Review Journal of Political Philosophy [1 ed.] 9781443846783, 9781443822848

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Review Journal of Political Philosophy, Volume 8.1

Review Journal of Political Philosophy, Volume 8.1

Edited by

J. Jeremy Wisnewski

Review Journal of Political Philosophy, Volume 8.1, Edited by J. Jeremy Wisnewski This book first published 2010 Cambridge Scholars Publishing 12 Back Chapman Street, Newcastle upon Tyne, NE6 2XX, UK British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Copyright © 2010 by J. 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. ISBN (10): 1-4438-2284-1, ISBN (13): 978-1-4438-2284-8 ISSN 1752-2056

TABLE OF CONTENTS

Acknowledgements ................................................................................... vii 1. Machiavelli’s Method Revisited: The Art and Science of Modeling Waldemar Hanasz........................................................................................ 1 2. The Skeptical Anarchist Alan Carter ................................................................................................ 33 3. Does Political Liberalism Make Sense? Carla Saenz................................................................................................ 41 4. Why is (Claiming) Ignorance of the Law no Excuse? Miroslav Imbrisevic................................................................................... 61 5. A Politics in the Absence of a Universal Human Nature Christopher Hughes ................................................................................... 75 6. “Diligence is the Mother of Good Fortune”: Effort and Desert in Distributive Justice Moti Mizrahi............................................................................................ 103 7. Phenomenology, Interrogation and Biopower: Merleau-Ponty on ‘Human Resource Exploitation’ Nicholas McGinnis .................................................................................. 125

ACKNOWLEDGMENTS

All journals benefit from the good graces of those academics who volunteer their time to make journals run smoothly and professionally. This Journal has had more of its share of good grace. 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 persons for their continual help: Thom Brooks, University of Sheffield Janet Donohoe, West Georgia State University R. D. Emerick, Palomar College Gordon Hull, University of North Carolina, Charlotte Glen Pettigrove, University of Auckland Jose-Antonio Orosco, Oregon State University Mark Sanders, University of North Carolina, Charlotte Matthew Voorhees, Hartwick College P.A. Woodward, East Carolina University I would also like to thank Jacqueline Seamon, my editorial assistant, for her assistance in preparing the manuscript, as well as the editorial staff at Cambridge Scholars Publishing, and in particular Amanda Millar, for continuing support of the journal.

MACHIAVELLI’S METHOD REVISITED: THE ART AND SCIENCE OF MODELING WALDEMAR HANASZ, UNIVERSITY OF MASSACHUSETTS, LOWELL

1. Machiavelli in Renaissance thought Machiavelli declares a groundbreaking novelty of his method and asserts that successful political action is impossible without proper understanding of political affairs. In The Prince he makes a notorious announcement that in order to find the new “modes and regulations (modi e governi)” of power he goes directly to “the effectual truth of the thing (verità effetuale della cosa),” abandoning the old ways of those who “imagined republics and principalities that have never been seen or known to exist in truth” (P 15: 65).1 The knowledge of the heart of the matter is needed to effective decision making. The new methods of politics require the new methods of reasoning. Machiavelli sporadically hints what are the principles of his reasoning but such explicit articulations are rare. The readers who try to extract something systematic reach a variety of different conclusions. For a long time, it used to be self-evident to most commentators that Machiavelli’s thought deserved a scientific status (cf. Prezzolini 1967; Butterfield 1948; Burnham 1943; Olschki 1945; Cassirer 1955, and many others). He was called an “experimental scientist” (Singleton 1953: 180), “a thoroughgoing empiricist” (Walker 1950, vol. 1: 4, 71; cf. also Batkin 1979: 32; Fischer 2000: 38-44; Femia 2004: 44-61), a “Galileo of politics” (Prezzolini 1967: 7), and even the inventor of the inductive method (Walker 1950: 92). Others, however, find the scientific interpretations of Machiavelli’s method unsubstantiated (cf. Kraft 1960; Chabod 1958; Plamenatz 1968; Anglo 1969) and view him as a sheer pragmatist whose reasoning was not based on any systematic exploration. Other interpretations place Machiavelli within the rhetorical tradition where power to persuade is by

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far more important than logical analysis (cf. Garver 1987; Kahn 1994; Viroli 1998, 2002). This article’s intention is to explore Machiavelli’s method in more detail and provide an entirely new interpretation demonstrating an advanced method of theoretical reasoning in Machiavelli’s work. I shall reconstruct the main components of Machiavelli’s technique of reasoning and conclude that Machiavelli introduced an advanced method of theoretical thinking which was new in his time and developed only much later. Namely, he constructed a theoretical framework which corresponded to the political reality in very peculiar ways as not based strictly on empirical observations and inductive generalizations. In fact, his constructs systematically deformed the reality. They were abstract models methodically distinguishing selected aspects of politics and neglecting others.2 Today philosophers of science recognize such theorizing procedures as significant steps in the development of scientific thinking and as effective tools in contemporary science. Machiavelli’s innovatory approach was unnoticed for a long time. As we shall also see in the following sections, Machiavelli’s methods, although breaking entirely new grounds, were in tune with the theoretical development of Renaissance arts and sciences. The Renaissance was not only the time of brilliant artists and innovative scientists but also the time when theoretical reflections on art and science still belonged to the same wide sphere of thinking and shared many common features. Both artists and scientists realized they needed a new representation of the world, different from ancient and medieval images; hence many scientists were brilliant artists; both painters and scientists studied geometry, optics, and anatomy; artists studied corpses to learn more about human bodies and artistically illustrated scientific works in anatomy, zoology, and botany; music composers also conceived their work as both artistic and scientific. All these activities possessed a common background of rational thinking and thoughtful analysis; as Alistair Crombie put it: “the rational artist and the rational experimental scientist appear as exemplary products of the same intellectual culture” (Crombie 1985: 15-16). Importantly, political thinking remained in the same sphere of comprehension. The historians of the Renaissance – and the name of Jacob Burckhardt immediately comes to mind – have identified multiple interconnections between early modern science, art, and political thought. Politics was for many a form of art; poets, painters, sculptors, and architects created works that inspired political imagination; artists and scientists were active at royal courts, became influential, and sometimes very powerful; rulers and political leaders were art patrons and often wrote poetry and composed music

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themselves. Practical experience and theoretical reflection went also hand in hand: numerous theories of art, science, and politics were invented. Machiavelli belonged to this amazing multifaceted company. He sometimes humbly declared his ignorance in all areas besides politics but it was clearly an ironic quip: he was educated in rhetoric, law, and business, studied history, wrote poems, songs, and comedies, reflected analytically on language, and administered enterprises in diplomacy, military organization, and engineering. A peculiar unity of artistic and scientific perspectives in his political thinking has been frequently noted. He repeatedly compared political enterprises to the activities of architects, sculptors, painters, playwrights, and actors; he frequently put the methods of political thinking next to natural philosophy, medicine, geography, and astronomy. His political theory abounds in familiar artistic notions of imitation, appearance, and imagery. Some find in his works broadly scientific concepts of observation, experimentation, and induction. Political, artistic, and scientific thinking seem one (Singleton 1953, 1967; Batkin 1979; Feaver 1984; Parel 1992; von Vacano 2007).

2. Universalization: Formulating the laws Most Machiavelli’s observations, conclusions, and implications are formulated in terms of “the general rules.” For instance, it is “a general rule (una regola generale) that never or rarely fails: whoever is the cause of someone’s becoming powerful is ruined” (P 3: 25); “this should be taken as a general rule” that a new political regime should be ruled by an exceptional leader (D I 9: 153); “and it is a truest rule (una regola verissima)” that harsh commands must be executed in harsh ways (D III 22: 449). In the Discourses on Livy a great number of chapter headings are formulated as such: “Men Ascend from One Ambition to Another; First One Seeks Not to Be Offended, and Then One Offends Others” (D I 46), “The Multitude is Wiser and More Constant Than a Prince” (D I 58), “Weak States Will Always Be Ambiguous in Their Resolutions; and Slow Decisions Are Always Harmful” (D II 15); “Strong Republics and Excellent Men Retain the Same Spirit and Their Same Dignity in Every Fortune” (D III 31), to cite just a random few from all three books. The Prince formulates such generalizations as the directives of political or military decision making. Each chapter of The Florentine Histories begins and ends with a set of rules that the particular chapter illustrates. Machiavelli’s official documentation and private letters abound in such maxims as well.

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Critics point at a number of problems with Machiavelli’s methods of generalization: hardly any general rule is built on a firm cumulative ground of inductive reasoning; there seem to be many staggering exaggerations; ancient and contemporary examples are sometimes lumped together without respect to historical context; some rules seem just assumed a priori disregarding factual evidence (cf. Anglo 1969; Chabod 1958; Strauss 1958). These are all legitimate concerns – inductive generalizations and factual corroborations are indeed not Machiavelli’s major methodological tools – but it does not mean that the general rules are just flawed. He does not think in inductive terms; his intentions are different. One has to note that “the general rules” is a slightly deceiving term. They are usually intended to be something more than mere generalizations (cf. Olschki 1945: 25). In the very important Preface to Book I of the Discourses, Machiavelli makes another of his rare methodological announcements justifying his use of ancient Roman history for modern deliberations by the fact that “heaven, sun, elements, men” do not vary in their “motion, order, and power” (D I Pref.: 124; same D III 1: 379). Then the title of the first chapter continues that strong line: “What Have Been Universally the Beginnings of Any City Whatever, and What Was That of Rome.” He is interested in universal truths to be found in any possible political order because it is a universal law that human and political bodies revolve the same way as the heavenly bodies. They constitute what Anthony Parel entitled “the Machiavellian Cosmos” (1992) where the laws of astrology, astronomy, and natural philosophy apply to both heavenly and earthly phenomena. Machiavelli’s style of writing is markedly universalizing. The previously cited chpter headings brought illustrations: weak states are always ambiguous, slow decisions always harmful, excellent men maintain good spirits in every fortune. So it goes everywhere: everyone does it, it applies to everything, it always happens, it can never be different. In particular, human nature is a key element of the natural order of Machiavelli’s universe. All human beings share the fundamental characteristics: “Men are born, live, and die always in one and the same order” (D I 11: 163). The students of politics are not different from the students of astronomy or medicine since “all our actions imitate nature” (D II 3: 286) and the laws of nature and politics are basically the same. The study of politics must be based on the simple truth that humans have always been and will always be the same. Any analysis of political bodies, states, cities, nations, tribes, armies, and crowds boils down to the fact that they are human beings driven by the same natural passions and goals. The

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universal truths of politics – for instance that all political regimes are corruptible, there will always be a conflict between the few and the many, mercenary troops can never be trusted, and so forth – are based on the same basics of human nature. The universalizing slant of Machiavelli’s thought was quite typical for Renaissance art and science. Renaissance thinkers were aware that arts and sciences should reveal the universal or essential features of the world not just individual observations and impressions. Astronomers wanted to know how all planets and stars revolve; physicists experimented how all bodies fall; physicians observed how all hearts beat; poets and musicians experimented how all hearts can be moved by words and sounds; painters learned how all shapes can be presented in spatial perspectives. They all sought universal answers to the questions of nature and universal directions how to explore and demonstrate it. Good science should discover the universal truths of nature; good artworks should appeal to things which are universally adorable (cf. von Vacano 2007: 151-153). That explains at least some apparent flaws of Machiavelli’s “general rules.” If the laws of nature, arts, and politics are universal, one does not need to accumulate a great amount of evidence to validate them. One does not need to explore many specific cases because they just illustrate the natural order of things. As Federico Chabod observed, in every event Machiavelli was able to detect “the ever-recurring workings of a universal process” (Chabod 1958: 129). A single case may be enough to demonstrate the universal truth. Machiavelli formulates the universal laws of politics and evaluates their validity and applicability. Historical eloquence is important for him because written history is a rich collection of ready-touse general laws: Livy, Tacitus, Polybius, Plutarch, and Xenophon make observations, formulate generalizations, and draw conclusions. Factual evidence is not Machiavelli’s prime concern although he needs it because sometimes a single fact may prove that a universal thesis is invalid. His own personal and professional experience tests the methodological strength of those assertions; he experiments whether the ancient wisdom is still valid in modern times and can be useful in the future. Since political knowledge has to generate fast and effective decision making, it cannot rely on meticulous inductive accumulation of data, it must spread across past observations, present judgments, and future predictions. Universalizations make such decision-making possible. Clearly, some universalizations are overstretched and even obviously untrue: we read that “slow decisions are always hurtful” and soon receive examples of successful delays, we learn that “it is necessary to be alone” to found a republic yet there were republic established by more collective

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efforts. Some universalizations have to be qualified and modified. Machiavelli does not hide such inconsistencies; as we shall see, they begin a more complex explanatory process.

3. Reduction: Searching for a perspective Critics lament not only over Machiavelli’s dubious generalization but also the apparently crude form of his thinking: general maxims are often very single-minded; the portraits of historical figures look flat; the logical and conceptual links are schematic. It seems that his laws reflect the world of politics in an extremely simplistic manner that could not be taken seriously by any earnest realist. Machiavelli’s friend Guicciardini already commented that one could not ignore the complexity of the world, especially the political world, and reduce it to a set of maxims; the picture would be distorted and ultimately false.3 According to some critics, these simplifications made Machiavelli’s central ideas rigid and dogmatic (cf. Butterfield 1940; Anglo 1969; Femia 2004: 50-51). Machiavelli’s defenders do not deny that these critical observations are justified but find his approach quite lucid. Parel explains some simplifications and omissions as “methodological, and no more than that” (Parel 1972: 14); Leonardo Olschki calls this approach “a strictly theoretical isolation” (Olschki 1945: 22); according to Friedrich Meinecke, such means show Machiavelli’s “ability to condense the wealth of his experience and thought, and how the rich edifice of his mind rested on a few, quite simple, but solid pillars” (Meinecke 1984: 37). As we shall see, there is good evidence supporting these more positive assessments. Arts, sciences, and all kinds of theory almost by definition represent the real world in simplified ways. Artistic images and scientific studies in their own ways concentrate on few selected elements while neglecting others. Historians almost unanimously agree that the invention of perspective in the early Renaissance art became a turning point for many areas of thought because it provided a useful method of such selection. Finding a good perspective, a “point of view” or an “angle of sight” became a goal of any study, not only artistic. Renaissance artists and scientists developed what Charles Singleton called “the perspective of art,” an instrument of perception allowing a “selection of the facts of life” (Singleton 1953: 185).4 According to Singleton, since the Middle Ages the main difficulty in the development of scientific thinking was “the problem of confining the attention” and modern science could unfold only when some limitations of perception and “angles of vision” were set up. In particular, a distinction between the external and internal visions is a key

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part of “the perspective of art.” Artists and scientists perceive the world with their eyes and ears; they rely on their senses and focus on the appearances of things. In the Renaissance they studied anatomy, astronomy, and optics to recognize the reliability of senses and empirical observation as the sources of knowledge. The correct scientific or artistic perspective must be well focused to be reliable. The modern methods of study, as opposed to the old medieval ways, had to reduce the complexity of the world to its external evidence. This applies to the images of human beings as well. The concepts referring to the spiritual side of human condition are empirically uncertain and practically useless (Singleton 1953: 185). Thus, for instance for Galileo, it was important to eliminate the soul from the scientific picture of man and the whole universe: “The purposes of the new science require that the attention be confined, so as to exclude concern with soul” (Singleton 1953: 187-188). The spiritual concerns should be left to men of God and men of letters who can speculate on such esoteric matters. According to Singleton, Machiavelli was a paradigmatic designer of his own “perspective of art.” He was an artist himself – a poet, a playwright, and a master of rhetorical language – and his works are full of artistic metaphors and references. He repeatedly compares politics, statesmanship, and lawmaking to architecture, sculpture, and theatre. Building a state, for instance, is like making a statue, it may be easier to make it from a crude mass of marble than from a previously shaped piece (D I 11; cf. D I 1); politics is also by nature like a great theater where political agents are actors with special roles. Just as other artists and scientists of the Renaissance Machiavelli assumes that knowledge must rely on senses and perception (Blanchard 1996). The political world in particular is a domain of appearances. The prince should be aware that his position is based on impressions: “Men in general judge more by their eyes than by their hands, because seeing is given to everyone, touching to few. Everyone sees how you appear, few touch what you are” (P 18: 74). People’s opinions depend on knowledge which is severely limited. It is a part of political art to mold their impressions. And like other arts, the art of politics must create illusions to impress: there must be scary spectacles, awesome shows, and reputable images. One can read Machiavelli’s thought as an “aesthetic political theory,” including all central notions of art: creation, invention, imitation, representation, perception, expression, form, even style and taste (cf. von Vacano 2007: 145-155; Feaver 1984). Political actors sometimes show innovation and creativity but usually just imitate noble models; their actions represent universal ideals; they form visions, perceptions, and interpretations. Of course, artistic and political

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images can be also dangerously deceptive: they often misrepresent the reality and deceive our senses and minds. Plato considered such manipulations a great political danger while Machiavelli saw them as an intrinsic – and not so bad at all – quality of political art. There are multiple ways in which Machiavelli processes his reduced vision of politics. One is his presentation of historical and contemporary individuals. The quality of these images is just one more matter of disagreement among Machiavelli’s readers. While for some, such as George Feaver, “Machiavelli ranks among the greatest of our artistic scrutinizers of public faces” (Feaver 1984: 560), for others his portraits are schematic templates to fit his stories. Singleton persuasively demonstrates how Machiavelli’s “perspective of art” – similarly to Galileo’s – eliminates “concern with the inner man.”5 “Have not all readers of Machiavelli felt how his heroes have no inside?” he asks rhetorically (Singleton 1953: 180). In the following sections we shall see the role of such reduction in Machiavelli’s perspective. While one may agree with Singleton that Machiavelli’s heroes have no inside, we shall see that the reductive flattening of political portraits is another step in his method of exploration. Another form of Machiavelli’s reductive approach is his apparently schematic determinism (cf. Wolin 1960). Machiavelli’s historical observations and reflections vividly use the simple language of causes and effects. The knowledge of history and of Roman history in particular is a bottomless source of illustrative events, decisions, actions, and their causal relationships with good and bad effects. When the examples end with either success or ruin, Machiavelli usually does not add many comments, for him such ends speak for themselves: “as the observance of divine cult is the cause of the greatness of republics, so disdain for it is the cause of their ruin” (D I 11: 162) or “all armed prophets win and unarmed ones fall” (P 6: 32). The heading of the very first chapter of the Discourses declares such deterministic perspective, it discusses “Which Was More the Cause of the Empire the Romans Acquired, Virtue or Fortune” (D II 1). The Prince delivers countless observations of this kind: rulers who are too liberal become poor and their poverty causes everyone’s contempt; rapacity, on the other hand, causes infamy and hatred (P 16); too much mercy causes disorder; cruelty generates fear and obedience; seizing one’s property makes him angry and vengeful. In these simplified patterns, every action has consequences generating more chains of causes and effects. Necessity (necessità) is very often the key factor of decision making: one is usually forced to do something and his decisions should be forceful enough to determine the necessary effects. Such reflections can also develop into longer chains of causes and effects: “For virtue gives birth to

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quiet, quiet to leisure, leisure to disorder, disorder to ruin, and similarly, from ruin, order is born; from order, virtue; and from virtue, glory and good fortune” (IF V 1: 325); “For good examples arise from good education, good education from good laws, and good laws from those tumults that many considerately damn” (D I 4: 137). Just as in universalizations, the causal connections are sometimes not self-evident but Machiavelli consistently uses them as another element of his explanatory method. Reductive determinism and universalizations cooperate as a very useful methodological tool. Universal rules apply to the past as well as the future and there are causal connections in between. Effective politics or warfare is about understanding facts, making extrapolating predictions, and evaluating future effects. This is why studying history is so important practically. “Whoever wishes to see what has to be considers what has been; for all worldly things in every time have their counterpart in ancient times. That arises because these are the work of men, who have and always had the same passions, and they must of necessity result in the same effect” (D III 43). Thus, “it is an easy thing for whoever examines past things diligently to foresee future things” (D I 39: 222). Of course the causal relationships may be quite obscure and difficult to recognize so it is the crucial task of political thinkers to understand historical knowledge in more general terms to make it useful for the future. Usually similar events lead to similar effects but it seems that Machiavelli is most fascinated by cases when apparently different causes bring very similar effects, as, for instance, “the hardness of Manlius Torquatus and the kindness of Valerius Corvinus acquired for each the same glory” (D III 22: 448; cf. D III 21: 446). In such cases Machiavelli tries to identify the details of contexts that may be decisive and yet hard to notice. Machiavelli’s style of writing reflects the reductive patterns of reasoning. His use of popular maxims, common expressions, and graphic images – such as Fortune as a woman who obeys to young and strong men when beaten – reduces complex stories to few striking elements. He often refers to nature as the domain of simplicity which can be easily explained and understood. Human nature in particular, as we shall see in more detail in the next section, can be viewed is such simple terms. Machiavelli’s writing style of classifications, categories, and divisions reflects this reductive reasoning. His disjunctive style of most distinctions is emblematic. While many readers find it annoyingly rigid (cf. e.g., Atkinson 1985: 222; Butterfield 1940: 21; Femia 2004: 53), Federico Chabod explains it beyond its rhetorical form as a reflection of Machiavelli’s “characteristic way of looking at political problems” (1958: 127). The first sentences of

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The Prince are strikingly so: “All states, all dominions . . . are either republics or principalities. The principalities are either hereditary . . . or they are new. The new ones are either altogether new . . . or they are like members added to the hereditary state” (P 1: 15), and so it continues. The next chapters follow the pattern: the ruler must be either loved or feared; he has to know what brings him praise or blame; and has to choose what is useful or useless in government. Virtue and fortune is of course the most visible duo. One becomes a prince due to virtue or fortune; either virtue or fortune brings greatness; it must have been either virtue or fortune that made the Roman republic grow and fall. The discussions of the most vital characteristics of a prudent prince are put in these disjunctive terms: liberality vs. stinginess, cruelty vs. mercy, sincerity vs. trickery, good reputation vs. hatred among one’s subjects. In the Discourses, numerous chapters discuss such sharp alternatives: whether republics or princes can be more trusted (D I 59), whether it is wiser to start a war or to wait for it (D II 12), and so forth (cf. also D I 34, 57, 58; D II 1, 13; D III 13, 22, 27, 41, 45). The scheme is so frequent that sometimes it is clearly applied with tongue in cheek: “I say, then, that battles are lost or won” (AG IV, CW 655). Chabod correctly notes that these dilemmatic distinctions are not a mere rhetorical style but one of the leading methods of Machiavelli’s reasoning. For Machiavelli “the middle way (la via del mezzo)” in political affairs is either impossible or ruinous (e.g., D I 6, 26, 47; II 23; III 2, 21; cf. Whitfield 1969, chap. 3). His ideal political agents – be it Romulus or Cesare Borgia or the Roman people – do not choose half-measures and compromises. They are not slow or hesitant and never afraid of extreme solutions. Decisiveness is a necessary strength in political actions so lengthy deliberations about in-between options must be eliminated from political language and mind. The reductive approach is undoubtedly associated with the didactic and instructional goals of Machiavelli’s works. In the Dedicatory Letter to The Prince, he announces that he synthesized his ideas and “reduced them to one small volume” in order to make them comprehensible to others “in a very short time” (P Ded: 21). In political analysis he promises to follow the example of “those who sketch landscapes” (P Ded: 14; P 3: 21) since political as well as artistic work demands a proper perspective. In other words, he simplifies some features and omits details. In order to grasp “the effectual truth of the thing,” he has to reduce his analysis into a clear minimum. The Discourses are also written by Machiavelli as a guidebook for his friends as those who could govern (D Ded). Such works need streamlining power; they need clarity and simplicity; and omissions are illuminating and instructive. From a practical point of view, those who

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have to make good judgments must be well informed but they cannot drown in countless details. The universal rules that make the image of reality simpler and clearer serve effective judgment better than long lists of historical events or long philosophical deliberations. Machiavelli is not only a political thinker but an advisor and tutor who makes his thought an intellectual instrument of power.6

4. Idealization: Designing models Machiavelli’s method goes beyond universalization and simplifying reductionism. As some commentators observe, his writings abound in abstract and hypothetical speculations that characteristically transform historical knowledge (cf. Mansfield 1981; Batkin 1979; Spackman, 1990); Arthur Burd wondered about “that peculiar touch of idealism in Machiavelli’s nature” (Burd 1968: 213). Most scholars agree that Machiavelli molds his heroes, sometimes in quite arbitrary ways, to fit his arguments (cf. Anglo 1969; Batkin 1979; Bondanella 1973; Whitfield 1969, to name a few). Some view him as an artist whose works are full of literary images and fictitious characters (cf. Sullivan 2000). Historians note that Machiavelli’s presentation of ancient Rome shares common features with the utopian literature of his times (cf. Hexter 1973; Malagoli 1969; Bec 1981). For most critics such touches of idealism and perfectionism are irreconcilable with the down-to-earth realism of a thinker who denounced “imagined republics and principalities that have never been seen or known to exist in truth.” It seems obvious that he rejected the political ideals of Plato, Aristotle, Augustine, and Aquinas as well as the contemporary “mirror of princes” literature drawing the images of virtuous rulers (Olschki 1945; Gilbert 1938; Skinner 1978). What kind of idealism then can be found in Machiavelli’s thought? It is one of the key motives of The Prince that a new ruler who wants to succeed should recognize and imitate the highest ideals. A prudent man should always enter upon the paths beaten by great men, and imitate those who have been most excellent, so that if his own virtue does not reach that far, it is at least in the odor of it. He should do as prudent archers do when the place they plan to hit appears too distant, and knowing how far the strength of their bow carries, they set their aim much higher than the place intended, not to reach such height with their arrows, but to be able with the aid of so high an aim to achieve their plan. (P 6: 30)

Machiavelli’s use of the well known ancient simile of the archer (Theaetetus 194a, Laws 705e, 934b, Nicomachean Ethics 1094a 23-24; cf. Mansfield

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1981: 297) to introduce the “new modes and orders” is clearly ironic. Those who want to be practically effective have to imitate some old ideals and pursue perfection. The word disegno that Machiavelli uses when referring to such plans or goals hints their form as projects that are in some ways creatively formed and rather artificial; these are plans which can be made and accomplished “rarely or never” (D I 6) and sometimes are just irrational (D I 9). Machiavelli’s peculiar idealization of such images becomes striking when he lists those “greatest examples” to imitate: “I say that the most excellent are Moses, Cyrus, Romulus, Theseus, and the like” (P 6: 30). In the last chapter of The Prince, the same names are cited to inspire the Italians to stand and free their country (P 26: 102). These are neither realistic nor practical model and shockingly so. When some historical figures are mentioned, Machiavelli makes it clear that they were mere imitators reducible to the greatest idols: “as they say Alexander the Great imitated Achilles; Caesar, Alexander; Scipio, Cyrus” (P 14: 64). To be precise, Scipio did not exactly follow Cyrus himself but “what had been written of Cyrus by Xenophon.” Thus, in Machiavelli’s presentation, even an actual great man becomes a semi-fictitious figure. Obviously, it is not an easy task to follow the mythical, superhuman characters performing heroic and miraculous acts. In fact, elsewhere Machiavelli indicates that the task may be impossible to anyone to execute. The archetypes to imitate must be perfected to the highest degree. Most readers find Machiavelli’s ideals so confusing that they try to explain them as historically unavoidable mild errors caused by the lax standards of accuracy in writing history in the Renaissance. Arthur Burd felt forced to salvage Machiavelli from what looked like historical naivety: “Theseus and Romulus are of course accepted by Machiavelli as genuine historical persons, just as the whole of the early history of Rome was also: but it rarely affects the value of his arguments” (e.g., Burd 1968: 209, 245). Other scholars have taken Burd’s point for granted (cf. Atkinson 1986: 144; Olschki 1945: 48). Most recently, Joseph Femia confirms the diagnosis: “No doubt he confused popular fiction with established fact, but he shared this misapprehension with most of his educated contemporaries” (Femia 2004: 52-54). But these clumsy excuses get it in a wrong direction. It is not the case that Machiavelli views mythical figures as semi-historical but quite the opposite: he leaves the mythical heroes serve as convenient ideals but in addition reconstructs historical figures into semi-mythical. Those who note his numerous omissions and inaccuracies distorting the images of historical figures are entirely right but they are wrong that these are his dismal errors. He deliberately distorts these images because they are the

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tools of his idealizing method. The idealized figures, whether taken from written history, mythology or art, represent the key characteristics of political agency (cf. Batkin 1979: 31; Barbieri-Squarotti 1966). Caesar, Brutus, Alexander, Romulus, Moses, the princes Cesare Borgia and Castruccio Castracani, the number of Roman generals and dictators such as Scipio Africanus, Marcus Furius Camillus, and Fabius Maximus, to name just the most important ones, are the bearers of qualities conducive to either success or failure. They are political actors who perform the roles staged for them by Machiavelli. Their personalities and achievements are designed and idealized to serve Machiavelli’s explanatory goals. Moses is a paradigmatic example of a founder and lawgiver exploiting religious legitimacy, Romulus – one who is determined to remain “one alone” as a founder. Contemporary rulers are classified the same way, each image is reduced to a convenient minimum: “we have a Pope who is wise, and therefore serious and cautious; and Emperor unstable and fickle; a King of France inclined to anger and timid; a King of Spain stingy and avaricious; a King of England rich, fiery, eager for glory” (Letter to Francesco Vettori of 26 August 1513). Contrary to the critics, these are not products of Machiavelli’s superficiality but his method of modeling. Political leaders are to follow these ideal models, “to imitate those who have been most excellent” (P 6). To make the modeling approach even more transparent, some examples to imitate are not just idealized but clearly fabricated. Some excellent models have never existed and one has to learn how to be so extreme, how, for instance, to be “altogether wicked or altogether good” (e.g., P 15; D I 27). Agathocles, the tyrant of Syracuse, for instance, stands as a symbol of ruthlessness leading to power and success. He acquired absolute power by “fraud alone” (D II 13: 312) and “always kept to the life of crime at every rank of his career” (P 8: 41), so his great achievements are impressive but not glorious. In fact, he was neither such a wicked monster as Machiavelli presents him nor so powerful – his army mutinied and he had to flee to save his life (cf. Atkinson 1985: 180; Kahn 1986). Cesare Borgia, in turn, stands for “the new prince,” an epitome of vigor, toughness, decisiveness, and self-determination (cf. Burd 1968: 214-17; Atkinson 1985: 160; Olschki 1945: 7-8). He “made use of every deed and did all those things that should be done by a prudent and virtuous man,” he “restored the Romagna, united it, and reduced it to peace and faith” (P 17: 68), and Machiavelli asserts that it would be impossible to find a more excellent example of a new prince (P 7: 34). It has been noted by many commentators that such Borgia is an abstract model reflecting Machiavelli’s own method of statecraft (Hulliung 1983: 192; Butterfield 1962; Scott

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1994). In reality, Cesare’s brief success would be impossible with the support of his father, Pope Alexander VI, who nominated him a Cardinal in the age of eighteen and made him the Capitan General of the Church. When his father died, Cesare fell miserably and died young (cf. Burd 1968: 214-17; Atkinson 1985: 160). One may assume that when The Prince was written its educated readers knew these facts and understood the fictitious nature of the powerful image. There is also a general model of individual political agent. Human nature is complex and Machiavelli’s psychology is very rich in all his works – plays, letters, historical works, and even official documents – reflect such colorful diversities in his world: there are people who are good and wicked, smart and stupid, responsible and reckless, naïve and shrewd, cowardly and brave, ruthless and compassionate. But political theory needs a simpler model. Those who want to understand political actions have to have a more specifically defined concept of the man of politics. Machiavelli offers such a model and it is clearly designed and wellstructured. First of all, Machiavelli’s political actor is self-interested. For centuries countless readers have complained about his pessimistic vision of humanity. Not many, however, have noticed that his most striking declarations of human egoism are formulated in peculiar ways: “one can say this generally of men: that they are ungrateful, fickle, pretenders and dissemblers, evaders of danger, eager for gain” (P 17: 69-70). “One can say” that people are bad is still quite far from people “are” bad. Elsewhere, one learns that “it is necessary to whoever disposes a republic and orders laws in it to presuppose that all men are bad” (D I 3: 135). Again, it is not said that all men are indeed bad but that sometimes it is necessary to think so. Machiavelli does not take egoism as a plain fact of human nature but rather a practically useful assumption to make. In order to understand politics and act effectively one has to start from some simple principles as this: all men pursue their own interests. One cannot certainly know whether surrounding people are selfish but in order to succeed it is reasonable to assume that they are. And, frankly, there is some historical evidence supporting such presumption as justified. There are other elements of Machiavelli’s model of political agency and they are formulated in similar terms. Second, Machiavelli makes the model man of political prudence more concrete: multiple desires and motivations can be reduced to two fundamental drives: “ambition and avarice” are named the “most powerful passions” (D Ded: 121-22; cf. D I 40: 228; IF III 5: 220; III 11: 232-33, and many others); “glories and riches” are said to be “the end that each has before him” (P 25: 99-100; cf.

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P 19: 75; D I 29: 198; I 37: 218; III 6: 391, and others). Third, Machiavelli assumes that the man of political prudence is rational in a very specific way, as a calculator of costs and benefits. There are many potential benefits, some more tangible some less: money, property, land, booty, honors, reputation, influence, trust, fame or eternal glory. And there are costs: loss of wealth and territory, dishonor, shame, fear, loss of power and liberty. Actions and policies are evaluated as “more useful or more harmful” (D II 17: 322) and “bringing harm or gain” (P 20; D II 24). If a decision ultimately brings either “utility” or “loss” its analysis usually ends there. No more evaluation is needed. Ends speak for themselves again. Fourth, speaking more precisely, the man of political prudence is preoccupied more with losses than gains: “prudence consists in knowing how to recognize the qualities of inconveniences, and in picking the less bad as good” (P 21: 92) or “in every decision of ours, we should consider where are the fewer inconveniences and take that for the best policy” (D I 6: 144). Prudent decision making is mostly about inconveniences, losses, and “lesser evils.” Politics is mainly a domain of risks, costs, and casualties. Just like individuals, collective bodies represent certain qualities. Machiavelli’s depictions of nations, states, peoples, cities, armies, and religious groups – ancient Sparta and Rome, the political regimes of France and Italy, the barbarians, the peoples of Italy, the Swiss, and so forth – are subject to the same procedure of modeling. Since “Men Who Are Born in One Province Observe Almost the Same Nature for All Times” (D III 43) thinking in collective terms is as reliable as in individual. Just as individual models, collective characteristics are narrowly focused and idealized. The Swiss are “the most armed and freest (armatissimi e liberissimi)” (P 12: 55), also “brutal, victorious and arrogant”; the Italians are “poor, ambitious, cowardly” (Letter to Francesco Vettori of 26 August 1513). Machiavelli’s peculiar language leaves no doubt that his account is universalizing and idealizing, not realistic. For instance, “the barbarians” who have threatened ancient Rome and modern Florence “have always been in one mode and have used the same means in every part and with everyone” (D III 43: 497-98). The wording of the image is uttermost: they are always like that, only in one mode, in every part, and with everyone. Germany, in turn, is a perfect federation of many independent minor states: The cities of Germany are freest (liberissime), have little countryside, and obey the emperor when they want to; they do not fear either him or any other power around, because they are so well fortified that everybody thinks their capture would be toilsome and difficult. For all of them have suitable ditches and walls, and sufficient artillery; they always keep in

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Machiavelli’s Method Revisited: The Art and Science of Modeling their public stores enough to drink and to eat and to burn for a year. (P 10: 49; cf. D II 19: 335)

It is the same style all over: their freedom is absolute; military preparation is perfect; everybody knows that; all of them have such resources; and they always keep them. Characteristic features are designed and stretched to the limits. The Spaniards, the Turks, the Egyptians, and the Samnites are presented in terms exemplifying national spirits, political stability or instability, peacefulness or valiant boldness, corruptibility or incorruptibility. Every nation or city can be characterized in such extreme terms and, vice versa, every important characteristic can get a carefully designed example. Just as individual idols, the collective images can be artificially produced. Machiavelli’s idea of the state is indeed, in Burckhardt’s words, “the state as a work of art.” His political models are constructed from the scratch (Singleton: 175-176). For instance, for Machiavelli the kingdom of France is “moderated more by laws than any other kingdom of which knowledge is had in our times” (D I 58: 262), and “lives secure because of nothing other than that the kings are obligated by infinite laws in which the security of all its peoples is included” (D I 16: 176; also D III 1: 383). Again, the same extreme vocabulary is dominant: laws are infinite and they are the only reason that all people are secure. However, Machiavelli visited France and saw that it was not a perfect constitutional monarchy but rather an example of growing absolutism. In 1512 there was no constitutional monarchy in Europe, so when Machiavelli had to ascribe constitutional laws to any specific country, France might have seemed to him a relatively close call, even if clearly fictitious. The Roman republic and the Roman people are the pivotal models of collective bodies. Early Rome emerged as “a perfect republic (una republica perfetta)” (D I 2: 135) and further events made it even “more perfect (piú perfetta)” (D I 3). The rather odd phraseology attracts attention to the idealizating sense. The Roman republic serves as the ideal scheme of political organization: strong yet flexible, ruled by laws, able to control internal conflicts yet protecting freedom. She was a perfect mixed government with a balance of powers. The Roman people are characterized by incomparable military abilities, liberality towards conquered peoples, modesty in prosperity, able self-organization, vigor, and nobility. Machiavelli uses Livy as the main source of historical examples but his vision is not factual. Ancient Rome is another theoretical creation; “one might almost say that had there been no Rome, Machiavelli would have had to invent one,” writes Joseph Kraft (Kraft 1960: 74). It seems that Machiavelli explicitly hints this idea when he refers to “my Romans.” Harvey Mansfield suggests that in some contexts the Roman people may

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represent all human beings, like, for instance, in Discourses I 46 and 47, where both chapter headings begin with “men” but then both texts start with the “Roman people” (Mansfield 1979: 140). As several recent studies demonstrate, Machiavelli’s Romans are a thoughtfully developed theoretical abstraction to be used in political study and teaching (cf. Coby 1999; Sullivan 1996, 2002). In Edmund Jacobitti’s words, Machiavelli transforms Rome and Florence into “timeless figures of political life” and “poetic symbols” (Jacobitti 2000: 177). One has to note the normative neutrality of idealization. It is a mere methodological procedure not a moral evaluation. Machiavelli presents not only the glorious ideals to imitate but also the “ideal” examples of absolute viciousness, perfect murderous conspiracy, and total civic corruption. Again Machiavelli notes that such perfectly bad cases are nonexistent so in order to study them one has to do what he calls the “exercise of the mind (esercizio della mente)” (P 14) and explore them in more abstract terms. The tyrant Agathocles is a model example of evil cruelty which brings success, Caesar is pictured as a perfect destroyer of freedom; the barbarians are the ultimate enemies of freedom; the Florentines often become an extreme model of political indolence. To analyze the problem of corruption, for instance, Machiavelli starts with an imaginary extreme case: “I shall presuppose a most corrupt city (una città corrottissima), by which I shall the more increase such a difficulty, for neither laws nor orders can be found that are enough to check a universal corruption” (D I 18: 179). Like in other examples, the universalizing and idealizing wording is here very characteristic: the city is most corrupt, corruption is universal, neither laws nor orders can help. The models must be sharp and perfectly clear. The methodological neutrality of Machiavelli’s work illustrates another important aspect of his political theory that is too often seen as selfevident, namely his belonging to the rhetorical tradition (cf. Viroli 1998, 2002; Kahn 1994). While Machiavelli always remains a master of rhetorical style, his political writing goes beyond such patterns (cf. von Vacano 2007: 139). He demonstrates his rhetorical skills in letters, plays, historical works, and even administrative documentation but his political writings – while still full of rhetorical tools and following classic rhetorical structures – read differently. When he presents political affairs “as they are” and not “as they should be” his reasoning is inconsistent with numerous rhetorical features – persuasive valuation, emotional style, appeal to partiality, and poetic creativity – in all possible ways. First, in The Prince and the Discourses idealized models are more descriptive than normative; they reconstruct political affairs but do not necessarily design

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ideals to treasure. Second, the models are the objects of rational analysis rather than passionate persuasion, they are thorough explorations, not revolutionary callings. He is a cold hearted observer, not a hot leader. Third, his universalizing assumptions are inconsistent with the partial and usually local perspectives characteristic to rhetorical stories. In the political works the terminology of human nature, consequentialism, and determinism is used much more consistently than in other works: acquisitiveness and ambitions are the dominant motivations of political actions, prudent decisions are ultimately based on expected costs and benefits, and similar decisions must bring similar effects.7 Finally, the procedures of idealization and modeling make language much more systematic than the creative improvisation of oratory. Overall, the theorizing language of The Prince and the Discourses is radically different from the flair typical to the masterworks of the rhetorical traditions. In order to demonstrate the true nature of politics Machiavelli constructs a methodically abstracted set of concepts that extracts the political part of human behavior. The real people have families and friends, enjoy love and beauty, worship gods and sometimes do unusual things – as Machiavelli himself reports in all his writings – but to understand politics one has to skip these details as politically irrelevant and concentrate on the basics. Cities and societies are smaller or bigger, richer or poorer but they also share some fundamentals. Machiavelli the theorist acts as one of those great founders who were able “to introduce any form they pleased” to their worlds and so they created order and harmony (P 6: 31). Machiavelli molds his own forms, the individual and collective models of political agents. Besides, such creative images are more effective than factual observations. The simpler the identifying labels the better; what is to be instructive should be short, clear, and beautiful, as such it can be comprehended and imitated. Psychologically, fantastic stories and mythical heroes fascinate. Rhetorically, they move imagination and incite passions. Aesthetically, they attract and please. Practically, they motivate actions; people need ideal goals to pursue and ideal leaders to follow. Didactically, ideals are clearer, simpler, and easier to understand than real examples entangled in complex relationships; ideals are enlightening, complexity can be confusing.

5. Concretization: From generalities to particulars Ultimately, of course, all theories and abstract models are supposed to explain the real world. The best theories of physics, medicine, and politics are those which in some ways reflect factual evidence and hence make

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sense of it. The accuracy of the interconnections between abstract laws and real facts also makes theories practically applicable. In order to be truthful and useful a theory must methodically step down from its higher abstract levels and incorporate more concrete considerations. When there are doubts concerning the validity of these theoretical conceptions – and there always some – they must be tested in practice and reevaluated. In politics in particular, the abstract models help to understand politics on higher theoretical level of ideals but political decisions must be prudently made on the lower practical level of factual details (Fischer 2000: 42-44). Concretization is the necessary step of the explanatory process. Machiavelli’s models are constructed to be used in practice. Hence in various contexts and situations some models must be adjusted. General maxims may need reformulation, models may need remodeling. The final effect is supposed to be a systematic reconstruction of how politics works. The general model of the prudent agent is already an example. In the most general terms, the prudent man is crudely self-interested but under a closer look, on a lower level of abstraction, its self-interest breaks into two passions: avarice and ambition. On this lower level, political psychology becomes more complex because there are people who are equally avaricious and ambitious but there are also those who are greedier than proud or vice versa. In some specific situations the desire to acquire and the drive to dominate may fall into a psychological dilemma familiar to everyone: what is the price of one’s pride? For everyone the balance between acquisitiveness and ambition can be different. In such perspectives the twofold model of self-interest becomes closer and closer to the real people. On a yet another lower level of modeling abstraction, a step closer to the reality – where all people are either ruling or being ruled – a prudent ruler has to know how to apply the assumption of human egoism, especially regarding his advisers, ministers, generals, and other servants. The Prince is a systematic application of the basic model in different contexts. Acquiring men, for instance, is the fundamental process of gaining power and a prince should always assume self-interest as everyone’s key motivation and his own unavoidable cost. The ruler’s “second man,” in particular, is costly because interested in practically all benefits the ruler himself possesses: “The prince should think of the minister so as to keep him good – honoring him, making him rich, obligating him to himself, sharing honors and burdens with him so that he sees that he cannot stand without the prince and so that many honors do not make him desire more honors, much wealth does not make him desire more wealth, and many burdens make him fear changes” (P 22: 94).

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Advisors and counselors will also predominantly think about their own interests and in order to have them useful the prudent prince must make sure they are not afraid to offend him with their honest opinions. They should feel free and secure when counseling but only when they are asked to do so. Otherwise they may desire and acquire too much their own power (P 23). One may believe, of course, that some of these individuals can be actually loyal and trustworthy but the basic model of the prudent agent is still the most useful assumption that helps to avoid ruin. All choices of laws, policies, diplomatic and military strategies have to start with the axiomatic assumptions of everyone’s self-interest and calculating rationality. Both political thinkers and actors must explore the interconnections between theoretical presumptions and practical conclusions. Accurate modeling is the key condition of effective political realism. The models of the states have to be applied the same way, from generalities to particulars. In Book II of the Discourses, in one of the key passages of his works Machiavelli describes the ideal republican model while discussing the question “what makes cities great”: For all towns and provinces that live freely in every part . . . make very great profits. For larger peoples are seen there, because marriages are freer and more desirable to men since each willingly procreates those children he believes he can nourish. He does not fear that his patrimony will be taken away, and he knows not only that they are born free and not slaves, but that they can, through their virtue, become princes. Riches are seen to multiply there in larger number, both those that come from agriculture and those that come from the arts. For each willingly multiplies that thing and seeks to acquire those goods he believes he can enjoy once acquired. From which it arises that men in rivalry think of private and public goods, and both one and the other come to grow marvelously. (D II 2: 284).

The style of the presentation is typically universalizing: all free towns and provinces enjoy prosperity which is immense; they are all free and in every part, all children can become princes, all public and private goods harmoniously multiply. These universal features design Machiavelli’s ideal model of a “great” city or society. However, the ideal model must be put closer to the reality. The states do not exist in a vacuum, they have neighbors. Book II of the Discourses applies the ideal model in the context of foreign policies and deals mainly with the problem of military strength. In general, republics are “greater” than principalities because in their military affairs they are more dominant and able “to grow more in power or riches.” Elsewhere in the Discourses, Machiavelli specifies that republics have two major ends, namely staying free from their neighbors and conquering them (D I 29: 199). In a more

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concrete picture then the republic is in fierce conflict with other cities and nations. The neighbors are nothing else but potential threats or victims. Then Machiavelli goes into even more details of historical evidence presenting the Roman Republic as a concrete exemplification of these general observations. The rest of Book II demonstrates how “Rome Became a Great City through Ruining the Surrounding Cities” (D II 3). On this level, the prudent calculation is quite simple: military dominance was the great benefit for the republic and the Roman people; conquering other countries brought wealth and glory; the subjugated peoples provided easy profits. The Discourses are Machiavelli’s laboratory where he experiments on his formal models by filling them with the matter of historical facts and records. Machiavelli manages numerous models this way: the ideals of wise emperors, perfect generals, great leaders, states, nations, and others. They are placed in diverse historical situations and their reliability is tested. Some of them serve well, some need modifications, some do not explain much and have to be rejected. The general assumptions must return to the particulars, especially when conclusions have to be applied in practice.8 The proceedings of idealization, model building, and concretization demonstrate the patterns of deductive reasoning in Machiavelli’s thought (cf. Fischer 2000: 41-43). The foregoing examples of concretization illustrate how the general model of the “prudent man” can function as an initial axiom of more complex arguments; the basic abstract principles of the nature of man lead to logical conclusions concerning the nature of politics; the final result is a systematic reconstruction of the mechanisms of politics. Both political theorists and actors must explore the logical interconnections between theoretical presumptions and conclusions. Accurate modeling and logical reasoning are the key conditions of effective decision making. Such methodological undertones seem to be also present in Machiavelli’s strong emphasis on the memory of foundations in politics. Political goals and institutions should sometimes return to their basics and beginnings (cf. D III 1). All bodies, physical as well as political, follow some fundamental principles that have to be kept in mind and revived when necessary. The prime axioms of political reasoning should not be forgotten. To put it in different words, they constitute a constitutional background. Many political thinkers after Machiavelli – Hobbes and Spinoza are perfect cases – will share with him this sentiment for crystal clear axiomatic reasoning.9

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6. Idealization and modeling after Machiavelli: From Renaissance art to contemporary science Machiavelli’s idealizing reasoning was unique but well rooted in the Renaissance thought. Various forms of idealism were present around him. With such extraordinary figures as Pletho, Cristoforo Landino, and Marsilio Ficino in the fifteenth century his native city emerged as the capitol city of the Florentine school of Neoplatonic idealism which influenced not only later humanists but also many men of power. Cosimo de Medici listened to lectures on neoplatonic idealism, his grandson Lorenzo the Magnificent wrote poetry full of neoplatonic images, and they both sponsored neoplatonic philosophers and artists (Hankins 1998). Clarity and harmony of the rules of geometry, mathematics, and logic fascinated Renaissance artists as well as scholars. It was a stimulating discovery that although geometrical axioms correspond to the lines and points of the material world in a very abstract way, they formulate principles that help to understand the nature of space. Florentine intellectuals and artists applied their knowledge of geometry in many ways. While in Florence Leonardo da Vinci worked on his Treatise on Painting – an exploration of “science of painting,” geometrical proportions, optical vision, and perspective – the Franciscan friar and mathematician Luca Pacioli wrote a similar study De Divina Proportione (published in 1509) and Leonardo illustrated it (Masters 1999: 35; cf. Masters 1996). Machiavelli knew Leonardo and actively participated in the intellectual life of Florence, so it would be hard to imagine that he had no knowledge of such projects. Overall, he grew and lived in a cultural environment where art, poetry, and all forms of human thought were not only to reflect or imitate nature but also refine the pictures of the real world. Naturally, the idealism of crystal clear reasoning inspired his political thinking as well. Renaissance artists intended to reveal the true “idea” of an object, something “truly beautiful,” and not just an appearance or sensory experience. Poets idealized the objects of their love believing that only the artistic images of the beloved reveal their true personalities. Music composers sought perfect polyphonic harmony; In its golden age a capella choral music was to express the heavenly beauty. Painters tried to demonstrate universal beauty in the specific corporeal image of their models and therefore often shaped natural looks to make them more refined and proportional. Some portraits have unnaturally small heads and long arms, their faces are beautified. True beauty may need reshaping or even deformation to become pure and clear (Carman 2000; Ames-Lewis

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1998). In the eminent Lives of the Most Excellent Painters, Sculptors, and Architects (1550) Giorgio Vasari defined the manners of contemporary art as the practice of “constantly copying the most beautiful objects, and joining together these most beautiful things, hands, heads, bodies, and legs, so as to make a future of the greatest possible beauty” (in De Girolami 1997: 28). There was a popular story of a Greek painter who trying to demonstrate the true beauty of Helen of Troy put together the pictures of different body parts of several beautiful women because perfection could not be found in any single one of them (Hall 1983: 259). In order to grasp true beauty art has to idealize the fragments of the real world. A parallel method of thought could be found in Renaissance science. Historians recognize its glimpses in the works of Galileo, Boyle, Newton, and other early modern scientists although not all methodological implications were fully recognized at their time. Galileo replaced Aristotle’s theory of motion with a theory that physical bodies – when there are no external forces and friction affecting them – move with constant velocity; Boyle argued that when a gas is kept within an isolated closed system in a constant temperature its pressure and volume are inversely proportional; in his theory of gravity Newton viewed physical bodies as mass points in space. These arguments played immense roles in the development of science, although, literally speaking, they were all false: physical bodies are never in a perfect vacuum without friction, there is no “ideal gas” composed of dimensionless molecules that are not subject to friction and never affect one another, planets and stars are sizeable bodies, not points. In order to explain the facts of the real world these theories imagine conditions that are fictitious, abstract, and sometimes just absurd (cf. Liu 2004; Teller 2004; Elgin 2007). The laws formulated by idealizing procedures eliminate a considerable number of factors and describe behavior of ideal bodies. Nevertheless, the counterfactual assumptions make the cardinal features more visible while eliminating all secondary elements and contingent distractions. Such idealizations can explain the functioning of real objects better than voluminous empirical data; they are by definition false yet they are useful as explanatory tools. Both Renaissance artists and scientist created what Elizabeth Spiller calls the “small worlds,” the artificial domains modeling the real world. Thinkers as different as Philip Sidney in The Defence of Poesy and William Gilbert in On the Magnet designed their own artificial realities. “Whereas for us worldmaking often seems hypothetical or counterfactual,” writes Spiller, “Sidney and Gilbert insist that worldmaking is not an escape but a more powerful and more meaningful engagement with reality

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than can be found in the world at large” (Spiller 2004: 16). Perfected poetic and scientific models tell more about the world than pictures based on sheer facts. Renaissance poets and scientists demonstrated that the borderline between scientific realism and poetic idealism can be very thin. It is also not an accident then that the political writing of the Renaissance had also idealizing trends. Some great political utopias – Thomas More’s Utopia, Stanislaw Orzechowski’s Quincunx, or a Model of the Polish Crown, Tomasso Campanella’s The City of the Sun, Francis Bacon’s The New Atlantis, and many others – were imagined at that time. They proposed perfect constitutions but did not even hide their fantastic idealism: ideal commonwealths are usually placed nowhere, based on some imaginary or satirical principles, and usually presented in “poetical” dialogues with messengers who were very far from trustworthy, named, for instance, “speaker of nonsense.” It is usually crystal clear that such political “small worlds” are completely and deliberately detached from political reality but they intend to expose some essential features of social life. They select, magnify, and idealize such factors as equality or rationality while eliminating all distracting elements. In such models, equality can embrace everything and people want to be identical in everything, even their looks; the glorification of enlightenment can be so high that any emotional engagement can be seen as abnormal and corrupting; the love of cooperation so unconditional that even athletic competition becomes too dangerous. A simple set of factors is chosen to define the whole system and the myriads of other phenomena are skipped as negligible. Much later and in a slightly different fashion other political philosophers – starting with Spinoza, Hobbes, and Locke again – constructed their own idealized models. For them social contracts and commonwealths are social constructs just as geometrical figures and works of art. Hobbes tried to give a more “scientific” status to political theory imitating geometry, “the only Science that it hath pleased God hitherto to bestow on mankind” (Leviathan, I 4). But even these idealizing theorists did not notice that Machiavelli had already made a similar attempt. He did not construct a system of political geometry but his models certainly opened new methodological perspectives. For the next four centuries various intuitions of idealization were increasingly applied in art and science although usually not quite selfconsciously. It was an unavoidable process parallel to other changes in modern thinking. Art, science, and other areas of knowledge became more and more specialized and separated in their own narrow domains. They generated their own specific images and languages, difficult to understand for ordinary people. That detached them even more from the ordinary

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world. In both science and art many forms of idealisms, formalisms, abstractionisms, structuralisms, and nominalisms emerged as theories allegedly best grasping the structure of natural phenomena as well as human ideas. In science in particular, theorization turned into mathematization, so charts and functions became the fragmentary “small worlds” built on strong hypothetical assumptions. Mathematical models have spread far beyond physics and astronomy. The potential scientific status of economics, political science, sociology, and biology is today usually identified with their formal advancement and possibilities of measurement. Theoretical explanations and practical predictions demand empirical data, mathematical models, and numerical conclusions. Interestingly, political economy and sociology – not political theory sensu stricto – have developed as the leading areas of social thought based on methodological modeling. It has been demonstrated that Karl Marx constructed the idealized models of economic reproduction, value, class society, and the capitalist economy as a whole (Nowak 1980, 1992). Ferdinand Tönnies defined the typology of Gemeinschaft and Gesselschaft (1887) as abstract forms representing traditional communities – built on kinship and emotional bonds – and modern societies shaped by contracts and division of labor. Some critics argue that he tended to impose his abstract frameworks on empirical observations rather than make the abstract models reflect real societies (Mazlish 1989: 175). In their milestone study The Polish Peasant (1918-20) William I. Thomas and Florian Znaniecki designed the exemplary models of social actors – such as the “Philistine,” the “Bohemian,” and the “creative man” – but made clear that the models are designed in impossible pure form. All these theoretical constructs simplify and distort reality yet they also provide insights clarifying reality. In his concept of the “ideal type” Max Weber formulated these methodological qualities. An ideal type is a “one-sided exaggeration” of a certain fragment of reality. It is an analytical tool that idealizes a phenomenon’s essential features and is therefore free from its obscure factual and normative conditions. As Lewis Coser puts it, “an ideal type never corresponds to concrete reality but always moves at least one step away from it” (Coser 1977: 223). As a purely abstract concept it allows to measure, compare, and classify the actual phenomena in their general categories. Weber’s political economy and sociology of religion are based on his idealized concepts of “bureaucracy,” “capitalism,” “Calvinistic ethics,” “sect,” “prophet,” and others. Interestingly, he did not consider his methodological approach a novelty but argued that such models were regularly – although unconsciously – used in social sciences.

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Machiavelli’s example can be seen as another – although unnoticed by Weber – contribution to this point. Only relatively recently – in the second half of the twentieth century – philosophers of science have more specifically identified some forms of scientific thinking as idealizing and modeling since “model-based reasoning” has become extremely important in contemporary science: “idealization is indispensable in theoretical science and the result of idealization is the construction of models that may not obtain in nature” (Liu 2004: 382; cf. Elgin 2007: 33; Magnani and Nersessian 2002; Nowak 1992). Theorists of all kinds regularly operate what they call “distorted models,” “Galilean idealizations,” and “Galilean experiments” (cf. Cartwright 2007: 217-35; McMullin 1985) in order to make the representation of the real world more illustrative and easier to explore. Scientific theories do not just mirror facts but also provide abstract images. Some of these images – such as Bohr’s model of the atom or Watson and Crick’s model of the DNA – are familiar to probably everyone familiar with the word “science.” One of the central debates in contemporary philosophy of science – between scientific realism and antirealism – remains the question how theoretical constructs correspond to the real world and how they can be reliably applied (cf. van Fraassen 1980; Leplin 1984). Today we can finally understand that Machiavelli had his own view on such methodological questions. He was neither a scientist nor a philosopher of science but he created and applied his own pioneering version of theoretical modeling.

7. Conclusion: Machiavelli’s theoretical invention The use of methodical idealization in political analysis may be Machiavelli’s most powerful, though practically unnoticed, contribution to history of political thinking. The critics of his method have been right: he was not a thorough empiricist, he treated historical evidence selectively, and his reasoning was not inductively accurate but he introduced a new method of analysis that was supposed to improve our understanding of politics more effectively than plain empirical inquiry. In a sense he can be considered a “Galileo of politics” but for different reasons than Prezzolini and other “scientific” interpreters have thought. He discovered that in order to understand the mechanisms ruling the real world an explorer needs abstract images as advanced tools of theoretical analysis. Galileo worked on his idealized bodies in motion, Machiavelli imagined his political agents in action.

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The foregoing reconstruction of Machiavelli’s method demonstrates the theoretical advancement of his political thinking. The models constitute a consistent theoretical framework where systematic reasoning is possible. Universalized assumptions lead to logical conclusions and predictions. Machiavelli formulates theses and analyzes their implications. Sometimes he seeks factual evidence to verify or falsify his rules but he often pursues the whole analysis on a quite abstract level. Simplifying reductions and idealizations help to comprehend even the most complex cases. He is not a scientist in our modern meaning of the word but he makes steps in an inspiring direction. In his models he attempts to find, just as scientists do, a balance between theoretical representation and empirical validity. The procedures of universalization, reduction, and idealization are to reveal the laws and mechanisms – sometimes deeply hidden – of social developments. The ideal models reflect the real machinery of politics. Only such models – free from secondary distractions – make a clear understanding possible. While today we could not imagine science – be it astronomy, physics, computer science, political science, economics, medicine, architecture or engineering – without an extensive use of theoretical models, Machiavelli must be seen as one of those who already attempted thinking in these terms. Even if his methodological invention was more a fruit of artistic creativity and intuition than a scientific mind it should be noted by the theorists of politics as well as science.

Bibliography Ames-Lewis, F., Rogers, E. eds. 1998. Concepts of Beauty in Renaissance Art. Ashgate Publishing. Anglo, Sydney. 1969. Machiavelli: A Dissection. London: Victor Golancz. Atkinson, James B. 1985. Niccolo Machiavelli: The Prince. New York: Macmillan. Backhouse, Roger. 2002. A History of Economics from the Ancient World to the Twentieth-First Century. Princeton: Princeton University Press. Barbieri-Squarotti, Giorgio. 1966. La forma tragica del principe e altri saggi sul Machiavelli. Florence: Olschki. Batkin, Leonid M. 1979. “Machiavelli: Experience and Speculation.” Diogenes 107: 24-48. Bec, Christian. 1981. “Les Florentins et la France ou la rupture d’un mythe.” Pensiero politico 14: 375-94. Blanchard, Kenneth. 1996. “Being, Seeing, and Touching: Machiavelli's Modification of Platonic Epistemology.” Review of Metaphysics 49:

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577-607. Burd, Arthur L. ed. [1891] 1968. Il Principe. Oxford: Clarendon Press. Burnham, James. 1943. The Machiavellians: Defenders of Freedom. New York: The John Day. Butterfield, Herbert. 1940. The Statecraft of Machiavelli. London: Bell and Sons. Carman, Charles. 2000. Images of Humanist Ideals in Italian Renaissance Art. Edwin Mellen Press. Cartwhright, Nancy. 2007. Hunting Causes and Using Them. Cambridge: Cambridge University Press. Cassirer, Ernst. 1955. The Myth of the State. Garden City: Doubleday Anchor. Chabod, Federico. 1958. Machiavelli and the Renaissance, trans. D. Moore. Cambridge: Harvard University Press. Chiapelli, Fredi. 1969. Nuovi studi sul linguaggio del Machiavelli. Florence: Le Monnier. Coby, Patrick. 1999. Machiavelli’s Romans. Lanham and Oxford: Lexington Books. Coser, Lewis A. 1977. Masters of Sociological Thought. Harcourt Brace Jovanovich. Crombie, Alistair. 1985. “Science and the Arts in the Renaissance: The Search for Truth and Certainty, Old and New,” in Shirley, John and Hoeniger David, eds. Science and the Art in the Renaissance. Washington: Folger Books. De Girolami Cheney, Liana, ed. 1997. Readings in Italian Mannerism. Peter Lang Publishing. Elgin, Catherine. 2007. “Understanding and the Facts,” Philosophical Studies 132: 33-42. Feaver, George. 1984. “The Eyes of Argus: The Political Art of Niccolo Machiavelli,” Canadian Journal of Political Science vol. 17, no. 3 (September): 555-576. Femia, Joseph. 2004. Machiavelli Revisited. Cardiff: University of Wales Press. Fischer, Markus. 2000. Well-Ordered License: On the Unity of Machiavelli’s Thought. Lanham and Oxford: Lexington Books. Garver, Eugene E. 1987. Machiavelli and the History of Prudence. Madison: University of Wisconsin Press. Gilbert, Allan H. 1938. Machiavelli's Prince and Its Forerunners. Durham: Duke University Press. Hall, James. 1983. A History of Ideas and Images in Italian Art. Harper and Row. Hankins, James. 1998. “Platonism, Renaissance,” in Routledge Encyclopedia

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of Philosophy. Hexter, J. H. 1973. The Vision of Politics on the Eve of the Reformation: More, Machiavelli, and Seyssel. New York: Basic Books. Hulliung, Mark. 1983. Citizen Machiavelli. Princeton: Princeton University Press. Jacobitti, Edmund. 2000. “The Classical Heritage in Machiavelli’s Histories: Symbol and Poetry as Historical Literature” in Sullivan 2000: 176-192. Kahn, Victoria. 1986. “Virtù and the Example of Agathocles in Machiavelli’s Prince,” Representations 13: 63-83. Kraft, Joseph. 1960. “The Myth of Machiavelli's Political Science,” originally as “Truth and Poetry in Machiavelli,” Journal of Modern History 23: 109-21. Leplin, Jarrett, ed. 1984. Scientific Realism. Berkeley: University of California Press. Liu, Chuang. 2004. “Laws and Models in a Theory of Idealization,” Synthese 138: 363-385. Machiavelli, Niccolò. 1965. The Chief Works and Others, 3 vols., translated and edited by Allan Gilbert. Durham: Duke University Press. —. 1996. The Discourses on Livy, transl. and ed. by Harvey C. Mansfield and Nathan Tarcov. Chicago: The University of Chicago Press. —. 1988. Florentine Histories. Translated and edited by Laura Banfield and Harvey C. Mansfield. Princeton: Princeton University Press. —. 1960. Opere I, Il Principe e Discorsi, ed. by Sergio Bertelli. Milano: Feltrinelli. —. 1962. Opere II. Dell’Arte della Guerra, ed. Franco Gaeta. Milano: Feltrinelli. —. 1962. Opere VII. Istorie fiorentine, ed. by Franco Gaeta. Milano: Feltrinelli. —. 1985. The Prince, transl. and ed. by Harvey C. Mansfield. Chicago: The University of Chicago Press. Magnani, Lorenzo, and Nersessian, Nancy, eds. 2002. Model-Based Reasoning: Science, Technology, Values. Dordrecht: Kluwer. Malagoli, Luigi. 1969. “La duplicità del Rinascimento nel Machiavelli e nell’Arioso,” in Le contraddizioni del Rinascimento: 25-37. Florence: La nuova Italia. Mansfield, Harvey C. 1979. Machiavelli's New Modes and Orders: A Study of the Discourses on Livy. Ithaca: Cornell University Press. —. 1981. “Machiavelli’s Political Science,” The American Political Science Review 75: 293-305. Masters, Roger D. 1996. Machiavelli, Leonardo, and the Science of

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Power. Notre Dame and London: University of Notre Dame Press. —. 1999. Fortune is a River. New York: A Plume Book. Mazlish, Bruce. 1993. A New Science: The Breakdown of Connections and the Birth of Sociology. University Park: The Pennsylvania State University Press. McMullin, Ernan. 1985. “Galilean Idealization,” Studies in the History and Philosophy of Science 16: 247-273. Meinecke, Friedrich. 1957. Machiavellism: The Doctrine of Raison d'Etat and Its Place in Modern History. Translated by D. Scott. New Haven: Yale University Press. Nowak, Leszek. 1980. The Structure of Idealization: Towards a Systematic Interpretation of the Marxian Idea of Science. Dordrecht: Reidel. —. 1992. “The Idealizational Approach to Science: A Survey,” PoznaĔ Studies in the Philosophy of the Sciences and the Humanities, vol. 25: 9-63. Olschki, Leonardo. 1945. Machiavelli the Scientist. Berkeley: The Gillick Press. Parel, Anthony. 1972. “Introduction: Machiavelli's Method and His Interpreters,” in Political Calculus: Essays on Machiavelli's Philosophy: 3-32. Toronto: University of Toronto Press. —. 1992. Machiavellian Cosmos. New Haven: Yale University Press. Plamenatz, John P. 1963. Man and Society, 2 vols. New York: McGrawHill. Prezzolini, Giuseppe. [1954] 1967. Machiavelli. New York: Farrar, Strauss, and Giroux. Sasso, Gennaro. 1980. Niccolò Machiavelli. Storia del suo pensiero politico. Bologna: Societa Editrice il Mulino. Scott, John T. and Sullivan, Vickie. 1994. “Patricide and the Plot of The Prince: Cesare Borgia and Machiavelli’s Italy,” American Political Science Review 88, no. 4 (December): 887-900. Singleton, Charles S. 1953. “The Perspective of Art,” The Kenyon Review 12, no 2: 169-89. Skinner, Quentin. 1978. The Foundations of Modern Political Thought, 2 vol. Cambridge: Cambridge University Press. Spackman, Barbara. 1990. “Machiavelli and Maxims,” Yale French Studies 77: 137-55 Spiller, Elizabeth. 2004. Science, Reading and Renaissance Literature. Cambridge: Cambridge University Press. Strauss, Leo. 1958. Thoughts on Machiavelli. Glencoe: Free Press. Sullivan, Vickie. 1996. Machiavelli’s Three Romes: Religion, Human

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Liberty, and Politics Reformed. DeKalb: University of Northern Illinois Press. Sullivan, Vickie, ed. 2000. The Comedy and Tragedy of Machiavelli. New Haven and London: Yale University Press. Teller, Paul. 2004. “The Law-Idealization,” Philosophy of Science 71 (December): 730-741. van Fraassen, Bas. 1980. The Scientific Image. Oxford: Clarendon Press. Viroli, Maurizio. 1998. Machiavelli. Oxford: Oxford University Press. —. 2002. Republicanism. New York: Hill and Wang. —. 2007. “Machiavelli’s Realism,” Constellations 14, no 4, 466-482. von Vacano, Diego. 2007. The Art of Power. Lanham and Oxford: Lexington Books. Walker, Leslie J. 1950. “Introduction by the Translator,” in The Discourses of Niccolò Machiavelli, 2 vols., translated and edited by Leslie Walker. New Haven: Yale University Press. Whitfield, J. H. 1969. The Discourses on Machiavelli. Cambridge: Heffer. Wolin, Sheldon S. 1960. Politics and Vision. Boston: Little, Brown.

Notes 1

The references are standard: P, D, IF, AG, and CW are for The Prince, Discourses on Livy, Florentine Histories, The Art of War, and Gilbert’s edition of Chief Works and Others, respectively; then the page numbers refer to a proper volume of Machiavelli’s Opere. I mostly use Mansfield’s translations, sometimes with minor modifications. 2 The notions of idealization and modeling are hinted by Sasso as an odd possibility (Sasso 1980: 441). 3 Leslie Warker often cites such criticisms in his translation of the Discourses; cf. Walker 1950; Viroli 2007. 4 Other historians make similar observations; cf. Feaver 1984; Spiller 2004; von Vacano 2007. 5 Where there is no “inner man” and no soul, there is also no morality. This is one more reason for the separation between morality and politics in Machiavelli’s thought, the separation that has been for many readers his main contribution to the transition between ancient and modern political thinking. 6 Chabod notes how strikingly different Machiavelli’s reductive form is from the lengthy introductions of most political treatises before and after him: Aristotle, Aquinas, Locke, Montesquieu, and others (Chabod 1958: 144-145). Hobbes and Rousseau also needed numerous chapters to define their assumptions and terminologies. Good didactic works should not begin this way. 7 Florentine Histories is only in part a work of political theory, being a laboratory of practical applications and illustrations. The opening sections of each chapter usually present general ideas borrowed from The Prince or the Discourses and then

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filled with a Florentine content. 8 Machiavelli directly addresses the differences between more general and more concrete knowledge and notes that the common people get easily confused “in generalities” but can well understand “particulars” (D I 47). At first sight it reads like a praise of natural plebeian wisdom but under closer look it is clear that Machiavelli is again wickedly witty here. His message seems to be that the less advanced plebeian minds are unable to grasp his theoretical generalities and models. He did not write his works for unrefined minds, he wrote for princes, popes, and humanist intellectuals who should be able to understand his reasoning in terms of “generalities” idealizing some aspects of reality and then bringing them down to “particulars.” Ironically, even the greatest readers were for centuries unable to grasp the level of his theoretical advancement. 9 Interestingly, most philosophers who note deductive patterns in Machiavelli’s theory view them rather as a weakness than any useful methodological tool (cf. Butterfield 1940: 57; Batkin 1979; Chiapelli 1969); Anglo (1969: 240-41) rebukes Machiavelli’s “rigidly sequential mode of presenting an argument.” The economist Roger Backhouse, however, gives Machiavelli more credit for such formal advancement. According to him, Machiavelli’s method combines empirical observation and “deduction from general assumptions about human nature” (Backhouse 2002: 60).

THE SKEPTICAL ANARCHIST ALAN CARTER, UNIVERSITY OF GLASGOW

Abstract There is a widespread presumption in political philosophy that the onus falls upon the statist to justify the state. However, Jonathan Wolff has challenged this presumption by first drawing an analogy between anarchism and skepticism, and then drawing upon Quine’s response to the latter. The present article seeks to rebut that challenge by arguing that “the presumption of anarchy” is implied by the presumption of equality that lies at the core of most moral theories. And political philosophy, including within it attempts to justify political obligation, is widely presumed to be premised upon such moral theories. .

I In much of the recent work on the problem of political obligation, there has been a presumption that the onus falls upon the statist to justify political obligation or political duties, and that the default position is anarchy.1 Given this presumption—what we might call “the presumption of anarchy”—then all the philosophical anarchist need do is demonstrate that whatever ostensible justification for the exercise of political power is offered proves, upon closer inspection, to be flawed. However, this presumption has been challenged by Jonathan Wolff.2 And challenging the presumption of anarchy is of major significance, for it sets the stage for a very different approach to the traditional problem of political obligation. Indeed, Wolff argues that if we are not unfairly to weight the scales in favor of philosophical anarchism from the outset, then we need a neutral standpoint from which to adjudge between statists and anarchists, and, in his view, reasonable contractualism provides the suitably neutral standpoint. Moreover, from such a standpoint, political

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obligation may be justified, and philosophical anarchism might thus seem to lack cogency.

II Let us, then, consider Wolff’s challenge to the presumption of anarchy. Wolff sees a similarity between the respective strategies of the philosophical anarchist and the skeptic: The skeptical position makes a negative claim: there are no convincing ways of defending political power or justifying claims to knowledge. The burden of proof surely falls on those who wish to make the positive claim that the state is justified or that we do have knowledge. On this view, then, the skeptical and anarchist positions are granted a privileged position in the debate.3

And this seems to lead us to conclude that “[i]f we cannot convincingly explain why there should be inequalities of political power, then we have to accept that the state is not (fully) justified, and we thus become philosophical anarchists.”4 In short, “both the skeptic and the philosophical anarchist assume that the burden of proof is on the opponent.”5 The challenge Wolff raises is to question whether they are right to make this assumption. Now, Quine has attempted to rebut the skeptic’s arguments6 by, in effect, rejecting (what we might call) “the presumption of skepticism”, and seeking instead a more level playing field. Within the domain of epistemology, what would appear to be a neutral test for a theory is its success in predicting our observations. How successful would our predictions be if we were to assume that we were within a dream? It would seem that they would be less successful than the predictions we would make were we to assume instead that certain scientific laws held and that the irregularities in experience common in dreams were not to occur. Here, when the arguments are not weighted in favor of skepticism in advance, skepticism appears to lose to common sense. Wolff therefore argues that the respective merits of the various arguments offered by the statist and philosophical anarchist should similarly be allowed to compete on a level playing field, rather than on one in which the anarchist is always allowed to play downhill.7

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III However, in response to Wolff, I wish to argue that there is good reason for holding to the presumption of anarchy. But first we require an appropriate definition of “anarchism”. In discussing (what I have labeled) the presumption of anarchy, Wolff asks: “What moral reasons are there for departing from a state of nature where no inequalities of political power exist?”8 And this seems to me to be precisely the right question to ask, for perfect anarchy is perhaps best thought of as a condition of perfect political equality. Put another way, perfect anarchy is perhaps best construed as a situation where political power is equally distributed. Thus, “anarchism” is perhaps most profitably viewed as a variety of political egalitarianism.9 But seeking perfect equality would strike many as seeking the unattainable, and seeking perfect political equality no less so. However, following John Baker, we could argue that “egalitarianism” is perhaps more profitably viewed as the opposition to certain substantive inequalities,10 rather than as the pursuit of perfect equality. So, similarly, we might want to argue that political egalitarianism is more profitably viewed as the opposition to certain substantive political inequalities. In a word, political egalitarianism might best be construed as the normative opposition to certain substantive inequalities in the exercise of political power. Where anarchists go beyond others who might be viewed as political egalitarians is in their empirical belief that the substantive inequalities in the exercise of political power which they believe ought to be opposed result from, are embedded within or are sustained by the state. Hence, “anarchism” is perhaps best construed as a political belief system which holds that, normatively, certain substantive inequalities in the exercise of political power ought to be opposed and that, empirically, those inequalities result from, are embedded within or are sustained by the state. The traditional problem of political obligation can now be seen to be, centrally, a concern with the refutation of philosophical anarchism. For as we have just observed Wolff to ask: “What moral reasons are there for departing from a state of nature where no inequalities of political power exist?” In other words: The problem of political obligation can be motivated by considering the existence of political power: the claimed right of one person to set rules that others must follow or else be punished. The state concentrates political power into the hands of the few, who together are given a monopoly right to exercise coercion. How can it be, though, that these

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The Skeptical Anarchist people—typically no wiser, more intelligent, or virtuous than the norm— can have such a right to intervene in the lives of others? This is the anarchist challenge: what can be the moral basis of an individual’s or group’s right to rule? The problem of political obligation requires an answer.11

Now, the key phrase here is “the moral basis of an individual’s or group’s right to rule”. Not only has there been a widespread presumption of anarchy in the recent work on the problem of political obligation, but there has also been a presumption by most political philosophers that political philosophy rests upon moral philosophy. In other words, it is widely presumed that any workable justification of political claims that are of a normative nature are premised upon a moral argument. This is not a presumption that I presently wish to challenge. Rather, I wish to show that it provides a justification for the presumption of anarchy.

IV The argument is this. Imagine that when Brown and Green enter the room, White immediately punishes Brown (if only by rebuking him) and rewards Green (if only by praising her). If there were no other relevant features to this example, then we would regard White’s behavior as immoral. However, if Brown had just pushed a child in front of a moving bus and Green had just rescued the child at the risk of her own life, then we would no longer regard White’s behavior as immoral—quite the contrary, in fact. So, it is not difficult to conclude that our morality, along with most moral theories, displays a presumption of equality:12 we are morally enjoined to treat persons similarly in similar circumstances unless there is a morally significant difference between them.13 But inequalities in the exercise of political power give some and not others the right “to set rules that others must follow or else be punished”, “a monopoly right to exercise coercion”, “a right to intervene in the lives of others”. In a word, where political obligation obtains, there is a significant difference in how persons are treated and how they may treat others. There are significant differences in the claims they have, in their duties, in their powers, in their liabilities, in their immunities, and so on. Hence, given the presumption of equality, if these sorts of differences in how persons are treated are not to constitute immoral behavior, then either some morally significant difference between the relevant persons must be provided, or some means must be identified whereby special rights14 have been established. For example, it might be claimed that

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individuals have tacitly consented to contract into a relationship where some, as a result of a specific process of selection, have special rights that justify their restricting the freedom of others. Or, as a second example, it might be claimed that individuals would, hypothetically, have contracted into such a relationship. Whether or not such claims succeed or not is, of course, moot. But given the presumption of equality widespread within moral philosophy, then if the unequal exercise of political power is to be justified, and if, as is widely held, normative political arguments must rest upon moral ones, then if no justification for inequalities in political power can be provided, they are immoral. In short, the presumption of equality would seem to entail the presumption of anarchy. And thus, contra Wolff, there is reason to think that the presumption of anarchy widespread in recent discussions of the problem of political obligation is not misplaced.

V However, Wolff would surely be right to insist that more is required of the anarchist than simply to rely upon the presumption of anarchy. For the statist need take no heed of that presumption if a condition of anarchy is impossible. And as Wolff points out: Some anarchists think…that antisocial behavior is an effect of living under a (necessarily corrupt) state, and so the state is a cause of the very behavior that its existence is supposed to remedy. There are two things wrong with this argument. First, even if it is true that the state is the cause of our corruption, the fact is that we are now corrupted. As Rousseau well understood, removing the state would not be a way of removing our corruption: in fact, it would be a way of allowing it a free rein. There is no way to return us to innocence. Second, and more important, there is something self-defeating in the argument that the state is both corrupt itself and the cause of antisocial behavior. If the state is both undesirable, yet also the cause of antisocial behavior, how could it have come into existence?15

And this implies that as the state has, as a matter of fact, come into existence, then key assumptions that anarchists appear to rely upon in order to convince us of both the moral desirability and the feasibility of an anarchist society are falsified by their own arguments. Hence, it would seem, we have no reason for thinking anarchy to be either morally desirable or feasible.

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Wolff is certainly right that the second of his two arguments is the more important, for the first seems little more than mere dogmatic assertion. If the principal problem were, say, that the state has made us very competitive, then that does not make it impossible for us to devise a route to more cooperative behavior. For example, we might set up communes, municipal direct democracies or workers’ cooperatives that serve to socialize us towards more co-operative behavior.16 As to the second argument, there is simply no reason to assume that an anarchist society need be completely free of all problems. For anarchy to be preferable to the present order, it need only be better than it. There is no need for a condition of anarchy to be perfect. And we could easily imagine within an anarchist society some minor inefficiencies, for example, that led a sufficient number of people to think that a society which was centrally and hierarchically organized would be preferable: a Mussolini-type, say, might be imagined to enable the trains to keep better time. But those imagining that such a society would be better than an anarchist one— having no experience of fascism—might very easily be mistaken, and having embarked upon the statist adventure, might later come to regret it. Thus the anarchist, too, can cite Rousseau, who seems to have imagined that those living in a state of nature might have imagined that substantial benefits were to be derived from adopting certain political institutions, while lacking sufficient experience of them to be wary of their pitfalls. For as Rousseau famously remarks: “all ran headlong to their chains,”17 adding explicitly that “they had just wit enough to perceive the advantages of political institutions, without experience enough to enable them to foresee the dangers.”18 But what the anarchist can then argue is that, given half the chance, and given what we know now, we won’t make the same mistake twice. Of course, one reason why a condition of anarchy is likely to be viewed as, if not impossible, then highly undesirable is because liberal political philosophers have frequently assumed that any state of nature would resemble that described by Thomas Hobbes. But it is nothing short of remarkable that liberals, on the whole, should simply presume to dismiss the very idea of a stateless society without engaging in any careful empirical work. For social anthropologists have provided detailed ethnographies of acephalous societies—societies that have no centralized political authority,19 police forces or armies, and yet which are relatively well-ordered. Indeed, if the armchair arguments of the likes of Hobbes, Locke and Hume seem to establish that well-ordered stateless societies are impossible when such societies have both existed and been studied by

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social anthropologists, then shouldn’t their conclusions regarding a state of nature be viewed as constituting a reductio ad absurdum of their premises?20 And if such a priori grounds for rejecting all anarchist societies are as flawed as they seem to be, then the presumption of anarchy cannot simply be dismissed out of hand.

Notes 1

See, as a good example, A. John Simmons, Moral Principles and Political Obligations (Princeton: Princeton University Press, 1979). 2 See Jonathan Wolff, “Anarchism and skepticism” in J. T. Sanders and J. Narveson (edd.), For and Against the State: New Philosophical Readings (Lanham, Maryland: Rowman and Littlefield, 1996). 3 Ibid., p. 101. 4 Ibid. 5 Ibid. 6 See Willard Van Orman Quine, “Reply to Stroud”, Midwest Studies in Philosophy 6 (1986): 475. 7 However, it should be noted that the legitimacy of extending Quine’s argument to moral and political philosophy can be challenged, for it may easily be doubted that moral properties play any genuine role in explanation or prediction. See Gilbert Harman, The Nature of Morality (New York: Oxford University Press, 1977). However, there is a burgeoning literature on this topic, and even a brief survey would take us too far afield. 8 Wolff, “Anarchism and skepticism”, op. cit., p. 99. 9 See Alan Carter, “Analytical anarchism: some conceptual foundations,” Political Theory 28, 2 (2000): 230–53. 10 See John Baker, Arguing for Equality (London: Verso, 1987), especially pp. 4-5. 11 Wolff, “Anarchism and skepticism”, op. cit., p. 99. 12 See Bernard A. O. Williams, “The idea of equality” in Problems of the Self (Cambridge: Cambridge University Press, 1973). 13 As Henry Sidgwick remarks: “We cannot judge an action to be right for A and wrong for B, unless we can find in the natures or circumstances of the two some difference which we can regard as a reasonable ground for difference in their duties. If therefore I judge my action to be right for myself, I implicitly judge it to be right for any other person whose nature and circumstances do not differ from my own in some important respects.” Henry Sidgwick, The Methods of Ethics, 7th ed. (Indianapolis: Hackett, 1981), p. 209. And as he later adds: “In short, the selfevident principle strictly stated must take some such negative form as this; ‘it cannot be right for A to treat B in a manner in which it would be wrong for B to treat A, merely on the ground that they are two different individuals, and without there being any difference between the natures or circumstances of the two which can be stated as a reasonable ground for difference of treatment.’ Such a principle

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manifestly does not give complete guidance—indeed its effect, strictly speaking, is merely to throw a definite onus probandi on the man who applies to another a treatment of which he would complain if applied to himself; but Common Sense has amply recognised the practical importance of the maxim: and its truth, so far as it goes, appears to me self-evident.” Ibid., p. 380. It should be noted that the presumption of equality is a cardinal feature of the arguments in favor of animal liberation and animal rights. See Peter Singer, Animal Liberation: A New Ethics for Our Treatment of Animals, 2nd ed. (London: Pimlico, 1995), and Tom Regan, The Case for Animal Rights (Berkeley: University of California Press, 1983), respectively. 14 See H. L. A. Hart, “Are there are natural rights?” in A. Quinton (ed.), Political Philosophy (Oxford: Oxford University Press, 1967). 15 Wolff, “Anarchism and skepticism”, op. cit., pp. 114–5. 16 See, for example, Alan Carter, A Radical Green Political Theory (London and New York: Routledge, 1999), §7.2. 17 Jean-Jacques Rousseau, “Discourse on the origin of inequality” in The Social Contract and Discourses (London: Dent, 1973), p. 89. 18 Ibid. 19 For example, see: Harold Barclay, People Without Government: An Anthropology of Anarchism (London: Kahn and Avrill, 1982); J. Middleton and D. Tait (edd.), Tribes Without Rulers: Studies in African Segmentary Systems (London: Routledge and Kegan Paul, 1970); Ashley Montagu (ed.), Learning Non-Aggression: The Experience of Non-Literate Societies (Oxford: Oxford University Press, 1978); and Colin Turnbull, The Forest People (London: Picador, 1976). 20 See Alan Carter, “Presumptive benefits and political obligation,” Journal of Applied Philosophy 18, 3 (2001): 229–43.

DOES POLITICAL LIBERALISM MAKE SENSE? CARLA SAENZ, UNIVERSITY OF NORTH CAROLINA, CHAPEL HILL

Abstract John Rawls’s liberalism was initially presented as a comprehensive theory in A Theory of Justice1 and transformed later into a strictly political one in Political Liberalism2. Although the latter has not captured as much attention as the former, I think it constitutes Rawls’s most original contribution to the history of philosophy. There have been several theories of comprehensive liberalism – including Kant’s, Mill’s and Rawls’s TJ itself— yet a strictly political version of the theory is a novel proposal. Rawls abandoned his comprehensive liberal theory because he considered it utopian and “thickly Kantian,” and thus moved to a thinner version of the theory. The shift has however been masked because of the similarity between both theories. What is the importance of political liberalism then? Is political liberalism possible at all? Or does it collapse into comprehensive liberalism? How thin can liberal theory get while remaining a satisfactory normative theory? I will address these questions in this paper. I think that a modified version of political liberalism is plausible, although, as presented in PL, the theory is problematic. Furthermore, as modified after PL in what Rawls himself refers to as the “most complete” formulation of the theory, it is even more problematic. Rawls does not satisfactorily justify a key thesis of political liberalism: the priority of the right over the good. Moreover, the failure to justify the priority of the right over the good uncovers the failure to justify the liberal political conception of justice at all. As a solution, I suggest supplementing Rawls’s theory with an independent argument in support of the liberal political conception of justice.

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1. Comprehensive and political liberalisms Previous theorists of comprehensive liberalism, including Rawls himself in TJ, have assumed that one is (comprehensively) liberal if one holds a liberal comprehensive doctrine. A comprehensive doctrine articulates one’s moral, religious, and philosophical ideas. It “includes conceptions of what is of value in human life, and ideals of personal character, as well of ideas of friendship and of familial and associational relationships, and much else that is to inform our conduct, and in the limit to our life as a whole” (PL 13). A liberal comprehensive doctrine provides a robust moral basis for individual equal freedom, including a special priority to the protection of such freedom. Rawls’s original thesis in PL is that a thinner version of liberalism is possible. As a matter of fact, Rawls argues, in a liberal constitutional democracy it is not necessary for all citizens to be comprehensive liberals, or liberals “all the way through.” It is only necessary for citizens to be political liberals. In order to be politically liberal citizens ought to converge on a liberal political conception of justice that governs only their political life. Citizens do not need to agree on their comprehensive doctrines, which might well be irreconcilable. More importantly, their comprehensive doctrines do not even have to be liberal. In a nutshell, in order to be politically liberal one does not need to be comprehensively liberal, or liberal “all the way through.” Thus, political liberalism only makes sense if it is possible to be politically liberal without being comprehensively liberal, for if the latter is not the case, that is, if in order to be politically liberal one needs to be comprehensively liberal in the first place, then political liberalism collapses into comprehensive liberalism. More precise definitions of both political and comprehensive liberalism are needed in order to investigate to what extent political liberalism is possible. For simplification, I shall use the terms “pliberal” and “pliberalism” to refer to “politically liberal” and “political liberalism,” and “cliberal” and “cliberalism” to refer to “comprehensively liberal” and “comprehensive liberalism.” X is pliberal if and only if X holds a reasonable political conception of justice, that is, if and only if X holds a political conception that (a) applies only to the basic structure of society; (b) can be presented independently from any (sectarian) comprehensive doctrine; (c) stipulates a list of basic rights, liberties, and opportunities (such as those familiar from constitutional regimes);

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(d) assigns special priority to those rights, liberties and opportunities, especially with respect to the claims of the general good and of particular comprehensive ideas of the good; and (e) ensures for all citizens adequate all-purpose means to make effective use of those freedoms.3 X is cliberal if and only if X holds a comprehensive doctrine that provides a robust moral basis for (c), (d), and (e). Compared with cliberalism, pliberalism constitutes a thinner or shallower theory than its thicker or deeper counterpart, cliberalism. Pliberalism, Rawls argues, is not meant to provide “the whole truth” but a more modest sense of correctness that he refers to as “reasonableness.”4 The pliberal conception of justice, as stated above, can be presented without appeal to cliberal ideas, which explains why Rawls refers to the pliberal conception as “freestanding.” An example provided by Rawls on the notion of autonomy can illustrate the distinction between pliberalism and cliberalism.5 On a pliberal account, autonomy is just the “legal independence and assured political integrity of citizens and their sharing with other citizens equally in the exercise of political power” (Intro xliv). From a cliberal perspective, autonomy involves “certain mode of life and reflection that critically examines our deepest ends and ideals, as in Mill’s ideal of individuality, or by following at best one can Kant’s doctrine of autonomy” (Intro xliv-xlv). Rawls claims that pliberalism is possible and that, as a matter of fact, some people are pliberal without being cliberal. This is entailed by what he refers to as the “fact of reasonable pluralism.” In order to be pliberal, one ought to genuinely affirm the pliberal conception in a principled way, that is, as a “moral view in its own right.”6 It is thus not sufficient to hold the pliberal conception as a modus vivendi, that is, merely compelled by the circumstances, like on the basis of self- and group interests, or as the outcome of political bargaining. Only if citizens support the pliberal conception for its own sake and on its own merits (PL 147-8), the pliberal conception will be the focus of what Rawls famously called “overlapping consensus.” The claim that the pliberal conception ought to be held as a “moral view in its own right” has two implications. First, it cannot be held merely for practical reasons, for instance, because of its political convenience given the diversity that characterizes present-day democracies. Pliberalism is not some sort of “necessary evil.” Second, the pliberal conception cannot be held only because our favored current traditions happen to patronize it. Pliberalism is thus not a historically contingent sort of “happy coincidence.” Certainly, overdetermination is possible. One

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might hold the pliberal conception for moral reasons and also believe on its practicality and its value based on our democratic tradition. Furthermore, it is important to note that the fact that a conception or a doctrine is held as a moral view does not by itself imply the moral correctness of such view. History shows that there has been a widely held overlapping consensus on morally wrong views like sexism or racism. Although Rawls takes the fact of reasonable pluralism for granted, I am skeptical about it. It seems to me that pliberals happen to be cliberals, and that the pliberals that are not cliberals hold the pliberal conception only as a modus vivendi, which means that they are not genuine pliberals to begin with. Does pliberalism then collapse into cliberalism? My concern goes however beyond the discussion of empirical claims to the realm of normative research. My question is not whether people happen to be pliberal while not being cliberal, but why should any non-cliberal be pliberal. The skepticism about the facts shows that the question is not trivial.

2. The problem On what basis can one hold a thin and restricted version of liberalism (pliberalism) while not holding (or even explicitly rejecting) a thick and all-encompassing one (cliberalism)? The question does not merely raise the issue of consistency between the pliberal conception and one’s nonliberal comprehensive doctrine, but a more crucial issue: the priority of the right over the good. In other words, what is at stake is not just whether it is possible to add a belief P to a particular set of beliefs, but why is one supposed to give priority to P over the other beliefs one holds when those beliefs and P come into conflict as for the political realm.7 The priority of the right over the good is actually the most challenged thesis of PL. It is stipulated by (b) in the definition of pliberalism above: First, if the political conception of justice happens to conflict with the comprehensive doctrines in what concerns to political issues, the former should override the latter. Second, the political conception determines which comprehensive doctrines are acceptable.8 How does Rawls account for the priority of the right over the good? In PL Rawls states, “political values are very great values and hence not easily overridden: these values govern the basic framework of social life – the very groundwork of our existence— and specify the fundamental terms of political and social cooperation” (PL 139, my emphasis). This justification, however, begs the question: It does not say why political values are very great values, so it does not explain why they override non-

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political values. Moreover, for many people religious values are also “very great values” and thus not easily overridden. Religious values might appeal to ideas like eternal life or condemnation, which can be seen as having priority over other everyday aspects of our existence. Rawls adds, the history of religion and philosophy shows that there are many reasonable ways in which the wider realm of values can be understood so as to be either congruent with, or supportive of, or else not in conflict with, the values appropriate to the special domain of the political conception of justice (PL 140).

Yet this amounts only to the idea that it has been in fact possible for comprehensive doctrines to support, agree with, or at least not to conflict with, the pliberal conception. That does not explain why the political values outweigh the non-political ones, or why pliberal conception overrides the various (not only cliberal) comprehensive doctrines as for the political. The fact that history shows us that certain things were possible in the past does not mean that they ought to be that way. It is not even the case that things were always that way –there are plenty of exceptions. So why should the values expressed in the pliberal conception prevail over other values? What type of relationship between the political conception of justice and the comprehensive doctrines does Rawls stipulate in PL in order to explain the priority of the former over the latter as for the political? Although he introduces the pliberal conception as freestanding, Rawls indicates that it does relate to the comprehensive doctrines.9 “As an account of political values,” Rawls adds, “a freestanding political conception does not […] say that political values are separate from, or discontinuous with, other values” (PL 10). More specifically, he adds that “citizens individually decide for themselves in what way the public political conception all affirm is related to their own more comprehensive views” (PL 38). So, why does Rawls think that there needs to be some type of relationship between the pliberal conception and the comprehensive doctrines? Rawls maintains that the comprehensive doctrines can be a useful foundation for the pliberal conception. He claims that this pliberal conception “can be supported by various reasonable comprehensive doctrines” (PL 12, my emphasis). He adds, “While we want a political conception to have a justification by reference to one or more comprehensive doctrines, it is neither presented as, nor as derived from, such a doctrine applied to the basic structure of society” (PL12, my

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emphasis). However, the key question is not whether such a political conception can be supported, or whether we might desire such support, but whether that support is needed or not. In other passages he states that “In such a consensus, the reasonable doctrines endorse the political conception, each from its point of view” (PL 134); and “All those who affirm the political conception start from within their own comprehensive view and draw on the religious, philosophical, and moral grounds it provides” (PL 147).10 It seems then that the political conception of justice needs to be supported by the different comprehensive doctrines. Yet why is such support necessary? In PL’s first lecture, Rawls states that citizens have both political and non-political aims and commitments, based on the political conception of justice and their comprehensive doctrines, respectively. He adds, “These two kinds of commitments and attachments –political and non-political— specify moral identity and give shape to a person’s life, what one sees oneself as doing and trying to accomplish in the social world” (PL 31). Furthermore, he explicitly states that “These two aspects of their moral identity citizens must adjust and reconcile” (PL 31, my emphasis). Thus, it is for the sake of the coherence of our moral identity that there should be some particular relationship between the political conception of justice and the comprehensive doctrines. Yet this does not stipulate that the comprehensive doctrines need to offer support or justification to the political conception of justice, but merely that there should be no conflict between both. In fact, in PL’s fourth lecture, which is devoted to the overlapping consensus, Rawls considers three different ways in which the political conception of justice relates to comprehensive doctrines: “there are many reasonable comprehensive doctrines that understand the wider realm of values to be (a) congruent with, or (b) supportive of, or else (c) not in conflict with, political values as these are specified by a political conception of justice for a democratic regime” (PL 169, my emphasis).11 Thus it is only required that the comprehensive doctrines be compatible with the political conception: “When an overlapping consensus supports the political conception, this conception is not viewed as incompatible with basic religious, philosophical, and moral values” (PL 157, my emphasis).12 Rawls however shifts from this view (1) that stipulates only that the political conception should be not incompatible with the comprehensive doctrines, and thus that (a), (b), and (c) can be the case, to the view (2) that the comprehensive doctrines need to ground the political conception, making (b) the only possible case, as suggested in previous quotations. In

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later writings this shift becomes evident.13 Rawls seems to ignore completely his initial position, (1), thus making comprehensive doctrines at least apparently more important to his theory.14 He states: “the roots of democratic citizens’ allegiance to these political conceptions lie in their respective comprehensive doctrines, both religious and nonreligious” (IPRR 784-5). This shift is confirmed by the fact that Rawls explicitly moves, after the publication of PL, to a broader view of public reason. In PL Rawls had argued that when engaged in public reasoning about political issues citizens cannot include reasons of their comprehensive doctrines but only of the political conception. Yet in IPRR and in Intro, he revises that position and states that “reasonable such doctrines can be introduced in public reason at any time provided that in due course public reasons, given by a reasonable conception, are presented sufficient to support whatever the comprehensive doctrines are introduced to support” (Intro li-lii). He refers to this as the “proviso.”15 This wide view of public reason presupposes a greater role attributed to the comprehensive doctrines; they ground the political conception: “It is wise, then, for all sides to introduce their comprehensive doctrines, whether religious or secular, so as to open the way for them to explain to one another how their views do indeed support those basic political values” (IPRR 785, my emphasis). Rawls explicitly states that this addition “has the further advantage of showing to other citizens the roots in our comprehensive doctrines of our allegiance to the political conception” (Intro lii).16 However, it is not clear to what extent this is a substantive addition, since elements of comprehensive doctrines can, because of the proviso, only be introduced qua ideas supported by the political conception. The mere fact that these ideas belong to particular comprehensive doctrines is thus not relevant.17 Therefore, comprehensive doctrines are only apparently being attributed a more important role. In fact, they can be introduced into political discussion only if eventually they can be supported by public reasons.18 Whether this addition counts as a substantive modification of Rawls’s previous understanding of public reason or not, it does constitute evidence of a shift in which the pliberal conception is grounded on the comprehensive doctrines. I argue that Rawls’s shift to a position in which the political conception is grounded on the various comprehensive doctrines is problematic. First of all, and particularly with respect to public reason, there is something counterintuitive about the fact that the political conception is grounded on the various comprehensive doctrines, and yet citizens are expected not to appeal to them in public political discussions. If the political conception is

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in fact grounded on comprehensive doctrines, it is not clear why they cannot be incorporated in public reason. More importantly, this shift jeopardizes the priority of the right over the good: If the comprehensive doctrines do ground the conception of justice, as Rawls requires, then it seems that the conception of justice should subordinate to them and not the other way around.19 Overall, there is no reason for giving priority to the political conception over the comprehensive doctrines whenever both conflict as for the political if the political conception depends on the comprehensive doctrines for its justification in the first place. As a matter of fact, if the pliberal conception is grounded on the various comprehensive doctrines, as Rawls requires, it seems that only cliberals –those holding liberal comprehensive doctrines— would be justified in subordinating their comprehensive doctrines to the political conception, that is, committing to the priority of the right over the good. For one thing, it seems that pliberals who are cliberal would not experience conflict between their political and their non-political views: both are liberal. Cliberals have robust moral arguments in support of their pliberal position, and these arguments provide support for the pliberal conception, and particularly for the priority of the right over the good. But if this is the case, then pliberalism collapses into cliberalism. As I said before, political liberalism makes sense if it is the case that it is possible to be pliberal while not being cliberal. But on what basis can a non-cliberal be pliberal?

3. The Need for An Argument for the Pliberal Conception Rawls tightens the connection between the comprehensive doctrines and the political conception by requiring the political conception to be grounded on the comprehensive doctrines. However, it seems that he should do the opposite, namely, to loosen the connection between the comprehensive doctrines and the political conception. A loose connection between the doctrines and the conception would make pliberalism more plausible because it would make it more plausible that people who do not hold a liberal comprehensive doctrine could fully endorse pliberalism. I thus argue that comprehensive doctrines should not relate to the pliberal conception in the way Rawls suggests. In other words, comprehensive doctrines should not be required to provide an argument in support of the pliberalism. As a matter of fact, it is irrelevant whether the comprehensive doctrines provide or not a justification for the pliberal conception. Furthermore, if the pliberal conception is truly freestanding, it

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should be possible to justify it without appealing to any particular comprehensive doctrine. Rawls, however, does not offer such an independent argument in support of pliberalism, that is, he does not justify the pliberal conception on grounds that anybody, despite their particular comprehensive doctrines, can agree with.20 As a matter of fact, he explicitly refuses to provide an argument for the political conception. In PL, as well as in later writings, he openly claims to avoid such discussion.21 This position, which certainly is consistent with Rawls’s attempt at making the comprehensive doctrines more relevant within his theory, is, first of all, inconsistent with the view that citizens cannot appeal to the doctrines that ground the political conception when engaging in public reasoning. Precisely because they should limit themselves to the political conception, it is necessary for Rawls to clarify as much as possible the argument supporting it. Yet Rawls’s refusal to offer an argument for the political conception is highly problematic for reasons other than this inconsistency. Why does Rawls refuse to ground the political conception on arguments other than the ones coming from the various particular comprehensive doctrines? “I don’t really need them and they would cause division from the start,” he states (CP 621). This “practical” reason coheres with his main concern, in PL, of working on a theory that, unlike the one in TJ, is not utopian but whose principle are realizable, and properly focusing on the realization –rather than on the justification— of the theory. In PL Rawls’s focus is the application or realization of the theory. He thus refuses to provide an argument for the political conception of justice and passes that job to the various comprehensive doctrines. An independent argument in support of pliberalism is however necessary to account for the priority of the right over the good that is essential for pliberalism. As said above, if the pliberal conception depends on the various comprehensive doctrines for its justification, then there is no reason to subordinate the doctrines to the pliberal conception. Furthermore, if pliberalism is, as Rawls claims, “a moral view in its own right,” then we should be able to explain why that is the case in terms that are non-sectarian, that is, that do not presuppose any particular comprehensive doctrine. Pliberalism cannot be justified on purely pragmatic grounds, as a “necessary evil,” or merely as a contingent result of our traditions, as a “happy coincidence,” for it would lack moral substance.

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Rawlsian theory of political liberalism should thus be supplemented with an independent argument for the pliberal conception. In order to be independent from the various comprehensive doctrines, the argument needs to be “thin,” or “shallow.” It cannot appeal to sectarian notions coming from any specific comprehensive doctrine, but only to ideas every citizen can be expected agree with disregarding his or her own doctrine. It certainly cannot appeal to cliberal ideas because, first, from the perspective of pliberalism, cliberalism is one among many acceptable comprehensive doctrines. Second, an appeal to cliberal ideas as part of pliberalism would imply that pliberalism collapses into cliberalism. A thin non-cliberal argument for pliberalism will be congruent with many things Rawls says (especially in PL) about citizens and their characteristics. Presumably, this argument would not include any premise that Rawls would disagree with. Rawls has in fact advanced ideas implicit in the argument but just refused to articulate them as an independent argument for the political conception of justice. Therefore, more than “adding” to Rawls’s theory, what I am suggesting is making explicit and giving a special status to notions and ideas Rawls himself proposed.22 Someone might argue that, while Rawls dos not provide an argument for pliberalism in PL, IPRR, or CP, he does propose a thin, non-cliberal argument for pliberalism in Justice as Fairness. A Restatement.23 In this book, Rawls certainly proposes a non-cliberal argument for the purely political version of justice-as-fairness, which differs from its comprehensive version in TJ. However, Rawls repeatedly emphasizes that this modified version of justice-as-fairness does not constitute the focus of the overlapping consensus, that is, that it is not the political conception citizens are required to agree on in pliberalism. Justice-as-fairness, Rawls states, is one among the many permissible liberal political conceptions of justice that constitute the focus of the overlapping consensus: “Of these justice as fairness, whatever its merits, is but one” (IPRR, 774). He adds, “while I view it as the most reasonable (even though many reasonable people seem to disagree with me), I shouldn't deny that other conceptions also satisfy the definition of a liberal conception” (Intro xlviii-xlix). To that extent it can be fairly said that Rawls’s project in JAF differs from his project of clarifying a general theory of pliberalism, which he initiates in PL and further clarifies and develops in Intro, and IPRR. As for the latter, Rawls himself considers it the most complete formulation of his theory of political liberalism (CP 619).24 Justice-as-fairness is thus explicitly presented as an example – the “standard example” (PL 164, 167-8), or “the main example” (Intro xlvii) – of the pliberal conception of justice, as opposed to a definition of such

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conception. An argument for justice-as-fairness does not necessarily constitute an argument for the pliberal conception defined in more general terms. Arguably, the former includes stronger premises than the latter, for justice-as-fairness encompasses ideas that not everybody is required to agree with. It would certainly be possible to modify Rawls’s pliberal theory so that justice-as-fairness does constitute the focus of the overlapping consensus. Rawls himself presumably avoided that move in order to accommodate other pliberal views. It seems that it is possible to be pliberal without necessarily agreeing on every aspect of the theory as developed in JAF. At any rate, supplementing pliberal conception with an argument in its support might well lead to a reduction in the number of people that agree with pliberalism, because, at least intuitively, the more we require citizens to agree on, the more difficult it will be to reach such agreement.

4. Revising the Distinction between Pliberalism and Cliberalism I have maintained that political liberalism makes sense if it is possible to be pliberal while not being cliberal, and have argued for the need to provide a non-cliberal and non-purely-pragmatic argument in support of pliberalism. My discussion might have suggested that cliberals are committed to pliberalism by virtue of their cliberal views, that is, if one is cliberal, one is necessarily pliberal. That is however false: Cliberalism does not entail pliberalism. As a matter of fact, there are prominent disputes between cliberals and pliberals, as illustrated by the debates between Rawls himself and G.A. Cohen, and S.A. Lloyd and Susan Okin. Rawls and Lloyd argue for pliberalism, while Cohen and Okin argue against the pliberal position from a cliberal perspective. Cohen and Okin suggest, as it were, that there is no reason to “restrict” one’s cliberal values in any sense, that is, that pliberalism is not justified based on cliberalism. More “aggressively” (or more comprehensively) liberal actions are correct. Requiring the population to be cliberal, or liberal “all the way through” is however at odds with pliberalism. According to pliberalism, cliberalism is one among many legitimate comprehensive doctrines. Any effort to impose it from the state is illegitimate insofar as it is at the expense of other legitimate comprehensive doctirnes. A number of recent cases illustrate a commitment of governments to cliberalism and thus a rejection of pliberalism. For example, recent political moves in Peru, requiring voluntary non-political associations, such as social clubs, to extend

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membership to women illustrate cliberalism enforced by the government, and thus in conflict with pliberalism.25 This example, as well as the theoretical discussions I have mentioned, might however still misrepresent the distinction between pliberalism and cliberalism, insofar as they reveal a disagreement about the realm of application of the liberal conception, which constitutes (a) in my initial definition of pliberalism in section (1). Pliberalism restricts the application of liberal ideas –(c), (d), and (e) in my definition above— to the basic structure of society; they should not be used to rule any other sphere of citizen’s life beyond the basic structure of society. If this were however the only difference between pliberalism and cliberalism, Rawls’s TJ would constitute a pliberal theory, because he proposes liberal principles that apply at the basic structure of society. What accounts for the cliberal character of TJ is the fact that it constitutes a comprehensive doctrine and as such provides a robust moral basis for the liberal ideas (c), (d), and (e). In other words, (b) in my definition above is not true of TJ. TJ is not a political conception to begin with. The definitions I presented in section 1 can be modified in the following way in order to clarify the distinction between pliberalism and cliberalism: X is pliberal iff x holds a normative view that (a) rules only the basic structure of society; (b) constitutes a political conception, that is, can be presented independently from any comprehensive doctrine; (c) stipulates a list of basic rights, liberties, and opportunities (such as those familiar from constitutional regimes); (d) assigns special priority to those rights, liberties and opportunities, especially with respect to the claims of the general good and of particular comprehensive ideas of the good; and (e) ensures for all citizens adequate all-purpose means to make effective use of those freedoms. X is cliberal iff X holds a normative view that (c) stipulates a list of basic rights, liberties, and opportunities (such as those familiar from constitutional regimes); (d) assigns special priority to those rights, liberties and opportunities, especially with respect to the claims of the general good and of particular comprehensive ideas of the good; (e) ensures for all citizens adequate all-purpose means to make effective use of those freedoms; and (f) constitutes a comprehensive doctrine, that is, provide a robust moral basis for (c), (d), and (e).

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The distinction between cliberalism and pliberalism is by no means trivial. It itself relies on a subtle distinction that deserves more research, namely, between a comprehensive doctrine and a political conception. As opposed to what is often assumed, cliberalism does not entail pliberalism. What explains this is that (f) does not entail (a) and (b). First, (f) does not entail (a): One might not agree to the restriction of the application of liberal views to a limited scope. One might think that, given that certain views are morally right ones, they should be enforced beyond the spectrum of the basic structure of society. Showing that (f) does not entail (a) suffices to show that (f) does not entail (a) and (b). Yet does (f) entail (b)? The answer is not obvious. Since (f) can be seen as a stronger version of (b), it would be reasonable to assume that it does. That is, if one is committed to a stronger account of x, one is necessarily committed to a weaker account of x. But how do thin or shallow normative views relate to their thicker or deeper counterparts? Is it necessarily the case that the commitment to a robust moral position entails a commitment to a somehow limited version of it? Or can we conceive of cases in which agents hold that certain particular elements of the robust position are essential, so that a thinner counterpart of such position, in which some of the essential elements are missing, is unacceptable? I think that more work ought to be done in order to clarify these distinctions and eventually have a better grasp of the distinction between a political conception and a comprehensive doctrine. In a similar light, it is necessary to investigate what exactly the relationship between (a) and (b) is. Is the rejection of (a) ultimately related to a rejection of (b)? Does the inability to restrict the scope of application of the liberal ideas and thereby the willingness to enforce them beyond the political realm go in tandem with an inability to present liberal views in thin or shallow terms as required by pliberalism? Is a position regarding the application of liberal views related to how those views are held?

5. Possible objections I have been argued in section 3 for the necessity of supplementing Rawls’s pliberal conception with an argument in its support in order to guarantee both the priority of the right over the good, and the status of pliberalism as a moral view in its own right. Such argument ought to be independent from the various particular comprehensive doctrines. It certainly cannot appeal to deep cliberal ideas, for pliberalism would then collapse in cliberalism.

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A number of objections might be raised against my proposal. First of all, someone might contend that an argument in support of the pliberal conception of justice is not necessary. While it is necessary to present the pliberal conception in independent terms, someone might think that it is not necessary to provide an argument on its support that is independent from one’s own comprehensive doctrine or otherwise. As a matter of fact, most people do not ask themselves about the justifications of their beliefs. In cases of conflict between the pliberal conception and the comprehensive doctrines, people might examine their reasons for accepting the pliberal conception. While presumably the argument for the pliberal conception rests on notions that are already implied in the conception, such an argument should present those notions and their implications straightforwardly and in the simplest terms. People might thus find it harder to deny them, even if they are questioning the conception. Also, as mentioned above, an independent argument in support of the conception is necessary because the latter cannot be grounded on comprehensive doctrines if it is going to have priority over them. From both a practical and a conceptual perspective, the argument in support of the pliberal conception grounds the priority of the right over the good. Furthermore, such an argument in support of pliberalism does not seem to be unnecessary given that there are many people holding non-pliberal conceptions, or holding a pliberal conception in a non-principled way, that is, as a mere modus vivendi. It certainly does not seem superfluous to have a non-sectarian, non-purely-pragmatic argument for pliberalism to advance against non-pliberals such as fundamentalists. Someone might however insist that I am missing the point: Pliberal theory takes for granted that citizens already agree with the pliberal conception. But that seems an arbitrary claim. Why should we assume people are already committed to pliberalism? While Rawls took as a fact that people are usually pliberals (while not necessarily cliberals), I do not think that is the case. Certainly, there are many cliberals that are pliberals. Yet that does not prove Rawls’s point. Many non-cliberals that agree with the pliberal conception do not hold it in a principled way but as a modus vivendi. An independent argument in support of the pliberal conception is thus necessary in order to convince them that pliberalism is the right moral view in what respects to the political. An objector might argue that Rawls has already provided an independent argument in support of pliberalism, despite the fact that he claims he does not. Such an argument is based on the notion of “reasonable,” and has the following structure: (P1) One ought to be reasonable.

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(P2) One is reasonable if one is pliberal. (C) Therefore, one ought to be pliberal. A few clarifications are necessary. First of all, while this argument already presupposes a departure from Rawls’s theory, insofar as it is meant to provide a justification for pliberalism, such departure is justified. Rawls, I have argued, does need to supplement his pliberal theory in that way. Second, while Rawls’s definition of “reasonable” is certainly evasive, an examination of that notion shows that the second premise in this argument is in fact different from the one I have presented. Being reasonable, in Rawls’s view, is ultimately being pliberal. The second premise should thus be reformulated as follows: (P2’) One is reasonable if and only if one is pliberal. But the argument then begs the question. We need to either provide a different argument, or fix this one. Another objector might claim that it is just not possible to come up with an argument in support of the pliberal conception. The pliberal conception constitutes a sort of “plain moral truth” that does not admit any justification. It is important to notice that Rawls does not make this claim himself. He repeatedly asserts that various comprehensive doctrines provide arguments for pliberalism. However, insofar those arguments presuppose a particular comprehensive doctrine, they are “thick” or “deep” arguments. The objector might thus claim that only that type of argument for pliberalism is possible, that is, that no “thin” or “shallow” argument, or argument that is independent from particular comprehensive doctrines, can be presented. But why is it the case that no thin argument is possible, given that thicker arguments are possible? There is no obvious reason why we cannot produce a shallow justification for a position if we have a deeper one. The objector might reply that, while a thin argument is possible, thin or shallow arguments are not good by virtue of their thinness or shallowness. However, as Sharon Lloyd argues, there is no prima facie reason why a thin argument is not good enough, or why a thicker argument is better than a thin one.26 Many of our everyday beliefs happen to rest on thin or shallow arguments. Philosophers use them as well, without assuming that “thinness” or “shallowness” is problematic.27 Among thin or shallow arguments, Lloyd includes arguments by counterexample, thoughtexperiment, simple observation, and uncontroversial empirical theory (1994, 720). Lloyd adds, “An argument, whether shallow or deep, is ‘good enough’ if it warrants one to claim the superiority of one’s view over competing ones” (1994, 721).

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6. Final Remarks I have argued that pliberalism needs to be supplemented with an argument in support of the pliberal conception. Pliberalism is a remarkable theory, whose distinction from cliberalism has been overlooked, arguably because we still do not have a clear grasp of how a thin or shallow conception relates to thick or deep doctrines. For pliberalism to be a plausible theory that does not collapse into cliberalism, it needs to be the case that there are pliberals that are non-cliberals. But if non-cliberal pliberals are going to hold pliberalism in a principled way and not merely as a modus vivendi, they need a reason to do so that is not merely a pragmatic concern or an appeal to our currently patronized traditions. A justification for pliberalism that comes from citizens’ non-cliberal doctrine is not sufficient for it does not allow for the priority of the right over the good that is crucial for pliberalism: If only one’s own comprehensive doctrine grounds the pliberal conception, then there is no reason to subordinate the former to the latter given that the pliberal conception depends on the comprehensive doctrine for its justification in the first place. A thin argument for the pliberal conception that is independent form the various comprehensive doctrines is thus needed. Pliberal theorists ought to produce such an argument. We also need to work on the distinction between thick and thin, or deep and shallow reasons or arguments. The resulting account of pliberalism will be not as thin as the theory originally proposed by Rawls, for it will be thick enough to encompass an argument in support of the pliberal conception. While, as a consequence, there might be fewer pliberals, those that would endorse pliberalism would do so in a principled way. Pliberalism will be held as a moral view in its own right.

Bibliography Cohen, G.A. 1997. “Where the Action is: On the Site of Distributive Justice.” In: Philosophy and Public Affairs 26(1), 3-30. —. 2000. If You're an Egalitarian, How Come You’re So Rich? Cambridge Mass.: Harvard University Press. Dreben, Burton. 2003. “On Rawls and Political Liberalism.” In The Cambridge Companion to Rawls, 316-46. Ed. by Samuel Freeman. Cambridge: Cambridge University Press. Lloyd, S.A. 1994. “Relativizing Rawls.” In: Chicago-Kent Law Review 69, 709-35.

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—. 1994a. “Family Justice and Social Justice.” In: Pacific Philosophical Quarterly 75, 353-71. —. 1995. “Situating a Feminist Criticism of John Rawls’ Political Liberalism.” Loyola of Los Angeles Law Review 28, 1319-1344. —. “Self-interest, Citizen Virtue and Justice in a Liberal Democracy: A Rawlsian Reply to G.A. Cohen.” Manuscript. Okin, Susan Moller. 1987. “Justice and Gender.” Ethics 16, 42-72. —. 1989. Justice, Gender and the Family. New York: Basic Books. —. 1994. “Political Liberalism, Justice, and Gender.” Ethics 105, 23-43. Rawls, John. 1971; revised edition 1999. A Theory of Justice. Cambridge Mass.: Harvard University Press. —. 1993. Political Liberalism. New York: Columbia University Press. —. 1996. “Introduction to the Paperback Edition.” In Rawls, John. Political Liberalism. New York: Columbia University Press. —. 1997. “The Idea of Public Reason Revisited.” In The University of Chicago Law Review 64, 765-807. —. 1999. “Commonweal Interview with John Rawls.” In: Collected Papers, ed. by Samuel Freeman. Cambridge Mass. and London: Harvard University Press, 616-22. —. 2001. Justice as Fairness: A Restatement. Ed. by Erin Kelly. Cambridge Mass. and London: Harvard University Press.

Notes 1

Rawls, 1971; revised version 1999. Hereafter TJ. Rawls, 1993. Hereafter PL. 3 In constructing this definition, I am using other definitions from Rawls 1997, “The Idea of Public Reason Revisited;” hereafter IPRR. See IPRR 774 and 776. 4 See IPRR 771. 5 In Rawls 1996, which is the “Introduction to the Paperback Edition of Political Liberalism,” hereafter Intro. 6 Although the conception of justice is strictly political, it is, Rawls says, “affirmed as a moral conception and citizens are ready to act from it on moral grounds” (PL 168). 7 Rawls’s reference to the political conception of justice as a “module” (PL 144-5) misrepresents the problem posed by the priority of the right over the good. 8 Rawls states that “the priority of the right means that the principles of political justice impose limits on permissible ways of life, and hence the claims citizens make to pursue ends that transgress those limits have no weight” (PL 174). 9 As also suggested in the passage from PL 140 quoted supra. 10 Rawls adds: “It is left to the citizens individually –as part of liberty of conscience— to settle how they think the values of the political domain are related to other values in their comprehensive doctrine” (PL 140). 2

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Also: ”the history of religion and philosophy shows that there are many reasonable ways in which the wider realm of values can be understood so as to be either (a) congruent with, or (b) supportive of, or else (c) not in conflict with, the values appropriate to the special domain of the political conception of justice” (PL 140). 12 Also specified in the following passage: “many if not most citizens come to affirm the principles of justice incorporated into their constitution and political practice without seeing any particular connection, one way or another, between those principles and their other views” (PL 160). 13 By later writings I mean Intro, IPRR, and Rawls 1999 (“Commonweal Interview with John Rawls,” in Collected Papers), hereafter CP. 14 Several criticisms (mostly by feminist theorists) raised against PL focused on the fact that the distinction between political and moral views stipulated by Rawls was artificial, and, at any rate, highly problematic. Probably motivated by this, Rawls tried to emphasize the ways in which the political conception and the comprehensive doctrines do relate, thereby shifting to the view in which the comprehensive doctrines positively ground the political conception, that is (2), instead of merely being not incompatible with it as in (1). There is in fact no later mention of (a), (b), and (c) as possible ways in which comprehensive doctrines and the political conception relate to each other. 15 See also IPRR 776, and CP 619. 16 See also IPRR 784-5. 17 As also clear in the following fragment: “Any comprehensive doctrine, religious or secular, can be introduced into any political argument at any time, but I argue that people who do this should also present what they believe are public reasons for their argument. So their opinion is no longer that of one particular party, but an opinion that all members of a society might reasonably agree to, not necessarily that they would agree to. What’s important is that people give the kinds of reasons that can be understood and appraised apart from their particular comprehensive doctrine” (CP 619, my emphasis). 18 Rawls himself acknowledges that “the introduction into public political culture of religious and secular doctrines, provided the proviso is met, does not change the nature and content of justification in public reason itself. This justification is still given in terms of a family of reasonable political conceptions of justice” (IPRR, 784). 19 More about this later. 20 Certainly, the fact that there is an independent argument for the political conception does not mean that there cannot be any other arguments (provided from the different comprehensive doctrines) that lead to it. As said before, overdetermination is possible. 21 In CP 621-2 Rawls states: “Citizens can have their own grounding [for a liberal political conception] in their comprehensive doctrines, whatever they happen to be. I make a point in Political Liberalism of really not discussing anything, as far as I can help it, that will put me at odds with any theologian, or any philosopher.” 22 In “Relativizing Rawls,” Lloyd states,

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Rawls does not provide a complete set of shallow arguments for the truth of the fundamental intuitive ideas that form the starting point of the theory. Perhaps he has not fully appreciated the power of shallow philosophical resources available to him, or perhaps he has just assumed others would naturally deploy these resources in elaborating his argument. However this may be, he does at least implicitly offer a sketch of how arguments might proceed (1994a, 730). Lloyd maintains that, in order to develop a shallow argument for the pliberal conception, it is helpful to review the ordinary arguments that Rawls presents against illiberal positions in TJ (section 12), as well as Rawls’s discussion of how an overlapping consensus develops in PL. Lloyd herself does not propose such a shallow argument for the liberal political conception. 23 Rawls 2001. Hereafter JAF. 24 Burton Dreben makes the same claim in Dreben 2003. 25 Some secularistic policies in France can be interpreted along these lines, too. 26 See Lloyd 1994. 27 Says Lloyd, “Philosophers routinely deploy these shallow arguments to good effect, and it would be interesting to consider how many of our deepest convictions are actually held on the basis of very shallow arguments.” (Lloyd 1994, 721)

WHY IS (CLAIMING) IGNORANCE OF THE LAW NO EXCUSE? MIROSLAV IMBRISEVIC, HEYTHROP COLLEGE, UNIVERSITY OF LONDON

I. Introduction1 The foremost proponent of the 'consent solution' to the justification of punishment was the legal scholar Carlos Santiago Nino (1943-1993), and I will take Nino's account to be paradigmatic for consensual theories of punishment.2 The attraction of Carlos S. Nino's consensual theory of punishment is that it attempts to obviate the need to establish that the wrong-doer has political obligations and, most importantly, the obligation to obey the law. Establishing that a citizen has such obligations has proven to be difficult and controversial (starting from Socrates' acceptance of the death penalty to more recent justifications). The important feature of Nino's theory of punishment is that the wrong-doer, by committing an illegal act, consents to assume a liability to punishment. If caught and convicted, this 'assumption of liability' would be decisive for punishing an offender – without having to establish that citizens, including the offender, have an obligation to obey the law. According to Nino individuals have moral obligations, whether they consent to them or not. And the criminal law, on the whole, tends to track these moral obligations. Nino's theory has, regrettably, not been widely discussed – notable exceptions are Ted Honderich3, Thomas Scanlon and, most recently, David Boonin4. I will concentrate on one objection's to Nino's theory: ignorance of the law precludes consent (to assume liability to punishment) and would thus be an excuse. In this paper I will discuss two aspects of ignorance of the law: ignorance of illegality (including mistaking the law) and ignorance of the penalty; and I will look at the implications for natives, for tourists and for immigrants. I will argue that consensual theories of punishment need to rely on two premises in order to justify that (claiming) ignorance of the law is no excuse. The first premise explains why individuals are presumed

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to 'know' current laws. The second premise explains why individuals are presumed to 'know' new legislation. This means that the principle 'Ignorantia juris non excusat' does not derive its force from utilitarian justifications (e.g. 'the law must be upheld at all cost') or from the assumption that individuals have so-called 'duties of citizenship', but rather from the insight that individuals are, normally, sufficiently equipped to work out, what the (criminal) law requires and do indeed work it out. In the last part of the paper I ask: When ought a liberal state accept ignorance of the law as an excuse? And I propose an answer.

II. Ignorantia juris non excusat In Nino's consensual theory of punishment a penalty can only be imposed if certain requirements are met: 1. 'the person punished must have been able to prevent the act to which a liability to suffer punishment is attached' and 2. 'he must have consented to perform the act which involves a liability to suffer punishment' and 3. 'he must have known that the undertaking of the liability was a necessary consequence of the act he consented to perform. This obviously implies the requirement of knowledge of the law and the proscription of retroactive criminal provisions.'5 A problem arises here: it seems that ignorance of the law would have to count as an excuse for a consensual theory of punishment. When we talk about ignorance of the law there are two possibilities which we need to consider.6 First, the offender might not have known that the act in question was against the law. Second, she might have been mistaken about the law in two distinct ways. The offender might have been mistaken in applying the law (e.g. how much force can one use in self-defence) – this would be equivalent to ignorance of illegality and thus might excuse her. There is, of course, a conceptual difference between not knowing the law and mistaking it, but in practice this distinction is usually disregarded.7 Alternatively, the offender might have been mistaken about the penalty for breaking the law; she might have envisaged a lesser punishment. It seems that she would then only be liable to the lesser punishment. Let us consider in how far Nino's theory can deal with these possibilities. In modern democracies, or in liberal societies, if a new law is introduced, there might be a consultation period, discussion in the media and, most importantly, before the law comes into force, the public is informed about it (i.e. promulgation). New laws are normally well publicised, particularly if they carry severe penalties or if they affect many people (e.g. the prohibition against using one's mobile phone while

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driving). Thus one unstated premise for Nino's theory must be the following: P1: For an individual who wants to live within society, it is a requirement of prudence to keep reasonably well informed about changes in the law. If the individual does not do so, she runs the risk (i.e. consents to the risk) of suffering harm through punishment without knowing when and where she will incur this liability. This requirement of prudence – needs to be sharply distinguished from any alleged duties of citizenship8, duties to others or to the state. The prudential requirement, of keeping reasonably well informed about changes in the law, can be achieved, without great cost to the individual, by reading a newspaper, watching the news or just by interacting with friends, family or work colleagues. It is not something that the individual need actively pursue. One could stay abreast of new legislation (which is immediately relevant to individuals) through the everyday interactions one has in society. What is actively required for living within society is not to shut oneself off from society; one should not act like a 'hermit' if one wants to live in society.9 If you consciously decide not to keep informed, if you shut yourself off from society, then you consent to run the risk of harm through punishment, but without knowing when and where you will incur the liability to punishment.10 So, for new laws, ignorance is no excuse, because they have been properly publicised. And if the individual wants to take part in societal life and wants to avoid suffering harm through punishment, it is a requirement of prudence to keep reasonably well informed about changes in the law (i.e. not to live like a 'hermit' within society). But what about 'old' laws. Most of them were publicised before the individual was born. Could this be an excuse? Judges and courts, normally, do not accept ignorance of 'old' laws as an excuse. Why? Because everybody is presumed to know the law of the land. This presumption relates primarily to mala in se – which always carry the severest punishments. Mala in se are considered to be the most reprehensible crimes in society (e.g. murder, torture and rape). Individuals are inculcated from an early age with moral knowledge. Part of this moral knowledge is learning about mala in se, which is a relatively small corpus of knowledge. Whereas learning about (the multitude) of mala prohibita might not be part of this moral education – the individual usually learns about them at a later age. It is actually impossible, even for legal scholars, to 'know' all mala prohibita. But this is not as troubling as it seems at first glance. Citizens,

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usually, do not live in fear of breaking the law by accident, and large numbers of them are not routinely punished for unwittingly committing illegal acts. Why is this? Because individuals acquire the ability to work out what might be a malum prohibitum. Furthermore, only a fraction of all possible mala prohibita would ever be relevant to an individual. It might, therefore be prudent to acquaint oneself with such mala prohibita. For example, an individual who sets up business as a (private) day trader, ought to find out about the relevant legislation, particularly the legislation against insider trading (– this is, again, a requirement of prudence). And lastly, ignorance of the law is more likely to be accepted as an excuse for mala prohibita, particularly if it is clear that there was no mens rea.11 Ignorance of current laws would not count as an excuse because an individual is normally socialised by their parents, through attending school and through interacting with other people. Thus, by the age of culpability12, an individual is normally aware of which acts are morally most reprehensible in society (and there is a large overlap between committing such acts and between 'illegal acts' which carry the most severe penalties in law).13 And, secondly, she would have acquired a (basic) grasp of what the law prohibits (or what types of actions the law might prohibit14). So, a further unstated premise for Nino's theory must be: P2: Growing up in society, normally, provides the individual with knowledge of what is morally wrong and what is/might be legally wrong. At the age of culpability the moral knowledge would (ideally) be comprehensive, whereas the legal knowledge can only be expected to be basic – but it will expand in time. It is presumed that the combination of these two elements (i.e. moral and legal knowledge) sufficiently equips a person to work out which actions might be against the law, so that they will not accidentally suffer harm through punishment. J.R. Lucas writes: 'Law is not simply something the sovereign tells his subjects to do, but is rather something that the subjects themselves work out in their daily lives. It is a social phenomenon, part of their way of life.'15 The individual also knows that any act, which is (either morally and/or legally) wrong, might carry a penalty. When in doubt, it would be a requirement of prudence to find out, whether something is illegal (e.g. what is a tax loophole, what is tax avoidance and what counts as tax evasion). However, there could be acts, prohibited by law, which are not well known to the public. But since these acts are either obscure and/or clearly

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wrong, they would not pose a serious threat to Nino's consensual theory of punishment. With regard to the former, such acts have presumably become obscure because violations are either not being prosecuted any more (e.g. blasphemy in English or Scottish law) or they would only affect very few people (at present the British monarch cannot marry a Catholic).16 With regard to acts which are clearly wrong, David Boonin17 gives an example from the Martha-Stewart-Trial in the US, in which it became apparent that most Americans did not know that there was a law against lying to a federal agent, even if not under oath. Boonin believes that this example of ignorance of the law shows a weakness of Nino's consensual theory of punishment. However, we need to distinguish two different contexts here. It may well be that many Americans did not know this. All that this illustrates is that most people only have a incomplete grasp of the law. But had they been in Martha Stewart's shoes they ought – and would – have worked out that they were about to do something which was seriously wrong. Martha Stewart was convicted of insider trading, and when she had lied to a federal officer, she presumably knew that lying is normally wrong. But, more importantly, she could have worked out – and probably did – that lying to an officer of the state, who is investigating a possible crime, is more serious than lying in the private sphere. In the former context lying constitutes an obstruction of justice. She could have worked out that her lying might have legal-normative consequences. And, if – genuinely – in doubt, she should have sought legal advice. There may, occasionally, be cases where the defendant appears to have sufficient moral and legal knowledge to work out the legality/illegality of an act, but, nevertheless, the defendant claims ignorance of the law.18 Here the defendant appears to stop short of the last step in our everyday intuitions about morality and the law: she claims not to have worked out that her actions were or might be illegal. In such unusual circumstances the medical profession/psychologists will surely be able to ascertain and explain that the defendant's claim is genuine. In such rare cases ignorance would count as an excuse. But in all other cases, where such claims are made (Martha Stewart might have fit this description), courts would presumably class them as instances of 'wilful blindness'. Here 'a defendant claims a lack of knowledge' and 'the facts suggest a conscious course of deliberate ignorance'.19 Lastly, let us consider tourists visiting other countries. Any reasonably well informed (or properly socialised) person would know that the legal systems in other countries might differ from one's own legal system. Therefore, in analogy to 'Premise 1' (keeping reasonably well informed

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about changes in the law of one's own country), it would be a requirement of prudence for the tourist to find out about any important differences in the law of the country he is about to visit. It seems reasonable, before going on a driving holiday to the US, to find out how the rules of the road differ (e.g. the prohibition to overtake school buses while they are stopping). Furthermore, friends, family, work colleagues and/or the travel agent would presumably also warn the person that, for example, in Arab countries a different code of conduct is required. Often the differences are well publicised. For example, before Singapore imposed the ban on importing chewing gum (even for personal use), this was widely reported; and there was a transition period, before the ban was enforced. If a tourist is visiting a country which is known for a strict code of conduct (say, Iran), this requirement of prudence takes on more urgency. When visiting a country with a similar legal system, it might not seem necessary to find out more about their legal system, and most people do not do so. If there is an infraction, ignorance of the law might lead to punishment, but this is unlikely to be severe, because the infraction would not be something which is morally reprehensible (e.g. jaywalking in the US). Therefore, there is also the likelihood that the other legal system might treat the tourist with some leniency (for jaywalking).20 In such cases the imposition of a minor punishment/fine would be just, because the tourist did not bother to become acquainted with the other legal system. The tourist consented to run the risk of being liable to punishment, because she calculated that, the legal systems being similar, she might not commit any offences unwittingly, or, if she did, the punishment would not be severe. What if the tourist unwittingly committed an offence for which the punishment were severe, even in a country with a similar cultural/legal background (say, the US)? The first person to do so would suffer indeed, and one could see an element of injustice in this. But such a case would presumably be well publicised, and subsequent tourists would know and/or be warned about the severe penalty for this particular act.21 The prudential requirement for tourists to become informed about any differences in law holds a fortiori for immigrants to another country. Martin P. Golding states: 'Especially immigrants, who are aware of the many discrepancies between their original culture and their new home, should make the effort to find out the legalities and illegalities of what they propose to do.'22 If they don't become informed, they run the risk of being liable to punishment, but without knowing when and how they will incur this liability.

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However, if the immigrants come from a society, with a fundamentally different conception of 'the law' (say, a tribal society), then the state has a 'duty of care' to the immigrants – and to its own citizens. In such exceptional circumstances the state ought to educate the immigrants with regard to the law/the legal system beforehand. Let us consider differences in penalties between countries. If the act in question is clearly wrong, even in the home country of the tourist (or immigrant), but carries a harsher penalty in the other country, ignorance of the law would not be an excuse. For example, if the penalty for drink driving is harsher in the country the tourist is visiting, she cannot argue that the lesser penalty of his home country should apply to her because she was ignorant of the difference in penalties. Performing an illegal (or immoral) act in another country, is assuming (i.e. consenting to) a liability to risk (and here, without knowledge of the possible scope of penalties). Thus, the tourist is acting imprudently in going through with the illegal act. Boonin mentions another, general, problem for the consent solution: many natives 'do not know the penalties for the illegal acts they knowingly perform.'23 They are not just mistaken about the tariff attached to an illegal act, they do not know what the tariff might be in the first place. But, as I have argued in the previous paragraph, knowingly performing an illegal act (and thus assuming liability to punishment) without knowledge of the scope of penalties, is an act of imprudence – or folly. Boonin24 is right that in such cases one could not say that the offender consented to the punishment, because she did not know what the punishment would be. But this does not correctly reflect Nino's position. The offender does not consent to a specific punishment, she consents to the loss of immunity from punishment. Thus, being certain about which tariff is attached to an illegal act, is not a necessary condition for the imposition of punishment in Nino's theory. The voluntary assumption of risk of an offender who is not certain about the attached penalty, Nino could argue, is analogous to the voluntary assumption of risk in the law of torts. When accepting a lift from a drunk driver, to use one of Nino's examples,25 the injured party, did assume liability for any injury (or worse), but without knowing whether they would in fact be injured and, if so, without knowing the extent of the injury. Furthermore, for many illegal acts the law allows for flexibility in the imposition of punishments (e.g. a fine between £1 000 and £10 000; or imprisonment between 5 to 10 years). Thus, very often, the offender cannot know what the exact punishment for her will be. It is the voluntary

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assumption of the legal-normative consequences which the offender consents to, rather than a particular punishment.26 The adjudication in criminal law suggests that, generally, knowledge of the law (primarily relating to mala in se) is presupposed by the judges. But 'knowledge of the law' does not mean to know all of the law or to have the near perfect grasp of a legal scholar. It means, having comprehensive/ expert moral knowledge combined with a (basic) grasp of the law (or of 'right and wrong'). To 'know the law' does not mean the ability to recall facts about the law. If that were so, we would have children learn the law by rote, just like the times tables. Rather, 'to know the law' means the ability to work out if an act might have legal normative consequences. This view seems to be an accepted practice in liberal societies. For this reason children, the mentally handicapped and the insane are not seen as culpable.27 A complete grasp or knowledge of the law is only a theoretical possibility. 'There is no presumption in this country that every person knows the law: it would be contrary to common sense and reason if it were so … If there were not [such a thing as a doubtful point of law], there would be no need of courts of appeal, the existence of which shews that judges may be ignorant of law.'28 Even though nobody can be said to 'know' all of the law, ignorance of the law is normally not an excuse, because citizens are presumed to have sufficient moral knowledge and/or sufficient legal knowledge to be able to work out for themselves which actions might be in agreement or contrary to the law.29 Robert Goodin writes that 'by and large we simply surmise what is a crime, at law, from what we know about what is wrong, morally.'30 If the (criminal) law did not track morality, then one could be prosecuted for actions, which one did not know to be 'wrong'. Then, one would have to strive to know all the law, because morality would not function as a guide to required standards in society, nor to the particular requirements of the law.31 In such a situation, ignorance of the law would presumably be a much more frequent occurrence and would indeed be costly. Goodin writes: 'For people to have good epistemic access to the content of the law, what is needed is: 1) A way for people to intuit, without detailed investigation, what the law is for most common and most important cases of their conduct; 2) A way for people to intuit when their intuitions are likely to be unreliable, and hence that they need to investigate further what the law actually is.'32

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Society normally does equip the individual with the tools to have good epistemic access to the content of the law: comprehensive moral knowledge combined with (basic) legal knowledge. Thus, the unstated premises (P1 and P2) in Nino's theory justify that the default position of courts is: Ignorantia juris non excusat. However, it would be better and clearer to say: Claiming ignorance of the law will, normally, not count as an excuse.

III. When Would a Liberal State Accept Ignorance of the Law as an Excuse? When it is impossible to know the law: for example, if there is a change of the law in England while a ship is at high seas in the 18th century – the ship's crew will find out about the law change two months later, when they return to port.33 Secondly, when the defendant 'relies on a judicial opinion, administrative judgement, or other official interpretations of the law that subsequently proves to be erroneous.'34 Another example would be retroactive legislation. According to Nino, knowledge of the law entails that there must not be any 'retroactive criminal provisions.'35 Why? Because it would be impossible to have knowledge of the law, if certain acts were to be criminalised retroactively.36 In such an instance ignorance of the law would be an excuse (– from the perspective of a just legal system). I would suggest that we can derive a general principle from all of this: Ignorance of the law is to count as an excuse only if it is impossible to know the law or if the individual does not have the capacity to work out what the law might require. The maxim (ignorance of the law is no excuse) might also be applicable for mala prohibita if done unwittingly (particularly for the ever expanding regulatory legislation). I would submit that the maxim 'ignorance of the law is no excuse' does not derive its force from considerations like 'the law must be upheld at all cost'37, or, 'if we did not assume the maxim, criminals would go free' (we presume that most people professing ignorance are lying, and we accept that occasionally genuinely ignorant people are punished38), or, 'it would be difficult and costly' to ascertain what people knew about the law, or, 'it would encourage ignorance of the law', or, 'it would establish idiosyncratic interpretations as law'. All such justifications suffer from a weakness – their justification is utilitarian. They shut off the plausible intuition that sometimes ignorance of the law ought to count as an excuse, because only

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the blameworthy (i.e. those who consented to assume liability to punishment) should be subject to punishment of the criminal law. Such justifications disregard what the individual deserves. They do not address the individual and her ends – and this is what a consensual theory of punishment aims to do – and what a liberal society ought to do. The maxim, ignorance of the law is no excuse, derives its force from the premises P1 and P2, rather than from any utilitarian considerations.

Bibliography Ashworth, A., Principles of Criminal Law, Clarendon Press, Oxford 1991. Boonin, D., The Problem of Punishment, Cambridge University Press, Cambridge 2008. Golding, M.P., 'The Cultural Defense', in Ratio Juris, Vol. 15, No. 2, 2002, pp. 146-158. Goodin, R.E., 'An Epistemic Case for Legal Moralism', , 2008 [an earlier version delivered as the 2008 Dewey Lecture in Law and Philosophy at the University of Chicago Law School]. Honderich, T., Punishment: The Supposed Justifications Revisited, London 2006 (revised edition). Husak, D.N., 'Ignorance of Law and Duties of Citizenship' in Legal Studies, Vol. 105, 1994, pp. 105-115. Lucas, J.R., 'The Nature of Law', in Philosophica, 23, 1979 (1), pp. 37-50 Matthews, P., 'Ignorance of the Law is no Excuse?', in Legal Studies, 3, 1983, pp. 174-192, p. 179. Nino, C.S., Towards a General Strategy for Criminal Law Adjudication, unpublished DPhil. thesis, Oxford 1976. Nino, C.S., 'A Consensual Theory of Punishment', Philosophy and Public Affairs, Vol. 12, No. 4, 1983, pp. 289-306. Scanlon, T.M., 'The Significance of Choice', The Tanner Lectures on Human Values, delivered at Brasenose College, Oxford University, 1986, http://www.tannerlectures.utah.edu/lectures/documents/scanlon88.pdf —. What We Owe to Each Other, Harvard University Press, Cambridge/ Massachusetts 2000.

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Notes 1 I am grateful to Patrick Riordan and Goran Duus-Otterstrom for detailed criticism of earlier drafts. I am also grateful to the following for helpful comments: Tom Crowther, Michael Lacewing, Scott Normand and Sarah Wilkess, as well as to the participants at the 2009 conference on 'Experts, Authority and Law' at the University of Hull. 2 Nino, C.S., 'A Consensual Theory of Punishment', Philosophy and Public Affairs, Vol. 12, No. 4, 1983, pp. 289-306. 3 Honderich, T., Punishment: The Supposed Justifications Revisited, Pluto Press, London 2006 (first edition 1989). 4 Boonin, D., 'The Problem of Punishment', Cambridge University Press, Cambridge 2008. 5 Nino, 1983, p. 299. See also Nino, C.S., Towards a General Strategy for Criminal Law Adjudication, unpublished DPhil. thesis, Oxford 1976, p. 117. 6 See also Boonin, p. 160ff. 7 'Generally the institutional writers and the courts have treated these two concepts as synonymous.' See: Matthews, P., 'Ignorance of the Law is no Excuse?', in Legal Studies, 3, 1983, pp. 174-192, p. 179. 8 Andrew Ashworth claims that acquainting yourself with the law, whether current law or new law, is a 'duty of citizenship' (Ashworth, A., Principles of Criminal Law, Clarendon Press, Oxford 1991, p. 209). But we are then faced with the problem of establishing that we have duties of citizenship. For a critical discussion of Ashworth see Husak, D.N., 'Ignorance of Law and Duties of Citizenship' in Legal Studies, Vol. 105, 1994, pp. 105-115. 9 But even a hermit who is re-joining society, after having lived in the forest for 20 years, would try to find out how society (including the legal system) has changed. 10 This would be similar to playing Russian roulette, but not as deadly. 11 It may help the determination if the defendant is of high moral character, say, a nun or a moral philosopher. 12 Note that there are wide variations in culpability between modern legal systems. Scotland: 8 years, England/Switzerland: 10, Germany: 14, Argentina/Spain/ Portugal: 16; and Iran distinguishes according to gender – girls: 9 and boys: 15. 13 Thomas Scanlon argues that there must be safeguards in place to protect individuals from doing something which has been declared illegal by the state. Because such a choice would lead to harm (through punishment) for the individual. Some of the safeguards are 'education, including moral education' and 'the dissemination of basic information about the law'. Note that Scanlon only requires 'basic' information about the law (in the Tanner Lectures), presumably, because a lot of the work is done by (moral) education. However, in What We Owe to Each Other, the word 'basic' has been deleted; presumably, because the individual is inculcated with more than a basic grasp of the law by society. Nevertheless, Scanlon does not seem to require expert knowledge of the law. (Scanlon, T.M., 'The Significance of Choice', The Tanner Lectures on Human Values, delivered at

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Brasenose College, Oxford University, 1986, p. 202; Scanlon, T.M, What We Owe to Each Other, Harvard University Press, Cambridge/Massachusetts 2000, p. 264). 14 An individual who is aware that carrying a knife is prohibited, can reasonable be expected to conclude that carrying a screwdriver with a (deliberately) sharpened tip must also be prohibited. 15 Lucas, J.R., 'The Nature of Law', in Philosophica, 23, 1979 (1), pp. 37-50, p. 38/39. 16 Prince Charles, presumably, is aware of this. 17 Boonin, 2008, p.162. 18 The defendant is familiar with life in society, i.e. he was not brought up by apes in the jungle or abducted at an early age and held captive in a dungeon, etc. And there is clear evidence that the defendant had, prior to the law-breaking, exercised the ability to work out what morality/the law may require. 19 See United States v. Coviello (1st Cir. 2000) quoted in United States v. Anthony (1st Cir. 2008) http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=071670P.01A. Similarly in English law, see Westminster City Council v Croyalgrange Ltd (1986) 83 Cr App R 155, where knowledge on the part of the defendant could be based 'on evidence that the defendant had deliberately shut his eyes to the obvious or refrained from enquiry because he suspected the truth but did not want to have his suspicion confirmed.' (As quoted in Ashworth, p. 192). 20 The law breaking of the tourist, if it concerns mala prohibita, might be treated as a 'mistake of fact' rather than 'ignorance of the law', and thus would be excusing – in a liberal society. 21 One could, for example, image that there are still countries in which drink driving is a cavalier offence. If a tourist from such a country were to visit China, where the death penalty can be imposed for causing death through drink driving, the tourist could be faced with the severest penalty. But could the tourist claim that she did not know that driving under the influence can cause death, and is therefore morally (and legally) wrong? And could she claim that in her country drink driving is not a serious offence and therefore the harsher penalty in China would be unjust? I don't think the ignorance rule would apply in this case. Furthermore, the country in my example, China, could at present not be seen as a liberal state, which means that it would be prudent to become informed about the Chinese legal system. 22 Golding, M.P., 'The Cultural Defense', in Ratio Juris, Vol. 15, No. 2, 2002, pp. 146-158, p. 154. 23 Boonin, 2008, p. 162. 24 Boonin, 2008, p. 163, FN6. 25 Nino, 1983, p. 298. 26 See Honderich, p. 51. 27 The law distinguishes ignorance from nescience of the law. An infant, for example, does not have the capacity to know the law and is thus nescient. 28 Justice Maule in Martindale v Falkner (1846), as quoted in Matthews, p. 186. 29 Matthews points out that the 'apparently random way in which the maxim [ignorantia juris non excusat] has sometimes been applied and sometimes not suggests a simple ad hoc approach to each offence: does the mental element for the

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particular crime include knowledge or appreciation of the law, and, if so, to what extent?' (Matthews, p. 185.) This means that sometimes ignorance is accepted as an excuse, a practice which is in agreement with Nino's theory. 30 Goodin, R.E., 'An Epistemic Case for Legal Moralism', , 2008 [an earlier version delivered as the 2008 Dewey Lecture in Law and Philosophy at the University of Chicago Law School], p. 13 31 See Goodin, p. 15. 32 Goodin, p. 16. 33 Note that in a famous case an English court did not accept ignorance as an excuse for the Captain who performed an act which had become illegal while he was at sea. Presumably, the judge thought that the law had to be upheld at all cost (Bailey [1800]). 34 Model Penal Code [American Law Institute Sect 2.04(3)] as quoted in Husak, p. 115. 35 Nino 1976, p. 117, and 1983, p. 299. 36 An exception would be laws which clashed with the moral intuitions/knowledge of society, introduced by a regime of terror in order to make their murderous activities appear to be 'legal' (or just). In such a case the retroactive legislation would serve to make the state a 'Rechtsstaat' again. 37 See the above example of the ship at high seas (Bailey [1800]). 38 Chief Justice Ellenborough stated in 1802: "Every man must be taken to be cognizant of the law; otherwise there is no saying to what extent the excuse of ignorance might not be carried. It would be urged in most every case".' (Bilbie vs. Lumley [1802]).

A POLITICS IN THE ABSENCE OF A UNIVERSAL HUMAN NATURE CHRISTOPHER HUGHES, UNIVERSITY OF MANCHESTER

Abstract This paper explores one element of a postmodern critique of Fukuyama’s claim that liberal democracy is the end of history. While broadly accepting the postmodern critique of attempts to homogenise humans into a specific, universal concept of humanness, the realization of which would bring history to a close, I argue against the claim that there is nothing which can be said to be essentially human, since valuing difference and individuality establishes a concept of what it means to be human. Thus, I suggest that postmodernism, itself, invokes a loose metaphysical claim, whereby humanness is characterised by difference and individuality. I conclude that the political vision of both liberals and postmodernists is to emancipate the individual through the provision of a narrative space which promotes opportunities for the articulation of individuality and the flourishing of pluralism and difference. What emerges from this discussion is the possibility of reconciling traditional Modernist/ Enlightenment thought, which believed in a universal (hu)man, driven by universal desires/objectives, with postmodern thought, which rejects the totalising of humanness to universal drives and prioritises difference, creativity and pluralism.

Introduction This paper explores a specific critique of Fukuyama’s claim that liberal democracy is the end of history, a critique that calls into question the possibility of constructing a universal, metaphysical and ahistoric account of what it means to be human. The paper seeks to analyse whether it is possible to construct an account of a teleological history, after the idea of the human has been problematized. It is important to recognise that this

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paper utilizes a specific and technical understanding of the terms “history” and the “human”. By history, I am not, primarily, referring to: the academic discipline of history; the study of past events, or the narratives constructed about the past. Instead, I am concerned with a specific form of history – a teleological, philosophical, universal history.1 I also use the term “human” in a specific manner, where being “human” does not simply denote someone that is a member of the relevant biological specie; instead, I am concerned with the idea that there is some core notion of human nature – the idea that there is a universal characteristic(s) which makes one a human; and that it is then possible to homogenise all individual instances of homo sapiens into one unitary category defined by the universal characteristic(s) of human nature. The principal question which I seek to address in this paper, is: can we construct a history which ends in liberal democracy after we have problematized the human? Therefore, my starting point is to show why metanarratives about the human are problematic and why we need to call into question the possibility of constructing and legitimising a concept of human nature. I argue that since metanarratives construct a universal human, they potentially dismiss and ignore difference, and this could undermine individualism and perform an injustice to the individual. I argue there is something incomparable and unique between individuals which is unrepresentable by the homogenous term: human. In the first section of the paper, I will defend the postmodern critique of the metanarrative2 and the critique of the notion of a geist3 driving history. This critique of a metaphysical, ahistoric human nature problematizes Fukuyama’s theory that history can end, since for Fukuyama it is the realisation of human nature which brings history to a close. Fukuyama’s end of history thesis relies on the concept of human nature as the geist behind history, since he argues history is seeking to emancipate/realise the human. As Goutevitch puts it, for Fukuyama ‘human nature is the standard of political action and judgement [and it is because] modern liberal democracy conforms to human nature as closely as a political order can conform to it; it is therefore just, satisfying, stable and therefore it is the completion and fulfilment of history.’ (Goutevitch, 1994, 32). Thus, the end of history comes about through the emancipation of the geist. The geist is an ahistorical and universal entity, an entity with a desire which must be realised/emancipated, and it is through the realisation of this desire in a social/political order that history is brought to a close. However, the ultimate purpose of this paper is to move toward a reconciliation between traditional Modernist/Enlightenment thought and

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postmodern thought, rather than to simply extend the postmodern critique of the modern. This is not a simple matter since traditional Modernist/ Enlightenment thought is premised around a universal human driven by universal desires and objectives, whereas postmodern thought rejects a totalised notion of humanness driven by a homogeneous desire and drive. In the final section of this paper, I show how this reconciliation can be accomplished. I show that liberalism’s prioritising of the individual and individualism has resonance with postmodern values of difference, plurality and creativity. I also show that a postmodern politics which valorises the variety of humans, rather than the universal human, cannot avoid creating some core concept of what it means to be human, since valuing difference and individuality, itself, invokes a claim of an underlying notion of humanness. Thus, I show that even within postmodernism, there is an ahistoric geist – a geist which drives us toward the realisation of a form of individualism, since humanness depends on individual difference. This paper focuses on Fukuyama and Lyotard as representative of Enlightenment-Liberal thought and postmodern theory, respectively, and it is by demonstrating points of convergence between these two thinkers that I hope to show that Liberal-Enlightenment and postmodern thought do not need to be constructed in binary opposition to one another. I argue that a constructive philosophical dialogue can take place between the two about what it means to be human and about the movement of history. I, therefore, conclude that a postmodern politics which emphasises difference, creativity and plurality allows us to rescue both the concept of history and some core liberal democratic values. I conclude that polarising postmodernists e.g. Lyotard against liberal modernists e.g. Fukuyama should be avoided, since there is actually substantial commonality between the two positions. Thus, my conclusion represents a radical break with typical postmodern thinking, since I claim it is possible to construct a history within postmodern thought/theory.

A Postmodern Critique of the Metanarrative of the Human In this section I explain: what a metanarrative is; how the concept of the human conforms to the definition of a metanarrative and why an incredulity to metanarratives challenges and disrupts both the possibility of the human and the possibility of history. A metanarrative has a descriptive and legitimising function. A metanarrative is something that not only aims to describe a social/political order, but justify and legitimise it. Lyotard, for example, argues that the

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purpose of grand narratives is to ‘legitimate social and political institutions and practices, forms of legislation, modes of thought’ (Lyotard, 1992, 61). Metanarratives claim to produce a correct description of a state of affairs which then acts as the legitimising basis for a particular mode of thinking about politics and society. However metanarratives, Lyotard argues, do not seek legitimacy in the present; they seek legitimacy ‘in a future to be accomplished, that is, in an Idea to be realised. This Idea… has legitimating value because it is universal. It guides every human reality.’ (Lyotard, 1992, 29-30). The metanarrative is based on the concept of there being some thing, an entity, or geist which is seeking to be realised or emancipated. Thus, the metanarrative seeks to legitimise both the reality of the fixed geist which it seeks to emancipate and the social/political order which emancipates the geist.4 The geist which the metanarrative is seeking to emancipate is conceived to be a true and universal entity e.g. the human capacity to reason. The metanarrative then seeks to legitimise both the truth/reality and the universality of this geist and the social/political order e.g. the “Enlightenment” which brings about the emancipation of the geist. Thus, postmodern incredulity toward metanarratives is one aspect of a wider distrust of truth and universality; and whilst I cannot completely avoid a general discussion about truth claims and claims to universality, I will leave these wider issues to one side, since the purpose of this paper is not to debate the status of all claims about truth and universality; instead, the focus of this paper is the more specific question of whether we can construct a true and universal idea of the human. Since metanarratives produce a history which is moved by a geist that must be emancipated in a future to come, they do not produce historical narratives about what the community has done in the past; they produce ahistorical narratives about the “true” identity/characteristics of an entity (Rorty, 1991a, 198-199).5 The metanarrative establishes a fixed, totalised/homogenised entity e.g. human nature, the proletariat etc, and this entity becomes the geist which moves history and fixes the future. Thus, the will of the geist is similar to destiny or the will of God i.e. history is, in some sense, pre-determined, since it is the story of the emancipation of the geist. Therefore, an incredulity toward metanarratives is also an incredulity toward history,6 because without a legitimate basis for a total/universal geist, there is nothing to propel history toward a prescribed future. The questioning of the legitimising function of metanarratives problematizes history since it prises open enforced closures and opens up the future. Williams elucidates this: for ‘Lyotard, events

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cannot be understood in the light of some great measure or master plan [e.g.] the will of God’ (Williams, 1998, 56). Postmodernism does not produce a unified idea or conception of what it means to be human. Postmodernism is a diverse and divergent philosophical “position”/“ideology”, and it is difficult to generalize about “postmodern” thinkers; however, there are points of resemblance and commonality amongst “postmodern” philosophers. Thus, postmodernism is a kind of “loose ideological perspective”, and one which is united in its opposition to metanarratives and universal categories. Postmodernism is opposed to metanarratives because the purpose of the metanarrative is to produce and emancipate unitary categories. Metanarratives are based on the creation of a unitary category which produces a “common language” and fundamental good which is universal. However, the universal category and the metanarrative disguises/negates differences within the universal and produces exclusions. The desire to produce a universal concept of the human is resisted by postmodernists because they wish to keep open questions and descriptions about what it means to be human. Lyotard’s notions of incommensurability, difference and the differend illustrate how postmodern thought rejects the idea of an homogenous human. Rorty is even more explicit in his desire to keep the idea of what it means to be human open, and argues that philosophy’s aim should be ‘to see human beings as generators of new descriptions rather than beings one hopes to be able to describe accurately.’ (Rorty, 1980, 378). In a similar vein, Butler argues that to produce totalizing accounts produces new exclusions and thus universality has to be left permanently open/contingent (Butler, 1992). She argues that whilst we do not need to dismiss the term “human”, we do need to ask how it works and what it forecloses, and thus, Butler concludes that we cannot produce a single definition of the human (Butler, 2004, 89-91). This inability to produce a concept of a homogenous human leads Lyotard to a valorisation of difference between individual instances, since we cannot look toward a universal category. The metanarrative of the human is related to the established debate on the metanarrative of the “woman”. Feminist debates clearly elucidate the problem with the creation of a unitary category7 e.g. Ramazanoglu argues ‘a feminism which inappropriately speaks for all woman and offers a prescribed way forward is illegitimate.’ (Ramazanoglu, 2002, 67). She argues ‘we do not need an insistence on totality… a feminist dream of a common language for women is totalizing and so imperialist.’ (Ramazanoglu, 2002, 64). Thus Ramazanoglu concludes that we should ‘say goodbye to a modern grand narrative of emancipation that overlooks

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social difference between women’ (Ramazanoglu, 2002, 65). Although many feminists hold onto the category “women”, the category of “women” is critiqued and rejected by postmodernists, causing a schism between modernist and postmodern feminists.8 The problem with the emancipation of the unitary “women” is that totalized expressions of unity obscure differences within the category and cannot speak for all instances within that category. Similarly, the category of a human nature totalizes humans, with the purpose of narrating a story about the emancipation of the human.9 However, to conceive of a fixed and universal human nature means many humans are potentially negated or excluded and differences between humans are disguised. Therefore, our starting point must be to recognise, as Rorty does, that ‘man as Hegel thought of him, as the Incarnation of the Idea, doubtless does have to go.’ (Rorty, 1982, 207). The human cannot be articulated as a universal which represents all human experiences and all humans; the category “human”, if it must stand, must remain open to re-articulations about what it means to be human. Smith elucidates the problem postmodernity poses to modernists, like Fukuyama, who argue that history has an end point, by explaining that an end of history thesis requires a discussion of the “good” (Smith, 1994).10 Smith argues that if there is no fixed nature i.e. a geist that presupposes its own end point of perfection, then we cannot justify our concept of the good or formulate the notion of history moving in one direction. Fukuyama’s claim that history can end requires a reference to a fixed “good”, since he constructs a history which ends with the emancipation of this “good”. For Fukuyama the good, to be realised is the human. However, the postmodern critiques of metanarratives appear to dismantle the concept and possibility of an end of history, since there is no “good” to be emancipated; and this opens up history and possibilities in the future, establishing what Brown calls a politics out of history (Brown, 2001). Thus, postmodern critiques of metanarratives are not merely a critique of the idea that history has ended; they are a critique of the idea that history can end. The idea of history reaching an end point relies on the idea of an underlying, metaphysical geist moving history in a teleological process. However, a politics out of history, as advocated by Brown, destabilises Fukuyama’s argument, because there is no “good” or geist moving history and politics; and thus politics becomes free-ranging, and open to the possibility of new paradigms and developments in the future. A politics out of history is, also, a critique of the legitimacy of liberal democracy, because if there is nothing fundamental to human nature and no ahistoric values, we cannot claim that a particular social/political system is the

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realisation of human nature; and, thus, we cannot argue that liberal democracy satisfies/realises the desire of the human. A politics out of history is a critique of the idea that there can be an ultimate justification for liberal democracy, since there is no geist to be satisfied; a defence for liberal democracy could be articulated, but it would be a contingent one. Postmodernists typically argue that “political truth” has no epistemological ground (Brown, 2001, 3-4); no ‘philosophical or ideological position can have any ultimate authority or justification. We live in a world of competing stories where no particular narrative has general consent or force.’ (Turner, 2002, 34). Therefore, any value is contingent rather than ahistorical, and thus liberal democracy is not, as Enlightenment thinkers argue, the rationalising of man’s desires, but a narrative about something which is desirable given a specific socio-cultural-temporal framework. This contrasts to the Modernist-Enlightenment concept of history, which constructs the human as a geist to be emancipated. As Rorty demonstrates, Modernist thinking attempts to discover universal conditions which explain: the human condition; the nature of reality; what we really are, and what we are compelled to be by a power outside ourselves and these external, ahistorical factors provide humanity with its only possible goal (Rorty, 1989, 26-28). Rorty’s notion that we are being propelled by something other than ourselves is questionable, since Fukuyama’s argument is a claim that what propels us is human nature and our beliefs/desires. To say we are compelled by human nature and our own desires is quite different from saying we are moved by a power that is not ourselves e.g. God, destiny, the cosmos etc. However, Rorty is making an important point: to argue, as Fukuyama does, that there is an ahistorical human nature to which the individual is bound is to claim that the individual is following a pre-determined goal and that he/she is not entirely self-determining. Thus, the individual is merely following the march/will of the universal geist of human nature and history. This produces a concept of a fixed future, a future reached by following the ahistoric geist of human nature. In contrast, postmodernists generally argue that the present is nothing more than the present; it is the product of the past, but there is no ahistorical geist determining past, present and future. We have “no skyhook” to free us from the contingency of our acculturation which has determined our options and how we perceive them (Rorty, 1991a, 13-14). Thus, humans are, according to Rorty, made by culture and are ‘historical all the way through’ (Rorty, 1991a, 176-177). Humans are historical not ahistorical, and what we deem to be human is local and ethnocentric. Rorty rejects narratives of emancipation because he argues there is nothing

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to emancipate – there is no human nature; there is only a developed human language which makes nature for itself (Rorty, 1991a, 213). Williams, Sullivan & Matthews characterise postmodern thought by its insistence on the impossibility of objective thinking and its claim that all thought is subjective/cultural (Williams, Sullivan & Matthews, 1997, 166167). This is especially evident in Rorty’s thinking and his claim that we cannot assume liberals can rise above the contingency of history or argue individual liberty, as conceived in our modern liberal state, is anything more than one more value (Rorty, 1989, 50). For Rorty, the inescapability of our own cultural paradigm and its fashioning of our thinking/ “reasoning” denies the possibility of objective truth, or at least, the obtainability of “truth”. Postmodernism turns away from metaphysics and the concept of truth, and accepts that the values we praise are only praised because of our history; thus all Western philosophising about what is human stems from a shared cultural heritage, one derived from the Greek heritage of Socrates/Plato. And this Western way of thinking is based on an historical, not an ahistorical framework, and has no natural relationship to transcendental “truth”. The break with metaphysics produces a radical politics which is elucidated by Lyotard. The break with metaphysics is a position within postmodern theory which can be traced back to Nietzsche, and the attack on metaphysics is particularly evident in Lyotard’s work. Lyotard wants to remove political thought from: metanarratives, principles of “truth” and discourses which have been legitimated through consensus and “rationality”. He argues a discourse cannot claim to be the outcome of absolute or universal “truth”; a discourse can only claim to be contingently true. Thus he argues that our thinking about the future can be free-ranging and does not need to concern itself with legitimising its narrative on “truth”. Consequently, Lyotard favours petit narratives and a “local” consensus, which is agreed upon by its present players, and is subject to eventual cancellation; thus consensus is limited by space and time (Lyotard, 1984, 66). This poses a direct challenge to Fukuyama, because the petit narratives and local consensus advocated by Lyotard denies the possibility of an end of history, since any consensus which favoured liberal democracy would be temporary/“local”. Deconstruction, as a project, destabilises: “truth”, metanarratives and absolutes. Lyotard has questioned the notion of truth from a deconstructionist angle. He argues “truth” cannot be expressed in one phrase (Lyotard, 1988, 93-94), since we cannot present the reality of the whole in a single phrase (Lyotard, 1988, 79), and thus the “truth” which is located in a discourse requires several phrases to be linked. However,

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postmodernists, especially Lyotard, argue each link we make is arbitrary; and the process of linkage rests on presuppositions and speculation; and therefore, linking does not bring us closer to the “truth” (Lyotard, 1988, 94-96). Or to put this more simply, as Lyotard does, ‘you never get out of speculation’ (Lyotard, 1988, 95). This view is echoed by Derrida, who argues there is no such thing as a “metaphysical concept” – the “metaphysical” is simply something determined by a chain (Derrida, 1981, 6). Since the metaphysical or the “truth” relies on links or chains and links/chains are arbitrary, any truth is speculative. Deconstruction is simply one way of questioning apparent truths/knowledge, and the universals which flow from them. However, this paper is not the place to engage in a full analysis of deconstruction and how the world is divided into categories which depend on difference e.g. how a grunt was formulated to differentiate “food” from “non-food” (Culler, 1983, 96), since my objective in this paper is to specifically focus on, and question the possibility of constructing a true and universal account of human nature. However, the point I want to make through deconstruction is that we ought to question the basis of all knowledge and truth. Lyotard’s notion of linking, where everything is based on presupposition and speculation, means we are left asking, can we even think without linking? This makes deconstruction problematic, since it is unclear how we can conduct any philosophical deliberation, because we are left wondering how we can justify any discourse. However, Rorty provides a way of talking about politics without relying on metalanguage. Rorty is an ironist and a pragmatist,11 and although he claims we cannot find a “final vocabulary” which “puts all doubts to rest” (Rorty, 1989, 75), since ‘there is no such thing as a “natural” order of justification for beliefs and desires’ (Rorty, 1989, 83), he offers more hope for justifying our desired discourse and political vision than Lyotard. Rorty argues that the end of the metanarrative does not mean we cannot justify a political vision; it simply means we must shrug off metaphysical claims and accept that we are operating from an ethnocentric basis. Thus he argues liberal/political freedoms ‘require no consensus on any topic more basic than their own desirability’ (Rorty, 1989, 84). If, as Rorty argues, political liberalism and liberal democracy are desirable we might be tempted to suggest that he has constructed a metanarrative with liberal democracy as the end of history. However, for Rorty, the consensus which affirms the good of liberal democracy is local and ethnocentric, and the ironist theorist who defends these values recognises he/she is working from a particular and narrow historical tradition (Rorty, 1989, 97). Thus, ‘citizen[s] of [Rorty’s] liberal utopia would be people who had a sense of the contingency of their

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language and moral deliberation’ (Rorty, 1989, 61). Essentially, Rorty argues that whilst we can have a consensus about the desirability of something e.g. liberal democracy, we must recognise that this view is contingent, local and framed by our particular historical tradition; and is not the culmination of an ahistoric process driven by a geist. Rorty shows that even without a concept of human nature, we can produce a defence of liberal democracy. However, unlike Fukuyama’s defence of liberal democracy, Rorty provides a conditional and contingent defence of liberal democracy. By rejecting the notion of human nature, we eliminate the geist of history, and thus, an end point for history to aim toward. Therefore Rorty’s defence of liberal democracy ought to be sharply contrasted to Fukuyama’s defence of liberal democracy. Rorty, in rejecting the notion of a human, is arguing that our present system is simply the one which accords best with our present desires; and, although, our desires may seem reasonable, they are historical and ethnocentric and therefore we cannot construct a permanent consensus. Whereas, Fukuyama’s end of history theory appears to construct a concept of a human nature, which acts as the basis for his argument that our present system is the end point of history. Rorty closely analyses his own his political/philosophical position. He recognises his political position puts him at odds with most postmodernists (Rorty, 1989, 64-65) and aligns him with liberal Enlightenment thinkers (Rorty, 1989, 67),12 but his philosophical position reverses this. Unlike postmodern thinkers, Rorty is prepared to say “we liberals”13 (Rorty, 1989, 64-65), but where he has political differences with postmodernists, he has ‘what are often called “merely philosophical differences”’ (Rorty, 1989, 67) with liberal Enlightenment thinkers. However, the “merely philosophical differences” between Rorty and Fukuyama have a real bearing on the substance of Fukuyama’s argument, since Rorty’s “philosophical differences” with Fukuyama question the inevitability of liberal democracy and the argument that it is the end of history. Rorty’s “philosophical differences” with Fukuyama dismantle the notion of history, even though both thinkers use the language of “we liberals”, because for Rorty, liberal democracy is not the product of the desires of a universal human nature, but a contingent good. In this section, I have shown that the concept of the human must be called into question. This is not to dismiss or debunk the term “human”, but to show that it is a concept that needs to be problematized.14 I have argued that it is not possible to construct a universal human nature as an ahistoric entity which moves history by examining the claims of Lyotard and Rorty. I have shown that, for Lyotard, we cannot represent the human

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because we cannot produce a true account of what is universally human. I have shown that what we consider to be human is contingent and dependent upon our socio-cultural-historical make-up; therefore, our conception of what is human is not ahistoric or universal. I have argued that individuals cannot be represented within a universal category and that human nature is essentially fluid and malleable; or, as Sim puts it, ‘human nature is not a given set of characteristics with which we are stuck for all time; rather, it is constructed – and if it is constructed, it can be taken apart and reconstructed in other way.’ (Sim, 2001, 52). Therefore, I have argued that being a human is not something we can represent in a single universal category, and that ‘we make a mistake… if we take a single definition of the human… to be the defining feature of the human’ (Butler, 2004, 90). However, this does not rule out some concept of “humanness” or some notion of what it means to be human. Indeed, as I will argue later on in this paper, we cannot do without some concept of the human, because to keep open the definition of the human, we are compelled to recognise difference, heterogeneity and individualism as intrinsic to being human.

The Absence of the Human and Fukuyama’s End of History Thesis In this section, I analyse whether Fukuyama’s concept of the human totalizes/universalizes what is essentially an incommensurability15 between individual humans. I will show that Fukuyama’s account of the human is not homogenising, since his notion of what it means to be human rests on a valorising of individualism and differences between individuals. In the final section of this paper, I will formulate a politics without the concept of human nature through a postmodern valorising of the individuals within the “human”. I will show that postmodernism aims to emancipate difference, the differend, the incommensurable and unpresentable and conclude by showing that, even in the absence of human nature, we can construct a teleological account of history and argue it ends in liberal democracy. I will demonstrate moments of resonance and convergence between Fukuyama and many postmodernists, especially Lyotard. I argue both positions imply a notion of history moved by the need to emancipate the individual and individualism, and that this geist is realised in liberal democracy. Before I examine Fukuyama’s account of what it means to be human, it is worth noting that Fukuyama is alive to the critique that liberal democracy is merely the product of a socio-cultural-temporal context. He

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accepts this up to a point, acknowledging liberal democracy’s cultural roots originate from ‘a secularised version of the Christian doctrine of universal human equality.’ (Fukuyama, 2002b, 4). He recognises liberal democracy is a system rooted in a specific ethical-cultural-historic background – one which emerged in the West during the Enlightenment when questions were raised about the legitimacy of absolute Monarchies and religion lost its power as it was challenged by science and rationality. However, Fukuyama does not accept liberal democracy is simply a contingent product of history and argues it is universally and ahistorically desirable. He rejects the claim that liberal democracy is merely an ethnocentric set of beliefs, arguing ‘Western values and institutions are immensely appealing to… non-Western people.’ (Fukuyama, 2002b, 4). He also argues that the practices of the West did not necessarily lead to liberal democracy, since views were held in the West which were incompatible with democracy e.g. the defence of slavery. The West had to adapt its values to embrace liberal democracy. It is important to realise that Fukuyama’s claim is that the West is not culturally pre-disposed to liberal democracy, but has become compatible with liberal democratic values (Fukuyama, 2000, 311). However, Fukuyama’s basic argument rests on the claim that liberal democracy has universal appeal because all humans are on the same road; and thus there is a universal geist behind history, and it is merely a question of time before everyone adopts liberal democratic values. As we have seen, the core of Lyotard’s and the more general postmodern critique of the human is a rejection of the possibility of a universal, homogeneous human. This leads Lyotard into a philosophical/ political position which valorises difference and ‘objects to the very notion of unity as an ideal’ (Browning, 2000, 137). This poses a distinct contrast to Fukuyama’s thinking, where the human is what gives history direction. Fukuyama emphasises the notion of human nature as the basis of his end of history thesis and is quite happy to defend this. The concept of a universal history rests on an idea of a “trans-historical standard” and for Fukuyama, this is human nature. Fukuyama endorses the concept of human nature, and in fact, wants to re-establish the use of human nature as the basis of philosophy. He sees it as a mistake that “natural rights” have gone out of vogue and believes rights should be based on human nature (Fukuyama, 2002a, 101-102 & 112). Fukuyama goes further, arguing that human rights are based on human nature, since it is human nature which provides the epistemological grounding for human notions of rights, justice and morality (Fukuyama, 2002a, 101-102 & 129). This idea of human nature rests on the idea of a universal human, where differences

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between humans appear to be negated. Fukuyama’s construction of an account of human nature is based on establishing a universal human experience through an understanding that we all share the same desires and motivations. This idea of the human appears to refute the possibility of incommensurability and difference between individuals and cultures. This risks producing an exclusionary account of what can be considered human, because if all individuals are part of the homogenous human, there is a danger of negating individualism and even individuals. Thus Fukuyama’s thesis which seeks to emancipate individuals and individualism ends up jeopardising its own objectives. Despite my reservations about the idea of a homogeneous human and the possibility of a human nature, I find Fukuyama’s concept of what makes one human very appealing; especially, his claim that ‘all human beings believe they have a certain inherent worth or dignity’ (Fukuyama, 1995, 358). However, this may appeal to me merely because Fukuyama is talking my language, and has hit upon my personal motivations, rather than because he has located something universal. By utilising Fukuyama in an idiosyncratic manner, it is possible to argue that the geist behind history is the human drive/quest for self-esteem/self-worth. I, personally, find the notion of a thymotic core to human nature,16 which acts as the geist of history to be plausible, even intuitively accurate and commonsensical, but it may be that this thymotic desire for pride and justice is particularly convincing as a consequence of my own personality traits, or because I have become accultured into a society which valorises the individual and defines the human as a being who is striving for selfesteem. However, this concept of the human may not have prevalence across all people, times, genders and places, and we have to assume that this notion of human nature is merely the product of the individual author’s personality and/or his/her accultured perspective. Although I have argued that we cannot construct a homogenised, universal human, there could still be something in Fukuyama’s concept of the human which can be salvaged. The human I wish to draw from Fukuyama is a valorisation of difference, individualism and individuals. The concept of the human I take from Fukuyama is actually rather hazy, because it invokes a complex and multifaceted picture of what it means to be human. Thus, I will argue that it is possible to claim liberal democracy is the end of history, because the concept of the human which Fukuyama’s history is seeking to emancipate is one driven by the need to emancipate diversity, individualism and difference. Fukuyama defines the human as a being driven by two components: economic/material desires and thymotic/“spiritual”17 desires; but this

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actually oversimplifies Fukuyama’s complex notion of what it means to be human. The thymotic desires of Fukuyama’s human encompass a range of desires including the desires for: self-esteem/self-worth, pride, megalothymia, isothymia,18 recognition of one’s worth by others, liberty, equality and justice etc. Essentially, Fukuyama’s concept of the thymotic side of the human boils down to a claim that humans wish to feel good about themselves; it is a claim that each human has a range of desires; and the individual’s unique personal make-up means he/she experiences these desires uniquely. This picture of the human is so opaque and complex that we cannot even determine to what extent the human values material things, security and the things which are necessary to sustain life. On the one hand, the human desires modernization and scientific/economic development; and this allows Fukuyama to produce a directional history because material accumulation satisfies our need for security. But on the other hand, the human is anti-Hobbesian and does not place preservation of the body above all else; the individual human wants to demonstrate that he/she has freedom by showing he/she is not merely driven by bodily/economic needs. The individual human wants to prove he/she is more than a mere complicated biological machine and can act for/from principles of justice. This human is far from a universalising/totalising account of what it means to be human, since it entails drawing each individual in a unique way. All humans share a range of desires, but how these desires interact is individual and the specific weighting each individual gives to his/her various desires is unique and fluid. I wish to push this idea of a fluid/individual human further than Fukuyama may accept, but he does occasionally draw the reader’s attention to his inability to produce a definite answer to the question: ‘what is human?’. He acknowledges, explicitly, that human nature is ‘complex and flexible’ (Fukuyama, 2002a, 128) and “humanness” cannot be simplified into a single “Factor X”19 – “Factor X” is not possession of moral choice, reason, language, sociability, emotions or consciousness; “Factor X” is all these qualities competing together; “Factor X” is something every human possesses, but it is the coming together of factors which produces “Factor X” (Fukuyama, 2002a, 171). In a sense, it is the complexity of being human which is the “Factor X” for being human. This notion of the human is a celebration of difference and individuality; it is a proclamation that to be human is to be an individual and the essence of “humanness” is that “we are all individuals”. The idea of the human I am drawing out from Fukuyama is a human where there is no universal concept of what it means to be human; and thus the idea of the human is open to individual differences. This

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notion of humanness is complex, since the human only exists as an individual who possesses a range of desires. Therefore, we have to invert “Factor X” and argue that possessing the range of competing factors/desires which belong to the human are “Factor X” i.e. possessing “Factor X” denotes being human; but being human is the “Factor X” for “humanness”. Thus the human which acts as the geist of history is made up of individuals who have their own personal and heterogeneous goals. This account of human nature, where the idea of a universal conception of what it means to be human is replaced with the idea that “we are all individual” is really not far removed from Lyotard’s philosophical position. Although Lyotard rejects the possibility of a human, he still seeks to preserve difference because he sees this as the core of humanity. As Sim points out, ‘without difference, in Lyotard’s world, we have lost the human’ (Sim, 2001, 29). Thus even Lyotard cannot avoid making claims about what it means to be human. He is forced to develop a notion of what it means to be human, since he argues “humanness” is lost in the absence of difference. A posthuman world in which humans lost their individual desires and acted solely on logical/computerised thought, or where desires could be satisfied through a universal and mechanical mechanism, such as the administering of soma in Huxley’s Brave New World would be the end of the human for Lyotard, since individuality and difference would be gone. We can only say there is nothing human if we do not claim individualism is universal and an essential component for one to be human. This is an argument that there is an essential heterogeneity between individual humans, and that humans cannot be represented by a homogeneous category; and, thus, the existence of difference and individualism are at the core of being human. Therefore Lyotard sets up a concept of “humanness”, albeit a limited concept of “humanness”. Lyotard’s human is a being capable of individual thought and not just reasoning: ‘to be worth preserving… thought has to be more than just logical reasoning of the computer program form; it has to carry the creative, and often seemingly anarchic, element that marks out the human variety.’ (Sim, 2001, 35). As Lyotard, moves toward his ideal society, one premised on diversity, his antifoundationalist programme is left suspect (Sim, 1992, 115). As Sim points out, it is easy to pick holes in foundationalism but difficult to articulate a position without smuggling in foundational principles, and Lyotard is frequently guilty of this (Sim, 1992, 117). Lyotard produces a foundationalist discourse premised on “humanness” as difference and variety. Thus, Lyotard’s concept of the human, where the human is defined by individuality and difference, is not essentially different from the concept of the human which I take from

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Fukuyama, where “humanness” is to say “we are all individuals”. By seeing the human, in Fukuyama’s modernist thinking, as something where the “Factor X” for humanness is difference/individualism, and by showing that Lyotard’s postmodern thinking relies on the existence of difference/individuality between humans, it is possible to show real convergence between the two positions, and show that it is possible to bridge the lacuna between modernist and postmodernist philosophising about the human and humanness. However, there remains a crucial difference between the two concepts of the human, pluralism, difference, individualism and the individual advocated by liberal modernists and postmodernists. For the postmodernists, individualism/difference is “all the way down” – it is what characterises us as human. Thus, whilst postmodernists cannot avoid constructing a human, they construct a human defined by individualism; thus difference and pluralism are the defining/constitutive characteristics of humans. However, the liberal theorist who wants to argue liberal democracy is the end of history produces the human as the geist to emancipate. Even though the “Factor X” of this human is to be an individual, the liberal modernist valorising of plurality, individualism and difference does not run as deep as it does in postmodern thought, because the modernist constructs the universal category of the human to act as the geist to be realised/emancipated. In contrast, postmodernism removes the idea of a human and argues individualism and difference is the only way of understanding a notion of the human and takes individual instances, rather than the universal category, as it starting point. Thus, postmodernism is intrinsically premised around diversity and plurality. Ermarth elucidates this point of conflict: for the modernist, whilst there is a pluralism/diversity between individuals and groups, the modernist wishes to transcend difference and arrive at consensus; whereas, the postmodernist treats difference as constitutive, and therefore, the postmodernist does not try to transcend it, but simply respect it (Ermarth, 2007, 12-13). Although Ermarth has hit on a crucial difference between modernism and postmodernism, this philosophical difference conceals a real convergence between the two positions, since both positions seek the emancipation of individuals and individualism, and thus both embrace pluralism, difference and diversity. In this section, I have shown that we cannot avoid making, at least, a thin reference to “humanness” even if this only amounts to arguing “humanness” is difference, individuality and plurality. I have also shown that it is possible to avoid the problematic universalised/totalised account of the human by constructing a human where “humanness” is the ability is

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the ability to say “we are all individual”. This thin idea of being human, where humanness is being an individual seems to open up history and allow for incommensurability between cultures and individuals, because it does not appear to imply a geist which must be satisfied. However, in the next section, I will look at how we can construct a politics in the absence of the human; or, rather, where the human is defined by nothing more than individualness and difference. I will show that even the thin definition of the human, where the “Factor X” of the human is difference and individuality produces a metanarrative, and because difference and individuality is something universal to all humans, individualism becomes something to be emancipated.

A Politics in the Absence of the Human In the previous section, I used Fukuyama’s human as the basis for producing a non-totalising account of the human and to show that what makes us alike is that we are all different. I have shown that in the absence of a universal and homogeneous conception of the human, we must think of the “human” as a diverse heterogeneity of individuals. I argued there is no “Factor X” for “humanness”, except possessing the range of factors/characteristics of “humanness”. I argued that to be human is to have a multitude of desires and each individual experiences being human in a unique way, prioritising the various human desires differently. In this section, I move on to discuss the political consequences of this notion of the human, and ask: if we are all unique, how can we proceed to find a social/political system which emancipates this individuality, plurality, individualism and individual difference?20 Lyotard argues that we cannot do justice to difference, since difference represents an incommensurability between discourses. Lyotard’s notion of incommensurability is one which argues there is an essential heterogeneity between individual humans, and humans cannot be reduced to a single category. This does not mean Lyotard wants to do away with politics, political action, justice, ethics or deciding, but Lyotard is arguing that ‘claims for political justice, in terms of freedom, social justice [etc]… appear to be subject to conflict precisely because there are no ultimate yardsticks to which a final appeal can be made.’ (Smart, 2002, 46). Smart summarises Lyotard’s ethical position, by arguing that for Lyotard, there is nothing ontological on which we can base justice/ethics, since justice/ ethics do not correspond to reality; thus, what is just/ethical is an open question, which cannot be answered with models (Smart, 2002, 52). There are no criteria to determine just/unjust and in the absence of such criteria,

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we reach judgements about what is just, but these judgements are simply that – something decided/said about what is just – but the judgement does not correspond to what is just in any objective way (Smart, 2002, 51). For Lyotard, we just can’t get away from the differend,21 incommensurability and the heterogeneity of phrases/discourses and the ‘impossibility of subjecting… [discourses] to a single law’ (Lyotard, 1988, 128), since each discourse presents a ‘mode of presenting a universe and one mode is not translatable into another.’ (Lyotard, 1988, 128). For Lyotard the incommensurability between different notions of justice produces a differend, where the differend is, by definition, a situation where what is just cannot be “sorted out”. Lyotard discusses the Nuremberg Trials, as an example of the differend. Nuremberg represents an incommensurability between the language games played by the judges and those on trial. Nuremberg was supposed to establish the existence of a crime, but there was a lack of consensus – the “criminal” saw the judge merely as a criminal who was in a more fortunate position, and had better arms, than himself (Lyotard, 1988, 56-58). Lyotard’s point is complicated, but his argument seems to be that since the “criminals” did not recognise their guilt or the legitimacy of the Court that the two sides were speaking in incommensurable language games and this could not be resolved due to a lack of a rule for making a judgement between their arguments.22 This raises the question: if we are condemned to the differend and incommensurability, what kind of politics can we construct? Browning argues that Lyotard ‘is essentially deconstructive of other totalizing political ideas [i.e.] Lyotard’s sensitivity to difference… renders his perspective devoid of recourses to engage in the construction of political procedures’ (Browning, 2000, 9). I agree and Lyotard, himself, confesses that a politics which gives pride of place to the differend is an impossibility, since litigation cannot neutralize the differend – to govern in accordance with the differend would require a politics of supermen: it ‘would be human, all too human.’ (Lyotard, 1988, 142). If Lyotard cannot conceive of a politics which can work with the differend or incommensurability, can we still work with difference as the defining characteristic of “humanness”? In my view, the answer is yes, but this involves constructing a metanarrative – this time, the metanarrative of the emancipation of difference, individualism and plurality. Postmodernists, who reject the notion of anything fundamentally human apart from individuality, still try to construct a politics and a concept of a just order; and this is one which emancipates difference, individualism etc and this produces a geist to be realised, a metanarrative. However, this raises the

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question: how do we emancipate the human, if we take the human to be essentially plural? First, we need to move on from the impossibility of constructing a politics based around the differend. We can accept the presence of a differend, but we cannot govern with it. Instead, we need to act pragmatically, and construct a politics which provides space for various voices and the expression of difference, rather than emphasising the incommensurable. Rojek concludes that Lyotard’s ‘political philosophy boils down to a form of radical pluralism in which the imperative is to guarantee “narrative space” to allow individual difference’ (Rojek, 2002, 10). It is this politics which I wish to take from Lyotard – a politics with a strong note of liberation; a politics which, Rojek concludes is ‘consistent with Humean Liberalism’ (Rojek, 2002, 12). If Lyotard’s politics is a politics of personal liberation and the emancipation of individualism, it is, as Sim notes, ‘a basically libertarian programme’ (Sim, 1992, 96). Lyotard’s libertarian programme aims to wrestle control/power from the state/society and allow for radical individual action. His project of delegitimising metanarratives is designed to maximise the “freedom” of the individual. Thus, to try to delegitimise metanarratives is, itself, a project with a political agenda, since its aim is to ‘remove the teleological constraints of [the] grand narrative… in order to leave room for individual initiative.’ (Sim, 1992, 89). This libertarian desire to free ourselves from the constraints of being human has a distinctly Nietzschean flavour. It echoes Nietzsche’s call to men to transform themselves into Overmen, go beyond the limits of what they are and become individually determining. Thus, possibly the clearest summary of a postmodern political vision is one which is “nihilisticNietzschean”, and offers an “optimistically libertarian note” (Sim, 1992, 85). A postmodern politics is nihilistic since it aims to break convention, rules, power and universals and realise individuals as self-determining beings who construct their own rules and ethics. This is, in itself, optimistic and libertarian, since it seeks to realise individuals as free, selfdetermining beings. Thus, the most useful way to read Lyotard may be the one suggested by Rorty; this entails interpreting Lyotard as a thinker who is arguing that the problem with Habermas is not so much his metanarrative of emancipation, but the need to legitimise it (Rorty, 1991b, 167). Thus, a postmodern politics tries to negate questions of justifying politics, but still wants to ask questions about how to organise a social/political system which seeks to emancipate individualism, difference, plurality and narrative space.

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The valorising of difference and plurality, as Rojek suggests, directs us toward a liberal society, and thus, it is odd that postmodern thinkers are not inclined to defend liberal democracy and adopt the tag “we liberals”. Lyotard does occasionally praise liberal democracy, noting that the ‘commandments of liberal democracy are good’ (Lyotard, 1993, 110) because liberal democracy allows free expression, encourages individuals to have conviction in their opinions and publish their own ‘reflections without difficulty and anyone who does not agree with them can always discuss them.’ (Lyotard, 1993, 110). However, Lyotard does not accept there has been any progress in humanity and argues capital, knowledge and science have merely created new power structures and tyrannies, with modernity leading to the impoverishment of the 3rd world, unemployment, tyranny of opinion and prejudice echoed in the media (Lyotard, 1992, 110111). Rorty’s willingness to embrace the tag “we liberals” separates him from Lyotard and most postmodern thinkers. Rorty recognises the “advances” which liberalism has produced, and argues modern subjectivity has allowed humanity to make gains in freedom and expression, and facilitated the emancipation of individual difference. He takes Foucault to task for failing to recognise this: you would never guess from Foucault’s account of the changes in European social institutions during the last three hundred years, that during that period suffering had decreased considerably… [and] people’s chances of choosing their own styles of life increased considerably. (Rorty, 1991b, 195).

Rorty offers a robust defence of both liberal democracy and plurality/difference. He passionately valorises individual freedom/difference and recognises an incommensurability and historical/cultural subjectivity between competing language games, but argues liberal democracy is the best way of expressing these differences. This is in contrast to Lyotard’s “Paganism”23 which valorises the divergent and the inventive, but fails to provide a coherent social/political system which corresponds to these ends. It is Rorty’s clearer political vision which offers a way of emancipating the individual, diversity and difference. Rorty’s pragmatism recognises liberal democracy as a system which can free expression and emancipate the divergent and inventive. Rorty praises ‘a culture which prides itself on not being monolithic – on its tolerance for a plurality of subcultures and its willingness to listen to neighbouring cultures’ (Rorty, 1991a, 14) and sees this vision realized in liberal democracy. For Rorty, the objective of the social/political system is to find space and opportunities for the expression of difference and freedom, but he rejects the Foucaultian desire to create a

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society, since this creates a “new kind of human” and this is akin to Hitlerian/Maosist fantasies. In fact, Rorty praises liberal democracy because ‘the point of a liberal society is not to invent or create anything but simply make it as easy as possible for people to achieve their widely different private ends’ (Rorty, 1991b, 196). In this paper, I have argued for a rejection of a substantive notion of the human, and argued “humanness” is merely the expression of difference between individual humans and thus to be human is to recognise that “we are all individuals”. I have also argued that difference/individualism is best ensured through a liberal society. However the final question I want to pose is: do we have to give up on an end of history? If we define the human by, and claim its only universal characteristic is difference, individuality and uniqueness, can we still construct a history?

Conclusion If postmodernism could entirely dispose of the human, we would be left without a geist of history. However postmodernism cannot completely free itself from the concept of the human. Postmodernism relies on a thin concept of the human, where “humanness” is defined by difference. I, therefore, conclude that even the deeper pluralism of postmodernism, where difference is constitutive (rather than something to manage) can act as the geist behind history, since it is the emancipation of difference which brings history to an end. My argument has built toward the conclusion that we can construct a theory of an end of history because postmodernism cannot avoid a concept of the human, and thus a geist to emancipate. In postmodern theory, the geist behind history, the geist which history must emancipate, is the realisation of difference and individualism, since it is this difference and individualism which defines us as human. Thus, postmodernism produces a metanarrative of emancipation – the emancipation of individualism and difference. The need to give expression/emancipation to individualism gives history both direction and an end point; thus, we cannot brush history aside because if we want to defend the divergent and emancipate difference, we must have, in place, a system which protects these objectives. An ethical commitment to valuing individuals and difference, is a rejection of any totalitarianism or any attempt to suppress difference. The geist driving a postmodern politics is realised in a liberal society, but not the liberal society Rorty defines as ‘one which is content to call “true” (or “right” or “just”) whatever the outcome of undistorted communications happens to be’ (Rorty, 1989, 67). A liberal discourse which valorises

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difference and defines “humanness” as “we are all individuals” must be opposed to, and resist, totalitarianism; it cannot call “true” whatever is the outcome of communication; it can only allow views which protect difference, individuals and individualism. A postmodern politics premised on the idea of emancipating difference, individualism and creativity produces a concept of history, since there is a geist to history, one which reaches its end point in a society where these values are realised. These values are at the core of liberal democratic values; liberal democratic values centre on the individual and the valorising of individual difference, plurality etc. As Gilbert argues, at the core of liberal democratic values is an individuality where ‘each person can pursue a good life as he sees fit, revising his conception in the light of experience, so long as he does not harm others’ (Gilbert, 1995, 170). Thus, the values on which liberal democracy is founded are those which the geist behind a postmodern politics is seeking to realise. Rorty, and at times even Lyotard, recognise that liberal democracy is a system premised around the individual, and the expression of difference. The postmodern critique of the metanarrative and rejection of metaphysical foundations of a human does not preclude the possibility of constructing a notion of history, and a history which ends in a form of liberal democracy. Instead, the postmodern concept of the human seems to re-affirm the hypothesis that the geist of history is the realisation/emancipation of individualism, difference and individuals and that the geist behind history finds its end point in liberal democratic values.

Bibliography Bennington, G. (2000) “Deconstruction and Ethics” in N. Royle (ed.) Deconstructions: A User’s Guide, Basingstoke: Palgrave. Biebricher, T. (2007) “Habermas and Foucault: Deliberative Democracy and Strategic State Analysis”, Contemporary Political Theory 27: 218245. Browning, G. (2000) Lyotard and the End of Grand Narratives, Cardiff: University of Wales Press. Brown, W. (2001) Politics Out of History, Princeton and Oxford: Princeton University Press. Butler, J. (1992) “Contingent Foundations: Feminism and the Question of “Postmodernism”, in J. Butler and J. Scott (eds.), Feminists Theorize The Political, New York; London: Routledge. —. (1993) Bodies That Matter, New York; London: Routledge.

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—. (1997) The Psychic Life of Power: Theories in Subjection, Stanford, California: Stanford University Press. —. (2004) Precarious Life, London; New York: Verso. —. (2005) Giving An Account of Oneself, New York: Fordham University Press. —. (2006) Gender Trouble, New York; London: Routledge Classics. Culler, J. (1983) On Deconstruction, London: Routledge and Kegan Paul. Derrida, J. (1981) Dissemination, London: The Athlone Press. —. (1992) “Force of Law: The ‘Mythical Foundation of Authority’” in Cornell, Rosenfeld and Carlson (eds.) Deconstruction and the Possibility of Justice, New York; London: Routledge. —. (2002) Positions, London: Continuum. Ermarth, E. (2007) “Democracy and Postmodernity: The Problem” in E. Ermarth (ed.) Rewriting Democracy: Cultural Politics in Postmodernity, Aldershot: Ashgate. Fukuyama, F. (1989a) “The End of History”, The National Interest Summer 1989. —. (1989b) “A Reply To My Critics”, The National Interest Fall 1989. —. (1992) The End of History and The Last Man, London: Penguin. —. (1994) “Reflections on The End of History, Five Years Later” in T. Burns (ed.) After History? Francis Fukuyama and his Critics, London: Littlefield Adams. —. (1995) Trust, London: Hamish Hamilton/Penguin. —. (1999) “Second Thoughts: The Last Man in a Bottle”, The National Interest Summer 1999. —. (2000) “Asian Values, Korean Values and Democratic Consolidation” in L. Diamond & D. Shin (eds.) Institutional Reform and Democratic Consolidation in Korea, Stanford, California: Hoover Institution Press. —. (2002a) Our Posthuman Future: Consequences of the Biotechnological Revolution, London: Profile. —. (2002b) “Has History Started Again?”, Policy 18(2). —. (2006) After The Neocons: America at the Crossroads, London: Profile Books. Gilbert, A. (1995) “What Then?: The Irrepressible Radicalism of Democracy” in A. Melzer, J. Weinberger & R. Zinman (eds.) History and the Idea of Progress, Ithaca & London: Cornell University Press. Goutevitch, V. (1994) “The End of History?” in T. Burns (ed.) Francis Fukuyama and his Critics, Lanham, Maryland; London: Littlefield Adams.

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Huxley, A. (2005) Brave New World and Brave New World Revisited, New York: Harper Perennial Modern Classics. Lyotard, J. (1984) The Postmodern Condition: A Report on Knowledge, Manchester: Manchester University Press. —. (1988) The Differend, Manchester: Manchester University Press. —. (1991) The Inhuman, Cambridge: Polity Press. —. (1992) The Postmodern Explained To Children, Sydney: Power Publications. —. (1993) Political Writings, London: UCL Press. Ramazanoglu, C. (2002) “Saying Goodbye to Emancipation” in C. Rojek and B. Turner (eds.), The Politics of Jean-Francois Lyotard, London; New York: Routledge. Rojek, C. (2002) “Lyotard and the Decline of Society” in C. Rojek and B. Turner (eds.) The Politics of Jean-Francois Lyotard, London; New York: Routledge. Rorty, R. (1980) Philosophy and the Mirror of Nature, Oxford: Basil Blackwell. —. (1982) Consequences of Pragmatism, Brighton: Harvester Press. —. (1989) Contingency, Irony and Solidarity, Cambridge: Cambridge University Press. —. (1991a) Relativism and Truth: Philosophical Papers Volume I, Cambridge: Cambridge University Press. —. (1991b) Essays on Heidegger and Others: Philosophical Papers Volume 2, Cambridge: Cambridge University Press. —. (1998) Truth and Progress: Philosophical Papers Volume 3, Cambridge: Cambridge University Press. Royle, N. (2000) “What Is Deconstruction?” in N. Royle (ed.) Deconstructions: A User’s Guide, Basingstoke: Palgrave. Seidler, V. (2002) “Identity, Memory and Difference” in C. Rojek and B. Turner (eds.) The Politics of Jean-Francois Lyotard, London; New York: Routledge. Sim, S. (1992) Beyond Aesthetics: Confrontations with Poststructuralism and Postmodernism, Hemel Hempstead: Harvester Wheatsheaf. —. (2001) Lyotard and the Inhuman, Cambridge: Icon Books. Smart, B. (2002) “The Politics of Difference and the Problem of Justice”, in C. Rojek and B. Turner (eds.) The Politics of Jean-Francois Lyotard, London; New York: Routledge. Smith, G. (1994) “The ‘End of History’ or a Portal to the Future: Does Anything Lie Beyond Late Modernity” in T. Burns (ed.) Francis Fukuyama and his Critics, Lanham, Maryland; London: Littlefield Adams.

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Turner, B. (2002) “Forgetfulness and Frailty” in C. Rojek & B. Turner (eds.) The Politics of Jean-Francois Lyotard, London; New York: Routledge. Williams, H., D. Sullivan & G. Matthews (1997) Francis Fukuyama and the End of History, Cardiff: University of Wales Press. Williams, J. (1998) Lyotard: Toward a Postmodern Philosophy, Cambridge: Polity Press.

Notes 1 I am working from the concept of what Hegel termed “philosophical history”. This is a conception of history, where history is a universal, ahistoric process and is moving toward an end point. This concept of history has a long established basis in Enlightenment thought. The idea can be seen in Kant’s theory of history, where man is progressing toward full rationality. Although, Kant did not elucidate an end of history, it was implied in his notion that history was seeking to emancipate man and his rationality. This concept of history has been elaborated and expanded by numerous Modernist-Enlightenment theorists/philosophers, most notably: Hegel and Marx. It is from within this tradition/framework, that Fukuyama conceives his end of history thesis and his argument that we have reached the end of history in contemporary liberal democracy. 2 I will provide a definition, or rather utilise Lyotard’s definition of the metanarrative, later in this paper. It is important to recognise that the use or rejection of metanarratives is a key point of contention between modernists e.g. Fukuyama and Hegel, and their postmodern critics e.g. Lyotard, Derrida and Rorty. 3 The term “geist” is taken from the German and translates literally as Ghost, or more accurately as spirit. The concept of a geist is central to Hegelian thought and it is the Hegelian notion of the geist which Fukuyama uses. The concept of the geist is the cornerstone of any theory of a history which can end. 4 It is worthwhile noting that Lyotard, defines metanarratives or “grand narratives” as ‘narratives of emancipation’. For instance, see: Lyotard, 1992, p61. 5 Rorty provides some examples of an “entity” e.g. the self, the Absolute Spirit, the Proletariat. An entity is something which seeks emancipation; it is the geist behind history; thus, the human or human nature are other examples of “entities”. 6 The postmodern incredulity toward metanarratives is an incredulity of both the correctness of the specific metanarrative being asserted as truth and the idea that it is possible to construct metanarratives since metanarratives homogenise individual instances into universal categories. 7 In this case, the unitary category is “woman”, rather than “human”. 8 Postmodern feminists e.g. Ramazanoglu, Butler etc critique the category “women”, but this has lead to a significant tension between themselves and modernist feminists, who want to retain the category “women”.

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9 For now, it is not necessary to speculate about what defines the human and what the emancipation of the human would mean. The capacity to reason, the desire for freedom, the desire for equality, the desire for self-preservation, or a desire to feel good about one’s self could all be considered to be the geist driving the human. 10 The postmodern rejection of a universal history and metanarratives poses a problem for all modernists including opponents of liberal democracy. For instance, Marx is a modernist since he argued history could end. 11 Rorty repeatedly uses these terms to categorise his philosophy. 12 Rorty directly acknowledges the ways in which he is aligned with and opposed to the politics and philosophy of Foucault and other postmodern thinkers in Contingency, Irony and Solidarity. Rorty’s political position places him into opposition with most postmodern thinkers, since he is prepared to adopt a liberal position. However, like Rorty, their philosophical position is premised on an opposition to rationality, consensus and universality. Rorty directly acknowledges the ways he is aligned with and opposed to the politics and philosophy of Habermas. Whilst Habermas’ position is different to Fukuyama, they both defend liberal democracy, and base their defence of liberal democracy on deeper epistemological grounds than Rorty is prepared to accept. 13 The term “we liberals” is one I take from Rorty. He explicitly adopts the language of liberals and asserts that he is a liberal (in particular, see: Contingency, Irony and Solidarity). The term “we liberals” simply refers to those of us who wish to be considered liberals; this is, in contrast, to most postmodernists who do not wish to be considered liberals and would not be prepared to adopt the tag of being a “liberal” or use the term “we liberals”. 14 The idea that we can call something into question without doing away with it is an idea I take from Butler. Butler has argued that to deconstruct the subject is not to do away with it (Butler, 1992, 14-17), and that to call something into question is, ‘most importantly to open [it] up… to a reusage or redpolyment’ (Butler, 1992, 15). More specifically, Butler argues that there is ‘no reason to dismiss the term “human”, but… to ask how it works, what it forecloses’ (Butler, 2004, 89). 15 The notion of incommensurability is central to Lyotard’s political/philosophical thinking. It refers to the uniqueness and incomparability between two modes of thinking or being. Incommensurability refers to the existence of a state of indeterminacy between two values due to a lack of secure grounds for establishing a consensus about what is just. We experience an incommensurability between two individuals or two cultures when their values are heterogeneous and cannot be translated or bridged. Lyotard’s dense philosophical style makes it difficult to get an exact understanding of what incommensurability is, especially given that Lyotard uses the term in a complex and idiosyncratic manner. However, the above is my understanding of what incommensurability is, and how I will use the term. Lyotard only rarely offers a clear definition of incommensurability, but here is one definition he does offer: ‘incommensurability… [is] the heterogeneity of phrase regimes and of the impossibility of subjecting them to a single law… [since] for

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each of these regimes, there corresponds a mode of presenting the universe, and one mode is not translatable to another.’ (Lyotard, 1988, 128). 16 The idea of “thymos” and a “thymotic core” to humanity is central to Fukuyama’s thinking. The language of thymos is Fukuyama’s way of arguing humans do not merely seek material/economic things, since humans also seek things such as pride, self-esteem/self-worth etc. Thymos is a term taken from Plato, but which Fukuyama uses in conjunction with Hegel’s notion of the desire for recognition. Since, thymos refers to the non-material side of man, the desire for recognition is an example of a thymotic desire. 17 I have also used the word “spiritual” as another way of describing the thymotic side of humans. By “spiritual” desires I am making no reference to goodliness or religion; I am simply referring to desires which are part of the non-material, nonbodily, side of humans. Thus the definition of the “spiritual” side of human nature which I wish to invoke is one which would allow us to argue the Nazis and Hitler were driven by the “spiritual” side of human nature, since the Holocaust refuted economic logic and was driven by a desire to assert the superiority of the Aryans. 18 Megalothymia and isothymia are both Greek terms used by Fukuyama. My interest in these terms is related to how Fukuyama uses them; and, therefore, my understanding of them is derived from Fukuyama, rather than from their original context. To summarise, Megalothymia is the desire to be recognized as superior to other people; isothymia is the opposite i.e. the desire to be recognized as equal to others. 19 “Factor X” is Fukuyama’s term for the essential characteristic of “humanness”. 20 The idea that we should seek to emancipate individuality, individuals and difference is not necessarily a claim that these things are necessarily good. Indeed, it could be argued that there are negative aspects to an ideology based on individuality; communitarians would certainly make this point. However, the claim I am making is that individuality and difference are fundamental to what makes us human (i.e. if we were all the same, we would not be human, we would be some kind human-robots); and, therefore, there is a need to recognise and emancipate individuality and difference, because it is a core feature of humanness. 21 The Differend is a case which cannot be resolved due to a lack of a rule for judgement between two arguments i.e. ‘one sides’ legitimacy does not imply the others’ lack of legitimacy’. This quick summary/definition of the differend is based on Lyotard’s own definition in The Differend, (Lyotard, 1988, Preface [xi]). 22 Therefore, Nuremburg represents an example of the differend. 23 Paganism is a term Lyotard uses to describe his political vision.

“DILIGENCE IS THE MOTHER OF GOOD FORTUNE”: EFFORT AND DESERT IN DISTRIBUTIVE JUSTICE MOTI MIZRAHI, THE GRADUATE CENTER, CUNY

Abstract The notion of desert seems to play an important role in accounts of retributive justice. As far as distributive justice is concerned, however, the notion of desert seems to have lost its place as a relevant notion in the debate. This is partly due to the influence of John Rawls’ A Theory of Justice (1971), especially his so-called “anti-desert argument.” This paper attempts to defend the notion of desert against Rawls’ anti-desert argument. If the considerations put forward in this paper are correct, then they suggest that the anti-desert argument fails to show that the notion of desert is irrelevant in matters of distributive justice.

Desert Claims Intuitively, it seems that people deserve to receive some sort of reward for diligent and sustained effort. It is certainly a matter of everyday discourse to attribute desert to persons based on their hard work. Consider the following desert claims about persons: • • • •

She deserves to succeed; she devotes all her time and effort to the project. She deserves to get the promotion; she works hard for it. She is a diligent student; she deserves to receive the scholarship. She deserves no credit for the research; her subordinates did all the work.

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Furthermore, it seems to be commonplace to attribute desert to the collaborative efforts of groups of individuals. This sort of desert attributions is especially prevalent in sports and other competitive activities. Consider the following desert claims about groups or teams: • • • •

The Mets deserve to win the championship; they play better than the other team. The Yankees aren’t trying hard enough to win this game; they don’t deserve to win the title. The players gave it all on the pitch; they didn’t deserve to lose the game. The better team lost, and the players didn’t deserve it. It’s not fair.

When speakers attribute desert or make desert claims, as in the aforementioned examples, it seems reasonable to suppose that they believe some sort of injustice occurs when the person or the team in question doesn’t receive what is considered to be the appropriate reward. For example, one might say that the Mets didn’t deserve to lose the game because they displayed superior skills and exerted more effort than the rival team. The fact that they eventually lost the game was due to some misfortune or simply bad luck (e.g., their key player was injured during the game), and so their defeat is unjust because they did not deserve to lose. In A Theory of Justice (1971), John Rawls seems to deny this familiar effort-desert intuition. According to Rawls, people don’t deserve their native talents, from which all rewards flow, and so they don’t deserve the rewards as well. Moreover, Rawls argues that people don’t deserve their ability to exercise their talents in a productive and industrious manner, i.e., their so-called “effort-making” ability, which he considers to be a native endowment on a par with other innate endowments, such as cognitive and athletic abilities. Since people don’t deserve their “effort-making” ability, according to Rawls, they don’t deserve whatever they accomplish by means of diligent and sustained effort. The result of Rawls’ anti-desert argument, then, seems to be that people deserve nothing. This paper is an attempt to defend the effort-desert intuition in the context of distributive justice. After an interpretation of Rawls’ anti-desert argument is outlined, some seemingly problematic consequences of the argument are discussed. Further considerations are offered in an attempt to show that Rawls’ premise concerning people’s “effort-making” ability, which is essential to the argument, is unwarranted. It is not clear that the

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so-called “effort-making” ability is a native ability on a par with other innate endowments. Even if Rawls is right in claiming that the “effortmaking” ability is such a native ability, it seems that people have some control over this ability. That is to say, it seems that people have resources of effort, so to speak, on which they can draw in times of need. Hence, if the considerations put forward in this paper are correct, then it seems that the anti-desert argument fails in ruling out desert based on effort as a principle of justice.

Rawls’ Anti-Desert Argument Despite its intuitive appeal, Rawls rejects the notion of desert as a relevant notion in distributive justice. As he writes: There is a tendency for common sense to suppose that income and wealth, and the good things in life generally, should be distributed according to moral desert. Justice is happiness according to virtue. While it is recognized that this ideal can never be fully carried out, it is the appropriate conception of distributive justice, at least as a prima facie principle, and society should try to realize it as circumstances permit. Now justice as fairness rejects this conception. Such a principle would not be chosen in the original position.1

Rawls’ rejection of the conception of justice as desert is partly based on his anti-desert argument. According to Rawls: It seems to be one of the fixed points of our considered judgments that no one deserves his place in the distribution of native endowments, any more than one deserves one’s initial starting place in society. The assertion that a man deserves the superior character that enables him to make the effort to cultivate his abilities is equally problematic; for his character depends in large part upon fortunate family and social circumstances for which he can claim no credit. The notion of desert seems not to apply to these cases. Thus the more advantaged representative man cannot say that he deserves and therefore has a right to a scheme of cooperation in which he is permitted to acquire benefits in ways that do not contribute to the welfare of others.2

The following is a reconstruction of Rawls’ anti-desert argument: (P1) A’s given set of native abilities is the result of the “natural lottery.”3 (P2) Whatever is the result of the “natural lottery” is “arbitrary from a moral point of view.”

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(C1) Hence, A’s set of native abilities is “arbitrary from a moral point of view.” By “arbitrary from a moral point of view,” Rawls seems to mean, among other things, that whatever is “arbitrary from a moral point of view” cannot serve as a justification for a distribution of resources. As he writes: The distributive shares that result [from rewarding “virtue”] do not correlate with moral worth, since the initial endowment of natural assets and the contingencies of their growth and nurture in early life are arbitrary from a moral point of view.4

If this interpretation of Rawls’ notion of moral arbitrariness is correct, then the argument proceeds as follows: (P3) Whatever is “arbitrary from a moral point of view” cannot provide justification for a distribution of resources. (C2) Hence, A’s set of native abilities cannot provide justification for a distribution of resources [from (C1) & (P3)]. Notice, however, that to argue in this way would seem question-begging because what is under consideration is precisely the question whether or not desert bases, such as merit, effort, and what Rawls calls “virtue,” are “arbitrary from a moral point of view.” So it behooves one to seek a more charitable interpretation of Rawls’ argument against desert. Accordingly, it seems that Rawls’ notion of moral arbitrariness involves the assertion that one cannot claim any credit for something that is arbitrary from a moral point of view. 5 This notion of “claiming credit for” is evident in the passage quoted above, in which Rawls argues that one’s character depends on natural circumstances beyond one’s control.6 Accordingly, Rawls’ antidesert argument seems to proceed as follows: (P4) A cannot “claim credit for” what is “arbitrary from a moral point of view.” (P5) In order to deserve R, A must be able to “claim credit for” R. (P6) A cannot “claim credit for” her set of native abilities [from (C1) & (P4)]. (C3) Hence, A does not deserve her set of native abilities. (P4) seems to depend on Rawls’ metaphor of the “natural lottery.” The metaphor of the “natural lottery” suggests that people have no control over the sort of endowments and abilities with which they are born. The fact

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that a person has a native talent for, say, playing a musical instrument, is merely contingent. It might have been otherwise; that is to say, the same person might have been born without a native talent for playing a musical instrument. Moreover, the chances for each person of being born with any combination of native talents seem to be the same. From (C3), Rawls argues further that whatever people achieve by means of their native endowments is undeserved. So the argument proceeds as follows: (P7) R is attained by means of exercising A’s undeserved native abilities. (P8) If R is attained by means of exercising A’s undeserved native abilities, then R is undeserved as well. (C4) Therefore, A does not deserve R (i.e., rewards that are the result of exercising A’s undeserved native abilities). So it seems that the anti-desert argument presents the following challenge to proponents of desert as a relevant notion in distributive justice. The challenge is to find a desert base that is itself deserved. 7 What Rawls’ argument purports to demonstrate is that upon demanding further justification for a given desert base, say, a native talent for playing a musical instrument, it appears that none can be offered, and so the desert base itself, namely the talent, is undeserved. It appears that no justification for the desert base can be offered because the desert base, e.g., the musical talent, is the result of the “natural lottery,” and thus it is “arbitrary from a moral point of view.” In other words, a person cannot claim any credit for having such a talent. And if the talent is undeserved, then the rewards that the talent engenders are undeserved as well. Is it possible to meet the challenge of Rawls’ anti-desert argument? Is there a deserved desert base? Before answering these questions, it might be useful to point out some seemingly problematic consequences of Rawls’ anti-desert argument.8

Seemingly Problematic Consequences of the Anti-Desert Argument Supposing, for the sake of argument, that the anti-desert argument is sound, it seems that there are several problematic consequences that follow from it. First, it seems that if a distribution of resources according to desert, in which the desert base is either merit or effort, cannot be justified, then a distribution on the basis of need cannot be justified as well. To see why, consider Rawls’ metaphor of the “natural lottery.” According

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to Rawls, the set of native abilities that people are born with is the result of random chance. People have nothing to do with the sort of abilities they get, and so they can claim credit neither for their abilities nor for what their abilities bring about or produce. If this is true, however, then it seems that the fact that certain people are needy is also the result of the “natural lottery.” In other words, the fact that some people have less valuable or inferior native abilities than others is the result of the “natural lottery” as well. Just as one person cannot claim credit for the substantial rewards that flow from her given native abilities, another person cannot claim any credit for lacking native abilities that engender large monetary prizes. Nor will that person be justified in claiming other rewards based on need, such as welfare benefits. The mere possession of a certain native ability and lack thereof are both the result of the “natural lottery.” If this is correct, then one cannot claim credit for lacking a certain talent just as one cannot claim credit for having a certain talent.9 Perhaps this seemingly problematic consequence of the anti-desert argument should not worry proponents of Rawls’ theory of “justice as fairness” too much, because the justification for redistributing resources to the worse-off is a notion of fairness rather than strictly justice. 10 Nevertheless, the objection seems to point to an important respect in which the anti-desert argument might be too strong. In other words, the argument seems to entail that no justification can be given for a distribution of resources on the basis of any human feature, since all human features are the result of the “natural lottery.” Hence, the anti-desert argument seems to rule out any basis for a distribution of resources according to effort, merit, virtue, and even need, for these are all human features that are “arbitrary from a moral point of view.” Some might find this result rather counterintuitive, especially if they think that conceptions of justice and equality depend, at least to some extent, on the ideal of human fraternity. Second, it seems that the anti-desert argument yields another problematic consequence. It seems that if one doesn’t deserve one’s native abilities, because they are the result of the “natural lottery,” then one doesn’t deserve that on which native abilities depend, namely, one’s physical features and, more explicitly, one’s bodily organs. For, surely, one’s set of native abilities is not an abstract object. One’s native abilities depend on one’s bodily organs and the constitution of one’s bodily organs, i.e., the functional organization of a human organism. For instance, the basketball player’s abilities to make accurate shots from distance and to block the shots of other players depend on her height and the extension of her arms (among other things). If the basketball player doesn’t deserve her shooting and blocking abilities, then that seems to entail that she doesn’t deserve

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her height and her long arms. Since her shooting and blocking abilities depend on her height (among other things that are related to her other physical features), and since these abilities and physical features are the result of the “natural lottery,” they are undeserved. Now, if her bodily organs were randomly assigned to her by the “natural lottery,” then it seems that the anti-desert argument entails that she doesn’t deserve them. Similarly, the marathon runner’s ability to run long distances depends on her strong heart and healthy respiratory system. It seems unreasonable to claim that the ability to run marathons is some sort of entity that exists in the body of the marathon runner. Rather, this ability depends on her physical features, namely, a strong heart and healthy lungs (among other things). Now, suppose that the healthy heart of the marathon runner is needed as an urgent transplant for the body of some ailing and needy person. If the anti-desert argument is sound, then it seems that native talents, and the physical features on which they depend, should be treated as “common assets.” For Rawls argues that native talents should be treated as “common assets.” As he writes: We see then that the difference principle represents, in effect, an agreement to regard the distribution of natural talents as a common asset and to share in the benefits of this distribution whatever it turns out to be.11

And elsewhere he writes: The two principles [of justice] are equivalent […] to an undertaking to regard the distribution of natural abilities as a collective asset so that the more fortunate are to benefit only in ways that help those who have lost out.12

If Rawls is right, then it seems that bodily organs should be considered a “common asset” in the same way that native talents should be.13 But this consequence seems rather counterintuitive. 14 To see why, consider how most people are revolted by the thought of trading in human organs.15 If these considerations are correct, then it seems that the anti-desert argument presents the following problem: it’s difficult to find a principled and non-arbitrary way of saying that one’s bodily organs should not be considered a “common asset” for society to redistribute, while maintaining that native talents should be considered a “common asset” subject to redistribution. It seems difficult to find such a principled way of distinguishing the two because it seems that they are both “arbitrary from a moral point of view,” i.e., they are both due to the “natural lottery.”16

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Pre-Institutional Desert vs. Institutional Desert At this point, it might be objected that the aforementioned considerations are somewhat unfair.17 It’s not the case that Rawls denies the notion of desert altogether. Rather, Rawls denies the notion of pre-institutional (or natural) desert, while allowing for the notion of institutional desert. According to Louis Pojman: Natural desert consists in treating people according to their effort or merit, rewarding or punishing them based on the intrinsic quality of their actions. So we naturally honor integrity, benevolence, and courage and seek to reward it, while we condemn laziness, cruelty, ingratitude, greed, and cowardice, even where no institutions exist.18

Denying natural desert seems to entail that some desert claims are meaningless. Institutional desert, on the other hand, is that notion that what people deserve, if they deserve anything at all, depends on the sort of institutions and rules that society establishes. But this view of institutional desert doesn’t seem to do justice to people’s natural way of making desert claims. Moreover, it seems reasonable to suppose that there are some rewards that people deserve even if there are no rules or institutions that govern the attribution of such rewards. As Feinberg argues: It takes no special authority to praise or blame, and anyone can admire or deplore. These modes of treatment are not restricted to such special officials as judges, referees, instructors, and welfare administrators, operating under public rules specifying invariant conditions.19

The intuition that people deserve to receive some reward under certain circumstances, even though no institutional rules dictate that they should receive some reward, seems to be particularly compelling in the case of effort. To appreciate the strength of the desert-effort intuition, consider the following example. Suppose that the celebrated astrophysicist Stephen Hawking has an identical twin brother. Hawking and his twin brother are completely alike in every respect. The only respect in which they differ from one another is that Hawking’s twin brother doesn’t suffer from the terrible debilitating condition from which Hawking suffers. Now, suppose further that they are both accomplished astrophysicists and that they have published extensively in the same prestigious journals. Who is more deserving of receiving an honorary award in tribute of life achievements, Stephen Hawking or his identical, yet healthy, twin brother?

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Intuitively, it seems that Stephen Hawking deserves to win the honorary award more than his healthy twin brother because he had to endure more pain and suffering, and he had to exert more effort, in order to achieve the same accomplishments as his healthy twin brother. This intuition seems reasonable because it is natural to assume that a healthy individual, other things being equal, exerts less effort than a disabled individual in order to achieve the same results.20 In this case, one cannot attribute Stephen Hawking’s accomplishments to superior intellectual abilities, and thus discount effort and diligence because, as stipulated, Hawking and his healthy twin brother are similar in every respect except the disability. So it seems that, other things being equal, a person who exerts more effort in pursuing a preferred result is more deserving of receiving a reward than a person who exerts less effort.21 This intuition seems to fit with the natural and common practice of attributing desert to others based on their actions and their character.22

What Have I Done To Deserve This? The previous considerations notwithstanding, it might be objected that all that has been established thus far is that people have different intuitions about desert and effort. Nevertheless, it seems that there are other reasons for rejecting the anti-desert argument in addition to people’s natural way of making desert claims and intuitions about desert and effort. In particular, what I take to be a serious problem for the anti-desert argument is the inclusion of the so-called “effort-making” ability within the set of a person’s native abilities. If this assumption, i.e., that the set of one’s undeserved native abilities includes a native “effort-making” ability that is undeserved as well, is unwarranted, then the anti-desert argument breaks down. According to Rawls, the set of native abilities, i.e., the set of innate talents with which a person is born, includes an ability to exert effort. By effort, Rawls seems to mean people’s ability to exercise and develop their innate talents. He also claims that people’s “effort-making” ability is not under their direct control. He seems to think that this ability is also a prize generously bestowed upon some people, but not all, by the “natural lottery.” As Rawls writes: The precept that seems intuitively to come closest to rewarding moral desert is that of distribution according to effort, or perhaps better, conscientious effort. Once again, however, it seems clear that the effort a person is willing to make is influenced by his natural abilities and skills and the alternatives open to him.23

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The intuition behind Rawls’ claim, presumably, is that talented people display, in addition to their other abilities, an ability to exert more effort in pursuit of their wants and goals than do untalented or less talented people. As Rawls writes: The better endowed are more likely, other things equal, to strive conscientiously, and there seems to be no way to discount for their greater good fortune.24

The better endowed do not deserve whatever they gain because they do not deserve their ability to exert effort. The question seems to be, however, whether or not this so-called “effort-making” ability is a native talent. According to George Sher, Rawls’ anti-desert argument is the argument that “because no one deserves either his native talents or his ability to exert effort, no one can be said to deserve any advantages made possible by his talents or abilities.”25 To challenge the conclusion of this argument, according to Sher, one must examine the claim that people’s native abilities vary, including their “effort-making” ability. But it is not clear that “effort-making” is a native ability at all. That is to say, it is not obvious that “effort-making” is a talent that people have on a par with other native talents, such as artistic and athletic talents. It seems more plausible to suggest that effort is the sort of thing that everyone can exert to a greater or lesser degree. However, less talented or untalented people often have to invest more time and work harder than more talented or gifted people do in order to compensate for their shortcomings. Consider, for example, a non-native speaker of English who has a writing assignment to complete in English. Even writing a short paper may prove to be a difficult task. The non-native speaker has to carefully choose words, consult a dictionary, pay attention to sentence structure, grammar, spelling, and so forth. Conversely, a native speaker of English is more likely to complete such a task with relative ease. Now, the way in which the non-native speaker compensates for her shortcomings is by investing more time and effort in completing the task, whereas the native speaker is more likely to complete the task in less time and with less effort than the non-native speaker. It does not follow, however, that they were born with different “effort-making” abilities. They are both capable of exerting the same degree of effort (assuming, of course, they are both healthy and do not suffer from other debilitating conditions, and so on; the only respect in which they differ is their fluency in the English language), but the native speaker simply doesn’t need to exert as much effort as the non-native speaker does in order to complete the same writing assignment.26

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When parents are concerned about the performance of their child in school and they urge the child to “live up to her potential,” they assume that she is capable of exerting the same degree of effort as any other healthy child. Rarely do parents allow their child to fail in school, or in any other undertaking, based on the belief that the child is simply incapable of exerting the required amount of effort. Furthermore, even if it is admitted that “effort-making” ability is a native endowment on a par with other native talents, it would still seem rather odd if, say, the officials of the Tour de France would approach Lance Armstrong after winning another race and say: “We’re terribly sorry but you don’t deserve to win the trophy. You exerted more effort than the other cyclists did and that’s not fair.” To see why denying that the diligent Lance Armstrong deserves to win the Tour de France trophy would be rather odd, consider the following example. Suppose that person A wins the first prize in the Mega Millions lottery drawing. According to the anti-desert argument, person A doesn’t deserve to win the prize. Nor does she deserve anything purchased or attained by means of this prize because she doesn’t deserve the money she won, and so she doesn’t deserve whatever is gained by means of the money. This example is analogous to Rawls’ metaphor of the “natural lottery” in the following way: Prize How the prize is used Rewards that result from the way in which the prize is used

Natural Lottery Musical talent, e.g., playing the piano Playing the piano in concerts and thereby bringing joy to people • Praise • Applause • Standing Ovation • Salary

Mega Millions $ 100,000,000 Donating the money to the hungry and needy • • • •

Praise Recognition Medal Thank You Note

Intuitively, it seems plausible to claim that person A deserves to receive some praise for donating a substantial amount of money to the hungry and needy. Even though she doesn’t deserve to win the lottery, she deserves to receive some praise for donating the money, especially a significant amount of money. Hence, this seems to show that rewards do not flow from merely having the prize. Rather, rewards flow from the way in which the prize is used. Using the prize for the benefit of those who need

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assistance is an act of beneficence that deserves praise. Similarly, using one’s talents for admirable purposes is what engenders rewards rather than the mere possession of the talent itself.27 To this it might be objected that Rawls doesn’t claim that effort is entirely undeserved. Rather, his claim is that it is impracticable to separate effort from other native abilities that are undeserved. According to Cohen, there are two ways of reading this key passage from A Theory of Justice (p. 312). The first way is the way Nozick reads it. For Nozick, the word ‘influenced’ in this passage should be interpreted as “wholly determined.”28 The second way of reading Rawls’ passage is Cohen’s way: in which [Rawls] means ‘influenced’ by ‘influenced’, he does not say that the more effortful have no control over and therefore deserve no credit for, the amount of effort they put in. His different point is that he cannot reckon the extent to which their above-par effort is attributable not to admirable striving but to ‘greater good fortune’: there is ‘no way to discount’ for the latter. That is a practical objection to trying to reward effort that deserves reward, not a claim that there is no such effort—see the final sentence of the passage.”29

According to Cohen, then, the important claim is Rawls claim that “The idea of rewarding effort is impracticable.”30 However, it seems that Rawls makes two distinct claims about effort in this passage. The first claim is a claim about the role of the effort-desert intuition in distributive justice. This claim, i.e., that effort-desert considerations should be ignored in matters of distributive justice, is supposed to follow from the anti-desert argument. Since native abilities, including “effort-making,” are the result of the “natural lottery,” they are “arbitrary from a moral point of view.” That means that justice as desert based on effort will not be chosen by the parties in the “original position” behind the “veil of ignorance.” The parties behind the “veil of ignorance” would not choose desert based on effort as a principle of justice, not because it is impracticable to reward effort, but because they might be the unlucky recipients of no “effortmaking” ability, for the “natural lottery” is indiscriminate in that respect. The second claim is a claim about the impracticability of rewarding desert. The support for this claim cannot be that the parties in the “original position” would not choose desert based on effort as a principle of justice. So what is the support for this claim? As Cohen points out, this claim is based on the further claim that it is practically impossible to determine the extent to which achievements are due to effort or good fortune. But this seems to follow from the anti-desert argument only if it is assumed that “effort-making” is a native ability on a par with other native abilities that are randomly bestowed upon persons by the “natural lottery” in fixed

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measures. Is it the case that the “natural lottery” grants persons fixed measures of “effort-making” ability just as it grants them other native abilities? Less metaphorically, is it the case that “effort-making” is the sort of native ability over which people have no control, and thus cannot claim credit for it and the rewards it brings about? Metaphysical skepticism concerning free will aside, 31 Rawls’ claim that the so-called “effort-making” ability is a native ability that is beyond people’s control seems to be at odds with empirical evidence. Studies in psychology, for instance, suggest that people exert more effort when working alone than when working with others. This phenomenon is known as “social loafing.” More importantly, people loaf not only when they work in groups but also when neither praise nor blame is expected. As researchers of one study suggest: When they were never identifiable, participants put out as little effort alone as when they thought they were performing with others. These results are consistent with the notion that when individual outputs are not identifiable, participants may feel that they can receive neither credit not blame for their performances, so they loaf.32

So it seems that people loaf when they work in groups because they might think that others do not work as hard as they do (or think that they do), so they do not want to be the only “dupes” who do all the hard work. Moreover, people loaf when they think that their efforts will go unnoticed, i.e., when they expect neither praise nor blame for their efforts, and so they do not bother. Another study suggests that the potential for evaluation led the participants in the experiment to exert greater effort.33 As Sher points out, “we clearly cannot infer the conclusion that people differ in their effort-making abilities directly from the fact that they differ in their efforts.”34 It also cannot be concluded, however, that people have no control over the amount of effort they exert. If this is granted, then “effort-making” is unlike any other native ability insofar as it is under the direct control of individuals. It seems that people can exert more or less effort depending on the circumstances. To this it might be objected that Rawls would not deny this as well. Even if people have some control over their “effort-making,” and so they can exert more or less effort, the problem is that there is no practical way to identify and reward effort. But why not? Looking at how teachers reward students for hard work might be illuminating here. What is students’ effort? It is “the amount of time and energy that students expend in meeting the formal academic requirements established by their teacher and/or school.”35 Not only educators and teachers do reward students for

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effort but also researchers are able to isolate effort as an independent variable in their studies.36 Here is one example: The independent variables were the degree of effort exerted and feedback received on an assignment. Each condition was refined in two pilot studies and had two levels, high and low effort and high and no praise. The high effort condition consisted of an assignment in which students wrote a three to four page answer to a question regarding the material they had read. The low effort condition had approximately the same question but the students were asked to list the answers in one page. Thus, the difference in “effort” was the amount of writing time and composition of the answers.37

So, time spent on an assignment (recall the example of the non-native speaker of English) is a pretty good indicator of amount of effort exerted (though, admittedly, not a perfect indicator). It seems, then, that the way in which teachers reward students for contentious, sustained effort suggests, at least prima facie, that it is not impracticable.38

Conclusion According to Cohen, it is difficult to reconcile Rawls’ claims about effort with his claims about tastes.39 If the considerations put forward in this paper are correct, then one can reject Rawls’ claims about effort because the anti-desert argument is not as compelling as it appears to be. As discussed above, it seems that the argument entails two problematic consequences that clash with intuitions about effort and desert. In addition, it seems that people can be said to deserve receiving some rewards even though they do not deserve whatever it is that enables them to attain those rewards, as long as it is granted that the claim for credit is based on action rather than the mere possession of some talent. If this is correct, then Rawls’ claim that people deserve nothing that flows from their native talents, including their so-called “effort-making” ability, seems unwarranted. As for the so-called “effort-making” ability, it seems, provided that the aforementioned considerations are correct, that people have the ability to exert effort regardless of their other native talents. In other words, people seem to have resources of effort, so to speak, on which they can draw in times of need. In that respect, “effort-making” is unlike other native abilities. The anti-desert argument assumes that “effort-making” is a native ability that is part of one’s set of native abilities that are the result of the “natural lottery,” and thus undeserved. Since this assumption seems to be unwarranted, the anti-desert argument fails to show that rewards that come from conscientious and sustained effort are undeserved.40

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In conclusion, it is important to note that even if the anti-desert argument is ultimately rejected, it doesn’t follow that desert is the only, or even the primary, aspect of distributive justice. One might accept desert as an important consideration in matters of distributive justice and argue that justice is a plural notion that requires other considerations as well. Walzer, for instance, argues that considerations of justice are to be discussed within a political community that produces its own social goods and services.41 The just distribution of each of these social goods and services is determined by a specific and unique criterion. For instance, Walzer considers health care to be one sphere of justice. Within this sphere of justice, the important criterion for a just distribution is need. 42 In other spheres of justice, e.g., citizenship, other considerations may be more prominent, such as a formal equality of democratic citizenship or equality before the law.43 Moreover, accepting effort as a desert base and desert as an important consideration in matters of distributive justice doesn’t entail that the needs of the worse-off should be ignored. The notion of desert in distributive justice is also consistent with a doctrine of sufficiency. According to Frankfurt: With respect to the distribution of economic assets, what is important from the point of view of morality is not that everyone should have the same but that each should have enough. If everyone had enough, it would be of no moral consequence whether some had more than others.44

Accepting this doctrine of sufficiency, one might claim that as long as people have enough, i.e., as long as people do not have resources below a certain threshold or as long as they meet a certain standard of sufficiency, it is just to distribute extra resources beyond that threshold according to some desert base, such as effort. Finally, granting that the talented and the industrious should be rewarded doesn’t entail that they do not have any responsibilities for those who are less fortunate. There is a lesson to be learned from Rawls’ metaphor of the “natural lottery.” To the extent that people are equally subject to the natural drawing of lots—metaphorically speaking, of course—they might be inclined to consider the possibility of what it might have been like had they been less fortunate than they actually are. To the extent that the well-off would be willing to consider such possibilities, they might be inclined to accept some sort of responsibility toward the worse-off. In other words, this sort of counterfactual way of thinking might convince some of the well-off to accept some responsibility for the worse-off. Unfortunately, offering a novel argument in support of this

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claim is beyond the scope of this paper. For what it’s worth, however, I offer Uncle Ben’s words of wisdom to Peter Parker (also known as Spiderman): “With great power comes great responsibility.”45

References Anderson, E. S. (1999). What is the Point of Equality? Ethics, 109(2), 287337. Bedau, H. A. (Ed.). (1971). Justice and Equality. Englewood Cliffs, NJ: Prentice Hall, Inc. Carbonaro, W. (2005). Tracking, Students’ Effort, and Academic Achievement. Sociology of Education, 78, 27-49. Cohen, G. A. (1989). On the Currency of Egalitarian Justice. Ethics, 99(4), 906-944. Dennett, D. (1984). Elbow Room: The Varieties of Free Will worth Wanting. New York: Oxford University Press. Dick, J. C. (1975). How to Justify a Distribution of Earnings. Philosophy and Public Affairs, 4(3), 248-272. Dworkin, R. (1981). What is Equality? Part 1: Equality of Welfare. Philosophy and Public Affairs, 10(3), 185-246. Frankfurt, H. (1987). Equality as a Moral Ideal. Ethics, 98(1), 21-43. Friedrich, C. J., & Chapman, J. (Eds.). (1963). Nomos VI: Justice (Vol. VI). New York: Atherton Press. Galston, W. A. (1982). Moral Personality and Liberal Theory: John Rawls's 'Dewey Lectures'. Political Theory, 10(4), 492-519. Harkins, S. G. (2006). Mere Effort as the Mediator of the EvaluationPerformance Relationship. Journal of Personality and Social Psychology, 91(3), 436-455. Jackson, J. M., & Harkins, S. G. (1985). Equity in Effort: An Explanation of the Social Loafing Effect. Journal of Personality and Social Psychology, 49(5), 1199-1206. Johnston, D. (Ed.). (2000). Equality. Indianapolis: Hackett Publishing Company, Inc. Juvonen, J., & Murdock, T. B. (1995). Grade-Level Differences in the Social Value of Effort: Implications for Self-Presentation Tactics of Early Adolescents. Child Development, 66, 1694-1705. Kelly, S. (2008). What Types of Students’ Effort are Rewarded with High Marks? Sociology of Education, 81, 32-52. Lucash, F. S. (Ed.). (1986). Justice and Equality Here and Now. Ithaca: Cornell University Press.

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McMillan, J. H. (1977). The Effect of Effort and Feedback on the Formation of Student Attitudes. American Educational Research Journal, 14, 317-330. Nozick, R. (1974). Anarchy, State, and Utopia. New York: Basic Books. Olsaretti, S. (Ed.). (2003). Desert and Justice. Oxford: Clarendon Press. Pojman, L. P. (2001). Justice as Desert. Queensland University of Technology Law & Justice Journal, 1(1), 88-109. —. (2006). Justice. Upper Saddle River, NJ: Pearson Prentice Hall. Rawls, J. (1971). A Theory of Justice. Cambridge, Massachusetts: Harvard University Press. —. (1985). Justice as Fairness: Political not Metaphysical. Philosophy and Public Affairs, 14(3), 223-251. Roemer, J. E. (2001). Three Egalitarian Views and American Law. Law and Philosophy, 20(4), 433-460. Scheper-Hughes, N. (2006). Biopiracy and the Global Quest for Human Organs. NACLA Report on the Americas, 39, 14-21. Seta, J. J., & Seta, C. E. (1982). Personal Equity: An Intrapersonal Comparator System Analysis of Reward Value. Journal of Personality and Social Psychology, 43(2), 222-235. Shepperd, J. A., Arkin, R. M., Strathman, A., & Baker, S. M. (1994). Dysphoria as a Moderator of the Relationship between Perceived Effort and Perceived Ability. Journal of Personality and Social Psychology, 66(3), 559-569. Sher, G. (1979). Effort, Ability, and Personal Desert. Philosophy and Public Affairs, 8(4), 361-376. —. (1987). Desert. Princeton, NJ: Princeton University Press. —. (2001). Blame for Traits. Nous, 35(1), 146-161. Smith, P. (1998). Incentives and Justice: G. A. Cohen's Egalitarian Critique of Rawls. Social Theory and Practice, 24(2), 205-235. Stark, A. (2002). Beyond Choice: Rethinking the Post-Rawlsian Debate over Egalitarian Justice. Political Theory, 30(1), 36-67. Waller, B. N. (1989). Uneven Starts and Just Deserts. Analysis, 49, 209213. Walzer, M. (1983). Spheres of Justice. New York: Basic Books. Wilson, C. (2003). The Role of a Merit Principle in Distributive Justice. The Journal of Ethics, 7, 277-314. —. (2004). Morals Animals: Ideals and Constraints in Moral Theory. New York: Oxford University Press.

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Notes 1

John Rawls, A Theory of Justice (Cambridge, Massachusetts: Harvard University Press, 1971), p. 310. 2 Rawls, TJ, p. 104. 3 According to Rawls, “the natural lottery in native assets […] is neither just nor unjust” (TJ, p. 104). 4 Rawls, TJ, pp. 311-312. 5 According to George Sher, “Rawls’s claim that our ‘natural assets’ are undeserved rests not on the fact that they are uncaused, but simply on the fact that our possessing them is not the result of anything we have done. It is because our talents and abilities antecede out actions that we cannot ‘claim credit’ for them” (Desert [Princeton, NJ: Princeton University Press, 1987], p. 24). 6 Rawls, TJ, p. 104. 7 According to Joel Feinberg, “If a person is deserving of some sort of treatment he must, necessarily, be so in virtue of some characteristic or prior activity. It is because no one can deserve anything unless there is some basis or ostensible occasion for the desert that judgments of desert carry with them a commitment to the giving of reasons. […] Desert without a basis is simply not desert” (“Justice and Personal Desert,” in Nomos VI: Justice [New York: Atherton, 1963], pp. 6997). Rawls’ anti-desert argument purports to show that neither characteristics nor activities are justified desert bases. I shall argue that, even if Rawls is right about characteristics, the anti-desert argument is not effective in ruling out activity as a desert base. 8 George Sher criticizes Rawls’ argument for its underlying metaphysical assumptions about persons and their desires, aims, and values (See Desert, chap. 2; and “Effort, Ability, and Personal Desert,” in Philosophy and Public Affairs 8 [1979]: 361-376). In “Justice as Fairness: Political not Metaphysical,” however, Rawls claims that “a conception of the person in a political view, for example, the conception of citizens as free and equal persons, need not involve […] questions of philosophical psychology or a metaphysical doctrine of the nature of the self” (Philosophy and Public Affairs 14 [1985]: 223-251). Sher disagrees and attempts to expose the metaphysical assumptions that underlie Rawls’ theory. He claims that one “cannot conclude that Rawls’s theory is truly agnostic about the metaphysical view that persons are not constituted by their contingent attributes; for his account of ‘how citizens actually think of themselves’ may itself imply precisely this view” (Desert, p. 156). Reinforcing Sher’s criticism, it’s worth noting that Rawls’ metaphor of the natural lottery assumes that persons are the sort of entities that are over and above their native abilities and physical/mental features. Thus, on Rawls’ picture, each “self” or “person” is assigned a set of native abilities at random. This assumption is questionable, but I wish to avoid such metaphysical considerations and concentrate on the issues that pertain directly to desert, effort, and distributive justice. In light of these considerations, I offer the above interpretation of Rawls’ anti-desert argument in the hope that it’s charitable. It’s also noteworthy that in addition to the metaphysical problem of the nature of

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the self, Andrew Stark argues that the distributive justice debate is mired in another metaphysical problem, namely the problem of free will. The free will problem becomes part of the question of distributive justice when considerations of choice and luck dominate the debate. Stark offers a way of “removing the post-Rawlsian debate over distributive justice from ‘metaphysics’, and returning it to ‘political philosophy’” (“Beyond Choice: Rethinking the Post-Rawlsian Debate over Egalitarian Justice,” in Political Theory 30 [2002]: 36-67). 9 One might claim that it’s questionable whether or not it makes sense to say that one has such-and-such abilities but one could have had different abilities. Sher argues that “it is perfectly consistent to say that persons are not responsible for having certain characteristics, yet that precisely these characteristics make them the people they are” (Desert, p. 157). In support of Sher’s argument, one might point out that this seems to be marked in ordinary language. For instance, one usually says “I am an athlete,” rather than “I possess athletic abilities,” which seems to indicate that one is an athlete—that’s the sort of person one is. 10 For the distinction between justice and fairness, see Louis P. Pojman, Justice (Upper Saddle River, NJ: Pearson Prentice Hall, 2006). According to Pojman, “Fairness is comparative, while justice typically is noncomparative” (p. 10). For example, if student A receives a grade lower than the grade student B (the teacher’s pet) receives for the same quality of work, then student A might rightly complain that this is not fair. Student A, however, cannot complain that the fact that she received a low grade is unjust if the low grade she received was actually the grade that her poor-quality work merited. Fairness, on the one hand, is comparative, and so it demands that students’ work should be judged and evaluated according to the same standards. Justice, on the other hand, is noncomparative; the grade that a student receives is either just or unjust, depending on the quality of her own work, regardless of the quality of someone else’s work. 11 Rawls, TJ, p. 101. 12 Rawls, TJ, p. 179. 13 Of course, Rawls doesn’t mean “common asset” in the literal sense. Rather, redistribution is to be achieved by other means, such as taxation. 14 According to William Galston, “A policy that focuses exclusively on the intrinsic worth of our capacities treats the characteristics of separate individuals as an artificial, disembodied unity, ignoring the fact that they have no existence apart from the individuals in whom they inhere” (“Equality of Opportunity and Liberal Theory,” in Justice and Equality Here and Now, ed. Frank S. Lucash [Ithaca: Cornell University Press, 1986], pp. 89-107). See also B. A. O. Williams, “The Idea of Equality,” in Justice and Equality, ed. Hugo A. Bedau (Englewood Cliffs, NJ: Prentice Hall Inc., 1971), pp. 116-137. 15 See, e.g., Scheper-Hughes, “Biopiracy and the Global Quest for Human Organs,” in NACLA Report on the Americas 39 (2006): 14-21. 16 Similar problems seem to arise in the case of retributive justice. If people deserve nothing, then, presumably, they deserve neither blame nor punishment for their crimes. Intuitively, it seems that one deserves to be blamed, and subsequently punished, for one’s action not because there is a law that prohibits the action

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performed but because one has done something bad or wrong. After all, it seems reasonable to say that laws are legislated on the basis of what people in society deem right and wrong (see Pojman, Justice, p. 52). However, Rawls claims that distributive justice and retributive justice are distinct (TJ, pp. 314-315). 17 I’m grateful to an anonymous referee who pointed out that compatibilists and hard determinists may be committed to these radical consequences of the antidesert argument, though Rawls himself may not be. While I will still try to stay clear of the free will debate, I will discuss later Rawls’ claim that rewarding effort is impracticable. 18 Pojman, Justice, p. 20. See also Feinberg who argues that “desert is a ‘natural’ moral notion (that is, one which is not logically tied to institutions, practices, and rules)” (“Justice and Personal Desert,” p. 70). 19 Feinberg, “Justice and Personal Desert,” p. 85. 20 According to G. A. Cohen, there is a distinction between how difficult it is for a person to perform a certain action and how costly it is for a person to perform a certain action. Even though “difficulty” and “cost” are distinct, according to Cohen, they are both ways in which it is hard for someone to do something (“On the Currency of Egalitarian Justice,” in Ethics 99 [1989]: 906-944). For present purposes, one might say that it is more difficult and more costly for Hawking than for his healthy twin brother to perform the same tasks, and thus the intuition is that Hawking is more deserving of receiving the honorary award. 21 Some qualifications must be noted: first, people do not deserve rewards for merely trying. Rather, they deserve rewards for their sustained efforts that bring about successful results (See Catherine Wilson, “The Role of a Merit Principle in Distributive Justice,” in The Journal of Ethics 7 [2003]: 277-314; Moral Animals: Ideals and Constraints in Moral Theory, New York: Oxford University Press, 2004). In that respect, it is important to bear in mind Feinberg’s distinction between two senses of the word ‘desert’. The customary sense of ‘desert’ is “worthiness,” which is the sense under consideration in this paper. Another sense of ‘desert’ is “qualification,” which is often confused with the first sense. Hence, as Feinberg puts it, “deserving a prize [qualification] is distinguished from deserving to win a prize [worthiness]” (“Justice and Personal Desert,” p. 77). Second, people do not deserve rewards for efforts that are directed at clearly unrealistic goals (Sher, Desert, p. 66). Finally, people do not deserve rewards for efforts that are directed at morally impermissible goals (Sher, Desert, pp. 66-67) or morally unacceptable activities (Louis Pojman, “Justice as Desert,” in Queensland University of Technology Law & Justice Journal 1 [2001]: 88-109). 22 As for character, suppose that Hawking is an evil person who is willing to do anything in order to get the honorary award, and so he tramps on other astrophysicists, including his healthy twin brother, on his way to recognition and fame. In this case, the intuition that he is more deserving of the honorary award than his healthy twin brother might be weaker, or even absent entirely. One might think that, given his evil disposition, Hawking does not deserve the honorary award. 23 Rawls, TJ, p. 312.

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Rawls, TJ, p. 312. Sher, “Effort, Ability, and Personal Desert,” p. 361; and Desert, p. 22. 26 Studies in experimental psychology suggest that young children believe that effort and ability co-vary, and so they want to appear diligent, and they expect their teachers to reward them for their hard work. Young adolescents, however, come to realize that the relation between effort and ability is compensatory, and so they hide their efforts from their peers, perhaps to appear more “cool” (Juvonen, et al, “Grade-Level Differences in the Social Value of Effort: Implications for SelfPresentation Tactics of Early Adolescents,” in Child Development 66 [1995]: 1694-1705). 27 Sher and Dennett make a similar point: even though there are differences in starting points in life, they do not eliminate just desert. See Dennett, Elbow Room, New York: Oxford University Press, 1984. Cf. Waller, “Uneven Starts and Just Deserts,” Analysis 49 (1989): 209-213. 28 Nozick, Anarchy, State, and Utopia, New York: Basic Books, 1974. 29 Cohen, “On the Currency of Egalitarian Justice,” in Ethics 99 (1989): 906-944. 30 Rawls, TJ, p. 312. 31 The metaphysical problem of human freedom seems to haunt the debate concerning distributive justice in general and desert in particular (see note 8). According to Sher, however, in considering practical issues, such as the question “How much pay does a worker deserve? […] we can only say that a worker’s efforts are entirely within his control if we are willing to accept a drastically stripped-down conception of effort—one that is so minimal that it is appropriate to only a few very simple work situations” (“Effort and Imagination,” in Desert and Justice, ed. Serena Olsaretti [Oxford: Clarendon Press, 2003], pp. 205-217). 32 Jackson, et al., “Equity in Effort: An Explanation of the Social Loafing Effect,” in Journal of Personality and Social Psychology 49 (1985): 1199-1206. 33 Stephen G. Harkins, “Mere-Effort as the Mediator of the EvaluationPerformance Relationship,” in Journal of Personality and Social Psychology 91 (2006): 436-455. This study emphasizes the importance of rewarding effort as an incentive. For a discussion of incentives, see Paul Smith, “Incentives and Justice: G. A. Cohen’s Egalitarian Critique of Rawls,” in Social Theory and Practice 24 (1998): 205-235. There are, however, some difficulties with offering such instrumental reasons for rewarding effort (and merit). See Wilson, “The Role of a Merit Principle in Distributive Justice,” pp. 277-314. It is interesting to note that researchers take ability to be a stable variable, whereas effort is taken to be an unstable variable (Shepperd, et al, “Dysphoria as a Moderator of the Relationship between Perceived Effort and Perceived Ability,” in Journal of Personality and Social Psychology 66 [1994]: 559-569). 34 Sher, “Effort, Ability, and Personal Desert,” p. 368; and Desert, p. 31. 35 Carbonaro, “Tracking, Students’ Effort, and Academic Achievement,” in Sociology of Education 78 (2005): 27-49. 36 Kelly, S., “What Types of Students’ Effort Are Rewarded with High Marks?” in Sociology of Education 81 (2008): 32-52. 25

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37 McMillan, “The Effect of Effort and Feedback on the Formation of Student Attitudes,” in American Educational Research Journal 14 (1977): 317-330. 38 John E. Roemer also proposes an ingenious way of rewarding effort. See Roemer, “Three Egalitarian Views and American Laws,” in Law and Philosophy 20 (2001): 433-460. 39 Cohen, “On the Currency of Egalitarian Justice,” p. 915. 40 The purpose of this paper is to establish that the anti-desert argument fails to rule out effort as a legitimate desert base in matters of distributive justice. This paper does not discuss how diligent, sustained efforts confer value on objects. For such an account, see Sher who argues that the diligent ought to succeed because “their sustained efforts are substantial investments of themselves—the ultimate source of value—in the outcomes they seek” (Desert, p. 62). According to Sher, “if persons themselves matter, then what matters to persons should matter as well. […] Diligent striving is itself a reliable sign of desire. Persistent attempts to achieve a result, and sacrifices made to obtain it, are the strongest possible evidence of a stable and enduring desire for it. If desire and effort are thus connected, then all diligently pursued outcomes are desired. Hence, if all desired outcomes have value, then so too all outcomes that are diligently pursued” (Desert, p. 58). For some empirical support for Sher’s account, see John Seta and Catherine Seta, “Personal Equity: An Intrapersonal Comparator System Analysis of Reward Value,” in Journal of Personality and Social Psychology 43 (1982): 222-235. This study suggests that moderate degrees of effort expenditure increase the perceived value of the reward. 41 Michael Walzer, Spheres of Justice (New York: Basic Books, 1983). 42 See also Williams, “The Idea of Equality,” pp. 128-129. 43 See also E. S. Anderson, “What is the Point of Equality?” in Ethics 109 (1999): 287-337. 44 Harry Frankfurt, “Equality as a Moral Ideal,” in Ethics 98 (1987): 21-43. 45 These last remarks raise the question whether assisting others in need is a matter of justice or a matter of charitable beneficence. If the concern of egalitarians is helping those who are worse off, then perhaps it is a humanitarian concern, rather than strictly justice, to alleviate the suffering of others that provides the moral justification. According to Feinberg, there is a “difference between helping a person out of a jam simply through charitable beneficence and giving him aid he deserves” (“Justice and Personal Desert,” p. 87).

PHENOMENOLOGY, INTERROGATION AND BIOPOWER: MERLEAU-PONTY ON ‘HUMAN RESOURCE EXPLOITATION’ NICHOLAS MCGINNIS, UNIVERSITY OF WESTERN ONTARIO

Introduction Interrogation methods in Western countries have undergone a deep shift since the end of the Second World War, a result of systematic intelligence research on the topic. 1961 saw the landmark publication of ‘The Manipulation of Human Behaviour’, funded in large part by the United States Air Force.1 This basic research has been the standard from which a half-century of field interrogation manuals and techniques have drawn. The declassified 1963 CIA manual known as ‘KUBARK Counterintelligence Interrogation’ cites the book approvingly, noting in a sub-section entitled ‘The Theory of Coercion’ that “all coercive techniques are designed to induce regression,” directly referencing one of the book’s articles.2 Twenty years later, the updated ‘Human Resource Exploitation Training Manual,’ used in a half-dozen training courses in various parts of Latin America, has lost the direct citation in the equivalent sub-section but states that …regression is basically a loss of autonomy, a reversion to an earlier behavioural level. As the subject regresses, his learned personality traits fall away in reverse chronological order. He begins to lose the capacity to carry out the highest creative activities, to deal with complex situations, to cope with stressful interpersonal relationships, or to cope with repeated frustrations.3

We have decisively moved beyond a naïve ‘stimulus-response’ paradigm where the chief tool of the interrogator is pain, and his sole obstacle the subject’s ability to tolerate it, until he ‘gives in’ despite himself. Such

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blunt methods, it is noted by the manuals, often do not result in accurate information; the subject will ‘confess’ to anything at all. Rather, “his capacity for resistance should be destroyed and replaced with a cooperative attitude.”4 Sensory deprivation, disruption of routine, and ‘stress positions’ are deployed in an attempt to induce this ‘regression’. It is made clear that indiscriminative use of physically coercive methods and of pain can be counterproductive, causing the subject to ‘withdraw’ rather than regress.5 So while waterboarding is again proscribed under the Obama administration, commentators have noted that this ban has little to do with a sudden ethical mandate but rather with the now-admitted ineffectiveness of the practice. The techniques outlined above are still used at Guantanamo and in “black sites” whose locations remain undisclosed.6 In what follows I propose to examine in more detail the methods by which ‘regression’ is induced, particularly sensory deprivation, and take it up in terms of phenomenological ‘embodiment’ through the work of Maurice Merleau-Ponty. I hope to show not only that the basic research into manipulation and interrogation points to central theses of MerleauPonty’s Phenomenology of Perception but that analysis of interrogation using the concepts elaborated by Merleau-Ponty shed significant light on the practice itself. Indeed, induced regression may best be understood as a sort of deliberate breaking down of the ‘intentional arc’, which ‘subtends’ our cognitive life and helps us to ‘situate’ ourselves.7 The link MerleauPonty finds between motility and ‘basic intentionality’ is thrown in sharp relief when considering the techniques used to induce psychological regression, which involve strictly limiting intentional and motile capabilities in the subject, inducing a highly atypical, pathological state.8 Before doing this however, I will situate modern interrogation by drawing on the work of Foucault.

Situating Modern Interrogation What distinguishes ‘regressive’ interrogation is not only the methodology, but the context in which it is used. Near the end of the first volume of his Histoire de la Sexualité, Foucault chronicles a profound change in the mechanisms of power in the West—from ‘power’ understood as an “instance of deduction (prélèvement), a subtraction mechanism … essentially a right of seizure, of appropriation,”9 to a “power bent,” instead on “generating, multiplying, and growing forces… and administering over life (gère la vie).”10 What biopower designates fundamentally, Foucault writes, is specifically “what made life and its mechanisms enter into the realm of explicit calculations and made knowledge-power an agent of

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transformation of human life,” which is the consideration of the biological species as a stake (enjeu) in its own political strategizing.11 Here we can see a very important intersection between Foucault’s analysis of biopower and the work of Merleau-Ponty—the centrality of the body, of the biological. It finds direct expression in that the social productivity, the ‘work’ of biopower is inseparably drawn from embodiment: The control of society over individuals is not conducted only through consciousness or ideology, but also in the body and with the body. For capitalist society biopolitics is what is most important, the biological, the somatic, the corporeal.12

Expanding on Foucault, Hardt and Negri identify one of the central embodied productivities as the creation and manipulation of affects; the professionalization of affective labour, Hardt and Negri maintain, produce “social networks, forms of community, biopower,” and necessitates “human contact, labour in the bodily mode.”13 Interrogation is simply another form of professionalized affective labour; it is, in a sense, banal. Coercive interrogation and extra-judicial incarceration are not haphazard, subsidiary activities, supervening on specific military goals: they are rigorously designed, bureaucratically implemented, and hierarchically controlled with the same precision found in hospital wards or laboratories, aiming to break down individual autonomy and so to “elicit guarded information from captives” in a standardized, neutral fashion.14 The interrogative regime in effect reveals to us, first, the ontological limit and corporeal nature of biopolitical control over the individual; and second, the ways in which affective labour may be wielded to re-arrange, fundamentally, the individual’s life. Everything about interrogation is designed along totalizing lines, from the arrest, always in the earliest hours of the morning to “achieve surprise and the maximum of mental discomfort” to the incarceration, where “isolation, both physical and psychological, must be maintained from the moment of apprehension.”15 The subject is to be provided with “ill-fitting clothing,” since, as the manual notes “familiar clothing reinforces identity and thus the capacity for resistance.”16 At the same time questioners are told that a “real understanding of the subject” is crucial to successful interrogation— ironically, it is within custody that the subject is most thoroughly individualized, but only to better induce eventual psychological regression.17 It is this regression that is the object of interrogation; and its ‘objective’ dimension can best be understood through close consideration of its biopolitical nature. What I propose to consider, however, is not solely this aspect, but also the phenomenology of interrogation.

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The Manipulation of Human Behaviour, as I noted above, forms the basis of much modern interrogative methodology. The goal of the research was, from the outset, to present an authoritative examination of publicized speculations regarding the possible use of scientific developments in the manipulation of behaviour against future prisoners of war.18

The book’s chapters deal, in turn, with sensory deprivation, drugs, body language, malingering, hypnosis and interpersonal influence on the interrogative process. Particularly, we learn that reduced sensory stimuli increases “vulnerability and receptivity to new external environmental influences.”19 The effects of prolonged sensory deprivation, the authors note, may best be characterized as a general loosening of subject’s ability to perceive reality and the weakening of stable internal norms against which to evaluate perceptual (visual experience). The breakdown of internal norms is demonstrated in a variety of other functions…20

These other functions include ‘cognitive and learning abilities’, ‘suggestibility’, ‘time perception’ and ‘personality traits’. Prolonged sensory deprivation not only leads to waking hallucinations and feelings of discomfort,21 but also a slow disaggregation of the above-mentioned basic cognitive functions. Without social or perceptual stimulus, the individual’s sense of self begins to come apart (as the authors note, however, the studies are restrained by “ethical considerations and have not pushed subjects to their ultimate limits.”)22 This is indubitably one of the crucial factors in inducing the “regression”, where “the interrogatee’s mature defences crumbles as he becomes more childlike,” facilitating interrogation.23 As the KUBARK manual notes, It is a fundamental hypothesis of this handbook that these techniques, which can succeed even with highly resistant sources, are in essence methods of inducing regression of the personality to whatever earlier and weaker level is required for the dissolution of resistance and the inculcation of dependence. All of the techniques employed to break through an interrogation roadblock [...] are essentially ways of speeding up the process of regression. As the interrogatee slips back from maturity toward a more infantile state, his learned or structured personality traits fall away in a reversed chronological order, so that the characteristics most recently acquired which are also the characteristics drawn upon by the interrogatee in his own defence - are the first to go.24

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Both the scientific and military literature seems content to report on the effects of the techniques used in interrogation,25 but little is said about why or how these techniques should have such pronounced and profound effects. Turning to phenomenology may help us understand what is happening.

Embodiment and Interrogation Merleau-Ponty provides us with a theoretical bridge connecting the political analysis of interrogation as expression of biopower and the scientific studies of human behaviour under stressful circumstances. This follows from the nature of Merleau-Ponty’s work, which is deeply concerned with embodiment—in other words, it proceeds without neglect of our corporeal, somatic nature—and also, as we have seen above, that the productivity, the ‘work’ of biopower, while enabled by technology is necessarily somatic.26 Here I will consider interrogation in terms of three important concepts from Merleau-Ponty’s work, drawing particularly on the Phenomenology of Perception: the primacy of perception, motility and the intentional arc. The primacy of perception is an appropriate starting-point for our phenomenal ‘taking-up’ of interrogation and regression. From the thesis that consciousness is irreducibly perceptual we begin to understand why sensory deprivation can have such damaging effects on the individual subjected to it. With no patterned stimuli or perception to ‘latch on’ to consciousness loses its orientation to the world. Consciousness from the phenomenological standpoint, as Merleau-Ponty writes, is “meant for a world which it neither embraces nor possesses, but towards which it is perpetually directed.”27 Without this world-directionality, without a “world to live through,”28 consciousness does not become merely unanchored— for this identifies it as somehow existing separately—but senseless, making use of the multiple meanings in French of sens as Merleau-Ponty often does: direction, sense and meaning. The body is not some afterthought or shell: consciousness must be embodied in order to perceive, reflect, and finally act. What is it to be a body? Merleau-Ponty answers that “to be a body is to be tied to a certain world. Our body is not primarily in space. It is of it.”29 What Merleau-Ponty is trying to say here becomes rather clearer when he considers the case of Schneider in the Phenomenology. Signification, the production of meaning by consciousness, is likewise embodied. The deficiencies affecting Schneider—where his abstracted understanding mediates the perceptual field, by proceeding from various linguistic

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hypotheses concerning an object perceived to finally, after much effort, an assertion of fact such as ‘it is a pen’—are clearly pathological. But that this is so exposes, Merleau-Ponty writes, the “existential conditioning” of all normal “sensitivity and significance.”30 In the normal case the “subject’s intentions are immediately reflected in the perceptual field.”31 The normal perceptual field exhibits a measure of spontaneous ‘plasticity’ upon which the subject can, as it were, impress significance like a hand on clay. Here the physical metaphor is appropriate: that the world suggests meanings at all is because these meanings are embodied in the given world and subsequently translated into movement, motility, the capacity to move freely.32 In Schneider’s case language comes between this spontaneity, blocking the penetration “into the object of perception” where one assimilates “its structure into his substance.”33 While Schneider’s pathology is highly atypical, the techniques deployed in interrogation aim at creating a similar cluster of pathological responses by manipulating the subject’s perceptual consciousness. Sensory deprivation is a central component in the process of inducing regression. Without a perceptual field, the subject can neither exhibit intentionality nor attribute meanings to the world around him. It is not that consciousness is ‘left idle’ and turns inwards: it is senseless lacking a perceptual field to orient it or motile freedom to act upon it.34 The subject is only tenuously tied to a world, is only tenuously a body, or anybody at all. This is also the explicit view of the researchers involved in the writing of the Manipulation of Human Behaviour and the military organizations that adopted it as a guide for conducting interrogations. The lead article of the book, ‘The Physiological State of the Interrogation Subject as it Affects Brain Function’ asserts that Deprived of information, the brain does not function ‘normally’. It must have a certain quantity of patterned, meaningful, sensory input from the external environment, and some opportunity to organize its output as behaviour … it cannot function ‘normally’ unless it receives a certain amount of information upon which to operate.35

This strikingly echoes Merleau-Ponty’s own ideas, as we’ve just seen. Not only the characterization of consciousness as requiring perception to operate but also the importance of the translation of this information to movement and action. While Merleau-Ponty’s concern is with the specific pathologies of the Schneider case, the military research here aims to induce pathologies with a specific objective in mind: successful interrogation. They realize, as Merleau-Ponty did, that perception is primary, that it structures consciousness. Isolation and sensory deprivation

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peels away the subject’s sense of self by effectively disembodying consciousness, by artificially separating it from its corporeality, from its ability to take in sensory input, assimilate it and translate this to movement and intentionality. ‘Separating’ is even misleading a term: consciousness is corporeal, there is nothing to separate, only functions to atrophy. Hence motile restriction is a crucial component in inducing regression. With nothing to fix upon, consciousness effectively crumples and fades away, to the benefit of the interrogator: The first functions lost are those that are thought to be the most complex and to have been acquired most recently by civilized man: the capacity to carry out the highest creative activities, to meet new, challenging, and complex situations, to deal with trying interpersonal relations, and to cope with repeated frustrations … concern about ‘accuracy’, ‘propriety’, ‘moral rectitude’, ‘honour’ and ‘feelings of other people’ and similarly socially oriented behaviour falls away.36

As the higher-order functions fall apart, so does the subject’s ability to resist interrogation. Not because she merely wishes for relief from the process, but rather because she has lost the capacity to make the higherorder distinctions and evaluations necessary to withhold information when it is elicited from her. The subject in a sense does not have the capacity to realize she is effectively betraying secrets: So far as one can tell, the willingness to give information is not determined by any constitutional factor or by the direct action of the agent from the outside, but by information already within the brain, what might be called its ‘directions for action’. Most of the ‘directions’ which call for a prisoner to withhold information were implanted by his society … as brain function is impaired, information derived from past experience generally becomes less potent as a guide for action.37

By removing the grounds for action-direction—for motility—through isolation and sensory deprivation, one effectively dissolves the subject’s personal identity. Sensory deprivation, isolation and disorientation works in the interrogative context precisely because, as Merleau-Ponty writes, that the life of consciousness—cognitive life, the life of desire or perceptual life—is subtended by an ‘intentional arc’ which projects round about us our past, our future, our human setting, our physical, ideological and moral situation, or rather which results in our being situated in all these respects.38

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As we have seen however, the debilitating effect of sensory deprivation and isolation is specifically to impair higher-order brain functions, crucially those involving ‘socially oriented behaviour’. Without patterned stimuli and motile freedom consciousness ‘decoheres’; the intentional arc of the subject breaks down, as impairment prevents the situating features and functions to play their proper role. This is precisely what the interrogator seeks, for without ‘ideological’ or ‘moral’ situating, the subject cannot resist the exchange of information for comfort or even for the mere interaction with another human being that the questioning process provides. Merleau-Ponty writes that in illness, the “unity of the senses, of intelligence, of sensibility and motility” brought about by the intentional arc “goes limp.”39 This characterization captures precisely what occurs in interrogation: the techniques deployed shatter this unity, effectively destroying the capacity for resistance which depend on the higher-order cognitive functions now absent or impaired. A successful interrogation is a managed, induced illness created by the techniques we’ve outlined. 40 It is important to note that the HRETM manual constantly stresses that control over the interrogatee’s environment is crucial, as thwarting any attempt by the subject to relate to his new environment will reinforce the effects of regression and drive him deeper and deeper into himself, until he no longer is able to control his responses in an adult fashion.41

The manual details several ways in which the interrogator may disorient the subject and prevent him from ‘situating’. Interestingly, they are all directed at breaking any ‘patterns’ the subject may perceive in his new environment. The manual lists ‘persistent manipulation of time,’ ‘retarding and advancing clocks,’ ‘serving meals at odd times,’ ‘disrupting sleep schedules,’ ‘disorientation regarding day and night,’ ‘nonsensical questioning’ and ‘rewarding non-cooperation’ as different means of disrupting any relation the subject can make to his surroundings. Why this should be so effective becomes manifest when Merleau-Ponty writes that even when cut off from the circuit of existence, the body never quite falls back on to itself. Even if I become absorbed in the experience of my body and in the solitude of sensations, I do not succeed in abolishing all reference of my life to a world. At every moment some intention springs afresh from me...42

Where the I does not succeed, the interrogator instead must. While intense sensory deprivation is probably too debilitating to be of much use to

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interrogators, periods of isolation and minimal sensory input coupled with attempts at thwarting relation and reference to the world by the means indicated above, constantly frustrating intention, eventually render consciousness otiose. The process here involves the frustration of conscious motility, a decoupling of the world-subject relations that structures consciousness and eventually results in its dissolution: “because existence realizes itself in the body,” Merleau-Ponty writes, the body “expresses total existence.”43 Thus just as “the thing expressed does not exist apart from the expression,”44 the interrogative process, by disconnecting the individual’s embodiment at every level seeks to dissolve selfhood and induce a ‘corporeal’ regression, an induced pathology, which squashes expression, intention, motility— and thus negates the thing as well due to their inseparability. The use of ‘stress positions’ in conjunctions with extended periods of isolation and sensory deprivation expedites the process of regression. Stress positions have few of the ‘drawbacks’ of directly inflicting pain upon the subject while accelerating the process begun by isolation and sensory disorientation / deprivation. Notes the KUBARK manual, It has been plausibly suggested that, whereas pain inflicted on a person from outside himself may actually focus or intensify his will to resist, his resistance is likelier to be sapped by pain which he seems to inflict upon himself … when the individual is told to stand at attention for long periods, an intervening factor is introduced. The immediate source of pain is not the interrogator but the victim himself. The motivational strength of the individual is likely to exhaust itself in this internal encounter.45

It should come as relatively unsurprising that the obvious hierarchical dynamic between interrogator and interrogatee, particularly in regards to the infliction of pain, could only serve to re-affirm identity by providing the interrogatee stimuli to focus on and, more importantly, ‘situate’ him or herself in contrast to the one causing the pain.46 Hooded and placed in a ‘stress position’ such a dynamic is absent. While sensory deprivation works by depriving the subject of the stimuli and motility required to sustain consciousness, stress positions direct the ‘body schema’ of the subject to work against itself, in a task whose continued successful performance will result in pain. The ‘body schema’ for Merleau-Ponty means that one’s body is perceived as “an attitude directed towards a certain existing or possible task … a spatiality of situation.”47 Since the spatiality of one’s own body is task-oriented, is directional, the stress position is effective in sapping resistance and immediately distinguished from straight ‘other-inflicted’ pain. The otherdirectness is mitigated by one’s own body schema incorporating the task

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as its identification, and as more time passes this identification becomes further anchored. As the position becomes difficult to hold, the subject’s focus and concentration on maintaining it only serves to confirm the situation’s hold on the body schema.

Conclusion: Biopower and the Somatic As Hardt and Negri note, economic production is increasingly aimed at the “production of information, communication, cooperation—in short, the production of social relationships and social order.”48 In the limit-case of interrogation the body as the privileged site for the expression of power and ‘production of order’ is made explicit. While Merleau-Ponty’s work on the body predates understandings of the body as ‘performative’ there are without a doubt similarities to be found. Just as the biopolitical productivity of the body is performative, so is the speech act in MerleauPonty: “the process of expression,” he writes, “brings the meaning to life in an organism of words”—it is not a “kind of reminder.”49 Interrogation is a perfect example of ‘performative embodiment’ in this sense, where immaterial labour and work in the bodily mode intersect. We see this because while the over-arching logic of interrogation is biopolitical—it is ordered and carried out in a systematic, neutral fashion for political goals often outstripping specific situations50—the methods used to elicit information from captives is fundamentally corporeal. The creation of ‘social cooperation’ through biopower means working on bodies, and considered in toto finally translates to a working on the ‘social flesh’ itself. Abstracting from the specific bodies we find a flesh Merleau-Ponty characterized as ‘elemental’ which is becoming increasingly hard to regulate.51 Inducing psychological regression in interrogation was a matter of disorienting and isolating captives. In a sense both the effectiveness of these techniques and the reasons for their deployment can be understood through Merleau-Ponty’s conceptual re-alignment of philosophy, away from mind-body distinctness and towards the unity of body.

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Notes 1

Biderman, A., & Zimmer, H., eds. The Manipulation of Human Behaviour. John Wiley & Sons, Inc. 1961. Funding was provided under Air Force Contract [18(600)1797] and with support from the ‘Society for the Investigation of Human Ecology Inc.’, which, according to Anthropology Today, “was a CIA funded front which provided grants to social scientists and medical researchers.” On intelligence agency involvement in basic research, see Price, David. “Buying a Piece of Anthropology Part 1: Human Ecology and Unwitting Anthropological Research for the CIA,” in Anthropology Today Vol. 23 No. 3, June 2007. 2 Author unknown. KUBARK Counterintelligence Interrogation [KUBARK], 1963. p. 83. 3 Author unknown. Human Resource Exploitation Training Manual [HRETM], 1983. p. K-1. The manuscript made available has the following line in pen written next to the paragraph above-cited, almost as an after-thought: ‘the use of most coercive techniques is improper, and violates [unintelligible: laws?]”. 4 ibid., H-2 (b). In pen, on the manuscript, the word ‘must’ is replaced by ‘should’ and the words ‘destroyed and’ are crossed out. The emphasis is mine. 5 ibid., K-2. 6 On this see Mitchell, Luke. “We Still Torture.” Haper’s Magazine, July 2009 4955. 7 Merleau-Ponty, M. Phenomenology of Perception. New York: Routledge & Kegan Paul, 2006. p. 157. 8 ibid., 159. It is beyond the scope of this paper to determine in a legal context whether this state constitutes “severe pain or suffering, whether physical or mental”—the definition of ‘torture’ according to the U.N. 9 Foucault, M. Histoire de la Sexualité I : La Volonté de Savoir. Gallimard : 1976, p. 178-179. I’ve used Robert Hurley’s translation for Random House’s as a template for my own. The page references are to the French edition. 10 ibid., 179. 11 Histoire de la Sexualité, p. 188. Mere consideration : not control, not exhaustive integration. 12 Foucault, La Naissance de la Médecine Sociale, quoted in Hardt, M. & Negri, A. Empire. Cambridge: Harvard University Press, 2000, 27. 13 Empire, p. 293. As The Manipulation of Human Behaviour dryly notes, “the behaviour of others involve the distinctively human capabilities of men and their significance for one another.” (p. 7) 14 The Manipulation of Human Behaviour, p. 4. 15 HRETM, F-1, F-2. 16 Ibid., F-3. 17 ibid., G-14(b). In A New Scientist interview with Israel’s former chief interrogator, Michael Koubi, he candidly admits the importance of treating the subject as an individual: “You have to learn everything about him and his background. You have to know about his family, his wife, his children, his friends,

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his neighbourhood, his city.” Bond, M. ‘The Enforcer’ in New Scientist Vol. 184, Issue 2474; p. 46-49. 18 The Manipulation of Human Behavior, p. 3. The ostensive purpose of the research was the protect against the threat of ‘brainwashing’ of American soldiers by foreign powers, and not necessarily implement the techniques domestically. 19 ibid., 63-64. 20 ibid,. 63. 21 See discussion ibid., 73-75. The hallucinations typically involve “simple flashes of light or geometric shapes, rather than meaningful, symbolic, integrated scenes” that appear to “originate outside the self.” (p. 75). 22 ibid., 91. 23 HRETM, L-3. 24 KUBARK, pagination missing (Sec. VII.A.7). 25 Techniques identified as “arrest, detention, deprivation of sensory stimuli, threats, fear, debility, pain, heightened suggestibility and hypnosis, and drugs.” HRETM, L-1; these are by and large the same categories explored in The Manipulation of Human Behaviour. 26 There are deep analogies here to Heidegger’s notion of ‘work’ as well as Merleau-Ponty’s own in The Structure of Behaviour, but I will not be able to pursue these here. 27 Phenomenology of Perception, xx. Merleau-Ponty is talking about Husserl here, in the Phenomenology’s introduction, but situates himself sympathetically in relation. 28 Ibid., xviii. 29 Ibid., 171. 30 Ibid., 151. 31 Ibid., 151. 32 Ibid., 152. Crucially, motility as a biological term refers to the organism’s use of energy to move about: a free-riding barnacle is not motile. 33 Ibid., 152. 34 One particularly striking experiment performed at McGill University placed volunteers in “comfortable air-conditioned cubicles and put goggles, gloves and ear muffs on them. In 24 hours the hallucinations started. In 48 hours they suffered a complete breakdown. … they suffered a disintegration of personality.” “Hicks ‘Severely Damaged,’ says CIA Expert”, Lateline, Australian Broadcasting Corporation, transcript of broadcast 13/06/06: http://www.abc.net.au/lateline/content/2006/s1662218.htm 35 The Manipulation of Human Behaviour, 28. 36 Ibid., 40. 37 Ibid., 41. 38 The Phenomenology of Perception, 157. 39 Ibid., 157. 40 “Before all else, you must be efficient. You must only cause the damage that is necessary, not a bit more … premature death means a failure by the technician.”

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This statement is attributed to a CIA trainer assigned to Latin America in the 1960s; quoted in Harper’s, 55. The banality of evil is rarely more stark. 41 HRETM, IV. L-17. 42 Phenomenology of Perception, 191. 43 Idib., 192. 44 Ibid., 192 45 KUBARK, 94. (Sec. IX.H) 46 “Persons of considerable moral or intellectual stature often find in pain inflicted by others a confirmation of their belief that they are in the hands of inferiors, and their resolve not to sumbit is strengthened.” Ibid., 94. 47 The Phenomenology of Perception, 114. 48 Multitude, p. 334. 49 Phenomenology of Perception, p. 212. 50 The ‘mosaic theory’ of intelligence-gathering is that one should glean small amounts of intelligence from various sources and assemble these to form a coherent picture, instead of expecting one source to show all. 51 “The flesh is not matter, is not mind, is not substance. To designate it, we should need the old term ‘element’, in the sense it was used to speak of water, air, earth and fire.” Merleau-Ponty, The Visible and the Invisible, quoted in Multitude, 192.