.

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religiously pluralistic society will hold different conceptions of citizenship and collective authority. Persons whose citizenship is realized largely through the activities of churches will understandably arrive at different conceptions of their role, authority, and duties as citizens. If the elimination of this disagreement about the nature of citizenship and collective authority also requires the elimination of the public goods that churches promote, then, Weithman concludes, we should simply accept the disagreement as reasonable. Its elimination would be purchased at too high a price (ROC, 140).16 To what extent would the valuable contributions of churches be affected by agreement on Rawls’ account of citizenship and collective authority, along with widespread acceptance of his wide view of public reason? An answer to this question will involve, as Weithman admits, “social scientific conjecture” (ROC, 140). Let me preface my own conjecture with the following remarks: The Rawlsian account of citizenship and collective authority is somewhat abstract, and, as Weithman also points out, might be specified through different reasonable political conceptions of justice, including conceptions of justice that may have had their origin in a religious doctrine. Moreover Rawls’ view of collective authority does not necessarily require citizens to deny that good reasons for a person’s choices or actions are supplied by religious beliefs, church authority, an independent moral order or the natural law. What it requires is that, if they are to act on those reasons as good reasons for deciding fundamental political questions, they must also regard themselves and others as politically autonomous. That is, citizens must take themselves to have the capacity to identify which reasons might comprise legitimating political justifications that are consistent with their status as fallible free and equal citizens engaged in fair terms of cooperation. It would seem that agreement on this self-understanding is possible without eliminating the valuable contributions of churches. The more important question is whether, in practice, these contributions would be significantly diminished. Should we expect other citizens who adopt such a selfunderstanding to continue to enjoy the civic benefits of church involvement, especially with respect to the realization of their citizenship? Several considerations suggest that this is a plausible expectation. First, liberal democratic citizens are already encouraged to think of themselves as free and equal and politically autonomous through their socialization into a democratic public political culture with its everyday practices and its history and tradition. Second, as Rawls suggests in his discussion of overlapping consensus, over time that culture influences and shapes doctrinal understandings of political life.17 16

See also ROC 65 and 211. Political Liberalism, p. 160, n. 25.

17

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Finally, and most importantly, the Rawlsian account of citizenship and collective authority would seem to leave unaffected much of the church activity that actually contributes to the realization of citizenship. Citizens who have adopted this self-understanding may still volunteer in their communities, organize youth groups, serve on church committees, discuss political matters in church settings, appreciate the religious and moral foundations of government, and, through their church and community work, acquire the skills, knowledge and confidence necessary to take advantage of political opportunities. Citizens can remain active in these ways and more, and still be expected to affirm that, given the burdens of judgment, they must negotiate fair terms of cooperation with other politically free and equal citizens who have an interest, as persons, in exercising their basic moral powers. What about the more specific requirements of public reason, including its restrictions on religious argument? Should we expect other citizens to satisfy these requirements without significantly jeopardizing their religiously supported participation in political life or threatening religious contributions to civic argument and public political debate? The wide view of public reason requires citizens and officials to restrain their appeal to religious doctrines in their political discourse and decision-making, but only in a limited number of cases, depending on the deliberative setting, the nature of the political issue, the purpose of the appeal to religious doctrine, and the availability of supporting public reasons. Citizens who are capable of recognizing these distinctions can still rely on their religious views in much of their public political activity. Likewise churches which recognize these distinctions can continue to contribute to civic argument and public political debate. The inclusionist features of Rawls’ wide view suggest that, like political liberalism’s account of citizenship and collective authority, the requirements of public reason can accommodate the contributions of churches. But Weithman has anticipated this reply, introducing an additional socialscientific conjecture. Weithman surmises that “the norms which govern public political debate tend, as a sociological matter, to be taken as norms for other discourse as well” (ROC, 141). So citizens who recognize the need to seek public reasons, at least for a range of important issues, are likely to pursue the same kind of reasons in their civic argument in the background culture, and may infer that non-accessible reasons are simply bad reasons. On the basis of this inference, citizens might engage in a kind of “self-censorship,” with the “result that the distinctive moral argument which was to be among churches’ contributions to democracy is eliminated even from discussions in which it is ostensibly permissible” (ROC, 141). This kind of self-censorship is surely a possibility. The crucial question is whether, under the requirements of public reason, it would be pervasive enough

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to deplete significantly the moral resources of religiously informed civic argument and everyday conversation. I do not know the answer to this question, though I offer the following observations in defense of Rawlsian public reasoning. Much depends on whether citizens are capable of understanding that the requirements of public reason, and the distinctions in judgment that these requirements involve, are attached to their role as citizens. This role requires that citizens engage in democratic deliberation, and sometimes act as if they were governmental officials. Understanding that such commitments might be attached specifically to the role of citizen is facilitated in part by the fact that persons often occupy multiple social roles, undertaking different sets of commitments and attempting to maintain the integrity of their overlapping and sometimes conflicting roles and identities. Citizens are often also spouses, parents, co-workers, friends, students, and members of local communities, churches and secondary associations. In occupying these different roles, citizens learn how to satisfy commitments, including deliberative commitments, which are role-specific without surrendering commitments associated with the other roles that they maintain. A more important consideration is this: For Rawls, the religious dimensions of a citizen’s political commitments may remain significant even when they are not in the foreground of his or her reasoning. The political conceptions of justice that are the basis of much public reasoning are, for many citizens, grounded in a comprehensive religious doctrine, a fact that ought to be recognized by all citizens. Citizens should mutually acknowledge that the underlying commitment to a political conception is often religiously informed or inspired. Acknowledging the moral and religious sources that support political conceptions of justice is one way of guarding against the tendency to dismiss or malign reasoning that is connected with these sources. Moreover a political conception might even be formulated as a part of church teaching, provided that it can still be presented independently of the particular comprehensive doctrine in which it originates. The U.S. Catholic bishops’ letter Economic Justice for All, for example, addresses citizens at large and advances a reasonable political conception of justice to which citizens might appeal in their political choices and discourse, without violating the requirements of Rawlsian public reason.18 The danger of self-censorship is thus diminished insofar as citizens mutually acknowledge the religious sources of their commitment to political conceptions of justice and recognize conceptions of justice which, irrespective of the religious character of their original language or authorship, might be presented 18

Or so I argue in James Boettcher, “‘Political, Not Metaphysical’: Reading the Bishops’ Letter as a Form of Public Reason,” Proceedings of the American Catholic Philosophical Association 77 (2004): 205-19.

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to others as suitably “reasonable” and “political.” On particular issues, citizens might also expect one another to translate specific religious teachings into the political values of public reason, without thereby intending to arrive at a doctrinal solution to shared political problems. Citizens might also be encouraged to present their religious views through the “nonpublic” forms of discourse discussed briefly by Rawls, such as declaration, conjecture and witnessing.19 All of this is consistent with a wide interpretation of the wide view of public reason, an interpretation which would aim at accommodating the contributions of churches and religious believers while retaining the demand that citizens sometimes exercise restraint in their appeal to comprehensive doctrines.20 If the ideal of public reason with which citizens identify is interpreted in this manner, then we have reason to hope that the practice of public reason will reflect its ideal, and that citizens will reject the inference that leads to the kind of self-censorship described by Weithman.

IV. Ideals and obligations If what I have argued is correct, then we can understand how citizens could both satisfy public reason’s ideal and still benefit from the many public goods promoted by churches, including the good of realized citizenship. So, if what I have argued is correct, then the Rawlsian conception of citizenship and collective authority should not be rejected because identification with this conception would eliminate or significantly threaten the valuable contributions of churches to public political life. Insofar as this conception entails the specific requirements of public reason, these requirements should count, at the very least, as excellences of citizenship. This defense of the Rawlsian variety of the standard approach might be criticized, however, for relying too heavily on an idealized account of citizenship. Like Weithman, I cannot predict exactly how the contributions of churches might be affected by a widespread identification with the Rawlsian conception of citizenship and collective authority (ROC, 211). I have only suggested various ways in which we might understand these costs to be minimized if capable citizens were to adopt the best interpretation of the attitudes and requirements of political liberalism. More importantly, in reply to the problem of self-censorship, I have attributed to citizens the capacity to recognize role-specific requirements and to make the distinctions in judgment that are necessary for maintaining their religious identities while engaging in public reason and for appreciating, and not disregarding, the foundational 19

“The Idea of Public Reason Revisited,” in Collected Papers, pp. 594-5. I present such an interpretation in my “Public Reason and Religion.”

20

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religious framework of their own political conceptions of justice and the political conceptions of many of their compatriots. The capacity to make these distinctions in judgment is itself part of an ideal of citizenship that would also include a commitment to the other main elements of political liberalism. But what if this ideal of citizenship is not widely realized by citizens in actual societies? Does the ideal issue binding obligations under non-ideal conditions? Weithman answers this question directly in the conclusion to his discussion of Rawls’ idea of public reason: “The Rawlsian specification is an attractive liberal democratic ideal. It does not, however, capture a form our citizenship must take or a form of civility we are obliged to pursue” (ROC, 211; original emphasis). As I see it, there are different types of non-ideal conditions that are relevant to the question of whether the requirements of public reason are moral obligations, or simply necessary features of a worthy and attractive ideal. A first type of non-ideal condition corresponds to structural problems in economic and political institutions which militate against the kind of deliberation often imagined by proponents of the standard approach. To take one of Weithman’s examples, the “deliberative demand of political equality” is violated when money determines the “viability of candidates and the outcome of elections” (ROC, 75). A second type of non-ideal condition involves the failure on the part of citizens generally to exercise the requirements, capacities and virtues that would enable them to be good citizens. Citizens often do not deliberate, and are frequently apathetic, disengaged, and uninformed. Moreover, as Weithman and others have observed, religiously based political judgments are often a “counterweight” not to an idealized form of Rawlsian public reasoning, but to narrow preferences determined by economic interests or prejudice (ROC, 90).21 In general, problems associated with these two types of non-ideal conditions affect political deliberation and decision-making generally, and are not limited to controversies surrounding religious grounds for political choices and discourse. I leave aside a further analysis of these problems, which would involve an even more substantial survey than Weithman provides of additional empirical evidence about citizenship and liberal democracy. It is a third type of non-ideal condition that is emphasized by Weithman, namely, the persistence of sincere disagreement about conceptions of citizenship, collective authority and principles of political reasoning, where such 21

See also Michael Sandel, “Political Liberalism,” Harvard Law Review 107 (1994): pp. 1765-94 and Nicholas Wolterstorff, “Why We Should Reject What Liberalism Tells Us about Speaking and Acting in Public for Religious Reasons,” in Religion and Contemporary Liberalism, Paul Weithman, ed. (Notre Dame, IN: University of Notre Dame Press, 1997): 162-81.

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disagreement stems in part from the very “mechanisms” by means of which persons become citizens (ROC, 65). How could we determine whether the Rawlsian ideal of citizenship issues binding obligations given this condition? That is, even if ideally all citizens should jointly accept the requirements of public reason, under what circumstances are individual citizens morally blameworthy for ignoring or rejecting these requirements? One strategy for answering this question would be to employ a version of the universalizability test that Weithman adopts in order to demonstrate that citizens are obligated to participate responsibly in the first place.22 We might put this point in terms of a question: If the Rawlsian understanding of reasonableness is the right one and if the Rawlsian account of citizenship and collective authority could be accepted without significant costs to churches, would the universalizability test show the requirements of public reason to be moral obligations of citizenship? This is one of the many questions about the standard approach and its alternatives which, thanks to Weithman’s work, we must continue to investigate.

22 Weithman writes: “If everyone participated in debate irresponsibly, offering reasons they regard as inadequate for the political outcomes they defended, then mutual distrust and incivility would be pervasive…Moreover, because public political debate depends upon the mutual expectation of at least minimally responsible participation, universally irresponsible participation would destroy the possibility of such debate” (ROC, 110).

STRAINED BEDFELLOWS: THE RELATIONSHIP BETWEEN POLITICS AND PHILOSOPHY IN PLATONIC THOUGHT JAMES R. HARRIGAN, ALEX G. MCKENNA SCHOOL, SAINT VINCENT COLLEGE

The relationship between politics and philosophy in Platonic thought is often held to be most fully explored in the Republic. The Republic, though, presents an incomplete (albeit fascinating) vision of philosophy in political society. Plato’s understanding of the role of philosophy in the political realm can only be ascertained by expanding the scope of inquiry beyond the Republic to include a number of lesser read but important works. Chief among these are the Laws, Plato’s longest work, and the Cleitophon, one of his shortest. With the enhanced context offered by these dialogues, a more complete political message emerges, and it is a message which addresses the delicate role played by both the philosopher, and by philosophy itself, within the regime.

Thomas More assessed Platonic political thought in his Utopia by asserting that “Plato thinks that commonwealths will become happy only when philosophers become kings or kings become philosophers.”1 Given the unlikelihood of this eventuality, More further interprets Plato as having held that “wise men are right in keeping clear of government matters.”2 Marx too presents the Republic as Plato’s complete political teaching. In Volume One of Capital he states that Plato “treats division of labor as the foundation on which the division of society into classes is based.”3 Indeed, Marx owes much of his own political thought to the ideas introduced and expounded in the Republic. Even James Madison in Federalist 49 asserts that “a nation of philosophers is as

1

Thomas More, Utopia, Robert M. Adams, trans. and ed., (New York: W. W. Norton and Company, 1975), 22. 2 Ibid., 30. 3 Karl Marx, Capital, in: The Marx-Engels Reader, Second Edition., Robert C. Tucker, ed. (New York: W. W. Norton and Company, 1978), 401.

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little to be expected, as the philosophical race of kings wished for by Plato,” clearly referring to the Republic.4 As Pangle has noted the Republic “is often claimed to embody Plato’s political philosophy.”5 With thinkers as varied as More, Marx, and Madison casually presenting the Republic as Plato’s political teaching in and of itself, it is not surprising that the Republic is considered by many modern scholars to be Plato’s ultimate political teaching as well. But a regime which requires, among other things, dismantling the family and infanticide ought, at the very least, to be considered on pragmatic as well as philosophical grounds.6 The Republic illustrates nothing less than the cost of achieving the rule of philosophy in political society, and that cost is clearly more than most would be willing to pay. There is without question a political message in the Republic, but the nature of that political message becomes clear only in a context defined by a somewhat wider view of the Platonic universe. Any serious consideration of Plato’s political teaching must reach beyond the Republic in order to consider, at least, other Platonic dialogues of a distinctly political character. Strauss addressed this wider view when he asserted that, “All Platonic dialogues refer more or less directly to the political question. Yet there are only three dialogues which indicate by their very titles that they are devoted to political philosophy: the Republic, the Statesman, and the Laws. The political teaching of Plato is accessible to us chiefly through these three works.”7 The importance of the Republic and the Laws is further suggested by the fact that they are the two longest Platonic dialogues. These two long, overtly political dialogues present two very different regimes. There is, however, one avenue of inquiry which remains relatively consistent throughout the two works. The role and nature of philosophy within political society is, in many respects, the primary consideration of both dialogues. The Republic, oddly, addresses this issue from a decidedly apolitical perspective. Pangle begins to address this issue when he states that “even a superficial reading reveals that the Republic does not deal much with political practice.”8 The Republic is ostensibly an effort to answer the question, “What is Justice?” That question is by nature political, but the answer given in the Republic is philosophical in nature. Pangle points to the text of the Republic for 4

The Federalist, George W. Carey and James McClellan, eds., (Indianapolis: Liberty Fund, 2001), 262. 5 Thomas L. Pangle, “Interpretive Essay,” in: The Laws of Plato, Thomas L Pangle, trans., (Chicago: University of Chicago Press, 1980), 376. 6 For an allusion to the practice of infanticide in the ideal city see 459e. 7 Leo Strauss, “Plato,” in: The History of Political Philosophy, Third Edition, Leo Strauss and Joseph Cropsey, eds., (Chicago: University of Chicago Press, 1987), 33. 8 Pangle, “Interpretive Essay,” 376. Italics in the original.

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support where at the conclusion of the Book IX Glaucon says of the ideal city, “I don’t suppose it exists anywhere on earth.” Socrates replies, “But in heaven...perhaps a pattern is laid up for the man who wants to see and found a city within himself on the basis of what he sees. It doesn’t make any difference whether it is or will be somewhere. For he would mind the things of this city alone and no other.”9 A consideration of this section of the Republic calls into question the interpretation of the Republic offered by More, Marx, and Madison. It also calls into question the role of philosophy within the regime. Plato’s larger message is simply not clear from within the confines of the Republic. It is only through a more comprehensive consideration of a number of Platonic dialogues that his political teaching begins to emerge. The Republic and the Laws are without question the most important pieces in the puzzle of Plato’s politics, but a lesser dialogue, the Cleitophon, becomes important as well. The importance of this lesser dialogue, one of Plato’s shortest, is suggested by one seemingly incongruous exchange in the Republic, an exchange involving a politician. It is difficult to say with accuracy that anything is typically Platonic, but it is striking that that Plato rarely presents Socrates conversing with political men.10 Indeed, Socrates speaks with young men, men who would be too young to be involved in Athenian politics, almost exclusively.11 He rarely even speaks with those old enough to hold informed political opinions. In the Republic, Cephalus, the only old man participating in the dialogue, drops from sight early in Book One. The conditions under which he exits are telling. After a few opening remarks in the dialogue he departs, saying to his son Polemarchus, “I hand down the argument to you, for it’s already time for me to look after the sacrifices.”12 This attachment to the gods, and by extension the city, would render him unfit to partake in a radical political conversation. Indeed the fact that Cephalus was not even an Athenian citizen, having entered the city during the time of Pericles as a metic, is telling as well. After his departure, what remains is a conversation between Socrates and a number of young men. There is one interlocutor, however, who stands out by virtue of his notoriety and accomplishment as a politician. His participation in the conversation of the Republic has aroused little interest or suspicion on the part of scholars, but the role played by Cleitophon sheds significant light on the 9

592b, The Republic of Plato, Allan Bloom, trans., (New York: Basic Books, 1991), italics added. 10 The Laches, a dialogue largely concerning courage, serves as a counter example to this observation. 11 Consider the Gorgias, wherein Plato presents Socrates conversing with a young Callicles prior to his career as a statesman. 12 331d.

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political teaching of Plato. Cleitophon was a politician of some note in Athens at the time of his participation in this dialogue, warranting inclusion in both the Athenian Constitution and Aristophanes’ Frogs. He thus stands apart from his younger, inexperienced counterparts seated around the table with Socrates, and provides a rare example of a political interlocutor in a Platonic dialogue who was politically active at the time of the dramatic date of the conversation.

The Riddle of (the) Cleitophon Cleitophon’s place in the Platonic universe does not end with his participation in the conversation of the Republic. The relationship between Cleitophon and Socrates presented in the Republic is further explored in another Platonic dialogue named after Cleitophon, in which things not said in the Republic become quite telling.13 The “Riddle of the Cleitophon,” as it was termed by Johannes Geffecken in a 1933 article, has largely escaped the attention of Platonic scholars. As David L. Roochnik explains in his 1984 article of the same name, the Cleitophon was a work often examined in the years between Geffecken’s article and the beginning of World War II. “After the war,” however, “discussion virtually ceased, not because the riddle-principally Socrates’ silence in the face of Cleitophon’s complaints against him-had been solved, but because interest had lagged.”14 Roochnik contends that “the Cleitophon is a riddle. It poses real difficulties of interpretation and raises serious philosophical issues.”15 Perhaps Roochnik has understated the case. It might be that Cleitophon the person, the interlocutor in the Republic, and the primary conversant in the dialogue which takes his name is one of the primary keys in understanding the political philosophy of Plato. Cleitophon’s role in the Republic is intimately connected with Thrasymachos’ ill-fated exchange with Socrates in Book One. Thrasymachos, angered by Socrates’ habit of simply asking questions of others while offering no answers of his own, offers three distinct yet related definitions of justice early in the dialogue. First he asserts “the just is nothing other than the advantage of the stronger”16 This view is soon refined, when he states that “in every city the same thing is just, the advantage of the established ruling body.”17 Later still, he 13

For a brief treatment of the authorship of the Cleitophon see Clifford Orwin, “On the Cleitophon,” in: The Roots of Political Philosophy: Ten Forgotten Socratic Dialogues, Thomas L. Pangle, ed. (Ithaca: Cornell University Press, 1987), 117. 14 David L. Roochnik, “The Riddle of the Cleitophon,” Ancient Philosophy, 4:2, (1984), 132. 15 Ibid., 132. 16 338c. 17 339a.

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berates Socrates in yet another refinement, for failing to understand “that justice and the just are really someone else’s good, the advantage of the man who is stronger and rules, and a personal harm to the man who obeys and serves.”18 Socrates begins to address Thrasymachos in earnest after the second refinement, taking issue with the notion that justice is the will of the established ruling body. In order to contradict this claim he relies on much the same argument that he had used earlier to refute Cephalus’ assertion that justice is simply giving back what is owed. Socrates had dismissed Cephalus by illustrating the folly in returning a borrowed weapon to a friend of unsound mind. Cephalus, having been easily refuted, took his leave and handed down the argument to his son Polemarchus. In his encounter with Thrasymachos, Socrates similarly observes that those in power are fallible, and thus prone to order that which is not always in their true interest, thus: it is just to do what is disadvantageous for those who are the rulers and the stronger, when the rulers unwillingly command what is bad for themselves, and you assert it is just to do what they have commanded. In this case, most wise Thrasymachos, doesn’t it necessarily follow that is just for the others to do the opposite of what you say? For the weaker are commanded to do what is doubtless disadvantageous for the stronger.19

The Dialogue Within the Dialogue Just as Polemarchus was heir to the argument when Cephalus departed, he becomes the heir apparent to Socrates’ ostensible position in the heated discussion with Thrasymachos. He responds to Socrates’ broadside against Thrasymachos, “Yes, by Zeus Socrates...most clearly,”20 thereby initiating a dialogue within the larger dialogue, a miniature dialogue in which he and Cleitophon are the only participants. Cleitophon enters the conversation to defend against Polemarchus the view that Thrasymachos had offered in his first refinement of his original position: that justice is indeed that which the governing authority decrees. Cleitophon enters with a shot across Polemarchus’ bow, questioning whether it is his place to speak for Socrates. Polemarchus fires back with a recapitulation of Thrasymachos’ quandary: there are indeed times when rulers act to the detriment of their true interest. To this, Cleitophon responds, defending Thrasymachos in earnest for the first time by asserting that,

18

343c. 339e. 20 340a. 19

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“Thrasymachos set down that to do what the rulers bid is just.”21 Polemarchus retorts by reminding Cleitophon that Thrasymachos has also stated, in his original position, that the advantage of the stronger is just, and that both positions can not simultaneously held under all circumstances. This is, of course, fair enough. But this does not answer Thrasymachos’ intended meaning. Cleitophon rushes to his defense, asserting that Thrasymachos “said that the advantage of the stronger is what the stronger believed to be his advantage. This is what must be done by the weaker, and this is what he set down as the just.”22 Polemarchus is quick to point out that, “That’s not what was said.”23 In this assertion he is indeed factually correct. Cleitophon is attributing words to Thrasymachos which he clearly did not speak. Cleitophon does nonetheless strike to the heart of the matter in this section of the dialogue. Thrasymachos, after a protracted and somewhat humiliating exchange with Socrates, ceases to be a dominant figure in the dialogue. He is left in ruins, having held that in the moment of a mistake one can not be rightly called stronger. What is lost along with Thrasymachos’ pride is the very issue that Cleitophon introduced into the dialogue: the belief on the part of the rulers that they are acting in their own interest. Socrates extricates himself from this problem by remarking to Polemarchus that “It doesn’t make any difference...if Thrasymachos says it that way now, let’s accept it from him.”24 Thrasymachos, though, is unwilling to follow. From the perspective of Socrates, these distinctions do not make a difference on a much deeper level. The positions of Thrasymachos and Cleitophon are the same in the end. They are both relativistic at root, and conflating the two presents no difficulty for Socrates. There is, nonetheless, a problem. Socrates has not fully answered the observations of Cleitophon as he did those of Thrasymachos. Indeed, he has not answered them in the least. This dialogue within the dialogue finds Socrates completely silent. As Orwin points out, “Cleitophon is the only one who neither addresses Socrates nor is addressed by him...He is the only one who leaves the discussion as he had entered it, at odds with Socrates.”25 Thrasymachos has held that it is just to do as the stronger, here to be properly understood as the politically stronger, bid. This provides an objective standard by which political things might be judged, even if that standard is both very limited and grounded in nothing but convention. With Cleitophon’s reformulation of justice as that which the rulers believe to be in their interest, the link with convention becomes tenuous at best. He is striving to preserve the 21

340a. 340b. 23 340b. 24 340b. 25 Orwin, 118. 22

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established regime from the perspective of an insider, but in the process he removes all sensibility from the process of understanding justice. As a politician, Cleitophon has little concern for the philosophical ramifications of that position. Thrasymachos is often held to have embraced the notion of “might makes right.” It is clear though that it is Cleitophon who holds this position most fully. Socrates seems unwilling or unable to engage Cleitophon in the Republic in the same way he was able to dispatch Thrasymachos. Indeed, Socrates seems unwilling in the end to address justice in terms of Cleitophon’s assertions at all. He is only too happy to destroy Thrasymachos’ position in whatever form it is offered, but Cleitophon’s reformulation goes entirely unmolested. The preliminary nature of Book One is such that it would seem reasonable for Socrates to address the relativistic understanding of justice before moving on to more philosophical formulations. Rather than meet this challenge, Socrates avoids it altogether by founding a city in speech, the project which will comprise nearly the rest of the Republic. The ostensible goal of this approach, as Socrates explains, is to better understand justice in an individual by first examining it in a city. An interesting by-product of this approach is that Cleitophon’s position is destined to remain unexamined. This patently un-Socratic behavior toward Cleitophon in the Republic is reason enough to turn to the Cleitophon for answers, but the short dialogue is recommended on other grounds as well. The Cleitophon, apart from being the only Platonic dialogue named for a character in the Republic, is also the only other Platonic dialogue in which all of the characters are also characters in the Republic, and the only dialogue written by Plato which features an unanswered blame of Socrates. The Cleitophon is thus inextricably linked with the Republic, and as Orwin attests “depicts the “missing” confrontation between Cleitophon and Socrates, implied by the Republic but absent from it.”26 Unlike the Republic, the Cleitophon presents Socrates and Cleitophon in active conversation. The conversation is strikingly one-sided in favor of Cleitophon, but it is a conversation nonetheless. The dialogue opens with Socrates leveling an accusation at Cleitophon, asserting that Cleitophon “was conversing with Lysias, and criticized spending time with Socrates, while he could not praise too highly the company of Thrasymachos,” thus calling to mind both Cleitophon’s opposition to Socrates and his adherence to his own understanding of Thrasymachos’ true position in the Republic. 27 Cleitophon answers the charge of Socrates by asserting that Socrates was ill-informed. He states that “while there were some things for which I for my part did not praise you, there were also some for which in fact I did.”28 He then 26

Ibid., 118. 406. 28 406. 27

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offers to explain his position to Socrates, even as Socrates feigns indifference while simultaneously holding a grudge. Socrates is quick to accept the offer, although he does so in a manner in which raises some important questions regarding the relationship between politician and philosopher. He says to Cleitophon, “Why, it would be shameful indeed, when you are so eager to benefit me not to submit to it. For clearly, once I have learned my good and bad points, I will practice and pursue the one and shun the other with all my might.”29 Two interesting possibilities emerge from this utterance. He is either being sarcastic, which is a very real possibility, or he is willing to receive instruction from a politician. In either case, the relationship between politics and philosophy is ultimately at stake. Regardless, these are the last words that Socrates speaks in the Cleitophon. Cleitophon is allowed to proceed uninterrupted, which if intended by Plato speaks again to the relationship between politics and philosophy. Roochnik assesses the silence of Socrates in light of Cleitophon’s charges by observing that, “Similar silences occur in the Timaeus, the Sophist, and the Statesman, but there the speakers to whom Socrates defers are respected men of science from whom, presumably, he can learn.”30 The implication is clear. It is quite possible that Socrates has something to learn from a politician. At the very least, the possibility that nihilism can not be fully dismissed is a very real one. As Orwin points out though, “some scholars view (the dialogue) as unfinished.”31 Cleitophon proceeds to praise Socrates for the many fine speeches he has made “to the effect that virtue is teachable and that one should bestow one’s cares upon oneself before all else.”32 These, Cleitophon asserts, “are helpful in the highest degree and truly such as to wake us, as it were, from our slumber.”33 Cleitophon then raises the question, though, of what argument naturally follows from Socrates’ exhortation to virtue. That Socrates’ exhortation to virtue is beneficial Cleitophon does not question. What he wants to know of Socrates is what one who has been properly exhorted ought do next. Cleitophon stresses that he has asked the followers of Socrates what lies beyond his exhortations but has received no answer. He therefore has come to ask Socrates himself. Justice, as was the case in the Republic, becomes the idea around which the larger discussion in this short dialogue is centered. Cleitophon wants to know whether justice is an art or a good, and if it is a good, by which art is it produced, if an art, what good is produced by it. The link between virtue and justice is thus drawn. Cleitophon had previously posited that every art 29

407a. Roochnik, 133. 31 Orwin, 117. 32 408b. 33 408c. 30

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entailed two different elements. The first of these is the continued production of new practitioners of that art, the second the end of each particular art. Cleitophon has come to find that the followers of Socrates are unable to ascertain what this end of justice as art is. Indeed, the practitioners of justice come to produce justice itself. This is problematic, in Cleitophon’s estimation, because as he has illustrated in a previous example, the carpenter’s art produces two things, wooden objects and more carpenters. Both of these products are different from the carpenter’s art, while the art of justice simply produces more of the same. Justice, though, has come to be understood as producing two benefits: the virtue of the soul and friendship in the cities. Returning to Orwin, “Both of these “results,” moreover, are such that their production might be thought synonymous with that of just men.”34 If this be the case, justice then will ultimately be produced via the training of ever more practitioners. It is therefore an art which is properly understood as being wholly comprised of its teaching. The question of justice as art or virtue may then be seen as an improperly formulated one. Justice, in this instance, may well be understood as an ambiguous mixture of the two. This brings the exhortations of Socrates into focus once again. If justice is indeed reducible to its teaching, Socrates’ exhortations may well fill the void which Cleitophon accuses him of ignoring. In the last, though, this explanation is not satisfying. It can not answer why it would be good to be just. There would be no benefit according to this explanation other than an ongoing production of those who would practice justice. How they would in fact be benefited by doing such is not addressed. Again, Socrates does not address this blame of Cleitophon in any way. This dialogue is essentially a monologue delivered by Cleitophon for which Socrates was present. To answer Cleitophon, Socrates would have to define justice which was the ostensible project of the Republic entire. It becomes evident in this dialogue that Socrates and Cleitophon have conversed a number of times, but Socrates has been unable to prevail upon Cleitophon. Cleitophon says, “After pressing you in this way not just once or twice but sticking it out for a long time, I gave up.”35 It seems, then, that Orwin’s understanding of the Cleitophon as representing the “missing confrontation between Socrates and Cleitophon” could have been taken a good deal further. The two men had spoken of justice a number of times, apparently to no mutually satisfying conclusion. What remains is a sort of impasse which can not be circumvented given the goals and attitudes of the two men in question. 34

Orwin, 127. 410b.

35

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Cleitophon clearly desires an accounting of the nature of justice. It should not be surprising that Socrates is unable to offer him that which he craves in this, the shortest Platonic dialogue. After all, the answers found in the Republic, one of the longest, are similarly dissatisfying. Ultimately exhortations do seem to hold at least one of the keys to understanding justice. The answer to the question of what comes next is not altogether clear. It is similarly unclear as to whether Socrates deserves blame in this instance. It is the impasse between the two characters that is of most interest in this short dialogue. Cleitophon is one of the most politically important figures to appear in any Platonic dialogue. Ultimately, though, Socrates is unable to persuade him of much. This is illustrative of the difficulty the philosopher encounters in dealing with political man, which he must do in order to fulfill his own end. Perhaps this was to have been expected given the nature of their encounter in the Republic. Cleitophon’s legalistic understanding of justice is never rebutted by Socrates, indeed, it is scarcely addressed. The Cleitophon seems to raise more questions than it answers. In light of this exchange, the oddity of the interaction between Socrates and Cleitophon in the Republic becomes odder still. In the shorter dialogue, Socrates never answers the blame of Cleitophon. In the Republic, he does not even address him. Plato seems here to be making a rather serious point regarding the nature of philosophy in the political realm. Returning to Glaucon’s assessment of the worth of the ideal city in the Republic, what conclusions can be drawn regarding justice in the city? If Socrates’ position in response to Glaucon in Book Nine is the correct one, if the point of the dialogue is to illustrate that there may be a pattern to follow “for the man who wants to see and found a city within himself on the basis of what he sees,” can anything be said of nature of justice within the city? The nature of the tactic employed by Socrates to circumvent the assertions of Cleitophon in the Republic seem to provide a bit of insight. In order to avoid a discussion of justice as mere convention, Socrates immediately seeks to found a city in speech, a situation in which convention is rendered meaningless. The incommensurability of politics and philosophy seems to be fully escapable only in the context of founding, a context in which convention plays at most a minimal role. The nature of justice within the city at all other times is, in many respects, aphilosophical, a point made more clearly in the Laws. The Republic then, while concerned with establishing the nature of political things and the limitations thereof, does not represent a comprehensive development of political doctrine. It is through what is not said in the Republic that the real political lessons are learned. “In the Republic, Socrates founds a city in speech,” contends Strauss, “i.e. not in deed; accordingly the Republic does not in fact present the best political order but rather brings to light the

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limitations, the limits, and therewith the nature of politics.”36 It seems then, contra conventional wisdom, that Plato’s political teaching is to be found elsewhere. The second of Plato’s political works, the Statesman, must next be briefly considered. Unlike the Republic which stands on its own as a complete work, the Statesman is part of a larger trilogy which also includes the Sophist and the Theaitetos. The topic of consideration within this trilogy is the question of knowledge, with the Statesman addressing the more specific question of the nature of political knowledge. In this dialogue, it is the special knowledge possessed by the statesman which is under consideration rather than political concerns as such. As was the case in the Republic, the Statesman finds Socrates conversing with a group of young men, this time young mathematicians. As was also the case in the Republic, the interlocutors are all inexperienced in political matters. The Laws, conversely, is a discussion in which the participants are three old men, each a member of a long established political community, each intimately familiar with the political traditions of his own city and at least marginally familiar with those of the other two. This is, of course, a necessary precondition for fruitful political discourse. As Aristotle remarked in the Nicomachean Ethics, “a young man is not a proper hearer of lectures on political science...since he tends to follow his passions, his study will be vain and unprofitable.”37 Of the three Platonic dialogues identified by Strauss as overtly political, only the Laws meets the standard of experience. This is not the only consideration recommending the Laws as Plato’s most complete political statement.

Cleitophon’s Riddle Addressed: Plato’s Laws Whereas the Republic was written to examine the limitations of philosophy in the political realm, the Laws does not similarly address the limitations of philosophy in an explicit manner. To come to terms with Plato’s political teaching in the Laws, the absence of an explicit philosophical teaching will have to be examined. Indeed, the word philosophy appears only twice throughout the entire dialogue in any form. This is not to imply that philosophy plays no role in the dialogue. The Laws is a philosophical work. The difficulty lies in properly apprehending the relationship between the philosophical and the political in a context in which virtually every conclusion regarding that relationship will of necessity be made by inference. 36

Leo Strauss, The Argument and the Action of Plato’s Laws, (Chicago: University of Chicago Press, 1975), 1. 37 1095a.

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Whereas the Republic was meant to reconcile, in a manner of speaking, the concerns of politics and philosophy, the Laws concerns politics almost exclusively. The Republic was by virtually any measure an exercise in the absurd, meant to point out the problematic relationship between politics and philosophy. The primary conclusion one draws from a serious consideration of the Republic is invariably one of its impossibility. Even Socrates himself ultimately understood the project of the ideal city as constructing that city within oneself, which necessitated understanding the best city in this context as a template for the best soul. The best earthly city is one which can actually exist. “(T)he best regime,” Strauss contends, “as the classics understand it, is not only most desirable; it is also meant to be feasible or possible, i.e. possible on earth. It is both desirable and possible because it is according to nature.”38 So the Laws then is to be understood as Plato’s chief political work, if for no other reason than the fact that he therein presents a regime which can, in all probability, exist on earth according to nature. Nowhere in the Laws is there to be found the proposed eradication of the family or the total communism of the Republic. Instead Plato presents a regime which will enjoy the rule of law in a constitutional setting according to the dictates of man’s needs and desires. But if the word “philosophy” is mentioned only twice in the dialogue, the relationship between politics and philosophy in this, the regime which can exist, is clearly problematic. What conclusions are to be drawn regarding the apparent absence of philosophy in Plato’s best regime? By way of introduction, Plato himself speaks to this issue when he states at the end of the dialogue that the Laws represents that which is second best in the realm of theoretical possibility. Indeed, “if ever some human being who was born adequate in nature, with a divine dispensation, were able to attain these things (knowledge of the true political art), he wouldn’t need any laws ruling over him. For no law is stronger than knowledge, nor is it right for intelligence to be subordinate, or a slave...if indeed it is true and really free according to nature.”39 This sort of intelligence may well be imaginable, but politically Plato must place his endorsement elsewhere. Contrary to the conclusions offered in the Republic, a philosopher king will not be possible. There are two striking elements of the Laws which must be examined at the onset of this consideration. The first of these two oddities is that Socrates is not present in this dialogue. The Laws is the only Platonic dialogue of which this can be said. Socrates is present in all others at least in the form of a silent listener if not an actual participant. The second unique characteristic is that the Laws begins, in the original Greek, with the word “God.” This is the only 38 Leo Strauss, Natural Right and History, Chicago: University of Chicago Press, 1965), 139. 39 875c.

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Platonic dialogue to begin in such a manner, and as such, warrants comment in terms of its opening lines. The concern that Socrates is not present in this dialogue can be explained simply according to the historical record. The encounter represented by this dialogue occurs in Crete. Socrates was known never to have left Athens, except in the rare event of having been ordered away during his tour of duty with the Athenian military. During his time in the Athenian military there was never an expedition to Crete. The historical record, however, can not be understood to be the final arbiter in Plato’s works. It is an open question whether fidelity to historical accuracy vis a vis the dialogic form is even a concern for Plato. “The absence of Socrates from the Laws,” Strauss contends, “is...not sufficiently explained by the fact that this dialogue takes place somewhere on Crete.”40 In order to arrive at a deeper understanding of the matter, Strauss turns to the Apology, in which it is explained that “Socrates was prevented by his daimonion from engaging in political activity.”41 This observation lends credence to the assertion that the Laws is indeed Plato’s chief political teaching. While the Athenian Stranger of the Laws is certainly never identified as Socrates, he does act in much the same manner. He holds many of the same opinions and questions his fellow discussants in a fashion similar to Socrates. Aristotle, in his Politics, takes for granted that the character is Socrates. With the question of Socrates provisionally addressed, the question of location remains. Why did Plato set this dialogue in Crete? There were any number of places of which Socrates was unfamiliar, but Crete holds special status for two reasons. First, the Laws is generally regarded as having been preceded by the Minos, which serves as a sort of introduction to the larger treatment of the concept of law. Just as the Laws stands apart from the Platonic corpus by virtue of the fact that it is the only dialogue to begin with the word “God,” the Minos is unique in that it is the only dialogue in which Socrates directly raises the question, “What is law?” The importance of Crete to this question lies in the belief that Minos, the son of, and only hero educated by Zeus, was held to be the legislator of Crete. In the Minos the laws of Crete are held as the finest laws. According to Strauss, “Minos was indeed regarded by the Athenians as savage and unjust, but for no other reason than that Minos had waged victorious war against Athens. The best legislator was the most ancient enemy of Athens.”42 In addition to possessing the finest laws in Greece, there is yet another reason to hold Crete as a location pregnant with possibility in the Platonic corpus. In the Crito, Crito is presented trying to persuade Socrates to flee Athens 40

Strauss, The Argument and the Action of Plato’s Laws, 1. Ibid., 1. 42 Ibid., 1. 41

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with his life. Socrates is quick to dismiss the notion, arguing that he could not flee to a well-governed city nearby due to the fact that he would be discredited as a result of his unlawful escape, nor could he escape to Thessaly, which was close but lawless. Returning to Strauss, what is not discussed by Socrates in the Crito is the possibility of going to “a well-governed city far away like Sparta or the still more remote Crete...(even though) he had mentioned both shortly before. It thus suggests itself to us that if Socrates had escaped from prison, he would have gone to Crete, where he was wholly unknown and would have come to sight only as an Athenian stranger.”43 Turning next to the second unique characteristic of the Laws, the fact that the first word of the dialogue is “God,” the relationship between the Laws and the Apology of Socrates becomes apparent. Just as there is only one dialogue beginning with the word “God,” the Apology of Socrates is the only one to end in such a fashion. The final thought of the Apology of Socrates is thus the opening thought of the Laws. In metaphor, Plato presents the death of Socrates, and his rebirth as the Athenian Stranger. He shows too the end, the damage which bad law can inflict, and the new beginning, the possibility of a better life under better laws. Strauss understands the Laws to be “Plato’s most pious work.”44 This emphasis on Plato’s piety is important if the dialogue is to be understood as an effective illustration of the possibility of philosophy in the political realm. Considering next the dramatic context of the Laws, it is at once evident that the notion of the divine is important to the dialogue thematically as well. The three interlocutors, the Athenian Stranger, Kleinias, a Cretan, and Megillus, a Spartan, are introduced at the commencement of a journey. The Athenian Stranger suggests that they discuss politics and law as their journey unfolds for, “The road from Knossos to the cave and temple of Zeus is altogether long enough, as we hear, and there are resting places along the way.”45 The cave toward which they are walking is the location at which Minos received the laws from Zeus.46 The journey is thus one marked both by the approaching divinity, and an ongoing concern with law. These two concerns are singularly represented by the cave at Knossos, which in turn calls to mind the absent Socrates, for here is the Athenian Stranger walking toward the birthplace of the Cretan law, in place of Socrates himself walking toward Crete. In many respects, the Laws defies both generalization and reduction. In addition to being Plato’s longest work it is arguably his most complex and nuanced as well. Indeed, there is as much to be gained through a consideration 43

Ibid., 2. Ibid., 2. For a discussion of piety as such, see the Euthyphro. 45 625b. 46 See the Minos, 319e. 44

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of the literary devices employed by Plato as there is through a careful reading of the words of the interlocutors. Their words, however, can not be understood on a level secondary to the general characteristics of the dialogue as a whole. The utterances of the “Socratic” Athenian Stranger must be placed within the context offered by Plato in order to understand the totality of the Platonic political teaching. The words of the Athenian, when taken in context, provide an insight into both politics and the possibility of philosophy in the political realm. The words he speaks and the manner in which he chooses to present his ideas are of paramount importance. Important too is what he does not say, and that to which he only alludes. The subtleties of conversation must be appreciated as such in order to arrive at a comprehensive understanding of Plato’s political teaching. The Athenian opens the conversation proper by asking Kleinias whether it was a god or a human being who gave the laws to Crete. What follows is a consideration of both Cretan and Spartan laws, which represent, as Pangle states, “the two political orders thought to be the oldest and finest in Greece.”47 In short order, however, the Athenian Stranger brings the conversation to a discussion of war and peace, at which point Kleinias, the Cretan, asserts that all Cretan law is established with a view toward war. The Athenian though, finds this interpretation insufficient, concluding that victory in war belongs not to the good things, but to the necessary things. He contends quite reasonably that war is simply a means to an end, and it is the perceived benefits of war that are truly valued as opposed to war itself. An imperfection has thus been discovered in the law, and as a result, the law itself is seriously deficient. This becomes problematic when the interlocutors realize that if their laws are indeed bad, it is as a result of divine error. The difficulty posed by the workings of the gods in the political affairs of men is put aside for the moment. The Athenian Stranger is quick to redirect the blame in this instance to himself and his two interlocutors, saying, “No, it’s ourselves that we’re consigning to a low rank, O best of men, when we show that we think Lycurgus and Minos arranged all of the customs at Lacediamon and here chiefly with a view to war!”48 Here, the Athenian Stranger adds another level of consideration to the discussion. It is clear that an interpretation of the laws will not be sufficient; the true meaning of the laws must be understood. Clearly, Minos would not have erred in his lawgiving. It must be the interpretation that is wanting. War, then, can not be the end to which good laws aim, and therefore can not be the proper end of civil society. The Athenian Stranger fills this interpretive gap by making the case that laws are given, when given well, for the sake of 47

Pangle, “Interpretive Essay,” 379. 630d.

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virtue, and it was for the sake of virtue that Minos gave the Cretan law. Minos, he says, “had in view not just some part of virtue...he looked to the whole of virtue, and that in seeking his laws he arranged them in forms that are different from the forms used by those who now seek to put forward laws.”49 Virtue, though, is a complex notion which the Athenian Stranger must explain fully. Returning to the laws of Crete, the Athenian Stranger remarks, “not in vain are the laws of Crete in especially high repute among all the Greeks. They are correct laws, laws that make those who use them happy. For they provide all the good things”50 The fact that those who are subject to the laws given by Minos are made happy by them is a secondary observation. The good things that the laws of Crete provide must be understood as central to this consideration. The laws in question, as the Athenian Stranger has remarked, make those who use them happy. This happiness, though, is a by-product of good laws. Here again divinity plays a central role. “The good things,” according to the Athenian Stranger, “are two fold, some human, some divine.”51 He goes on to explain that if a city is in possession of the divine goods it will also possess the human goods. If it does not possess the divine goods, however, it will not possess the human goods. The human goods the Athenian Stranger lists as health, beauty, strength, and wealth. The divine he lists, in their final form, as prudence, intelligence and moderation, justice mixed with courage, and courage simply. This final listing of the divine goods he offers only after a provisional listing which is somewhat different from the final form. Even in the final form, it is not altogether clear what the proper relationship between and among the divine goods is, pointing to the difficulty in comprehending them in their natural forms. In spite of this difficulty the divine goods “are by nature placed prior in rank”52 to the human. Nature, previously mentioned in relation to the absolute right of true knowledge to rule, is thus the non-arbitrary standard upon which political life is ultimately based. The laws are properly formulated when they are done “with a view to these goods, of which the human look to the divine and the divine all look to the leader, intelligence.”53 Good laws will thus look to the natural order for their guidance. Politics, the Athenian Stranger asserts at the end of Book One, is the art of caring for souls. He has offered in the opening book of this dialogue the basic blueprint for the successful accomplishment of such a lofty

49

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task. Because the man with true knowledge is not present, the so-called second best form of governance is recommended. Plato’s analysis regarding intelligence is analogous to his understanding of that same quality in the hypothetical man of “divine dispensation.” Whether manifested in that man, or understood as a divine element within society, intelligence can be made subordinate to nothing. It is at this point that the most striking difference between the Republic and the Laws becomes apparent. In the Republic, the rule of the philosopher is required in order that the city receive its leadership from one who truly knows how best to live in accordance with the dictates of the good. Throughout the course of the Republic though, this requirement of the regime is shown to be impossible to achieve. This leaves Plato with a quandary in the best possible regime of the Laws. How will it be possible to base political life on the natural order, with intelligence at the helm, when it is plainly admitted that the best man will be unavailable for service to the city? The project of the Laws is to solve this dilemma. Even this short treatment of Book One of the Laws is indicative of the high tone of the opening pages. The Republic, by way of contrast, provides a striking counter illustration, with a beginning grounded in more superficial concerns. Indeed, the highest considerations of the Republic are scarcely addressed until Books Five through Seven. In the Laws, though, the end of the project, namely the purpose of legislation, is presented in the very beginning. The placement of the most important elements of the discussion at the beginning of the dialogue is of crucial importance. This high-toned discussion continues through Book Two. The Athenian Stranger asserted at the end of Book One that politics is the art of caring for souls. Because of the nature of politics, the natures and habits of souls become central to the discussion, as they were central in the Republic. As in the Republic too, Education becomes the topic of conversation in the Laws, marking a subtle shift from insight into the soul, as seen in Book One, to what might be seen as the project of the proper initial ordering of the soul in Book Two. Virtue again is the standard to which the Athenian Stranger appeals when he states: Education, I say, is the virtue that first comes into being in children. Pleasure and liking, pain and hatred, become correctly arranged in the souls of those who are not yet able to reason, and then, when the souls do become capable of reasoning, these passions can in consonance with reason affirm that they have been correctly habituated in the appropriate habits. This consonance in its entirety is virtue; that part of virtue which consists in being correctly trained as regards pleasures and pains so as to hate what one should hate from the very beginning until the end.54

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Virtue can be fostered at a pre-rational stage through proper education, which then continues after the manifestation of reason. At this later point reason and the passions together affirm what has been learned. While the role of education within the city is clearly important it is unclear what its ramifications on the larger issue of law are. An example offered by the Athenian Stranger is instructive. It is through this example that the topic of law is explicitly reintroduced into the conversation. In speaking of the Egyptian law which mandated certain forms of music while prohibiting others the Athenian says, “if someone could grasp in any way what is correct in these things, he ought boldly to order it in law.”55 The implication is clear: that which should be ordered into law will not be immediately apparent to most people. To illustrate this thought, he next offers an hypothetical entertainment contest in which different groups would both present and prefer different forms of entertainment. Who is to judge which is finest? “The true judge,” he offers, “should not learn from the audience how to judge, swept away by the noise of the many and his own lack of education.”56 Indeed, “If justice prevails, it’s not as a student but as a teacher that the judge will sit before the audience.”57 Laws, as with education, will serve to inform as well as mandate behavior. Man must be habituated to what is proper through education, just as he must be habituated to noble music. The mere pleasure derived from being entertained is no more sufficient than would be instituting laws based solely on the basis of the happiness to be received from them. If it were, there would be no need for the judge in the example that the Athenian Stranger has offered. Indeed this simplistic method is itself problematic, for different things please different people. The ultimate goal for the legislator is, of course, social cohesion. A non-arbitrary standard is thus necessary. The judgment of the excellent man will fill this gap, as the judge in the imaginary contest, unswayed by public opinion, served to guide and instruct those in attendance. The societal ramifications of this reasoning are clear. The many will be unqualified to pass judgment on the most important things. “It is laughable,” the Athenian Stranger asserts, “that the great mob considers itself capable of knowing what is good harmony and good rhythm and what is not, as many of them have been drilled to sing to an aulos and dance in rhythm; they don’t realize that they practice these things without understanding each of them.”58 So too will they be unfit to pass judgment on the laws. Knowledge of the whole is the necessary precondition for qualified understanding, for leadership. 55

657b. 659a. 57 659b. 58 670b. 56

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Knowledge of the whole, though, is the purview of philosophy. “Philosophy,” says Strauss, “as quest for wisdom, is quest for universal knowledge, for knowledge of the whole.”59 How is this observation to be reconciled with the fact that the regime of the Laws is on its surface one marked by an absence of philosophy? The beginning of an answer to this question comes at the beginning of Book Three, where the Athenian Stranger engages Kleinias in a discussion of the origins of cities. At this point, the origin of law becomes of central importance, and it is asked whether laws are of divine or human origin. Society is, of course, a collection of men, but there is a distinction to be made when it comes to apprehending the laws. If they are of divine origin, the legislator himself will be subject to them from the onset, if they are of human origin, he will not be so subject until or unless he becomes a member of the political community which he has founded. Nothing less is at stake here than the inherent possibilities of human virtue. Law, as has been shown, is wholly concerned with virtue. The answer to this question will thus be an important consideration. The origins of law must, according to the Athenian Stranger, be sought in the distant past. This is problematic though, because according to the Athenian the distant past of man is not accessible in practical terms. Indeed, man is presented as having no long term memory of political things. Nonetheless, he is able to trace the development of legislation to a time in the past when the first city came together, after what he refers to a great cataclysm which served to wipe man’s political memory clean. The dialogue concerns, of course, the two oldest examples of Greek law: Cretan and Spartan. Of these, the Cretan laws given by Minos are oldest. The city of which the Athenian speaks, however, is not identified as Crete. Rather, he presents an example in which laws simply come into being by necessity rather than as a result of a divine act of legislation. This seems to indicate that the act of legislation, could, at the very least, be a human activity. The role of divinity, it would seem, has been significantly diminished. It is to be diminished yet again in Book Four when the notion of chance as it pertains to the polity is addressed. In answering a query posed by Kleinias, the Athenian Stranger asserts that “in all things god-and together with chance and opportunity-pilots all the human things.”60 This homage to god, though, is immediately tempered by the observation that there is the possibility that one who is in possession of a particular art may well be able to see his way through difficult time better than one who does not possess that art. Says the Athenian, “I at least would declare that the pilot’s art is a great advantage when it comes to 59

Strauss, “What is Political Philosophy,” 11. 709b.

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cooperating with the opportune moment in the midst of a gale.”61 This same argument, he contends, holds true for the other arts as well, and is important to the legislative art specifically. “Along with the rest of the good luck a land needs to befall it if it would ever dwell in happiness, there must always happen along, for such a city, a lawgiver who possesses the truth.”62 The Athenian Stranger has once again returned to the purview of philosophy. The fact that he has made this return in terms of founding is especially important. This tacit return to philosophical concerns can be understood in light of a remark made by Kleinias at the end of Book Three, a remark which provides the key, in a sense, for understanding the relationship between politics and philosophy within the Laws. At the end of Book Three, Kleinias admits to his fellow interlocutors that he, along with nine others, has been selected to serve as a legislator for a new colony. Speaking of himself and these nine others he says, “We have been commissioned to establish the same laws as the ones (in the city of the Knossians) if we find some satisfactory; but if we discover some laws from elsewhere that appear to be better, we are not to hesitate about their being foreign.”63 This task, of course, requires an objective standard by which one can effectively judge the goodness of various laws which will fall under consideration. The words of Kleinias here strike deeply to the matter at hand. It was he who led his fellow conversants to believe that Cretan laws were given by a god in the beginning of the dialogue. In answer to the opening question of the Athenian Stranger, he responds that the laws were given by “A god, stranger, a god.” He qualifies this immediately by quickly adding, “to say what is at any rate the most just thing.”64 At this later point, however, Kleinias reveals that the laws for the new colony have yet to be written. If Cretan laws were truly of divine origin, it seems that his task as legislator would indeed be a simple one. The divine laws of Crete should simply be given to the new colony. Compounding this difficulty is his remark that if certain foreign laws are found to be superior, he is not to hesitate in making use of them. Could foreign laws possibly be superior to the divinely given laws of Crete? He certainly does not believe that a god was responsible for the Cretan law. The most just thing to say, it seems, is not necessarily the truth. The uncomfortable lesson drawn here is that once again a lie, noble or otherwise, may well rest at the heart of politics. Indeed, early on in the conversation Kleinias seems to have been willing to abandon the claim that a god was responsible for the giving of the Cretan law.65 61

709c. 709c, Italics added. 63 702c. 64 624a. 65 635a. 62

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In addition to pointing to the philosophical-religious problem, this issue illustrates the difficulty of legislation. It also points to the pre-political role of the legislator, and by extension, philosophy. The interlocutors in the Laws speak little of philosophy as such, of this there can be no argument. They are deeply concerned with what may be called the philosophical perspective just the same. Their long conversation is one centered on the larger picture. There is little by way of commentary on the usefulness of specific laws in the dialogue. Rather, they prefer to set the stage for law by discussing how things ought to be in general terms. In order to accomplish this task, they must have a comprehensive understanding of the manner in which cities do function and should function. In order to gain this perspective, the standard of nature is applied. What results can be called nothing other than philosophy. Throughout the course of their conversation, the Athenian Stranger, Megillus, and Kleinias attempt to understand how law ought to be formulated within the regime. While they do not speak of philosophy qua philosophy, they are thoroughly engaged in a philosophical endeavor nonetheless. At this point, the literary devices employed by Plato in the dialogue once again become important, and illustrate the role of philosophy within the regime of the Laws. The high-toned nature of the opening of the Laws, which continues through the opening books of the dialogue, provides an entrée into the Platonic political teaching contained therein. As was the case in the Republic, the Laws is an attempt at an ideal founding. Kleinias states in the closing line of Book Three, “So let’s try now, first in speech, to found the city.”66 Given the nature of the opening of the Laws, though, much of the most significant conversation has passed by the time the interlocutors decide on this approach. In the Republic, conversely, the founding of the city in speech begins the philosophical conversation in earnest. The difference in these two examples is instructive. If the Republic is something other than the political teaching proper of Plato, and the Laws represents his unvarnished political belief, what is to be made of the placement of the philosophical discussion at the opening of the Laws? It would seem apparent that there is a message to this placement, especially when the difference between the Laws and the Republic is kept in mind. The presentation indicates that philosophy takes precedence in the regime at the time of founding. This reconciles the fact that there is little mentioned of philosophy throughout the majority of the Laws, while the interlocutors themselves are indeed deeply involved in a philosophical project. While there may be little room for philosophy after the founding of the city, philosophy holds the stage during the period prior to legislation. 66

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Kleinias’ openness to foreign laws is illustrative of the implicit high regard for philosophy found within the Laws. In order for one to conclude that one law is in any way superior to another, one must be concerned with an objective standard against which both laws may be judged. In order to be so concerned, the standard of truth must be applied. This is never a political concern as such. To be sure, there are political ramifications inherent in this endeavor, but the project is at root a philosophical one. What is made apparent at this point is the inability of politics to fulfill its end without the instruction of philosophy. Just as the highest themes of the Laws are discussed at the beginning of the work, so too are the highest themes of human existence most important during times of founding. With a solid philosophical bedrock, politics can proceed in a healthy manner. Indeed, there will be little need for philosophy as understood in the founding era in later times if the founding is well formulated. Through an understanding of virtue, both human and divine, a divine element is introduced and retained in the city. The three old men discussing law on their way to the temple of Zeus, strangely, never arrive at their destination. All that can be said of this is that they are closer to their goal at the end of the dialogue than they were at the beginning. Their incomplete journey points to the imperfect nature of man as concerns philosophy. While it may be the case that a city is well founded only when the philosophical endeavor has been attempted in earnest, the best man can ever hope for is true opinion. The world of real knowledge is one closed by nature to the attempts of man. Just as the journey of the Laws is not complete at the end of the dialogue, the philosophical endeavor is never complete for man. As Strauss remarked, philosophy is the quest for knowledge of the whole, not its attainment. From the moment that Kleinias reveals to his fellow travelers that he is to found a colony, the Laws becomes a dialogue chiefly concerning the relationship between politics and philosophy as understood through the relationship between a political man, Kleinias, and a philosophical man, the Athenian Stranger. This relationship is defined in the later portions of the dialogue as a practical one, with ramifications to be felt in the political world. Indeed, “(f)rom Book Four to the end of the work the Athenian Stranger speaks no longer merely as teacher of legislators in general but primarily as the adviser to a named legislator and founder ‘here and now.’”67 The philosopher is not presented as being capable of ruling. Rather, he is shown in the role of adviser to the politician. The necessity of philosophy in the city is felt, but the philosopher alone can not fill that void. The fate of Socrates, while never mentioned explicitly, is a sub-text which runs throughout the course 67

Strauss, The Argument and the Action of Plato’s Laws, 54.

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of the dialogue. The philosopher can not attain his highest end without political man, nor can political man attain his without the philosopher. The possibility that these two natures can exist in one man, a staple in the Republic, is absent in the Laws. It is of little surprise, then, that Plato chose the Athenian Stranger to replace Socrates as the central character of this dialogue. The philosopher is presented in the Laws as occupying a significantly more important station than the gadfly of the regime. Plato, in the Laws, seems to have taken philosophy to a level of importance much higher than the Platonic Socrates would have allowed. The practical relationship between these two realms of human activity can be fairly said to be most significant during periods of founding, as Plato implies throughout the whole of the Laws. Given the imperfect nature of man in terms of what is ultimately possible in the philosophical endeavor though, Plato is unwilling to close the door completely on philosophy to the founded city. The role of philosophy will certainly not be the same once the city has been founded, but problems may arise which will require a reformulation of the principles which animated the city at its founding. At this point, the role of piety must be understood within the context of the dialogue. As was illustrated in the opening lines of the work, the moral certitude which is implanted in the laws by virtue of divine authorship is undeniable. Kleinias, while clearly not of a mind that Cretan laws were given by a god, nonetheless asserted that they were when asked directly by the Athenian Stranger. This illustration points to the difficulty of authoring laws which will be respected as an illustration of anything more than the whim of the lawgiver. Divine authorship, while philosophically unnecessary, may well be a political requirement. The three interlocutors understand this possibility intuitively. In speaking of Cretan laws in Book One, the Athenian Stranger states that “one of the finest is the law that does not allow any of the young to inquire which laws are finely made and which are not, but that commands all to say in harmony, with one voice from one mouth, that all the laws are finely made by gods.”68 Kleinias readily admits to the practice, and agrees as well when the Athenian asks if given that “there are no youngsters around us now; and on account of our old age the lawgiver allows us a dispensation-carrying on a conversation about these matters alone by ourselves, we’ll be doing nothing wrong, will we?”69 Experience once again is the precondition for political discourse, and by extension the precondition for judging laws. The young are therefore prohibited from passing judgment on the laws, for they haven’t the requisite experience to engage in such criticism. Equally 68

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important are the social ramifications of this sort of criticism. The young must speak in unison, “with one voice from one mouth” in order to foster the necessary social cohesion to maintain the body politic. Only the old are permitted to engage in serious criticism of the laws, and then only under conditions in which they will not corrupt the young. Plato seizes upon this thought to provide an institutional means by which this ideal city will be led in the practical sense, and he thereby reintroduces philosophy into the city in the post-founding period. The “nocturnal council” is to be culled from the finest examples of the city. Those who comprise this body must be “in every way amazing men with regard to the whole of virtue.”70 Indeed, these men must have within them an element of the divine.71 These men, while nonetheless subject to judicial review, will provide the regime with its authoritative voice. They will be the most respected of society, and as such, will possess the moral authority to guide the city in a manner in which laws simply can not. They will be, in a sense, beyond the reach of the law, occupying instead a station of supreme respect. As a result of their exalted status, they will hold a type of authority over the city which would simply be unavailable to ordinary political men. Problems arise, however, when the manner in which these men will be educated comes to be discussed. The nocturnal council is to be composed of the oldest and wisest from the city, that much is certain. Their lofty task though seems to presuppose a special education which will allow them to fulfill their end. A proper understanding of nobility will be their required tool, which they will utilize in order to determine “what comes into being in a noble fashion and what does not.”72 As Pangle states, “the noble, or beautiful, rather than the good, is the main preoccupation of political intelligence or prudence,”73 the highest of the divine virtues. With this emphasis on nobility, the nocturnal council is able to transcend the mere politics of the city and serve as an intermediary of the divine. Indeed, “(t)hey are to be the highest priests.”74 Once again, an objective standard is required. Here, the political foundation of philosophy is made most clear. Philosophical man has an institutionally necessary position within the regime of the Laws. Aristotle remarks in his critique of the Laws in his Politics that Plato had attempted to ultimately facilitate the rule of philosophers in his last work. The Laws, Aristotle contends, with its emphasis on the necessity of the nocturnal council, is in the final analysis meant to render the regime of the Republic possible in the 70

945e. See 945c. 72 966b. 73 Pangle, “Interpretive Essay,” 508. 74 Ibid., 505. 71

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political realm.75 While Aristotle’s attempt to conflate the regimes of the Republic and the Laws is ultimately unsatisfying, philosophy is without question a necessary ingredient within the best possible regime. The Athenian Stranger states, “Now if, indeed, this divine council should come into being for us, dear comrades, the city ought to be handed over to it.”76 He has constructed, however, a regime defined by the rule of law. Certainly the regime would be undermined in to were this eventuality to come to pass. The Athenian seems to be making an emphatic point here regarding the necessity of the council rather than a prescription for oligarchy. Further buttressing this interpretation is the fact that the Athenian does not divulge just how it would come to pass that the council, the shining example of moral authority within the regime, would assume political power beyond that which it possesses by nature. What remains is a regime which is both animated and maintained by philosophy, even though philosophy is not explicitly mentioned in any but the most peripheral manner in the ideal founding of the regime. Two old political men, Kleinias and Megillus, are brought to understand that they require another, more important element to accomplish their charge. “Dear Kleinias,” says Megillus at the close of the dialogue, “from all that has been said by us, either the city’s founding must be abandoned or this stranger here must not be allowed to go...he must be made to share in the city’s founding.”77 The wise man then, contrary to More’s observation, seems to be a requirement of the political world under certain circumstances. It is clear that wisdom is essential during times of founding, as both the Republic and the Laws indicate. In the absence of established authority, philosophy rightly assumes primacy.78 In the Republic Plato uses the time of founding to circumvent the necessity of pitting philosophy against convention in the established regime. Given the nature of the relationship between Socrates and Cleitophon, it seems that this was a condition which Plato thought could only end in favor of convention. In the Laws, Plato presents quite another possibility. In a time of an actual founding, it is possible, indeed necessary for philosophy to animate the political process. Furthermore, Plato seems to indicate through the institutionalization of the nocturnal council that philosophy can and should retain a place in society in the post-founding period. It is unclear that an existing regime can benefit from the presence of the philosopher. The untimely end of Socrates’ life seems to 75

See 1265al. 969b. 77 969c. 78 For an example of the relationship between politics and philosophy within an established regime, see the Apology 21b-d. Here the wisdom of a statesman of good repute is assessed by Socrates, and an impasse results. 76

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indicate that it is similarly unclear that the philosopher can benefit from life in the established regime. Ultimately, Plato presents the relationship between politics and philosophy as a delicate balance. Through Socrates’ dealings with Cleitophon, both those presented and those implied, a genuine tension emerges which serves to complicate both the political and the philosophical life. The philosopher clearly needs the politician if he is to accomplish his task. The same can not be said of the politician. He only requires the philosopher to accomplish his task to its fullest. He is able, as Cleitophon’s nihilism makes abundantly clear, to operate on his own. The real issue for the political philosopher is knowing when, and how, to make use of his art in order to attain that which most closely resembles the ideal that only he knows.

SECRECY AND RESPONSIBILITY: GEORGES BATAILLE’S PHILOSOPHY OF THE SUMMIT ADAM S. MILLER, VILLANOVA UNIVERSITY

In an essay from his Heretical Essays on the Philosophy of History,1 Jan Patoþka pairs responsibility and secrecy as incommensurable. As Jacques Derrida succinctly notes, “he opposes one to the other; or rather underscores their heterogeneity.”2 The reasons for this heterogeneity are straightforward: responsibility requires disclosure and intelligibility. A secret by its very nature resists the kind of universal translatability necessary for public accounting. Secrecy may well belong to the worlds of demonic mystery and sacred orgy, but it presents itself as a fundamental threat to the possibility of a responsible community. Patoþka’s critique of secrecy as politically impotentindeed, as eminently dangerousis a strong version of the charge often leveled against George Bataille’s philosophy of the “summit” by Jean-Paul Sartre and others.3 Bataille’s project is there charged with being a kind of implosive escapism that allows us to simply slip back into the private, primordial ooze of nonresponsibility. In this sense, the argument against Bataille is also an argument against the political vitality of religion insofar as it necessarily involves a relation to that which is paradigmatically both private and secret. Thus, to 1

Jan Patoþka, “Is Technological Civilization Decadent, and Why?” Heretical Essays on the Philosophy of History, Trans. Erazim Kohák, (Chicago: Open Court, 1996). 2 Jacques Derrida, The Gift of Death, Trans. David Wills, (Chicago: University of Chicago Press, 1995), 1. Donner la mort, (Paris: Galilée, 1999), 15. References to French texts are hereafter given following a forward slash. 3 In general, this critique is well represented by Sartre’s “What is Literature?” in What is Literature? and Other Essays, Trans. Bernard Frechtman, (Cambridge: Harvard UP, 1988). Qu’est-ce que la littérature?, (Gallimard, 1948). If the point of language is to “reveal the world and particularly to reveal man to other men so that the latter may assume full responsibility before the object that has thus been laid bare,” then Bataille’s philosophy of the summit fails to be responsible because his kind of ecstatic “intuition is silence, and the end of language is to communicate” (38/31, 36/28).

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address the question of the legitimacy of this specific charge of irresponsibility against Bataille is to also address, at least in part, the broader question of the relation of religion to the public space of the politics. However, as Derrida deftly illustrates, though it is easy enough to mark responsibility and secrecy as incommensurable, it is much more difficult to rigorously maintain this opposition. For while responsibility “demands on the one hand an accounting, a general answering-for-oneself with respect to the general and before generality, hence the idea of substitution,” it also, at the same time, requires “uniqueness, absolute singularity, hence nonsubstitution, nonrepetition, silence, and secrecy.”4 For there to be responsibility there must be a general accounting, but this general accounting is only genuine if it is offered by a unique and singular someone. Thus, while only the absolutely singular can be generally responsible, the absolutely singular, in the space of its singular secrecy, is anything but general. Given this impasse, it is no longer the case that Bataille’s profoundly singular philosophy of the summit can be simply excluded from the sphere of responsibility. If secrecy is essential to responsibility, then the question must be reformulated. What must be determined is whether Bataille’s position involves either a regress or an excess. Does an experience of the summit amount to a regression into non-responsibility or does it involve a torsion internal to responsibility that traverses irresponsibility for the sake of an absolute responsibility? The thesis to be explored here may be simply summarized as follows: George Bataille’s philosophy of the summit as the vertiginous pinnacle at which life in its excess is perched in a singular way beyond subject and object, beyond project and economy, beyond good and evil is, in fact, the very summit that Derrida describes in The Gift of Death as the site of absolute responsibilitythe site of Abraham’s sacrifice of Isaac on Mount Moriah.

I. The Secret of Insufficiency Secrecy is necessary to responsibility in the same way that the negative is necessary to the work of the dialectic or that non-meaning is necessary to the constitution of meaning. In each case, the founding element is characterized by a fundamental excess that cannot be recuperated by the intelligibility that it makes possible. Bataille refers to this principle of excess as the principle of insufficiency and he elaborates it in connection with an examination of the nature of subjectivity. Just as secrecy constitutes responsibility and nonmeaning constitutes meaning, insufficiency constitutes subjectivity. 4

The Gift of Death, 61/88-89.

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It is axiomatic for Bataille that “there exists at the basis of human life a principle of insufficiency.”5 That is to say, in relation to human life the principle for which one must always account is its finitude. The key, for Bataille, is to recognize that life’s insufficiency is not a negative quality to be lamented and, where possible, obscured. Rather, life’s insufficiency is identical with its drive to increase and overcome. Life is insufficient because it is excessive. If life were sufficient, it would be closed, stable and static. Insufficiency is life’s great stimulus: it keeps life fluid, mobile and responsive. Simply put, it is our insufficiency that leaves us both open to and in communication with others. As a result, identity and subjectivity are extremely fragile commodities. They are proper to life even as they are that which life’s movement ceaselessly overcomes. “What you are,” Bataille argues, “stems from the activity which links the innumerable elements which constitute you to the intense communication of these elements among themselves.”6 We have a sense of identity not because we are, deep down, stable sufficient subjects, but because the innumerable elements of which we are composed are, at least temporarily, synergically linked in a shared activity. Life, because it is fundamentally insufficient, “is never situated at a particular point: it passes rapidly from one point to another (or from multiple points to other points), like a current or like a streaming of electricity.”7 Thus, Bataille tell us, “there where you would like to grasp your timeless substance, you encounter only a slipping, only the poorly coordinated play of your perishable elements.”8 For Bataille, then, the axiom of finitude must be immediately followed by its fundamental correlate: once life is recognized as insufficient and therefore as disarmingly plastic, it becomes obvious that any attempt to describe life’s unity in terms of a self-subsistent subject will be deeply inadequate. Life precedes and exceeds the idea of a sufficient, autonomous subject. It cannot be constrained within the confines of the intelligible and meaningful identities that we fabricate for ourselves. Why, then, do such descriptions thrust themselves upon us so forcibly and consistently? As we noted above, Bataille’s answer is that the principle of insufficiency itself makes possible the fabrication of subjectivity. Because life is insufficient it is perpetually in communication with other bodies, exposed to them in open and unstable relation. The “sufficient” subject’s sense of isolation is a product of the fragility of those same relations that make it possible. Because these inter-relationships are in flux, a subject’s own relatively stable set of intra-relations take on weight and solidity. Only the instability of 5

Georges Bataille, Inner Experience, Trans. Leslie Anne Boldt, (Albany: SUNY Press, 1988), 81. Œuvres Complètes, Vol. 5, (Gallimard, 1973), 97. 6 Inner Experience, 94/111. 7 Inner Experience, 94/111. 8 Inner Experience, 94/111.

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life’s communicative relations “permits the illusion of a being which is isolated, folded back on itself and which possesses the power to exist without some sort of exchange.”9 That is to say, only insufficiency allows for the fabrication of subjectivity. One must recognize, however, that the illusion of autonomous and sufficient subjectivity does not remain innocent. Granted that insufficiency does itself make possible the semblance of sufficiency, it remains the case that the illusion of autonomy is also something that is actively taken up and perpetuated by life in an attempt to mask its own finitude. Life, in its desire to overcome, in its desire to be everything, often finds itself ashamed of its failure to definitively succeed. In response to this shame and in fear of its insufficiency, life hides behind itself. It fabricates an illusion of sufficiency through the construction of a symbolic identity that is identifiable within the general order of the political, ethical and social spheres and that shows up in terms of objectifiable qualities like work, material possessions, and popular acclaim. In time, this identity gathers a kind of smothering weight and solidity that is foreign to life’s excessive desire for mobility, plasticity and communication. “Each of us,” Maurice Blanchot writes in this regard, is forever “menaced by his Golem, that crude clay image, our mistaken double, the derisory idol that renders us visible and against which, living, we protest by the discretion of our life.”10 These symbolic identities effectively operate as masks for our finitude in the public sphere, as a kind of perverse double capable of passing itself off as an adequate autonomous subject. We must recognize, then, that for Bataille, to the extent that the intelligible subject masks and homogenizes singularity, it also threatens responsibility. It is this denial of insufficiency together with life’s concomitant withdrawal behind the illusion of subjectivity that, for Bataille, marks the genuine danger to responsibility. In light of this, care must be taken to distinguish two different kinds of responsibility: restricted responsibility must be distinguished from absolute responsibility.11 Though Bataille’s description of life’s insufficiency challenges the concept of an autonomous subject and, as a result, our common 9

Inner Experience, 84/100. Maurice Blanchot, “Limit Experience,” The Infinite Conversation, Trans. Susan Hanson, (Minneapolis: University of Minnesota Press, 1993), 203. L’entretien infini, (Gallimard, 1969), 301. 11 It is appropriate to hear in my use of the phrase “restricted responsibility” an echo of Bataille’s terminology of restricted economy and general economy. The relationship between restricted economy and general economy is homologous with the parallel distinction between a restricted responsibility and an absolute responsibility that I am here attempting to demarcate. 10

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restricted conception of what responsibility is, it does so in favor of an absolute responsibility that is possible only if life is experienced in its excessive singularity. Bataille is not proposing an escape from singularity and responsibility. He is proposing that restricted responsibility be traversed in its entirety in order to reveal its limits and, at the same time, the limitlessness of the absolute responsibility that exceeds and constitutes it.

II. The Summit of Responsibility’s Excess Bataille’s philosophical efforts are largely directed at describing and facilitating experiences capable of just such a traversal. Such experiences must be capable of affirming insufficiency and deposing the illusion of autonomy. Only if insufficiency is uncovered and affirmed do we find ourselves exposed to the demands of an absolute responsibility. These experiences of affirmation and exposure are referred to as experiences of the summit. An experience of the summit is an experience of life at the height of its own excessive selfovercoming, beyond any claim to sufficiency. The summit involves “measureless expenditures of energy and is a violation of the integrity of individual beings.”12 It is an experience of the pinnacle at which one is “suspended in the beyond of oneself,” beyond subject and object, beyond work and economy, beyond good and evil, beyond a restricted notion of responsibility.13 It is the site at which life feels the vertiginous insanity of its own and everyone else’s mad improbability, fragility and contingency. The summit is, quite simply, the place at which we find ourselves stripped of all pretense and exposed in all our insufficiency. Bataille cites a number of experiences that are for him exemplary in this regard (e.g. laughter and sexual intimacy), but among all these one is preeminent: death.14 Nothing unveils our pretension to autonomy and sufficiency as pure pretension so unflinchingly as does death. In the face of death, our finitude and insufficiency are apparent. Death is the gift by means of which I “perceive the rupture which constitutes my nature.”15 Death discloses the impossibility of sufficiency as it exposes the absence of duration and reveals

12

Georges Bataille, On Nietzsche, Trans. Bruce Boone, (St. Paul: Paragon House, 1994), 17. Œuvres Complètes, Vol. 6, (Gallimard, 1973), 42. 13 On Nietzsche, 19/42. 14 In this sense, Bataille’s exposition of an experience that shatters and exceeds the mundane world remains thoroughly immanent. His examples of laughter, sex and death retain an immanence that may lend itself more readily to contemporary religious thinking than the work others, such as Kierkegaard, with whom he otherwise shares so much. 15 Inner Experience, 71/85.

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the dazzlingly positive and consumptive excess of life. The proximity of death transports us to the summit. The difficulty with Bataille, the opacity that leaves him open to the charges of irresponsibility noted at the outset, is centered in his failure to explicitly fill out the ethical consequences of this kind of experience. Though Bataille goes far in describing the ways in which an experience of the summit, particularly in relation to death, shatters our symbolic identity, our fabricated mask of sufficient subjectivity, he only hints at what effects such an event would have on our experience of responsibility. It is because of this lacuna that we may fail to see the strong correlation of Bataille’s summit and Derrida’s description in The Gift of Death of the site of absolute responsibility. A loss of symbolic identity places us outside of subjectivity and, in a sense, beyond good and evil, but it does not place us beyond responsibility. Rather, it is only at the height of the summit that the depths of responsibility first become apparent. What Derrida so clearly illustrates in The Gift of Death is that, though it is indeed the case that the proximity of death exposes our publicly autonomous identities as fabrications, this does not preclude the possibility of responsibility, but opens it. By stripping us of any pretension to sufficient autonomy, death puts us back into relation with othersa relation that is no longer simply symmetrical and volitional, but dissymmetrical and fundamental. Bataille’s position is fundamentally harmonious with this point: life is not autonomous, but is fundamentally in relation to and in communication with that which is other. Though it is the case that death strips us of autonomous subjectivity, death does not strip us of singularity. Just the opposite is the case. Death is that which gives me the gift of my own singularity. It is that which reveals me as unsubstitutable and irreplaceable. “Everyone must assume his own death, that is to say the one thing in the world that no one else can either give or take,” Derrida argues.16 “My irreplaceability is therefore conferred, delivered, ‘given,’ one can say, by death.”17 Death is that which bestows my singularity, my irreplaceability. Death does not level subjects into a homogenous communityrather, homogeneity is present only among symbolically constructed masks of sufficiency. It is the heterogeneous moment of death that genuinely reveals the singularity of our insufficiency and our lack of identity. Death does not strip me of singularity by placing me beyond subjectivity, it gives that gift to me. If responsibility requires a truly singular someone in order to be genuinely responsible, then it can only be found outside of the mask of sufficiency. 16 17

The Gift of Death, 44/67-68. The Gift of Death, 41/64.

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III. The Impasse of Subjectivity There is a sense, however, in which Patoþka’s objections remain to be addressed.18 His argument about the incommensurability of secrecy and responsibility is more finely grained than we have to this point acknowledged. For instance, Patoþka agrees with Bataille that modern conceptions of the subject as an autonomous individual are not adequate with respect to the demands of responsibility. Like Bataille, he sees “modern individualism” as a kind of mask that does not attempt “to penetrate beyond and beneath every role but rather to play an important role.”19 However, Patoþka remains unwilling to grant that any kind of “private” ecstasy is able to do the work of penetrating beyond and beneath every fabricated identity. In the grip of ecstasy, he argues, what happens is that we “forget the entire dimension of the struggle for ourselves, forget responsibility and escape, letting ourselves be drawn into a new, open dimension as if only now true life stood before us, as if this ‘new life’ had no need to care for the dimension of responsibility.”20 Patoþka, in other words, views experiences such as those outlined by Bataille as reaching back into the original non-responsibility of a pure primordial immediacy. The key is to see that Patoþka does so because he has failed to sufficiently radicalize his own conception of absolute responsibility. In this respect, Patoþka is exemplary of a widely shared political opinion that secrecy and responsibilityand, by extension, religion and politicsare strictly incommensurable. While, he at least has attempted to step beyond a conventional economic notion of responsibility, he has not yet been confronted by a kind of responsibility that is thoroughly absolute. Simply put, Patoþka fails to escape the orbit of a restricted notion of responsibility because he fails to generate enough velocity to escape the orbit of subjectivity. His conceptions of responsibility remain centered on the pole of the self. He has no quarrel with the fact that responsibility requires a kind of bare-bones exposure, but he wishes to maintain that “there is a fundamental difference between the responsibility which bears and ‘exposes itself’ on the one hand and avoidance and escape on the other.”21 Ecstatic experiences such as those described by Bataille are not adequate to responsibility for Patoþka because they require a too whole-hearted loss of the self. In such extremes of ecstasy the self is completely forgotten as life forgets to bear itself in its exposure. Derrida, however, argues against 18

In order to more easily draw the needed parallels between Bataille and Derrida, we will here present these objections from the perspective of Derrida’s engagement with Patoþka in the opening chapter of The Gift of Death. 19 Jan Patoþka, 115. 20 Jan Patoþka, 99. 21 Jan Patoþka, 98.

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Patoþka and with Bataille that such a thorough-going loss of self in exposure to the other is precisely what is needed in order for the distance between restricted responsibility and absolute responsibility to be traversed.

IV. Lordship vs. Sovereignty The difference here at stake between Patoþka and Bataille is neatly compressed by Derrida in his examination of the difference between Hegel’s conception of the lord and Bataille’s conception of the sovereign. The difference, Derrida argues, is extremely small, next to nothing. Both the lord and the sovereign have willingly undergone a profound exposure to the emptiness of death. Both have risked stepping beyond their masks of subjective sufficiency. But the difference lies in the character of their relation to this negativity. “The lord is the man who has had the strength to endure the anguish of death and to maintain the work of death.”22 That is to say, the lord is the one whose relation to death is essentially defined by the way in which he puts death to work for his own ends. The moment of exposure remains tethered to the pole of the self, and operates in service of the self. Death is economically absorbed. The sovereign, on the other hand, renounces economy and so becomes capable of receiving death as a gift. The difference between the lord and the sovereign on this point is that the sovereign acknowledges the irrecoverable excess of death, pushing beyond meaning to non-meaning, beyond the work of death to its play. “Like lordship,” Derrida says, “sovereignty certainly makes itself independent through the putting at stake of life; it is attached to nothing and conserves nothing. But, differing from Hegelian lordship, it does not even want to maintain itself, collect itself, or collect the profits from itself or from its own risk.”23 In short, the difference is that lordship remains within the bounds of a restricted, closed-circuit economy. Only sovereignty makes the move toward an absolutely general economy in which the pure expenditure of negativity is related to as such. The difference is so difficult to detect, Derrida tell us, because “it bursts out only on the basis of an absolute renunciation of meaning, an absolute risking of death . . . a negativity that never takes place, that never presents itself, because in doing so it would start to work again.”24 Sovereignty “is the impossible, therefore it is not,” it is nothing but loss.25 In the 22

Jacques Derrida, “From Restricted to General Economy: A Hegelianism without Reserve,” Writing and Difference, Trans. Alan Bass, (Chicago: University of Chicago Press, 1978), 254. L’écriture et la différance, (Paris: Éditions du Seuil, 1967), 374. 23 “From Restricted to General Economy,” 264/388. 24 “From Restricted to General Economy,” 256/376. 25 “From Restricted to General Economy,” 270/397.

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same way that the non-meaning of negativity both constitutes and exceeds meaning, so does absolute responsibility both constitute and exceed restricted responsibility. The distinctions explicated by Bataille with respect to the constitution of meaning are mirrored by the distinctions he left unexplicated with respect to responsibility. The impasse is the same in both instances: the restricted element is not erased by the absolute element, but traversed by it, subverted by it, and made into a gift. Patoþka is right to see this subversion as involving a kind of dangerous irresponsibility, but he fails to see that this irresponsibility is initiated by and for the sake of an absolute responsibility. He mistakes this necessary economic irresponsibility for non-responsibility.

V. Moriah’s Summit: Exposure to the Other “Such is the aporia of responsibility,” Derrida explains, “one always risks not managing to accede to the concept of responsibility in the process of forming it.”26 Absolute responsibility necessarily involves irresponsibility. There is no responsibility without secrecy. “This,” Derrida says, “is ethics as ‘irresponsibilization.’”27 This impasse is precisely what prompts Derrida to give a proper name to Bataille’s summit. The summit of absolute responsibility is named Mount Moriah in order to indicate that the aporia experienced there is Abraham’s own. This is the nature of Abraham’s impasse: he cannot be responsible to God’s unfathomable command without sacrificing his responsibility to Isaac. He cannot be absolutely responsible to the wholly other without being irresponsible to some other other. It is precisely in this sense that responsibility escapes economy and enters the domain of the gift. Absolute duty “implies a sort of gift or sacrifice that functions beyond both debt and duty, beyond duty as a form of debt. This is the dimension that provides for the ‘gift of death.’”28 The brilliance of Derrida’s argument is his emphasis upon the way in which Abraham’s absolutely singular impasse is also, in fact, “the most common thing.”29 We live it, cross through it, and bear it every hour of every day. We “cannot respond to the call, the request, the obligation or even the love of another without sacrificing the other other, the other others.”30 I cannot respond to this student or this child without being unresponsive to the calls and 26

The Gift of Death, 61/88. The Gift of Death, 61/89. 28 The Gift of Death, 63/92. 29 The Gift of Death, 67/97. In this sense, giving a proper name to Bataille’s generic summit does not represent a contradiction but an instantiation of the logic of absolute responsibility: it is the paradox of a “universal singularity.” 30 The Gift of Death, 68/98. 27

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claims of all my other students and children. “As soon as I enter into relation with the other,” Derrida says, “with the gaze, look, request, command or call of the other, I now that I can respond only by sacrificing ethics, that is, by sacrificing whatever obliges me to also respond, in the same way, in the same instant, to all the others.”31 What the story of the binding of Isaac exemplifies is that life is not simply insufficient in relation to its own autonomy. Beyond this initial insufficiency, life is even more radically insufficient in its capacity to respond to the insufficiency of others, of all the other others. Life is insufficient and its response to this insufficiency is even more insufficient. But this is no excuse and it offers no justification for hiding behind claims to sufficiency. Seeking a path to absolute responsibility that avoids irresponsibility is simply not an option and to confuse this constitutive irresponsibility with non-responsibility is to miss the point altogether. The impasse is simply unavoidable: it is essential to responsibility itself. It is that which makes responsibility possible even as it undermines and delimits this very same possibility. That which must be avoided at all costs is any attempt to cover over this element of insufficiency. Life’s insufficiency in relation to itself must be affirmed even as its insufficiency in its capacity to care for the insufficiencies of others must be affirmed. Abraham must neither deny his singular responsibility to God, nor his universal ethical responsibilities. “I can never justify this sacrifice,” Derrida reminds us, “I must always hold my peace about it.” 32 The secret must be kept.

VI. Conclusion The conclusion to be drawn is that in order for the fragile communicative bond of responsibility to be possible, in order for Bataille’s summit to mark the site of this absolute responsibility, life must both keep its peace even as it never denies, as Derrida puts it, that “day and night, at every instant, on all the Mount Moriahs of this world, I am doing that, raising my knife over what I love and must love, over those to whom I owe absolute fidelity, incommensurably” for the sake of responsibility itself.33 Bataille’s philosophy of the summit, perhaps even despite itself, turns out to have clear and profound ethical and political consequences. Despite the objections of those like Sartre and Patoþka, the play of secrecy, of non-meaning and insufficiency that traverses the breadth of intelligibility and universality appears to mark precisely the space within which any genuinely revolutionary ethical possibilities reside. And if this is indeed the 31

The Gift of Death, 68/98. The Gift of Death, 70/101. 33 The Gift of Death, 68/98. 32

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case, then we may also have identified a particularly fruitful philosophical point of departure in any attempt to re-think, with all its aporias, the legitimate significance of religion in the political sphere.

NOT KNOWING YOUR PARTNERS: AN ARGUMENT CONCERNING SEXUALITY WITHIN THE ORIGINAL POSITION JOHN SCOTT GRAY, HUMBOLDT STATE UNIVERSITY

In trying to reach an understanding of what social system would be equally agreed upon from a situation involving a fresh start, John Rawls posits a contractual theory that begins with the thought experiment of the original position. In the original position, Rawls attempts to capture the thinking of “rationally autonomous representatives of citizens in society. As such representatives, the parties are to do the best they can for those they represent subject to the restrictions of the original position.”1 To capture an unbiased view, one of the limitations of the original position is the veil of ignorance. Because Rawls is seeking a fair system of cooperation, the original position is an attempt to ensure that agreements reached by the original founders of a society are as fair as possible. The veil helps achieve this by placing fairness as the central focal point of political consideration, in that the veil dictates that the founding parties consider the grounding principles of their political philosophy and basic social structures in an atmosphere that is not colored by their preconceived prejudices or their particular socio-economic background. According to Rawls: the fact that we occupy a particular social position is not a good reason for us to propose, or to expect others to accept, a conception of justice that favors those in this position. Similarly, the fact that we affirm a particular religious, philosophical, or moral comprehensive doctrine with its associated conception of the good is not a reason for us to propose . . . a conception of justice that favors those of that persuasion. To model this conviction in the original position, the parties are not allowed to know the social position of those they 1

Rawls, Political Liberalism (New York: Columbia University Press, 1993), 305.

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John Scott Gray represent, or the particular comprehensive doctrine of the person each represents.2

This enforced ignorance on the individuals burdened with deciding the terms of social cooperation includes not having information regarding race, religion, sex and age. They also are unaware of other characteristics they will have as individuals once political structures are agreed upon and the veil is lifted, including their individual traits (Rawls calls them natural endowments), such as the level of intelligence a person will possess as well as their physical strength. Rawls would later specifically add racial/ethnic information as well as sex as information not known behind the veil of ignorance. While Rawls does not specifically include sexual orientation as a piece of information that those in the original position should not possess, this critic believes that excluding that information as well is consistent with the intent of the original position. This paper attempts to make a case for counting sexual orientation as one of the pieces of information that is denied choosers in the original position. It will do so by discussing the role of the veil of ignorance within Rawls’ theory of a just state, including both the information included and denied the choosers in the original position. We will also discuss the two principles of justice that Rawls asserts would be arrived at within the original position, explaining how the basic liberties and primary goods discussed therein are consistent with our assertion that the choosers should remain ignorant of their individual sexual orientation behind the veil. This discussion will also include a consideration of the basic institutions that are constructed in light of the two principles of justice, included the relationship those institutions have to the citizens within the state. After briefly discussing how including individual sexual orientation as information denied in the original position does not invade one’s right to a comprehensive moral doctrine that includes anti-gay/lesbian sentiments, we will discuss the effect that the inclusion of sexual orientation as knowledge denied choosers in the original position might have on the same-sex marriage debate. In Rawls’ hypothetical scenario for the creation of a just state the original position is intended to prevent those in power from making biased decisions regarding the structure of a state’s institutions. Rawls asserts that because the choosers do not know their individual attributes, they attempt to protect their personal liberties and particular interests by designing a system that insures all citizens the highest possible level of liberty. According to Rawls, “each man tries to do the best he can for himself by insisting on principles calculated to protect and advance his system of ends whatever it turns out to be.”3 Because 2

Ibid., 24. Rawls, “The Justification of Civil Disobedience”, Collected Papers (Cambridge, Massachusetts; Harvard University Press, 1999), 178. Originally published in Civil

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sexual orientation is an individual characteristic, it should also be denied to a chooser in the original position, because knowledge of one’s sexual orientation is as much an individual characteristic as other traits of which the choosers are deprived because it might prejudice them. We would certainly not want someone who is lesbian, gay or heterosexual to use that knowledge to create political institutions that exploit their position anymore than we would want someone to know of their race or economic status and use that information in a biased conception of what is just (as it could be said occurred when our founding fathers allowed for the continued existence of the institution of slavery). Often, according to Rawls, exploitation of the political structures in a way beneficial to those that create those structures occurs because basic agreements regarding what counts as social and political justice come about too late in the creation of the state.4 A further point is that while those in the original position know that the people for whom they are selecting principles have a conception of the good, behind the veil they do not “know the content of these conceptions . . . they do not know the particular final ends and aims these persons pursue, nor the objects of their attachments and loyalties. . ..”5 Because those in the original position do not know the identity of their attachments after the veil is lifted, they would be unaware of the sex, for example, of those to whom they have romantic sentiments. As we said before, avoiding the choosing of principles more beneficial to one group over another is the principal reason why the veil of ignorance was created in the first place. As Rawls states, the veil “removes difference in bargaining advantages, so that in this and other respects the parties are symmetrically situated..”6 While the person in the original position does possess general psychological knowledge of human beings, including the kinds of goals that persons tend to seek, those goals may include a wide range of possibilities. Most people seek out romantic partners, sometimes for short-term relationships and sometimes for relationships that last a lifetime. Many people choose to make their relationship with that lifetime partner public by getting Disobedience: Theory and Practice, ed. Hugo Bedau (New York: Pegasus, 1969), 240255. 4 Beyond the continued allowance of slavery by the founders of the United States we can also see that the denial of women’s suffrage serves as another example of this phenomenon. 5 Rawls, Political Liberalism, 310. Again, while Rawls forbids particular information, he does allow general knowledge of the broad plans of life. 6 Rawls, Justice as Fairness: A Restatement (London: The Belknap Press of Harvard University Press, 2001), 87.

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married, yet some do not. Many people desire to have children and raise a family, while some do not. And within all of these relationships are variations in the kind of partner sought, including same-sex partners, opposite-sex partners, multiple partners, and sometimes no partner at all. All of these possibilities are live options amongst consenting adults that should be considered by the person behind the veil of ignorance. Because people in the original position do not know who they are as individuals, they are more likely to construct a system of the greatest equality to try and guarantee that they will be treated fairly as an equal citizen, regardless of their final attributes.. Depriving the choosers of knowledge of their sexual orientation allows the choosers to truly consider what the fair terms of social cooperation within the state should be. These fair terms of cooperation will find their expression in both the principles of justice the choosers embrace as well as in the basic structure of political and social institutions. From the original position, Rawls asserts that the choosers are faced with various principles of justice. Of those options, Rawls believes that the following two principles would ultimately be chosen: First Principle Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all. Second Principle Social and economic inequalities are to be arranged so that they are both: (a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and (b) attached to offices and positions open to all under conditions of fair equality of opportunity.7 The first principle is lexically prior to the second, in that adjustments in the social structure with reference to the second principle of justice can only occur if those adjustments do not interfere with the first principle. The reference to the least-advantaged members of society has to do with the distribution of primary goods, which are the social conditions that allow citizens to fruitfully exercise their moral powers and pursue their conception of the good, allowing them to live a complete life. Rawls emphasizes that these basic primary goods are determined within the political conception that arises out of the original 7

Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), 302. In his later work, Rawls will re-arrange the two aspects of the second principle in such a way that equality of opportunity is lexically prior to (must be satisfied before) the assertion that any inequalities must work toward the greatest benefit of the least advantaged.

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position and are not chosen by a particular comprehensive moral doctrine, although most rational comprehensive doctrines would recognize these same things as primary goods. These goods include the basic liberties referred to in the first principle of justice as well as the free choice of occupation and reasonable access to income and wealth.8 It appears on the surface that these basic liberties would apply equally to heterosexual persons as well as to gays and lesbians. By a comprehensive doctrine, Rawls is referring to a person’s individual religious, philosophical or moral doctrine that dictates their specific positions regarding the good and the value of particular goods in the world. Individuals may still hold onto their own comprehensive doctrines in a society based on justice as fairness because the political structure that we are constructing is focused on “political values that characterize the domain of the political; it is not proposed as an account of moral values generally.”9 According to Rawls, it is perfectly fine for people to have moral standards that are dictated by a divine or natural process. Because the focus is on political institutions, Rawls asserts that, “Political constructivism does not criticize, then, religious, philosophical, or metaphysical accounts of the truth of moral judgments and of their validity.”10 The only requirement that Rawls places on these various comprehensive doctrines is that they be reasonable. Reasonable persons “are sufficiently intelligent and conscientious in exercising their powers of practical reason, and whose reasoning exhibits none of the familiar defects of reasoning. . ..”11 They must be reasonable because they participate in the overlapping consensus of views that operate underneath the political system constructed under the two principles of justice.12 8

Ibid., 59. Rawls, Political Liberalism, 125. 10 ibid., 127. 11 ibid., 119. 12 On a related point, Rawls was sensitive to a concern that states that the fact that there were so many comprehensive moral doctrines in the world might on the surface seem to contradict the possibility of a single statement of justice. Rawls asserted, however, that the principles of justice as fairness arrived at behind the veil and the social and political institutions that followed from those principles would be agreeable to an overlapping consensus of reasonable persons within the state. This consensus does not entail that the values of the various comprehensive moral doctrines would always agree with the positions of the state. When that disagreement exists, it is not meant to devalue those comprehensive moral doctrines, according to Rawls, because: “political liberalism does not say that the values articulated by a political conception of justice, though of basic significance, outweigh the transcendent values (as people may interpret them)--religious, philosophical, or moral--with which the political conception may possibly conflict. To say that would go beyond the political,” (Rawls, Justice as Fairness, 37). If we were to 9

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Rawls also discusses what he calls “the social bases of self-respect” in reference to the aspects of the way the basic institutions influence the sense of worth that citizens of the state possess. Rawls says “the inequalities to which the difference principle applies are differences in citizens’ (reasonable) expectations of primary goods over a complete life . . . the least advantaged are those belonging to the income class with the lowest expectations..”13 Rawls call this principle a principle of distributive justice in the narrow sense. It is narrow because the distribution of any primary goods through the application of the difference principle is subordinate to the primary guarantee of equal basic liberties found in the first principle. Furthermore, major political and social institutions should be constructed with regards to these basic liberties in accordance with the first principle of justice’s assertion that people must have a right to the most extensive system of equal basic liberties. In essence, there should be no arbitrary advantages built into the basic structure, in either its conception or constitutional creation. The key aspect in the application of justice as fairness in political development is that the social/political institutions that are created and enforced must not institute arbitrary advantages. The major institutions that distribute the rights and duties to the citizens of the state include: the political constitution and the principle economic and social arrangements. Thus the legal protection of freedom of thought and liberty of conscience, competitive markets, private property in the means of production, and the monogamous family..14

Rawls would later back away from his use of the term monogamous, saying in an often overlooked footnote to his essay “The Idea of Public Reason Revisited” that no particular structure of family, be it monogamous, heterosexual, bisexual or otherwise, is a required understanding of family within a political conception of justice.15 All of these institutions are constructed in the developing state within the system laid down in the basic structure. As Rawls emphasizes, the basic structures of the political and social institutions that decide that our political conception of justice as fairness allows for same-sex marriage, this is only a political statement about rights with regard to political and social institutions, which still leaves “the concept of a true moral judgment to comprehensive doctrines,” (Rawls, Political Liberalism, 116). 13 Rawls, Justice as Fairness, 59. 14 Rawls, A Theory of Justice, 7. 15 Rawls, “The Idea of Public Reason Revisited”, Collected Papers (Cambridge, Massachusetts; Harvard University Press, 1999), 596. Originally published in University of Chicago Law Review, 64 (Summer, 1997), 765-807

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comprise the state are the primary subjects of justice as fairness because these structures, “define men’s rights and duties and influence their life-prospects, what they can expect to be and how well they can hope to do . . . its effects are so profound and present from the start.”16 These basic structures, which are indebted to the principles of justice as fairness that guide them, will be created in their image. In an attempt to fulfill the requirement of equal basic liberties for all, these political and social institutions will also operate on the premise that all are created equal, deserving free and equal treatment, regardless of age, race, religion (or, on my view, sexual orientation). These political and social institutions, because they are constructed to follow the principles of justice as fairness, help achieve what Rawls calls the shared common good, which arises because our political and social institutions work toward a well-ordered society. The idea of the common good emphasizes the point that Rawls’ theory of justice is not meant to address the problems facing people as individuals. That being said, he does posit some basic assumptions regarding the nature of persons in general. These assumptions include the belief that persons are citizens that cooperate as members of society. Connected with the idea of cooperation is the idea that persons are expected to have the capacity to reason. Rawls adds that reasonable persons are moved by a desire for “a social world in which they, as free and equal, can cooperate with others on terms all can accept. They insist that reciprocity should hold within that world so that each benefits along with others.”17 Persons also possess the capacity for a sense of justice and a conception of the good. Rawls does not require that citizens have a conception of the good, only that as part of the overlapping consensus their comprehensive moral doctrine has a conception of the good that they are trying to achieve. Because gays and lesbians do count as equal citizens because they possess the minimum requirements, including the capacities for a sense of justice, a conception of the good, and the ability to be cooperating members of society, it seems that they would be represented in the original position. When we say that gays and lesbians are represented in the original position we mean that those sexual orientations should be included as a live possibility considered by the choosers as a characteristic that they might themselves possess once the veil is lifted. The original position is the tool that Rawls asserts can help us to come to 16

Ibid. Political Liberalism, 50. Rawls contrasts this conception of reasonable persons with his assertion that unreasonable persons “plan to engage in cooperative schemes but are unwilling to honor, or even to propose, except as a necessary public pretense, any general principles or standards for specifying fair terms of cooperation. They are ready to violate such terms as suits their interests when circumstances allow,” ibid. 17

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a political conception that nullifies “the effects of specific contingencies which put men at odds and tempt them to exploit social and natural circumstances to their own advantage..”18 The choosers behind the veil are aware only of general facts regarding characteristics of their society while remaining unaware of their own individual characteristics and the future place that they would hold in society. While knowledge of their individual situation or the specific situation of the society to which they belong is forbidden, they are, however, allowed general information about “the basis of social organization and the laws of human psychology . . . whatever general facts affect the choice of the principles of justice. There are no limitations on general information. . ..”19 With regard to their society, they do not even know the history of their own culture and this lack of knowledge would seem to include whether or not it has historically been against same-sex rights in general or against same-sex marriage in particular (although they would know of the existence of homophobia, along with racism and sexism as general traits that exists in the world). Rawls admits that his project is not intended to lay out a complete political system down to the particular individual laws in the state, but is trying to lay out overarching principles of justice that he believes will be agreeable and applicable to the creation of an over-riding ideal structure. It is for this reason that Rawls begins behind the veil of ignorance in the original position, so that an individual’s comprehensive moral doctrine or egoistic desires to receive more than what reason would call their fair share can be limited. An example of the ramifications arising from making sexual orientation an attribute not known in the original position can be found in a consideration of the family as a social institution. If we considered the question of same-sex marriage in terms of the ways in which the institution of marriage and the family would be constructed in a just system such as the one that Rawls lays out and we determined that our current system fundamentally differs from that construction, then that would serve as a basis for a further re-evaluation of our current structure. We would not be directly looking at the particular arguments that could be offered for or against the permissibility of a particular same-sex marriage, but would instead consider marriage as a basic political/social institution as Rawls’ defines it and examine how that vision differed from our current practice. It would appear that a chooser in the original position who did not know their sexual orientation behind the veil of ignorance would be in favor of at least that consideration.20 18

Rawls, A Theory of Justice, 136. Ibid., 137-138. 20 This issue is discussed further in my “Rawls’ Principle of Justice as Fairness and Its Application to the Issue of Same-Sex Marriage”, South African Journal of Philosophy, Vol. 23, No. 2, (2004), 158-170. 19

LIBERALISM ON EMBRYOS: STATE NEUTRALITY AND THE STEM-CELL DEBATE DOV FOX, ST. JOHN COLLEGE, UNIVERSITY OF OXFORD

Introduction The ideal of liberal neutrality holds enormous appeal in the protection of equal rights and social peace it achieves by setting aside the intractable moral disagreements endemic to pluralistic society when designing the framework that forms the basic structure of society. However, one might question the promise of this ideal in two ways. The first is to wonder whether the liberal construct of state neutrality is internally coherent. The second is to speculate whether the ideal of liberal neutrality is externally desirable. I take the second approach, leaving aside the question about whether individual rights can be justified in a way that does not presuppose any particular conception of the good. I argue that the liberal aspiration to neutrality fails for two reasons. The first has to do with political outcomes, the second with the reasons on which political processes are grounded. The first objection is that the moral or religious values at stake in certain political controversies may outweigh the values of toleration, respect, and social cooperation that state neutrality protects. The second objection is that by excluding moral and religious arguments from the public sphere, the neutral state unduly impoverishes the terms of political discourse. I try to show the error in denying the possibility that with arguments about the substantive values and ends, as with arguments about justice and rights, citizens can through a process of reflective equilibrium be able to conclude, at least for a time, that some moral or religious doctrines are more reasonable than others. I illustrate both objections by reference to contemporary debates about embryonic stem cell research in the United States.

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The Right and the Good The liberalism of state neutrality is a particular brand of liberal theory— deontological liberalism—at whose core is a hierarchy of moral categories characterized as the priority of the “right” over the “good.”1 The Kantian distinction between principles—the right—and purposes—the good—was brought to the fore in contemporary political philosophy by John Rawls in his 1971 A Theory of Justice. Principles of rightness, Rawls avowed, describe the obligations people owe to one another, while purposes of goodness specify the understandings and aspirations worth seeking if we are to live well.2 There are two senses in which deontological liberalism sets the right prior to the good. The first is that individuals bear rights over which considerations of the common good cannot take precedence. Liberal respect for the individual lies in conceiving of her analytically as more than just one among others, whose group interests may be fused together as a single sum total; and normatively as an end in herself, who may not be used exclusively for purposes contrary to her own.3 What Rawls calls “the plurality and distinctness of persons” and what Nozick calls “the fact of our separate existences” thus demands a collection of personal liberties that even the well-being of society as a whole cannot override. The second way deontological liberalism take the right as prior is that the principles of justice determining which particular rights are included among the general framework are derived independent of any particular conception of in what the good life consists. That is, the fact that some system of beliefs or way of life is thought to be more reasonable or worthwhile than others may not serve as a reason on which basis to ground the rules that guide the operation of social and political institutions. It is principally in this second sense of independent derivation in which deontology is contrasted with teleology, which regards the maximization of a single rational good, such as utility or virtue, as the determinant of right action and distributive justice.4 1

Immanuel Kant, “On the Common Saying: ‘This May Be True in Theory, But it Does Not Apply in Practice,’” in Hans Reiss (ed.) H.B. Nisbet (trans.) Kant’s Political Writings, (Cambridge: Cambridge University Press, 1975) 73. See also: William D. Ross, The Right and the Good (Oxford: Oxford University Press, 1930). 2 John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1999) 497-528. [page numbers in all subsequent references to A Theory of Justice also refer to the revised 1999 edition.] 3 Martha Nussbaum, Sex and Social Justice, (Oxford: Oxford University Press, 1997) 62. 4 For lucid discussions of the distinction between deontological and teleological liberalism, see: Rawls, “The Priority of Right and Ideas of the Good,” Philosophy and Public Affairs, vol. 17, no. 4 (1988): 251-276, 260-264 and Michael J. Sandel, Liberalism and the Limits of Justice (New York: Cambridge University Press, 1982) 1-7; revised in

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Will Kymlicka has disputed the plausibility of a moral distinction between the right and the good, claiming that teleological theories cannot be understood as moral in the proper sense.5 Morality has to do with duties, Kymlicka argues, and duties must be owed to particular persons. When right action is defined as maximizing what is good, Kymlicka asks, whom could this be a duty to?6 Yet Kymlicka’s objection to the conceptual distinction between the right and the good fails to distinguish teleology in this sense from deonotology or other moral theories. As Samuel Freeman points out, neither duties to obey Kant’s categorical imperative nor duties to comply with Rawls’s difference principle are owed to any particular persons.7 Moral principles, to be moral, need not specify any specific recipient of the duties they identify, so long as they establish standards which govern the system by which we determine our particular duties to particular persons. Deontological liberalism duly understood is the political theory which affirms the primacy of equal individual freedom in political arrangements.8 The principle of equal freedom for all citizens is what Ronald Dworkin has called the “egalitarian plateau,” the idea that government action must give “equal concern and respect” to the interests of individual members of the political community.9 To affirm this fundamental liberal premise is neither to imply a false uniformity of liberal thought nor to obscure the tensions deep-rooted in the liberal tradition. Liberal philosophy may take many forms, to be sure. But the principle of universal equal freedom remains liberalism’s first principle, its center of gravity, its “non-negotiable starting point,” in the words of Peter Berkowitz.10 “[T]he basic idea of liberalism,” Brian Barry confirms, “is to Sandel, “The Procedural Republic and the Unencumbered Self,” Political Theory, vol. 12, no. 1 (1984) 81-96, 82-83. 5 Will Kymlicka, “Rawls on Teleology and Deontology,” Philosophy and Public Affairs, vol. 17, no. 3 (1988): 173-190, 173. 6 Ibid., 180. 7 Samuel Freeman, “Utilitarianism, Deontology, and the Priority of the Right,” Philosophy and Public Affairs, vol. 23, no. 4 (1994): 313-349, 327. 8 Jeremy Waldron notes that the liberal commitment to “equal freedom” need not involve any compromise between equality and freedom. “What ‘equality’ does in that formula,” Waldron writes, “is to pin down the form of our commitment to freedom; and what ‘freedom’ does is to indicate what it is that we are concerned to equalize. The two concepts are of such different logical types,” Waldron emphasizes, “that it is absurd to talk of striking a balance between them.” Jeremy Waldron, “Theoretical Foundations of Liberalism,” The Philosophical Quarterly, vol. 37, no. 147 (1987): 127-150, 129. 9 Ronald Dworkin, “In Defense of Equality,” Social Philosophy and Policy, vol. 1, no. 1 (1983): 24-40, 24. 10 Peter Berkowitz, “The Liberal Spirit in America,” Policy Review, vol. 1, no. 120 (2003): 29-47, 36.

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create a set of rights under which people are treated equally in certain respects, and then to leave them to deploy these rights (alone or in association with others) in pursuit of their own ends.”11

State Neutrality Liberalism’s commitment to equal freedom takes form in the ideal of state neutrality. The state expresses respect for the interests of individual citizens equally by maintaining an objective stance—a viewpoint that is noninvolved, disinterested, indifferent12—toward the particular beliefs, ideals, commitments, and lifestyles any of them may hold or practice. State neutrality is the idea that society is arranged best when governed by principles that leave citizens equally free to fashion and follow for themselves convictions about what constitutes the highest human purposes, consistent with a similar liberty for others. The neutral state thus assigns rights and duties and distributes the benefits and burdens of social cooperation in a way that reserves judgment on any among the plurality of ultimate beliefs and practices generated by human reason under conditions of freedom.13 Liberals are of different minds as regards the grounds, character, and purpose of state neutrality, but agree that government may not privilege any among the multiplicity of forms human lives take. Comprehensive liberals like Joseph Raz understand neutrality as the idea that consequences of government action must not favor any particular views about morality and religion.14 Comprehensive liberals consider the value of neutrality as instrumental to the promotion of political values such as tolerance, freedom, equality, and diversity—background features of a liberal democratic society which are thought to help sustain the institutions of a just state and enhance the moral lives 11 Brian Barry, “Political Theory, Old and New,” in Robert E. Goodin and Hans-Dieter Klingemann (eds.) A New Handbook of Political Science (Oxford: Oxford University Press, 1996) 534-546, 538. 12 David C. Paris, “The ‘Theoretical Mystique’: Neutrality, Plurality, and the Defense of Liberalism,” American Journal of Political Studies, vol. 31, no. 4 (1987): 909-939, 913. 13 See, for example, Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977) 90-100, 168-177; Charles Fried, Right and Wrong (Cambridge, MA: Harvard University Press, 1978) 114-119; Charles E. Larmore, Patterns of Moral Complexity (Cambridge, Cambridge University Press, 1987) 42-68; Thomas Nagel, “Moral Conflict and Political Legitimacy,” Philosophy and Public Affairs, vol. 16, no. 215 (1987): 215-240, 227-237; Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), 33; Rawls, Theory of Justice, 27-29, 392-396, 491; “The Idea of An Overlapping Consensus,” Oxford Journal of Legal Studies, vol. 7, no. 1 (1987): 1-24, 28. 14 Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986) 114-115.

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of its citizens.15 Political liberals like John Rawls, by contrast, understand neutrality as the idea that justification for government action must give preference to any comprehensive doctrines—moral, religious, or otherwise. Political liberals consider the value of neutrality as intrinsic to the legitimate exercise of state power.16 Liberals disagree too about whether some among the diversity of conceptions of the good endemic to modern democratic society can be said to merit greater intrinsic value than any others. Some liberals, such as Isaiah Berlin,17 Seven Lukes,18 and Bruce Ackerman19 claim that competing visions of the good life cannot be ranked, since no common standard exists by which to compare their relative worth; other liberals, such as Gerald Dworkin,20 Brian Barry,21 and Michael Oakeshott22 suggest that all ways of life be valued equally; others still, notably John Locke,23 Immanuel Kant,24 and John Stuart Mill25 affirm the objective superiority of some particular conception of the good—service to God or a life of reflective deliberation. However liberals come down on the truth of pluralism, the irrefutable fact of pluralism emphasized by political liberals gives deontological liberalism reason for government’s refusal to take sides on questions of what gives life value.

15 See, for example, Kymlicka, Liberalism, Community, and Culture (Oxford: Clarendon, 1989); William A. Galston, “Defending Liberalism,” American Political Science Review, vol. 76 (1982): 621-629; and Galston, “Liberalism and Public Morality,” in Alfonso J. Damico (ed.) Liberals on Liberalism, (Totowa, NJ: Rowman and Littlefield, 1986) 129147. 16 For a discussion of the distinction between neutrality of effect and neutrality of justification, see Peter de Marneffe, “Liberalism, Liberty, and Neutrality,” Philosophy and Public Affairs, vol. 19, no. 3 (1990): 253-274, 253-255. 17 Isaiah Berlin, “Two Concepts of Liberty,” in Four Essays on Liberty (Oxford: Oxford University Press, 1969) 160-176, 171. 18 Steven Lukes, “Making Sense of Moral Conflict,” in Nancy L. Rosenblum (ed.) Liberalism and the Moral Life, (Cambridge, MA: Harvard University Press, 1991) 127145, 139. 19 Bruce A. Ackerman, Social Justice in the Liberal State (New Haven, CT: Yale University Press, 1980) 11, 349-378. 20 Gerald Dworkin, “Non-Neutral Principles,” Journal of Philosophy, vol. 74, no. 14 (1974): 491-506, 494. 21 Brian Barry, Justice as Impartiality (Oxford, Oxford University Press, 1995) 169. 22 Michael Oakeshott, The Politics of Faith and the Politics of Skepticism (New Haven: Yale University Press, 1996) 116. 23 John Locke, A Letter Concerning Toleration, Mario Montuori (ed.) (The Hague: Martinus Nijhoff, 1963) 81. 24 Kant, “What is Enlightenment?” in Reiss (ed.) Kant’s Political Writings, 54. 25 John Stuart Mill, On Liberty (London: J.M. Dent, 1972): 83-86.

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A Political Conception of Justice Rawls delivers the most compelling and thoroughgoing liberal defense of state neutrality, which hinges on the idea that expectation of consensus on principles of justice is possible only if the arguments the state recruits to justify those principles do not rely on any worldview that someone could reasonably reject. Rawls observes that an unobjectionable difference of opinion at the level of fundamental moral, religious, and philosophical commitments is the inescapable outcome of political cultures built on free institutions. Given this “fact of reasonable pluralism,” Rawls asks, how can a society of free and equal citizens remain both stable and liberal? A stable society is one whose orderliness derives from genuine widespread agreement on a single conception of justice in light of ideals acceptable to common human reason. For people to agree on a conception of justice, they must agree on a comprehensive doctrine underlying that conception. The inevitable multiplicity of conflicting comprehensive doctrines threatens a stable society by implying the impossibility of convergence on a single conception of justice.26 A liberal society is one which takes seriously the distinction between persons, understood, at least when it comes to political affairs, as selfdetermining agents, unclaimed by any roles or goals independent of their voluntary choices. Any restriction of liberty among persons so understood to be legitimate, must derive from the expectation of genuine widespread agreement on principles of justice, rather than from coercion or deception. Jeremy Waldron explains: The liberal insists that intelligible justifications in social and political life must be available in principle for everyone, for society is to be understood by the individual mind, not by the tradition or sense of community. Its legitimacy and the basis of social obligation must be made out to each individual…27

To force on citizens to accept a contentious moral ideal would impose on some the values of others, and so fail to respect the individual’s capacity to stand back and choose her ends for herself. The fact of reasonable pluralism thus threatens a liberal society by implying the impossibility of implementing principles of justice legitimately, that is, in a free and voluntary fashion.28 Rawls locates a solution to the dangers posed by the fact of reasonable pluralism in what he calls a “political conception of justice.” In A Theory of Justice, Rawls described a conception of justice as a set of principles for 26

Rawls, Political Liberalism (New York: Columbia University Press, 1993) 191-194. Waldron, Liberal Rights (Cambridge: Cambridge University Press, 1993) 44. 28 Rawls, Political Liberalism, xvi-xvii, 58-65, 134-143. 27

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assigning basic rights and duties and for determining the proper distribution of the benefits and burdens of social cooperation.29 A political conception of justice, Rawls continued in Political Liberalism, is a type of conception of justice that is: first, freestanding, presented independently of any particular comprehensive doctrine; second, applicable to the basic structure of social, political, and economic institutions (as opposed to families, clubs, or churches) and expressive of political but not moral or religious values; and third, independent of long-standing philosophical controversies such as that about the metaphysical conception of the person. Since a conception of justice with these three features is developed out of ideas implicit in the public culture of a democratic society, Rawls maintains, this political conception is capable of having content without depending for justification on any controversial worldview.30 The political conception of justice makes possible an “overlapping consensus” of “reasonable comprehensive doctrines.” It is possible, Rawls maintains, for people to share a conception of justice without sharing a comprehensive doctrine. While comprehensive doctrines may be contradictory in some ways, these differences need not be political in character. We tolerate comprehensive doctrines other than our own, Rawls claims, because although we may disagree with them and think them to be false, we can nevertheless think them reasonable in the sense that we can see the way that others could have arrived at them; we accept what Rawls calls “the burdens of judgment.” An overlapping consensus on principles of the right, Rawls argues, makes possible consensus on a single conception of justice. For even people espousing comprehensive doctrines for which reconciliation may not be possible—utilitarians and liberals, or Roman Catholics and orthodox Jews—can agree that certain political principles are more reasonable than others. That we can be held morally responsible, at least in any full sense, for neither the personal abilities and qualities of character we come to acquire as a result of genetic and social inheritance (and advantages these traits enable us to secure), nor the system of institutions in which we find ourselves situated that happens to prize our particular traits over others, for example, gives reason for Catholics and Jews alike to accept Rawls’s difference principle over Nozick’s entitlement theory of distributive justice.31 An overlapping consensus undertakes to solve the threats of instability and illiberality attending the fact of reasonable pluralism by making it possible for

29 30

Rawls, Theory of Justice, 5, 8-9.

Rawls, Political Liberalism, 154-158. 31 Rawls, Theory of Justice, 272-277.

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people to see eye to eye on political principles of justice in the face of permanent discord over various comprehensive doctrines.32 Just as liberals disagree on the form and function of neutrality, not all liberals endorse Rawls’s basic justification as I have described it here.33 Yet despite their differences as to the particulars of state neutrality, liberals remain unified in their embrace of some version of this ideal. The fundamental priority of the right over the good commits deontological liberalism to the notion that states must not seek to promote any among the constellation of commitments guiding the lives its citizens lead. While some liberals think it justifiable, even important, for states to sanction certain minimalist values in support of just institutions, liberals of all stripes reject government promotion of extensive theories about how people should conduct their lives, as put forward, for example, by various cultural, religious, and philosophical traditions. Comprehensive and political liberals agree as a minimum that states should exclude as reasons on the basis of which it enacts public policy those having to do with “what makes one’s life worth living, of the activities, relationships, and goods which make one’s life fuller and richer and more rewarding and satisfying.”34 Thus any liberal account of political arrangements endorses state neutrality in at least the sense that state action must be justified by reference to shared values that do not assume the validity or worth of any such conception of the good life.

Objections about Political Outcomes and Political Processes Michael Sandel has called attention to two problems with the ideal of state neutrality. Both draw on the flawed premise that the process of reflective equilibrium cannot also be applied to moral and religious convictions to conclude that some arguments about the good, like some arguments about the right, are more reasonable than others, even if disagreement remains and if further deliberation might at a later time give rise to a different conclusion. The first problem with the ideal of state neutrality has to do with the consequences of political decisions in which there are moral goods at stake 32

Rawls, Political Liberalism, 54-57, 144-153, 164-167. See, for example, Jüergen Habermas’s discussion on the relation between “private” autonomy and “public” legitimacy in his Between Facts and Norms, William Rehg (trans.) (Cambridge, MA: MIT Press, 1994) 111. 34 Kymlicka, “Liberal Egalitarianism and Civic Republicanism: Friends or Enemies?” in Anita L. Allen and Milton C. Regan, Jr., Debating Democracy’s Discontent: Essays on American Politics, Law, and Public Philosophy (Oxford: Oxford University Press, 1998) 131-148, 138. See also: Sandel, “Liberalism and Republicanism: Friends or Foes? A Reply to Richard Dagger,” Review of Politics, vol. 61, no. 2 (1999): 209-214, 210. 33

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more important than that of social cooperation on the basis of mutual respect. In some cases, the values of social peace and political toleration that liberal neutrality secures may be outweighed by competing values surrendered in the ideal’s imperative to exclude moral and religious arguments from the public sphere. In these cases, the costs of liberal neutrality might outweigh its benefits, rendering precarious the case for the state to be neutral with respect to the particular ways in which people decide to live their lives. What sorts of political decisions could give rise to moral values unexpressable in public reasons? What sorts of values could be so important as to prevail over the value of toleration? Sandel gives the example of the 1858 debates between Stephen Douglas and Abraham Lincoln about the institution of slavery in America. Given moral disagreement on the question of slavery, Douglas argued that national laws should, for the sake of political agreement, remain neutral by allowing each state decide the question for itself. Lincoln countered that it made no sense to set aside a moral controversy of such import and that slavery should be treated as a moral evil it is. Given that notions about equal citizenship implicit in American political culture of the mid-nineteenth century were largely hospitable to the institution of slavery, Sandel argues that the case for abolitionism could not be made, in 1858, except on the basis of moral and religious arguments of the kind that liberal neutrality regards as invalid.35 The second problem with state neutrality has to do with the reasons on the basis of which the ideal demands that political decisions be justified. On the political conception of the person described by Rawls, the force of a political argument is given by the fact that someone affirms it rather than by its expression of compelling moral ideals. The various reasons citizens might provide on behalf of this policy or that—whether on the basis of time-honored religious principles or passing personal interests, for example—carry equal force by virtue of their shared origin from “self-authenticating sources of valid claims.” The ideal of state neutrality thus limits the range of reasons for protecting important liberties. Sandel suggests that arguments in favor of abortion, gay rights, or religious liberty cannot appeal to arguments from within relevant comprehensive doctrines, and so cannot express a respect for the virtues of bodily integrity, interpersonal intimacy, tradition, community, and faith as such; arguments that are neutral with respect to the good instead express a respect for the dignity that lies in the individual’s capacity to choose one’s procreative status or sexual orientation or spiritual beliefs.36 The neutral state thus defends abortion, gay rights, and religious liberty not because these are 35

Sandel, “Book Review: Political Liberalism,” Harvard Law Review, vol. 107, no. 7 (1994): 1765-1794, 1777-1782. 36 Sandel, “Essays in Law: Religious Liberty—Freedom of Conscience or Freedom of Choice? Utah Law Review, vol. 597 (1989) 597-615, 608.

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worthy ends in themselves, but because they are, like any other preference, interest, or desire we may hold, the product of free and voluntary choice. But the justification from individual free choice, Sandel notes, misses the special meaning these liberties may play in the lives of persons for whom certain ends or practices constitute an indispensable part of their identity. A contemporary example may help to clarify the objections from political outcomes and political processes. America is deeply divided on the practice of embryonic stem cell research, in which the destruction of prenatal life holds the promise of cures for debilitating diseases and disabilities. A 2001 CNN/USA Today poll indicated, for instance, that a majority of Americans believe that embryonic stem cell research is at the same time medically necessary and morally wrong.37 President Clinton’s National Bioethics Advisory Commission implied in 1999 that neither those who regard embryos as full persons nor those who regard them as mere things could be persuaded by sheer force of argument. Given this fact of reasonable pluralism, the Commission argued that it was unproductive and perhaps misguided to seek pursue substantive moral debate about the embryo in public discourse. One might respond by questioning the coherence of the ideal of liberal neutrality to which the Commission appeals. It is not possible, one might argue, to be neutral with respect to fundamental moral and religious claims when it comes to the question of stem cell research. For what we think we should do with the embryo, or how we think we should respect it, is necessarily a function of what we think they are. Though I believe this internal critique is a powerful one, it is beyond the scope of my argument here. Instead, I hope the case of stem cell research may illustrate how the objections about political outcomes and political processes show that even if state neutrality is possible, it nonetheless remains an undesirable ideal.

Debating Embryonic Stem Cell Research For the state to remain neutral on the question of stem cell research, it must reserve judgment about the moral status of the human embryo. It must not say what the moral value of the embryo is, whether the embryo is a thing, open to any use we may devise; a person, inviolable even in the face of calculations about aggregate utility; or something in between mere thingness and full personhood, worthy of reverence and restraint, but acceptable to use for suitably worthy ends. The neutral state cannot take sides on the embryo question. But 37

Eric Cohen, “Bush’s Stem-Cell Ruling: A Missouri Compromise,” The Los Angeles Times, 12 August 2001, reprinted in Eric Cohen and William Kristol (eds.) The Future is Now: America Confronts the New Genetics (New York: Rowman & Littlefield, 2002) 316-320, 318.

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what if the first view is correct, as the Catholic Church and a minority of other moral and religious doctrines espouse? If it is in fact the case that an embryo has the moral status of an infant, then the cost of eliminating this argument from political deliberation is equivalent to the murder of thousands of babies for the sake of experimental medical research, an outcome whose moral and political costs surely outweigh the benefits of liberality and stability. Liberal neutrality is an indefensible ideal in cases where the cost of tolerating certain practices, like slavery or stem cell research, may outweigh the advantages of avoiding social conflict and letting people decide how to live their lives for themselves. This is the objection about political outcomes. The objection about political processes says that even if liberal neutrality gets the right answer, it arrives at that decision on the basis of the wrong reasons. If stem cell research is just, this is not because of the dignity that lies in the individual’s capacity to choose what to do with the union of one’s sex cells. The justice of such a practice cannot simply be not grounded on whether the decision to pursue stem cell research, like any other preference, interest, or desire, is the product of free and voluntary choice. If stem cell research is just the reason also has much to do with whether the embryo is the sort of thing of which it is appropriate to make use for the end at which research aims. No one I think would doubt that the goal of restoring health and relieving suffering is a noble one. But people disagree about the degree of value the embryo possesses and the respect it deserves in the way in which it is treated, even for worthy purposes. Some believe that the embryo has the moral worth of a mature person. They argue that humans deserve respect by virtue of the kind of entity they are, not by virtue of acquired characteristics or abilities, which people all hold in varying degrees even once fully grown. All human beings are equal, and should not be considered any more or less valuable on the basis of their relative age or size or stage of development or condition of dependency. Development is a continuous process, they point out, which give no biologically determined moment when a human life acquires the moral status of a person. On this view, fertilization produces a new and complete, though immature, organism possessing all the genetic material it needs to inform and organize self-directed growth into adulthood. On the full personhood account, an embryo is not something distinct from a human being; it is simply a human being at the earliest stage of its development. Embryos should not therefore be used as means to even the most worthy ends. Others believe that while embryos ought to be treated with greater respect than a book or a chair, embryos are less valuable than full human persons with rights of life and liberty that can never be overridden. They argue that a great many entities—not just embryos, but also entities found in zoos, parks,

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museums, aquariums, and the human body—do and should command from us a level of respect in between the inviolable and the instrumental. Regardless of whether the practice causes harm to any person, we consider it a failure of respect to vandalize a massive cave or deface a great work of art for trivial purposes. Respecting the cavern or painting may be consistent with using them, but only if the purposes for which they are used are suitable to the magnificent nature of the things. On what might be called the intermediate value view, the embryo is this sort of entity. It deserves a level of respect that makes inappropriate its use for, say, dressing our salad or decorating greeting cards. But it is not inviolable like full persons are, and may justly be used for a purpose so weighty as curing debilitating disease and saving human lives. Consistent with my general claim that people’s ends are essentially capable of rational justification, I believe that due reflection and sustained public discourse can help arrive at the conclusion, open of course to further disagreement and possible revision, that the intermediate value view of the embryo is more reasonable than the full personhood view. Consider five arguments about the moral status of the embryo as an example of the way in which such a debate might proceed.38 First, the intermediate value camp might argue that if we were confronted with a fire in a fertility clinic, and given a choice between saving a five-year-old girl or a tray of 10 embryos, few would think twice before choosing the girl. The personhood camp might respond the reasons for which we might choose to save some rather than others—prevention of fear and pain, for example—need not bear on the moral status of those entities. One might also rescue the girl instead of 10 terminally comatose adults without denying that the adult patients are full persons who ought not to be killed so that their body parts may be used for medical research. Second, the intermediate value camp might argue that if embryos and children have equal moral value, why do we grieve for the death of a child in a more profound way than we would a lost embryo? Why do we not carry out burial rituals and mourning rites for miscarried embryos? The personhood camp might respond that the reasons for which might grieve—emotional bonds formed on the basis of physical attachment, for example—again need not bear on the moral status of those entities. The personhood camp might also respond that the fact of disparate grieving customs for children and embryos might indicate only that most people are misinformed or confused about the moral status of the embryo. Third, the intermediate value camp might come back with this: of course it is true that all persons were at one time embryos, but this fact in itself does not show that all embryos are persons. Consider an analogy: just because every oak 38

For discussion of the following points, I am indebted to Michael Sandel and to my classmates in Prof. Sandel’s 2004 Government seminar at Harvard on Ethics and Biotechnology.

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tree began as an acorn, is every acorn for that reason an oak tree? Clearly not. Most of us would not think twice about stepping on an acorn, but if we inadvertently knocked down an oak tree with our car, we would likely feel a certain discomfiture, even if there was no risk of harm to self or vehicle. The personhood camp might respond that the acorn analogy is flawed because we do not value persons and trees in the same sort of way. Saplings are not the same as oak trees either, after all, but surely this fact does not make us think babies or children are any less morally valuable than adults. Fourth, the intermediate value camp might ask why there seems to us nothing morally objectionable about the fact that a high percentage of fertilized eggs spontaneously abort during the natural process of sexual reproduction. The personhood camp might reply that the fact that many embryos are predisposed not to implant might suggest simply moral limitations in the state of nature; a high rate of infant mortality, the personhood camp might argue, does not justify infanticide. Fifth, the intermediate value camp might question why is it that, all else being equal in terms of cost and convenience and resources, we would prefer natural reproduction to assisted reproductive techniques, even if the latter were developed to the point where far fewer embryos would be lost in the process of begetting a child? Perhaps the personhood camp does not have a compelling reply for this final argument. In any case, if I am right that a process of public debate and reflective equilibrium can help us settle on some views of the moral status of the embryo as more reasonable than others, then the case for excluding comprehensive beliefs from the political sphere is undermined, leaving the ideal of liberal neutrality in serious jeopardy.

Conclusion The ideal of liberal neutrality is promising but flawed. People in a liberal democracy will always hold incompatible but reasonable views not only questions of morality and religion, but also on questions of what is right for public policy decisions. On the issue of embryonic stem cell research, America exhibits a reasonable pluralism not just about how justice should be applied, but about what the principles of justice ought to be—not just about funding of embryo research and subsidiary ordinances regulating that research, but also about the moral status of the thing that determines in large measure whether such research ought to be conducted at all. Due argument and reflection can help us achieve a reflective equilibrium on questions of the good—that is, can help us determine that some moral and religious views are more reasonable than others. Following Michael Sandel’s deliberative conception of respect, we do better to abandon the impoverishing ideal of state neutrality and appreciate that public dialogue is more rich, engaged, and genuine when citizens have the

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opportunity to persuade and be persuaded by the merits of claims arising from fundamental moral and religious convictions.39

39

Sandel, “Book Review: Political Liberalism,” 1794.

MORAL DUTIES AND INTERNATIONAL JUSTICE: DEVELOPING ALLEN BUCHANAN’S NATURAL DUTY OF JUSTICE ERIC ROARK, UNIVERSITY OF MISSOURI-COLUMBIA

Introduction Allen Buchanan argues in Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law that, persons have the limited moral obligation (what he labels a Natural Duty of Justice) to “help ensure that all persons have access to institutions that protect their basic human rights.”1 This moral obligation, “applies to us simply because we are persons.”2 And further, this obligation has moral force, “independently of which institutions we find ourselves in or the special commitments we have undertaken.”3 To put succinctly the Natural Duty of Justice entails that everyone, irrespective of their sociopolitical arrangements or specific commitments and obligations, has the moral obligation to help ensure that all persons have access to institutions that protect their basic human rights. Further, one’s Natural Duty of Justice entails both negative and positive duties towards others.4 1

Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford University Press, Oxford, 2004), 27. 2 Ibid. 3 Ibid. 4 For Buchanan it is not enough that we refrain from hampering others in their attempts to create and maintain basic-rights-protecting-institutions, or refrain from committing rights violations ourselves. We are morally obligated to do more than this. We are morally obligated to take positive steps that help ensure others have access to such institutions. Of course, this suggestion will bother some rights-based moral theorists who believe that we have only negative duties toward others. Buchanan argues, persuasively I think, that positive moral duties are necessary if we are to show equal concern and respect for persons.

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In this paper, I grant that Buchanan offers a persuasive positive argument for the Natural Duty of Justice.5 Indeed, Buchanan’s suggestion of a Natural Duty of Justice is a promising attempt to ground a moral theory of international justice. He, nonetheless, neglects to give proper consideration to vitally important applicable aspects of the Natural Duty of Justice. This unfortunate neglect leaves the Natural Duty of Justice (on Buchanan’s account) impotent to offer practical moral guidance.6 This paper strives to improve upon this defect by better addressing some of the most serious practical considerations related with the Natural Duty of Justice. For instance, Buchanan suggests that even though the Natural Duty of Justice is a limited duty, it is in fact a morally obligatory duty. 7 But he fails to clearly articulate in what respect(s) the Natural Duty of Justice is limited, and more importantly why such limitations do not detract from the morally obligatory status of the Duty. Until we know how the Natural Duty of Justice is limited, and how such limitations are to affect moral actors in our actual world, it is impossible to effectively include the Duty within a broader and more comprehensively useful moral theory. Buchanan poorly addresses the questions of, “how am I” supposed to fulfill my limited Natural Duty of Justice”? This paper strives to work towards an answer. My development of the Natural Duty of Justice should serve as a beginning guide useful in assisting moral actors in understanding what the Natural Duty of Justice asks of them. If people are in the dark as to how they should go about carrying out their Natural Duty of Justice, then the idea likely remains exclusively in the theoretical, and as a consequence people continue to be denied access to institutions that protect their basic human rights. It is in the spirit of giving life to the Natural Duty of Justice that inspires my project here. I will begin my project by briefly considering two important ways in which the Natural Duty of Justice is not a limited obligation, and then turn toward a closer look at the Natural Duty of Justice itself. In order for people to have a clear notion about how the Natural Duty of Justice ought to affect the way they act toward others it is important to be clear not just on how the Duty is limited, but also how it is not.

5

The positive account can be found in Buchanan, 85-98. In other words, the Natural Duty of Justice is a very nice piece of ideal theory, but is not developed well enough to make it a valuable practical or non-ideal notion. I find this interesting because Buchanan spends a good deal of time in Justice explaining the need to make sure that our ideal theoretical constructs (such as the Natural Duty of Justice) can be made applicable in a practical or non-ideal fashion. 7 Buchanan, 74 6

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Two Key Aspects of the Natural Duty of Justice At the outset of this paper I noted two very important aspects of the Natural Duty of Justice that are important to keep in mind as this paper moves along: 1) the obligation applies to all people (and is properly directly towards all people), and 2) it applies regardless of other special commitments and obligations that a person happens to have. If we are morally obligated to adhere to the Natural Duty of Justice, then this is an obligation grounded in the humanity of others, and should not be applied in a piecemeal fashion (in a politically or culturally minded fashion) to certain persons at the neglect of others. Every Person’s Natural Duty of Justice applies to all persons, and it is immoral to apply this Duty to the assistance of Catholics at the expense of Protestants, or pale-skinned-people, at the expense of dark-skinned-people. All of us are obligated to respect the basic human rights of all persons, and in this fashion our Natural Duty of Justice cannot be limited by making morally arbitrary distinctions among persons. It is morally unacceptable to suppose that the Natural Duty of Justice is limited by morally arbitrary or irrelevant facts about persons. A comprehensive, rights-based, moral theory, as respecting the moral rights of all persons, must ultimately have international (global) implications. For this reason it seems odd that international justice has not played a much larger role in moral theory, particularly rights-based moral theory.8 Along these lines, Buchanan is right to point out that it is morally impermissible to neglect the universal nature of our Natural Duty of Justice because of a deeper concern for “national interest” or one’s “fellow citizens”. There seems to be something morally questionable (if not outright repugnant) with the suggestion that we have moral obligations to “our fellow citizens” in virtue of artificially drawn geopolitical boundaries that would somehow trump (or completely override) the moral obligations that we owe to all persons in virtue of personhood.9 Likewise, the special commitments that we make which run counter to the Natural Duty of Justice do not morally absolve us from adherence to the Duty. 8 This seems true, especially when the notion of showing equal respect for all persons is taken seriously. 9 I do admit there is a much deeper issue involving special duties which we might owe our “fellow citizens” that we do not owe citizens of different nations. One might, for instance, attempt to argue along the lines of social contract theory that in we do owe more to those persons who we have in some fashion “contracted with” and live with in the geographical territory. While I admit that such an argument is plausible, I very much doubt it could be successful. But arguments regarding “special duties” are not to be ignored. For instance, might a special duty to one’s child relax the extent to which he or she is morally obligated to fulfill the Natural Duty of Justice?

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Of course, we are free to engage in commitments that have nothing to do with the Natural Duty of Justice. A person can legitimately undertake any number of commitments (contractual agreements for instance)) that have absolutely no relevant connection to her Natural Duty of Justice, but which create other morally binding obligations. However, these commitments are prima facie illegitimate or morally impermissible if they preclude a person from fulfilling her Natural Duty of Justice. I cannot morally evade my Natural Duty of Justice by filling my moral plate with side commitments that make it infeasible to adequately fulfill my Natural Duty of Justice. It is morally impermissible, for instance, for one to act on the proclamation that, “I would really like to fulfill my Natural Duty of Justice and help ensure that others have access to institutions that protect their basic human rights, but I bought a new car and as it just so happens the payments for the vehicle make it infeasible for me to fulfill the economic aspects of my Duty.”10 This is an immoral evasion of the Duty because the contract that renders adherence to the Duty practically infeasible was illegitimate from its inception, and as such appealing to its legal or pro tanto moral force does not absolve a person of her Natural Duty of Justice.11 Now, after having considered a few of the more important moral considerations that do not limit our Natural Duty of Justice, it is important to take a closer look at the Duty itself.

A Closer Look at the Natural Duty of Justice Again, the Natural Duty of Justice is the claim that, persons have the limited moral obligation to help ensure that all persons have access to institutions that 10 Here, my colleague Alan Tomhave made the nice observation that perhaps such an individual could fulfill their Natural Duty of Justice by means other than contributing financially. The person could volunteer at their local food bank, for instance. I like this idea, as it offers potentially fruitful practical guidance to those who want to fulfill their Natural Duty of Justice, but (for whatever reason) are unable to take financial action toward the fulfillment of the Duty. 11 An interesting case along these lines is the choice to enter into the special commitment of child rearing through either procreation or adoption. The case seems much more controversial than the special commitment of buying a car, but I think the same principle holds in both cases. A person is morally obligated to fulfil the Natural Duty of Justice, and this does not change because he or she wants to have children. Possibly, (and this would be an interesting and controversial result) people have the moral obligation not to have children or take on other serious special commitments until they are able to reasonably foresee that they can fulfill their Natural Duty of Justice in lieu of their new special commitments. Desires that conflict with our moral duties must, if we are to act morally, go unfulfilled. Here I doubt that the desire to rear children would present a principled exception to this line of reasoning.

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protect their basic human rights. The obligation, while clearly involving institutional content, is one owed to individual persons (in virtue of their basic human rights) and not to institutions or any other “collective of persons”. It just so happens that, given empirical facts about our world, institutions are the most effective mechanism to help ensure that the basic human rights of individual persons are respected. If, for example, institutions were not needed to protect basic human rights, i.e., more effective and efficient means to protect human rights were feasible, then people would have no moral obligation to include institutional content in their fulfillment of the Natural Duty of Justice. The Duty is one owed to persons; ensuring that persons have access to basic-human-rightsprotecting-institutions is simply the best method of delivering the Natural Duty of Justice. Buchanan understands the link between the respect of basic human rights and basic-human-rights-respecting-institutions to be so strong that in every reference to the Natural Duty of Justice he includes the language of “institutional access.” There is some textual evidence to support the contention that Buchanan thinks working through institutions is necessary for the fulfillment of the Natural Duty of Justice. For instance, in comparing his Natural Duty of Justice to Thomas Pogge’s interactionist model of justice, Buchanan says of the Natural Duty of Justice that, “even if there were no global basic structure, nor any form of global cooperation, nor any system of international law, we ought to develop an international legal system to ensure that all persons have access to just institutions.”12 Here is it worth pausing to say a bit more about what these basic-humanrights-protecting-institutions amount to. And in this respect a distinction between humanitarian and protecting institutions must be made. To qualify as a basic-human rights-protecting-institution, I propose that, an institution must meet the following conditions: (i) the institution must have some type of humanitarian component, that is, in the least, it must be willing and able to meet and deliver the elements necessary to ensure basic human rights to those under its purview13, and (ii) the institution must be able and willing to forcibly protect those under its purview when their basic human rights are under physical threat. I take the above two conditions as being necessary and sufficient conditions of an institution qualifying a basic-human-rights-protecting-institution. It is these types of institutions to which our Natural Duty of Justice refers. In a peaceful world, humanitarian institutions or organizations such as the Red Cross and UNICEF might well be paradigm examples of basic-human-right-protectinginstitutions. But the world is not peaceful, and the Red Cross simply does not 12

Buchanan, 94 Notice here that a morally well intentioned institution can fail to meet this condition if it is run in a very inefficient or bumbling manner.

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use force to protect persons when basic human rights are threatened by moral villains who do not respect the rights of persons. Thus, humanitarian institutions or organizations (while greatly fostering and assisting with the desperate needs of people) cannot rightly be called a basic-human-rights-protecting-institution (they lack the second necessary condition stated above). However, it is worth pointing out that humanitarian organizations or institutions can (and do) play a significant role in helping to ensure that the basic human rights of persons are respected. These humanitarian organizations or institutions often work with basic-human-rights-protecting-institutions to foster a respect for the basic human rights of persons. A basic-human-rights-protecting-institution must be an institution which can credibly threaten force when the human rights of persons under its purview are physically threatened. Now, often this institution will be a state, especially if we define a state in the Weberain tradition as an “organization or institution that monopolizes force within a codified geographical territory.” A state, as defined in the Weberian tradition, is uniquely situated to satisfy the second condition noted above. However, the Weberian understood state may well take many different forms and need not be the modern nation-state. For instance, the United Nations might well fill the role of the state in certain areas of the world. And perhaps one day the modern nation-state will become extinct and the state will simply be a world governing body similar to our present United Nations. But protecting persons with force when there basic human rights are threatened by others will not automatically qualify an institution as a basic-human-rightsprotecting-institution. My first condition makes this clear. The state, for instance, that protects its citizens from an outside army that seeks to deprive them of their basic human rights is not a basic-human-rights-protecting institution if it is unable or unwilling to deliver the elements of basic human rights to those under its purview. Thus, the state that protects its citizens from (outside) would-be violators of basic human rights, but in turn starves its citizens is not a basic-human-rights-protecting-institution. A basic-human-rightsprotecting-institution must include both an element of forcible protection and an element of humanitarian assistance. Now after having clarified what a basichuman-rights-protecting-institutions amounts to, I return to the task of taking a closer look at the Natural Duty of Justice. Notice that suggesting the Natural Duty of Justice is grounded in a respect for the personhood of everyone is different from the claim that the Duty itself is owed to individual persons. The Natural Duty of Justice could be grounded in a respect for the personhood of everyone, but be owed to groups or to society at

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large.14 To be very clear on this point, by maintaining that the Natural Duty of Justice is owed to individual persons, I am suggesting that persons who lack access to institutions that protect their basic human rights have a prima facie claim-right to such institutions. In the next section I will give continued attention to this notion of individual claim rights (they indeed will play an important role in understanding how the Natural Duty of Justice is limited). Now, however, I want to discuss the justification for thinking that people have basic human rights, and why it is that these rights entail the Natural Duty of Justice. Why are individuals owed the Natural Duty of Justice? In other words, what grounds the basic human rights that create a correlative obligation (the Natural Duty of Justice) on the part of others? Buchanan’s answer to this pressing question (and one I accept), is that all persons have a basic human interest (no matter their cultural heritage or geographical location) in having “a minimally decent life.” And further, the protection of basic human rights, through helping to ensure that all persons have access to basic-human-rights-protectinginstitutions, is necessary for pursuing this interest. As Buchanan notes, “human rights are such that their violation makes it very difficult, if not impossible, for individuals to enjoy a decent human life.”15 Like Buchanan, I find the Natural Duty of Justice quite plausible because it nicely (on a global scale) captures the moral intuition that, we should “treat every person with equal concern and respect.”16 Part of this “moral treating” should involve a concern for the fundamental interests of all people. The gist of the idea seems to be this: all people have a fundamental interest in living a minimally decent life, basic human rights (whatever they are) allow for the fulfillment of this interest, and the equal concern and respect that I am obligated to show all people entails that I have a Natural Duty of Justice to help ensure that people have access to institutions that protect their basic human rights (fundamental human interests). The picture painted above suggests that all persons have certain basic human rights and these rights match up or “fit” with a correlated obligation (the Natural Duty of Justice) that all persons have in virtue of these basic human rights. It should be noted however, that one could plausibly advance the view that persons have a Natural Duty of Justice even though no one has basic human rights per se. That is, one could argue that we have duties toward others even though such duties fail to match up or “fit” with a right. Peter Singer, for instance, argues

14 I think that such an interpretation of the Natural Duty of Justice would be a very interesting project, but here I think it is much more initially plausible to grant that the Duty is one owed to individual persons and not to groups or collectives of persons. 15 Buchanan, 128. 16 Buchanan utilizes Kant’s ethical theory to bolster this claim.

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One World: The Ethics of Globalization17 that our duty to global justice should involve giving money to humanitarian relief organizations to ensure that people have a “decent life.”18 Singer, however, does not insist that persons have such a duty because the duty correlates with a right. Instead, the duty Singer endorses exists absent a rights claim. Both Singer and Buchanan arrive at the conclusion that there is something like a Natural Duty of Justice, but the accounts differ in that Singer does not think such a duty exists because of a correlated right held by persons. Grounding duties in the rights of persons, Buchanan’s approach, is a more promising treatment of the Natural Duty of Justice because it makes clear that we are obligated to act in certain ways because “these ways” respect the rights of persons. What do we owe others as a matter of justice? We owe others a respect of their rights, that is persons have a duty to act in ways that are rightsrespecting. It is in providing this answer that the talk of duties correlating with rights seems both highly plausible and helpful to the discourse. Why should I help a starving stranger who is thousands of miles away? Because the stranger has a basic human right to such help, and this right of the stranger correlates with my Natural Duty of Justice. Now, I would like to move toward examining the importance of noting that basic human rights are rights of individual claim holders.

Claiming Basic Human Rights The rights embodied by fundamental human interests (those necessary to live a minimally decent life) constitute the specific content of basic human rights. Individual claim-holders of basic human rights (all persons) may legitimately claim that others show equal concern and respect for these basic human rights. Such claims morally obligate those to whom the claim may be legitimately made (everyone) to fulfill the Natural Duty of Justice. This consideration leads naturally to the following question: Under what circumstances is it morally obligatory for X to fulfil his Natural Duty of Justice in response to a claim right advanced by Y? The first step in addressing this difficult question is to offer a means of measuring the strength of various basic human rights claims.19 This seems crucial because surely not all those who

17

Peter Singer, One World: The Ethics of Globalization (Yale University Press, New Haven, 2002). 18 I thank an anonymous reviewer from this journal for bringing this important point to my attention. 19 It is tempting here to suggest that the question is not as difficult as I have proposed. We should simply answer all basic human rights claims since they are all intricately related with fundamental human interests. This is tempting, but it does not address matters of

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claim that others fulfill their Natural Duty of Justice will have the same strength of claim. Accordingly, the varying strength of the claims that can be pressed by individual claimants ought to make a moral difference in the way that the Natural Duty of Justice is practiced. Unfortunately, (given limited time and resources) it is not feasible to simultaneously help, via the Natural Duty of Justice, everyone that presses a prima facie legitimate basic human rights claim. We need some way of prioritizing. Here, I propose a basic human rights metric to begin this important process of prioritization. The purpose of the metric is to begin the very difficult task of finding a clear (or at least clearer) means to weigh the strength of various basic human rights claims. Figure 1.1 (on the following page) is a graphical depiction of how such a metric might plausibly be designed. For simplicity, I will be assuming the basic human rights on the horizontal axis to be those offered by Buchanan, and I will be assuming the level of access to institutional protection of basic human rights as depicted on the vertical axis to carry an equal degree of morally valuable weight.20 Additionally, imagine that the four persons graphically represented are the only four people in the world. One last important note, if one’s basic human right(s) are institutionally protected at a level of “10” this simply means that the person has extremely reliable, fair, and meaningful access to a basic-humanrights-protecting-institution(s). Bob scores a 100, Mary a 65, Sasha a 35, and Bill a 0. Bob’s score of 100 means that he has complete access to basic-human-rights-protecting-institutions, while Bill’s 0 suggests no institutional protection of basic human rights at all. Keep in mind that basic human rights are owed to individual claimants, and that Bob, Mary, Sasha, and Bill as individual persons have a claim-right to the list of basic human rights one places on the horizontal axis. In our four person world, the first thing that we can glean from the metric is that a person must be lacking priority (whose claims should get answered first) and as such offers very little practical guidance. 20 My proposed metric is quite amenable to a vast variety of approaches toward the Natural Duty of Justice. One can add or take away from Buchanan’s proposed list of basic human rights, and still apply this (or a similar) metric. Further, one need not (as I have for simplicity) assume that all basic human rights should be weighed the same in establishing a person’s human rights metric score. Perhaps, for instance, the basic human right not to be tortured should be weighed at a value of 5X (if it is included in the list at all), while the basic human right (if it is included in the list at all) of a right to legal due process should be weighed at 1X, or vice versa. Buchanan does not address the tricky question of whether all basic human rights should be afforded the same moral value. I tend to think that some basic human rights (especially if we utilize Buchanan’s list) are more essential to a minimally decent life than others. The point is just that once we establish basic human rights with relative values to one another we can also establish a basic human rights metric that applies to all persons.

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(or in real danger of coming to lack) access to basic-human-rights-protectinginstitutions before he can make a legitimate claim toward others that they fulfill their Natural Duty of Justice in respect to him. Bob’s basic human rights are completely institutionally protected, as such it is morally inappropriate (and perhaps incoherent) for him to press a legitimate rights claim on another person to help ensure that he have institutional access to basic-human-rights-protectinginstitutions. Notice that this would not change if we added another 100 persons with the same complete institutional protection as Bob. Bob would have no “in practice” Natural Duty of Justice toward them, nor would these new additions have any such obligation toward Bob. A person’s moral obligation to fulfill the Natural Duty of Justice is contingent upon whether any individual person(s) can make a legitimate claim that others help ensure they have access to institutions that protect their basic human rights. Such a legitimate claim depends upon people being able to rightly claim (which of course as a matter of empirical fact many people can do in the actual world) that they do indeed not have access to institutions that protect their basic human rights. Here we see the first way in which the Natural Duty of Justice is limited in practice. The Duty is simply not owed to Bob, because Bob cannot make any claim that others are obligated to carry out.21 Figure 1.1

Bob Mary Sasha Bill

S ec To ur it Li y fe of Pe A rs g A ai on g ns ai ns t A t rb T it or ra tu ry re D et en ti A o g ai ns t S la ve To ry To S ub D A u si g e st ai P To e ns ro n ce ce t Fr R ee ss el ig of A io ss L u oc aw s ia Pr ti es on ec A an u g ti ai d o ns Ex t p U r es n fa si ir o D is cr im in at io

Protection

10 9 8 7 6 5 4 3 2 1 0

To

Level of Access to Institutional

Metric of Basic Human Rights Protection

Basic Human Rights

21

Here I am speaking about the positive duties associated with the Natural Duty of Justice. Bob can still legitimately claim that others (in a negative sense) not do things to destroy his basic-human-rights-protecting-institution.

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In fact, imagining a world in which everyone does in fact have access to institutions that protect their basic human rights (scores a 100 on the metric), there would be no “in practice” Natural Duty of Justice for anyone. This is because in such circumstances no one could make the legitimate claim that others help ensure (in any positive sense) that they have access to basic-humanrights-protecting-institutions –they would already have such access. As the Natural Duty of Justice is concerned one does not have (positive) moral obligations to persons who already have their basic human rights protected by basic-human-rights-protecting-institution(s). This observation tells us who can legitimately claim that others adhere to the Natural Duty of Justice, namely anyone who has a basic human rights protection metric value less than 100. Mary, Sasha, and Bill (but not Bob) can all make prima facie legitimate claims that others fulfill their Natural Duty of Justice with respect to them. I take it that all three individuals in question may press their legitimate claims against Bob, and as such Bob is morally obligated to fulfill his Natural Duty of Justice in respect to these claims. This comes rather quickly so let me pause to elaborate on the point. Bob is morally obligated to fulfill his Natural Duty of Justice in respect to the basic human rights claims lodged by Mary, Sasha, and Bill because by doing so he shows equal concern and respect for their fundamental interests. But how much is Bob obligated to sacrifice as he fulfills his Natural Duty of Justice?22 This is a question that demands an answer because an answer provides Bob with how his Natural Duty of Justice is a limited obligation. A rich answer here will depend upon certain facts about Bob that I will explore in greater depth in a latter section of the paper, but for now I will suggest that Bob’s sacrifice should be significant, but not excessive. What does this mean? It means that all of Bob’s resources short of negatively affecting his human rights metric number may in principle be used to answer legitimate basic human rights claims, that is fulfill his Natural Duty of Justice.23 Some will undoubtedly challenge this suggestion as excessively radical and grossly impractical. But I doubt this is the case at all. In fact, a good case can be made that my proposal does not ask 22

Buchanan struggles greatly with this question and never addresses it with much clarity or satisfaction. At times he says the sacrifice should not be significant, at other times he blatantly contradicts himself and says the sacrifice should be significant. For instance, on pp. 89 of Justice, Buchanan writes, “The Natural Duty of Justice does not generally require sacrifices. And on pp. 90 of Justice Buchanan suggests that, “A regard for the moral equity of persons sufficiently robust to ground the assertion that there are human rights also entails that we ought to bear significant costs to ensure that all persons’ rights are protected.” 23 Recall here that I do not conceptualize a 10 on the metric as “absolutely perfect” institutional access; as such Bob cannot legitimately claim that any positive action he takes toward Mary, Sasha, or Bill will reduce his metric number.

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enough of Bob. For instance, it is plausible to argue an even stronger position which suggests that Bob is obligated to sacrifice even if he losses metric points up to some threshold metric level, e.g., Bob is morally obligated to positively help just so long as he does not fall below a total score of 80 (or a seven in any one category). Nonetheless, I propose that Bob is not morally obligated by the rights claims of Mary, Sasha, and Bill if such help means any reduction in his metric number. But he is obligated to help ensure that Mary, Sasha, and Bill have access to institutions that protect their basic human rights just so long as his metric number does not decrease.24 Now I would like to consider the moral relations between the other actors in the four-person scenario. Mary seems to only have a legitimate rights claim in respect to Bob. She may, of course, ask Sasha and Bill to help her protect her basic human rights via institutional protection, but neither, given the relative value of Sasha’s or Bill’s human rights metric numbers, are morally obligated to fulfill the Natural Duty of Justice in respect to Mary. In fact, it is Mary who might well have a moral obligation to fulfill the Natural Duty of Justice in response to a rights claim advanced by Sasha or Bill. I am undecided as to whether Mary has a moral obligation to fulfill the positive aspects of her Natural Duty of Justice in respect to Sasha or Bill (or anyone for that matter). Is it that people have a Natural Duty of Justice just so long as their metric number does not drop at all (in which case Mary would have positive obligations to Sasha and Bill just as long as her number did not drop to 64), or is it that people have a Natural Duty of Justice just so long as their metric number is 100 (in which case Mary, Sasha, and Bill, would have no positive “in practice” Natural Duty of Justice to anyone)? This is an important question that, at this juncture, I leave open. Nonetheless, I lean toward the second choice in the conjunction, and thus suspect that Mary does have a Natural Duty of Justice (including positive duties) toward Sasha and Bill, provided that her metric Number does not fall as a result of her fulfilling her duty. That is, Mary has a Natural Duty of Justice to all those who may advance legitimate claims against her just so long as her position (metric score of 65) is not worsened by her fulfilling her Duty. Likewise, Sasha is morally obligated to fulfill the Natural Duty of Justice in respect only to Bill’s rights claim. And Bill has no “in practice” Natural Duty of Justice that can be

24 There is a very important issue here of whether a basic human rights claimant can legitimately claim that Bob fulfill his Natural Duty of Justice by going to war and at risk of bodily threat forcefully remove a government that is systematically violating basic human rights? The answer, I think, is that, if Bob’s Natural Duty of Justice is limited in such a fashion that he is not obligated to lose metric score points, then it does not seem as if he has such a moral obligation. But I think a plausible argument challenging this position could be offered.

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legitimately claimed by anyone since no one will have a human rights score less than he does. While the inclusion of a human rights metric makes substantial progress in evaluating the legitimate claims of persons that others fulfill the Natural Duty of Justice, important questions remain. For instance, aside from suggesting that Bob is obligated to fulfill the Natural Duty of Justice in respect to the other three persons, how is he expected to fulfill his duty? How should Bob prioritize who he assists given that Mary, Sasha, and Bill all have legitimate claims that he fulfill his Natural Duty of Justice toward them?

Bob’s Priority Problem Given that Bob owes the Natural Duty of Justice to individual(s), it is important that he directs the Duty toward the individual(s) to whom it is owed, and in the proper priority of rights claims which are pressed against him. Bob seems to have three potentially morally viable “priority options” available to him. I would like to go through each one of these priority options and outline the potential moral justification for each option. The first priority option, consistent with a notion of personal duties, would maintain that Bob owes his entire Natural Duty of Justice to Bill (provided that Bill in the process would not be raised to a level above Sasha, in which case Bob would at that point begin sharing the target of his obligation). After all, Bill does have the strongest claim against Bob. And if the Natural Duty of Justice is one owed strictly to the individual person who can press the strongest claim, then Bob has a moral obligation to help assure that Bill and only Bill have (better) access to basic-human-rights-protecting-institutions. Given that we should have equal concern and respect for all people, it is difficult to imagine on a personal duties account the circumstances in which we would have good moral reason to help a person with greater “institutional protection” before helping a person with a lesser degree of protection. The personal duties account of prioritization is a very straightforward model; Bob fulfills his obligation by helping Bill and only Bill. All Bob needs to do is identify the person or persons with the lowest score on the human rights metric and help them ensure that they access to basichuman-rights-protecting-institutions. Of course, in our actual world many people are tied at 0 on the human rights metric, and in this case I would suggest that the Natural Duty of Justice would best be met by identifying such persons and helping them in some equal fashion. Alternatively, the second priority option, consistent with a notion of duties to the entire collective of persons who can press a right-claim, would maintain that Bob has a Natural Duty of Justice to all persons who can advance a legitimate claim. To demonstrate how this would work, assume that Bob’s fulfillment of

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the Natural Obligation of Justice means that he must act positively to distribute 20 total units of “human-rights-points”. (Assume that there is a great need for help, and that these are the “points” that Bob can give to others without experiencing a lowering in his human rights metric.) If his duty is a collective one, then he owes these 20 units to individuals in some collective sense (perhaps 10 to Bill, 6 to Sasha, and 4 to Mary). Notice here the claim right is still one of individuals persons, what has changed is that Bill justly fulfills the Natural Duty of Justice by dispensing the Duty in a collective fashion. The virtue of this model is that it affords all persons who can press a prima facie legitimate basic human rights claim some calculation in figuring out how the Natural Duty of Justice is to be “divvied up” to claimants. Bill does have a stronger claim to Bob’s help in ensuring basic-human-rights-protecting-institutions than Mary and Sasha, but the collective duties account allows Mary, Sasha, and Bill all some meaningful claim to Bob’s moral obligation. Perhaps we should say, as a third alternative, that Bob is morally obligated to fulfill his Natural Duty of Justice in such a way as will maximize the total net benefit of all person’s access to basic-human-rights-protecting-institutions. Thus, if Mary is closer in proximity to Bob and his fulfillment of the Natural Duty of Justice will raise her metric from 65 to 100, then this might as an empirical matter, once concerns of marginal utility are taken into account, be better in an overall sense than raising Bill (who is further away in proximity) from 0 to 2 on the same metric. The basic idea is that Bob is to put his 20 points of value to work as “best he can” in respect to everyone who has a claim right to his assistance, and not focus specifically on helping the worst-off. But notice that Bob does not opt to help Mary because she is a fellow citizen or because she is his neighbor; such reasons would not be morally permitted. Instead, Bob assists Mary (as opposed to Bill) in this instance because doing so best enhances the overall human rights metric enjoyment of “all persons”. The total net benefit account introduces concerns of efficiency into an account of how a person is to prioritize his Natural Duty of Justice. The account suggests that a person fulfill his Natural Duty of Justice in such a fashion that will produce the best overall results, that is the best overall increase in the human rights metric generally across all persons. At times, the total net benefit account, especially after concerns of marginal utility are calculated, will involve helping the worst-off first, but at other times it will involve helping those who not the worst-off. Here we see that Bob’s priority problem can be plausibly addressed in three different ways. He may distribute his Natural Duty of Justice in such a priority as to: (i) help Bill and only Bill (until the time at which Bill is as worse off on the metric as Sasha), (ii) help all persons who press a claim in some collective fashion in proportion to the strength of the claim they press, (iii) help in a fashion that produces the most total net benefit. Above I have sketched an

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outline of how each account would work. A full defense of any of the three plausible treatments of Bob’s priority problem would go beyond the scope of this paper. I do tentatively suggest, however, that the third option (and its concern for efficiency as well as total net benefit) might have the most initial intuitive pull. At this point quite a bit of ground has been covered so before continuing I would like to pause and summarize what has been accomplished to this point. I began by introducing Buchanan’s notion of a Natural Duty of Justice, and while endorsing the general notion, I endeavored to make the idea more accessible to practical import. This began with my noting two ways in which the Natural Duty of Justice is not limited. I pressed on by considering that the Natural Duty of Justice is nothing less than a correlative obligation predicated upon the basic human rights of all persons. We actually owe a Natural Duty of Justice to persons who can levy a legitimate claim. Here, in order to make better sense of what might constitute a legitimate claim; I proposed (and graphically depicted) one representation of a basic human rights metric. Accordingly, the strength of one’s basic human rights claim could be fairly evaluated by the assignment of a “metric score”. Here I noted some interesting and widely intuitive ways in which the Natural Duty of Justice is properly understood as a limited duty. Then I examined the problem of priority. In response to the problem I offered a personal, collective, and total net benefit account of how the problem could be addressed. I very tentatively voiced support for the total net benefit account, but adherence to any of the three account would mark significant moral progress as compared with our present international system. Now, I have one more important question to discuss and consider before the paper concludes. That is, what factors should guide Bob’s fulfillment of the Natural Duty of Justice?

Institutional Influence Fulfilling the positive aspects of the Natural Duty of Justice will typically require sacrifice. Basic-human-rights-protecting-institutions do not arise out of thin air; they must be created, fostered, and maintained. It is difficult to speculate as to “how much” Bob should sacrifice. In a world, for instance, where everyone has a basic human rights metric score of 100, Bob will not have to sacrifice anything. However, in our present world Bob is morally obligated to sacrifice quite a bit, with the proviso that his sacrifice does not reduce his basic human rights metric score. Instead of trying to conceptualize what quite a bit might mean, I want to instead examine two other more potentially illuminating questions. 1) What factors dictate the limits of Bob’s just sacrifice? 2) How does the practical import of the limited sacrifice vary between people?

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The limited nature of the Natural Duty of Justice is best understood on an individual case-by-case basis by examining, 1) a person’s relation with their particular basic-rights-protecting-institution and, 2) their general social, political and economic status. In many respects a person’s relationship or lack of a relationship with her basic-human-rights-protecting-institution (assuming they have access to such an institution) plays a significant role in her life, and her ability to fulfill her Natural Duty of Justice. This is because those who can effectively work through basic-human-rights-protecting-institutions can typically do much more in helping to ensure that others have access to such institutions than those who cannot. Basic-human-rights-protecting-institutions often carry vast amounts of influence and power in regards to helping to ensure that others persons (not directly under their institutional purview) have access to basichuman-rights-protecting-institutions of their own. For example, the United States government can negotiate with the Chinese government in ways that can be quite persuasive in convincing it to better protect the human rights of its citizens; however normal people in the United States have no such power.25 Institutions can almost always influence other institutions in a much more effective way that can an individual person. It only makes sense that a person’s relationship with her basic-human-rights-protecting-institution would serve as a nice general guide of a beginning guidepost to better establish the content of her limited Natural Duty of Justice. Along these lines, I propose that all people are situated (more or less) in one of four basic categories of relation with their basichuman-rights-protecting-institution. And such relationships, in addition to considerations of social, political, and economic status, generally dictate the limited nature of the Natural Duty of Justice. The four categories which broadly capture a person’s relation with their basic-human-rights-protecting-institution are as follows: 1. The Oppressed and Economically Desperate Person: This person’s basic human rights (or a substantial portion of them) are not institutionally protected. Bill and Sasha would fall into this general category. Often, Oppressed and Desperate People are living near or at basic levels of subsistence, and are constantly pre-occupied with matters of survival. Such people do not live (minimally) decent human lives. Earlier we speculated that possibly Sasha, with a metric score of 35, might be obligated to fulfill the Natural Duty of Justice in respect to Bill, since Bill has a score of 0. Upon reflection I tend to think that if one falls under the critical threshold of actually being oppressed and desperate (as I suggest that both Bill and Sasha do), then they have no “in practice” positive Natural Duty of Justice toward anyone. 25

This example should not be meant to imply that the United States government is a basic-human-rights-protecting-institutions. Such a position would involve argumentation and consider analysis that I will not explore here.

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What, then should we say of the homeless person (who freely and willingly chooses to be homeless) and yet still has a human rights metric score of 100? Plausibly this individual should be required to work to fulfill the Natural Duty of Justice. Recalling an earlier discussion, I very much doubt that the special commitment to “live the life of an impoverished person” could morally absolve one from her Natural Duty of Justice. 2. The Ordinary Rights Protected Person: This person generally has access to basic-human-rights-protecting-institutions. And, as such, the Oppressed and Desperate who do not have such access may legitimately press a rights-claim against members of this group. Nonetheless, people in this group have very little actual institutional influence among their basic-human-rightsprotecting-institution. (I take it that most contemporary Americans fall into this category.) Presumably, people in this category can, for instance, vote and write a letter to their political representatives. The real chances that such persons can directly influence their basic-human-rights-protecting-institution to use the influence and resources at its disposal to assist those who lack access to basichuman-rights-protecting-institutions are, however, slim to none. Assuming that Bob is as an Ordinary Rights Protected Person, what is his Natural Duty of Justice? Bob should use the institutional influence that he does have, granted it might not be much, to encourage his basic-human-rightsprotecting-institution to work toward helping to ensure that all persons have access to such institutions. This attempted influence i.e., writing letters, making calls, engaging in constructive political discourse, and possibly running for local office, does require Bob to sacrifice his time and energy, in pursing reasonable efforts to sway the direction of his basic-human-rights-protectinginstitution toward a concern and respect for the basic human rights of all people. Along these lines, Bob is morally obligated to support, within reason, efforts by his basic-human-rights-protecting-institution (which is just a collection of individuals itself) to fulfill the Natural Duty of Justice. Bob’s slight institutional influence might not exhaust the extent to which he is morally obligated to fulfill his Natural Duty of Justice. This is especially true if Bob’s basic-human-rights-protecting-institution does an inept job of assisting him in executing his Natural Duty of Justice. Bob is not limited to exercise his Natural Duty of Justice only though his particular basic-human-rightsprotecting-institution, nor is his limited moral obligation defined by the particular basic-human-rights-protecting-institution in which he finds himself. For illustration let us place Bob in the contemporary United States. Perhaps, in this sociopolitical environment Bob’s basic-human-rights-protecting-institution is not adequately assisting him in fulfilling his Natural Duty of Justice. Bob has taken his time and effort to exert his slight institutional influence, but to little actual avail. Here, Bob is obligated to seek out additional institutions that help

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him meet his Natural Duty of Justice, i.e., UNICEF and the Red Cross.26 Bob cannot morally avert his Natural Duty of Justice by suggesting, “Well, I did what I could within my basic-human-rights-protecting-institution, and that was almost nothing.” 3. The Influence Peddler: Like the Ordinary Rights Protected Person the Influence Peddler has access to her basic-human-rights-protecting-institution. The difference being that Influence Peddlers have the ability to (in one form or another) take meaningful action that directly influences their basic-humanrights-protecting-institutions, and in particular directly influence how this institution works to help ensure that others (not protected by such institutions) come to enjoy basic-human-rights-protecting-institutions. Imagine here that Bob becomes a rock star with enormous influence on the citizens of a democratically directed state. In such circumstances, I take Bob’s new limited Natural Duty of Justice to be the same as it was when Bob was an Ordinary Rights Protected Person. He must use a reasonable amount of time and effort trying to influence his basic-human-rights-protecting-institution, and he must support their efforts to fulfill the Natural Duty of Justice. But notice here, the new rock-star Bob is going to be able to do so much more than the old Bob, with the same limited moral obligation. Maybe the old Bob, with his obligatory activities, can only bring about 20 units of “human rights metric scale points.” But the new Bob taking just as much time and engaging in just as much (proportionate) sacrifice can bring about 200,000 units of “human rights metric scale points”. The limited moral obligation is the same for both old Bob and new rock-star Bob, all that has changed is the level of institutional influence, and by proxy the corresponding positive affects of fulfilling the same Natural Duty of Justice. 4. The Institutional Official: Imagine further that Bob is the president of a basic-human rights-protecting-institution. Given his role as an institutional official, how does his Natural Duty of Justice change? Again here, I would suggest that Bob’s limited Natural Duty of Justice is actually the same as it was when Bob was an Ordinary Rights Protected Individual and when he was an Influence Peddler. The difference being now that Bob does not just exert influence, he is the influence! Bob, like in his previous cases, must use the resources at his disposal in some limited but significant fashion to fulfill his Natural Duty of Justice. For Bob, as president, this means that he is morally 26

The reason why Bob should first work through his basic-human-rights-protectinginstitution as a first resort is because institutions of these types typically exert more power and influence toward ensuring that persons have access to such institutions than do charitable or humanitarian organizations. As great as the Salvation Army is at directing humanitarian efforts it simply does not have the force or influence to ensure that persons have a permanent type of access the institutions that protect their basic human rights.

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obliged to use his institutional influence (which in his case happens to be a great deal) to help ensure that all persons have access to institutions that protect their basic human rights. Here one might object and suggest that Bob is morally bound to use his institutional influence to fulfill the “national interest,” or political duties to his “fellow citizens,” that elected him more generally. But this objection cannot get off the ground, because Bob’s fellow citizens cannot morally expect him to disregard his Natural Duty if Justice, so that he may use his institutional influence to better improve their lot. Recall that Bob’s Natural Duty of Justice remains a moral obligation regardless of other “special commitments” that he agrees to pursue. Regardless of a person’s special commitment with his particular basic-human-rights-protecting-institution, he is first obligated to help ensure that others have access to such institutions.27 These special commitments include Bob’s decision to act as an Institutional Official. Bob’s new sociopolitical role, while affording the same limited duty that he had in the previous cases, allows the applicability of his Natural Duty of Justice to be profound. Bob’s Natural Duty of Justice does not diminish or become bargained away simply because he finds himself with direct institutional influence.

Conclusion In this paper I argued that the successful implementation of the Natural Duty of Justice depends upon addressing certain pressing concerns of application. Along these lines, I proposed the inclusion of a metric denoting basic human rights protection. This produced some clear (albeit limited) direction as to who may advance a legitimate rights claim (correlating with the Natural Duty of Justice) that another is morally obligated to satisfy. As the paper progressed I discussed the priority problem, that is, which legitimate basic human rights claims should be first addressed. Lastly, I presented a four-type typology designed to argue that while the limited Natural Duty of Justice is the same for everyone, its being carried out in the same fashion by people of differing levels of institutional influence will mean that some people will likely make a small impact when they fulfill his or her Natural Duty of Justice, while the impact of others (i.e., Influence Peddlers and Institutional Officials) as they fulfill their Duty will be profound. This paper covers a large amount of theoretical ground, 27 Of course, there is a good chance that the citizens that elect Bob (assuming Bob is democratically elected) will vote him out of office if he fulfills his Natural Duty of Justice at the expense of “national interest.” While I do not deny this practical consequence, I also do not think it morally changes the analysis in the least. The Natural Duty of Justice is not contingent upon remaining (politically) popular.

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but the topic at hand is well worth the consideration. My attempt here is just one attempt to give life to the Natural Duty of Justice, I take future such attempts to be valuable efforts as well.28

28

I would like to thank Jason Glahn, Eric Heidenreich, Kevin McCain Alan Tomhave, and Peter Vallentyne, and an anonymous referee from this journal, for offering extremely valuable critical comments and assistance with this paper.

ESPEN HAMMER, ADORNO & THE POLITICAL ROUTLEDGE, 2005, 205PP, $ 31.95 (PBK) ISBN 0-415-28913-0 REVIEWED BY MARIO WENNING

Espen Hammer closes a gap in Adorno research by presenting an interpretation of Adorno as a political thinker with contemporary significance. The political dimension of Adorno’s thought has been largely ignored, most importantly because he never developed anything resembling a theory of politics in the strict academic sense, i.e. a theory concerned with forms of legitimate government, international relations or the legitimacy of civil disobedience. Adorno’s reputation as being anti-political results from his rejection of an immediate link between theory and emancipatory praxis. Adorno’s infamous reluctance to support the protests of the student movement as well as his turn to aesthetics have further contributed to the picture of a quietist bourgeois philosopher with a taste for high culture who when it came to the task of outlining political projects was as useless as the red teddy-bear presented to him by a disappointed student to damask him as a hypocritical reactionary who lectured on “The Classicism of Goethe’s Iphigenie” rather than supporting his students in their protests against global capitalism. While this criticism of Adorno as being politically useless is understandable, Hammer reveals that what might look like a retreat from politics was in fact a ruthless engagement with political issues on a different front. In the “totally administered society,” Adorno argues, meaningful (political) praxis has become unavailable. Either it is automatically integrated into and thus complicit with the prevailing order or it leads to blind totalitarian consequences. He thinks that the only responsible way of practicing politics left in light of such a situation is to practice theoretical interventions in the form of a radical critique of the present. In a letter to Walter Benjamin, Adorno writes that “every single sentence here is and must be laden with political dynamite; but the further down such dynamite is buried, the greater its explosive force when detonated.” Hammer set himself the task of lifting the time bomb by deciphering the political “message in the bottle” as which Adorno liked to think of his philosophy. Taking seriously Adorno’s expressed “commitment to radical political change and the uncovering of

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rational forms of practice” (3) Hammer aims to present a rereading of Adorno, which offers an indispensable contribution to the present theoretical situation. Critical theory today consists of at least two camps. One group of scholars is largely influenced by Jürgen Habermas’ theory of communicative action. Their basic aspiration is to justify a deliberative model of democracy and the public use of reason. Combined with a critical appropriation of John Rawls’ neo-Kantian conception of justice as fairness, these thinkers, despite apparent diversity, share an interest in outlining justificatory models of participation and institution building. While the theoretical turn of second generation critical theory of which Habermas is the main spokesperson was initially motivated by a dissatisfaction with the excessively self-defeating project of a hyperbolic critique of late capitalism and the alleged commitment to a philosophy of consciousness (Bewusstseinsphilosophie) of the first generation of Frankfurt school thinkers, one can recently witness an increasing interest in resurrecting some of the ideas of those earlier critical theorists, most notably Theodor W. Adorno and Walter Benjamin. The guiding motivation of this new revival is to make good on what is diagnosed as the recent disappearance of the critical force, which was exhibited by works such as Dialectic of Enlightenment. Espen Hammer stands in that latter tradition of third – on some counts fourth - generation of critical theorists who aim at reinterpreting and reviving the earlier legacy of this tradition. After a biographical introduction focusing on Adorno’s reaction to the political events of his day (the New Deal, the Emergency Laws and the Vietnam War), Hammer traces Adorno’s idiosyncratic and highly selective appropriation of philosophical motifs from Western Marxism. While adopting Lukacs’ synthesis of Weber’s rationalization theorem and Marx’s analysis of commodity fetishism, reification and the privileging of exchange over use value, Adorno does not share the belief in a historical “subject-object” which would allow for revolutionary historical agency. He radically objected to a belief in a progressive, teleological history and replaced the Hegelian concept of Universalgeschichte with that of a universal history of disaster, decay and catastrophes. Just as with the category of totality, history is universal only as long as the spell of the exchange relation has not been broken. This spell is not ontologically rooted in the human condition but historically created. That it emerged historically, however, does not mean that it is less objective. Hence it cannot simply be abolished by way of a change of consciousness as Lukacs believed. Thus critical philosophy, the only form of praxis remaining after the realization of humanity has been missed, takes on the task of determinatively negating the present condition by way of constructing what Benjamin called conceptual constellations.

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Hammer successfully revises the standard conception of a mandarin philosopher who is neglecting political issues. However, many of Adorno’s claims concerning late modernity’s socio-political predicament seem overdrawn, generalizing and little convincing. It is difficult to see why a “citizen intellectual” (33) such as Adorno should categorically refrain from supporting those forms of political agency and protest, which go beyond theoretical interventions. Clearly it is not sufficient that Adorno supported progressive reforms (the lifting of sexual taboos, university reforms etc.) when his theory denies the possibility of such endeavors on the basis that any political action is “administered” and all proclaimed acts of solidarity get reduced to conformism or totalitarianism. Granted that philosophers should not have any privileged role in instituting praxis, the more radical thesis that political praxis has become unavailable in principle and that the only form of praxis left is theory does not address the problematic situation of the left. It hardly does justice to the achievements of social movements during the twentieth century. Furthermore, if praxis is equated with blind domination it becomes impossible to make the important distinction between emancipatory and regressive actions. Ethical and political questions cannot be separated for Adorno. His “ethics of resistance” (102) aims at rescuing the non-identical and plural from any form of domination through the universal. Adorno is committed to an idiosyncratic mixture of philosophical theories, which are usually regarded as incoherent. Thus he is a realist about truth and values, while claiming that everything is historically mediated. He combines a strong form of naturalism, according to which we are materially determined all the way up and history is “natural history,” while denying the existence of mere nature and the accompanying claim to immediacy. He combines the ideal of the “priority of the object” with a call for a “more of the subject.” Rather than systematizing Adorno, Hammer presents the conceptual conflicts penetrating his thought. Adorno regarded these conflicts as indicative of social contradictions. For him they could only be reconciled under different socio-economic circumstances. His guiding ideal of true happiness (Glück) as a somatic form of reconciliation of a strengthened subject with nature (from which it has emerged and can relate to by way of a “remembrance of the nature in the subject) reveals that there is a dark romantic strain to his thought which is utterly opposed to rationalist ideals of conceptual unity or a postmodern celebration of alterity. Although “mimetic rationality” entails an acceptance of transience and otherness, Adorno holds on to the promise of reconciliation along the Hegelian model of “being with oneself in another.” To me it is not clear what role nonidentity plays in Adorno’s philosophy and whether this non-concept is fruitful. It functions as a placeholder, which on the grounds of Adorno’s theory cannot be determined and thus stays empty or might even allow for irrationalism. Does not

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critique imply sound judgment and discrimination between valid and invalid forms of otherness and non-identity rather than an indiscriminate cherishing of otherness? Is it not possible that there could be modes of non-identity which call for critique and rejection, perhaps even domination, rather than mimetic touch? These open questions suggest that Adorno tends to totalize non-identity and thus establishes it as another form of identity: that of the constantly suppressed in need of rescuing. I am less convinced than Hammer that an ethico-political theory founded on the non-identical and “singular experiences of negativity” (8) is a viable alternative to the undoubtedly problematic universalism of Habermas’ discourse ethics. Despite these substantive reservations I think that Hammer does a great job at presenting Adorno’s ideas clearly without blindly accepting them. In the chapter “The Politics of Culture” he for example engages with Adorno’s analysis of the “culture industry.” Contrary to the present-day multiculturalist celebration of diversity and fragmentation and a conservative attempt to restore or renew a central authoritative symbolic form, Adorno diagnosed a deep conformity behind the veil of apparent cultural diversity of modes of expression. On that account what looks like an increasing individualization and diversification reveals a subterranean conformity. Hammer shows that Adorno was not committed to a binary separation of high and low culture, at least not without qualification. First, high culture is not a effective in its critique. Rather its relative autonomy from the imperatives of society also makes it impotent. Secondly, Adorno witnessed the increasing tendency of the operating mechanisms of the culture industry (repetition, standardization, seduction, substitute gratification) to be pervasive in all spheres of aesthetic experience. Thus the modern opera guards as little against the danger of regressive listening as the jazz concert. While the tendency towards total mediation and commodification is at the foreground of Adorno’s material analyses, Hammer argues that he is also aware of potential cracks or fissures allowing for remnants of autonomous judgment and self-reflective criticism. However, Adorno does not pursue the political significance of these fissures. This points to a deeper lack of a convincing account of how it is possible to establish a form of nonauthoritarian identity, which would be necessary in order to self-critically overcome or at least understand the working mechanisms of the culture industry. Furthermore, Adorno too easily glosses over central differences such as those between the working mechanisms of fascist propaganda and those of libidinous consumerism nourished by the culture industry. The question what resources Adorno employs to practice criticism has been at the foreground of Adorno scholarship. Given his dark diagnosis of modernity, e.g. concerning the fundamental experiential impoverishment to the point where even suffering and disappointment cannot be easily identified, it is uncertain

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whether critique can be possible at all. From what standpoint does the critic practice critique? If Adorno’s claim that we live in a “totally administered society” were true, the critic, herself part of this society, would engage in a perfomative contradiction because criticism already presupposes a standpoint outside of that closed system of ideology. Being aware of this fundamental methodological problem, Adorno proposes a combination of a strategy of combining immanent and transcendent critique. How this oscillation between participation and non-participation is supposed to be sustained is not spelled out by Adorno. Drawing on Stanley Cavell’s adaptation of ordinary language philosophy and perfectionism (in particular that of political romanticism) Hammer suggests a more sophisticated account of reconciling immanent and transcendent critique. A concept, even if it fulfills ideological functions such as that of freedom in late modernity, entails material inferences which, if measured against actual practices, point beyond those practices and help to spell out what the realization of the content would require. The withdrawal from one’s community and its conformist pressures for the purpose of practicing transcending criticism can be justified on the ground that it is a duty of citizenship to freely interrogate the accepted norms and practices. As Hammer points out, this might open Adorno up to the charge of elitism because practices of sophisticated, transcending and dialectical critique are limited to a small number of people. However, the charge of elitism hardly squares with Adorno’s repeated assertion that the critic is not spared by the effects of total administration and that his privileged status is deeply one-sided and calls for a feeling of guilt. Adorno’s turn to aesthetic or mimetic rationality has provoked much criticism. Jürgen Habermas’ transformation of critical theory away from what Adorno’s monological conception of the self is a reaction to what he conceived as the tendency of deriving criticism of its normative foundation. Hammer convincingly argues that Habermas’ criticism of Adorno’s monologic presuppositions, despite its initial attraction and huge influence in the reception of Adorno during the last three decades, sets up a straw man. Especially in his early work on Husserl Adorno stresses in a Hegelian manner that every self depends on intersubjective frameworks of recognition. However, these frameworks of meaningful encounter have become unavailable. They have been replaced by the exchange of information. By way of systematically distinguishing a meaningful intersubjective life world and a potentially colonizing system guided by strategic imperatives, Habermas fails to account for the way in which these aspects are mutually entangled and cannot be neatly separated. Hammer’s attempt at rescuing Adorno from the Habermasian critique is to a certain extent indebted to Habermas because Hammer believes that it is

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necessary to reveal the normative commitment behind negative dialectics. For Hammer it consists in the claim every particular object, creature or experience has in terms of being non-identical to its concept: “it is the integrity of the object, its vulnerable uniqueness, which ultimately forms the source of ethical, moral, political, and even epistemic normativity” (154). Mimetic rationality does justice to the particular object of experience. By way of acknowledging the priority of the object, it accounts for a material remainder, which is non-identical to and cannot be subsumed under an (inherently generalizing) concept. For Hammer, Habermas’ critique of Adorno misses its object. Whether Adorno does face serious problems of his own or whether he offers interesting responses to the unresolved problems left open by Habermas – one might think of his liberaldemocratic turn as well as the recent interest in religion -, is left open by Hammer. Hammer regards recent attempts to extend Adorno’s ideas to feminism and deep-ecology as limited. While it is true that Adorno anticipated many of the arguments of these approaches, one should be careful not to gloss over important differences. By way of emphasizing the intrinsic merit of nature, deep ecology is often accompanied by anti-humanist ideas, which are diametrically opposed to Adorno’s commitment to the autonomy of reason and the integrity of the person. Nature – and more specifically natural beauty – is a reminder that the subject is not free-standing and unconditioned but depends on nature. The reference to nature’s claim to authority does, however, not serve the purpose of replacing the normative authority of autonomy and freedom. Adorno has consistently stressed that he is committed to a critique of enlightenment without abandoning enlightenment. It is refreshing that Hammer continues the clear, nuanced and reflective trend of recent Adorno scholarship. He carefully reveals misinterpretations and does not gloss over weaknesses. While in Europe scholars for a long time either blindly accepted Adorno’s basic assumptions or categorically dismissed him, Hammer stresses that Adorno’s thinking oscillates between “a mélange of both reactionary and progressive attitudes” (171). Most importantly, the book manages to translate Adorno’s ideas into a jargon-free language and thus proposed them for critical discussion. Whether they are urgently needed and will contribute to current discussions in political theory is to be seen. Adorno would argue that this question is already posed in a problematic way.