The Oxford Handbook of Classics in Contemporary Political Theory [Online ed.] 9780191785894, 9780198717133

Table of contents :
0 - contents
1 Simone de Beauvoir, The Second Sex
2 Charles Beitz, Political Theory and International Relations
3 Isaiah Berlin, Four Essays on Liberty
4 James Buchanan and Gordon Tullock, The Calculus of Consent
5 Judith Butler, Gender Trouble
6 G. A. Cohen, Karl Marx’s Theory of History—A Defence
7 Robert Dahl, A Preface to Democratic Theory
8 Anthony Downs, An Economic Theory of Democracy
9 Ronald Dworkin, Taking Rights Seriously
10 Jon Elster, Sour Grapes
11 Frantz Fanon, The Wretched of the Earth
12 Michel Foucault, Discipline and Punish
13 Lon Fuller, The Morality of Law
14 Hans-Georg Gadamer, Truth and Method
15 Paul Gilroy, The Black Atlantic
16 Jürgen Habermas, Between Facts and Norms, Contributions to a Discourse Theory of Law and Democracy
17 H. L. A. Hart, The Concept of Law
18 Bonnie Honig, Political Theory and the Displacement of Politics
19 Axel Honneth, The Struggle for Recognition
20 Will Kymlicka, Multicultural Citizenship
21 Steven Lukes, Power, A Radical View
22 Alasdair MacIntyre, After Virtue, An Study in Moral Theory
23 C. B. Macpherson, The Political Theory of Possessive Individualism, Hobbes to Locke
24 Jane Mansbridge, Beyond Adversary Democracy
25 Herbert Marcuse, One-Dimensional Man
26 Robert Nozick, Anarchy, State, and Utopia
27 Michael Oakeshott, On Human Conduct
28 Susan Moller Okin, Justice, Gender, and the Family
29 Elinor Ostrom, Governing the Commons
30 Carole Pateman, The Sexual Contract
31 Phillip Pettit, Republicanism, A Theory of Freedom and Government
32 Hanna Pitkin, The Concept of Representation
33 J. G. A. Pocock, The Machiavellian Moment
34 John Rawls, Political Liberalism
35 Joseph Raz, The Morality of Freedom
36 James Scott, Seeing Like a State
37 Judith Shklar, Ordinary Vices
38 Quentin Skinner, The Foundations of Modern Political Thought
39 Leo Strauss, Natural Right and History
40 Charles Taylor, Sources of the Self
41 Richard Tuck, Natural Rights Theories
42 Jeremy Waldron, Law and Disagreement
43 Michael Walzer, Just and Unjust Wars
44 Michael Walzer, Spheres of Justice
45 Robert Paul Wolff, In Defense of Anarchism
46 Sheldon Wolin, Politics and Vision
47 Charles W. Mills, The Racial Contract

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Abstract The Oxford Handbook of Classics in Contemporary Political Theory complements The Oxford Handbook of Political Theory with a focus on texts, not themes; each chapter discusses one of the key works that contributed to the subdiscipline of postwar political theory, 1950-2000. The essays include discussion of the works themselves, including their key arguments; their intellectual in�uence in the years after their publication, including key debates about them and criticisms of them; and their promise and potential as intellectual resources in the future. The books studied include not only those within political theory and philosophy proper, but those within neighboring �elds, especially empirical political science, that have made or could make important contributions to ideas within political theory itself. The volume as a whole o�ers an account of what political theory is, and has been: one in which normative philosophy, social theory, critical theory, the history of political thought, and social science are all drawn upon and enrich each other. It makes a case for political theory as a �eld of social science, and for a common intellectual enterprise of the understanding of social and political life to which such �gures as Rawls, Habermas, Foucault, Arendt, Hayek, Skinner, and Strauss all contribute.

Keywords: Political theory, social theory, political philosophy, political science, democracy, liberalism, critical theory, feminism, justice, freedom, liberty, republicanism, global justice, social contract, philosophy of law, history of political thought, legitimacy Subject: Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Contents Simone de Beauvoir, The Second Sex  Lori Marso View chapter Charles Beitz, Political Theory and International Relations  Nancy Bertoldi View chapter Isaiah Berlin, Four Essays on Liberty  Alan Ryan View chapter James Buchanan and Gordon Tullock, The Calculus of Consent  John hrasher and Gerald Gaus View chapter Judith Butler, Gender Trouble  Clare Chambers View chapter G. A. Cohen, Karl Marx’s Theory of History—A Defence  Peter Dietsch View chapter Robert Dahl, A Preface to Democratic Theory  Eric MacGilvray View chapter Anthony Downs, An Economic Theory of Democracy  Russell Muirhead View chapter Ronald Dworkin, Taking Rights Seriously  Richard Bellamy View chapter Jon Elster, Sour Grapes  Eric Schliesser View chapter Frantz Fanon, The Wretched of the Earth 

Keally McBride View chapter Michel Foucault, Discipline and Punish  Nancy Luxon View chapter Lon Fuller, The Morality of Law  Frank Lovett View chapter Hans-Georg Gadamer, Truth and Method  Joshua Foa Dienstag View chapter Paul Gilroy, The Black Atlantic  Christopher J. Lebron View chapter Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy  Simone Chambers View chapter H. L. A. Hart, The Concept of Law  Matthew H. Kramer View chapter Bonnie Honig, Political Theory and the Displacement of Politics  Nicholas ampio View chapter Axel Honneth, The Struggle for Recognition  D. Cli�on Mark View chapter Will Kymlicka, Multicultural Citizenship  Je� Spinner-Halev View chapter Steven Lukes, Power: A Radical View  P. E. Digeser View chapter

Alasdair MacIntyre, After Virtue: An Study in Moral Theory  John R. Wallach View chapter C. B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke  Hugh Breakey View chapter Jane Mansbridge, Beyond Adversary Democracy  Eric Beerbohm View chapter Herbert Marcuse, One-Dimensional Man  Volker M. Heins View chapter Robert Nozick, Anarchy, State, and Utopia  David Schmidtz View chapter Michael Oakeshott, On Human Conduct  Richard Boyd View chapter Susan Moller Okin, Justice, Gender, and the Family  Michaele Ferguson View chapter Elinor Ostrom, Governing the Commons  Jason Brennan View chapter Carole Pateman, The Sexual Contract  Mary G. Dietz View chapter Phillip Pettit, Republicanism: A Theory of Freedom and Government  Elizabeth Beaumont View chapter Hanna Pitkin, The Concept of Representation 

Suzanne Dovi View chapter J. G. A. Pocock, The Machiavellian Moment  Emily C. Nacol View chapter John Rawls, Political Liberalism  Dennis F. hompson View chapter Joseph Raz, The Morality of Freedom  Colin Bird View chapter James Scott, Seeing Like a State  Loren King View chapter Judith Shklar, Ordinary Vices  Andrew Sabl View chapter Quentin Skinner, The Foundations of Modern Political Thought  Don Herzog View chapter Leo Strauss, Natural Right and History  Ryan Balot View chapter Charles Taylor, Sources of the Self  Michael Zuckert View chapter Richard Tuck, Natural Rights Theories  Daniel Lee View chapter Jeremy Waldron, Law and Disagreement  Melissa Schwartzberg View chapter Michael Walzer, Just and Unjust Wars 

erry Nardin View chapter Michael Walzer, Spheres of Justice  Margaret Moore View chapter Robert Paul Wol�, In Defense of Anarchism  Anna Stilz View chapter Sheldon Wolin, Politics and Vision  Lucy Cane View chapter Charles W. Mills, The Racial Contract  Inder S. Marwah View chapter

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Simone de Beauvoir, The Second Sex  Lori Marso https://doi.org/10.1093/oxfordhb/9780198717133.013.31 Published: 07 March 2016

Abstract Simone de Beauvoir’s 1949 masterpiece, The Second Sex, is rarely considered a canonical text worthy of being studied within the history of political thought. Even within feminist scholarship, although it is often cited or acknowledged, only short excerpts, usually the introduction, are read carefully. This essay argues that the reception of The Second Sex has been marred by overly emotional and ambivalent responses, in part a result of its literary style. The Second Sex is written as a situated dramaturgical staging of conversation. Beauvoir puts men into conversation about women in Volume I and invites women into conversation with each other about their experiences in Volume II. These literary techniques invite readers of The Second Sex to also participate in the conversation, a conversation Beauvoir hopes will change the way we see and talk about sexual di erence, conditions of oppression, and how to enlarge the space for freedom.

Keywords: The Second Sex, Simone de Beauvoir, feminism, political theory, a ect, political conversation, politics, authority Subject: Political Theory, Public Policy, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Since its publication in 1949, reception of The Second Sex has been ambivalent and fraught with emotion. Listen to how Beauvoir describes early responses to the book in her 1963 autobiography, Force of Circumstance: “Unsatis ed, frigid, priapic, nymphomaniac, lesbian, a hundred times aborted, I was everything, even an unmarried mother. People o ered to cure me of my frigidity or to temper my labial appetites; I was promised revelations, in the coarsest terms but in the name of the true, the good and the beautiful, in the name of health and even of poetry, all unworthily trampled underfoot by me” (1992, 197). Beauvoir goes on for several pages documenting violent and aggressive reactions to her book. From a very di erent, but also emotional and deeply ambivalent, point of view, Beauvoir was cast as the “mother” of feminism, a label she disavowed in a 1974 interview remarking that “mother–daughter relations are generally catastrophic” (Schwarzer 1984, 94) and “people don’t tend to listen to what their mothers are telling them” (Patterson 1986, 92). Her text has also been called “the feminist bible” even

though Beauvoir herself was an atheist (Thurman 2010, xii). Over half a century later, the text still solicits powerful reactions. Reviewing the new 2010 translation in the New York Times, Francine du Plessix-Gray says: “Beauvoir’s truly paranoid hostility toward the institutions of marriage and motherhood—another characteristic of early feminism—is so extreme as to be occasionally hilarious.” She goes on to say that “pessimism runs through the text like a poisonous river” while reassuring us that Beauvoir did not hate men (Plessix-Gray 2010). Even if we are reassured that Beauvoir did not “hate men,” the book is indeed about women. But unlike Wollstonecraft’s Vindication of the Rights of Woman, another “seminal” book about women, The Second Sex is rarely considered a canonical text worthy of being read and studied within the history of political thought. Even speci cally within feminist scholarship, while The Second Sex is almost always cited and acknowledged, only a few excerpts, mostly the introduction, are regularly read. Moreover, certain criticisms of the text render it politically noxious. It is said that the claims of The Second Sex are limited to mid-century French women or that despite a half-hearted nod to inclusivity and diversity, Beauvoir’s text reproduces a white intellectual perspective (Markowitz 2009; Spelman 1988). We are also reminded that were we sensitive to Beauvoir’s own criticisms of claims to universality pro ered by traditional philosophy, we would regard The Second Sex as historically situated and limited by a particular perspective produced in a unique moment. Overall, our ability to appreciate the political and philosophical signi cance of The Second Sex has been 1

limited by intense rejection or veneration, excessive historicizing, and the debates that ensued when the text was published in English, translated by Parshley in the 1951 edition and by Constance Borde and Sheila Malovany-Chavalier in the 2010 edition. Like Toril Moi (2010), Emily Apter has commented on how the philosophicality of Beauvoir has always been lost in translation for English-speaking feminists. Analyzing the translation debates in a political register, Apter suggests that we can see philosophical untranslatability itself as a way to “pose the problem of sexual di erence to ontology” (Apter 2013, 171). Given all these caveats and criticisms, why, and more importantly, how, should we read The Second Sex as 2

political theory? The reading advanced here links a ective responses to the text to its form, which itself produces its most valuable political insights. The form Beauvoir chooses, a situated dramaturgical staging of conversation, is a method of political engagement that both reveals a ect—emotional states, ways of relating, and even bodily dispositions—and is itself a ective and agonistic, putting several voices into conversation but leading to no resolution or prognosis for a certain future. As a political conversation, as opposed to philosophical argument or utopian manifesto, The Second Sex unearths and evaluates dominant oppressive features of our world and relationships, but promises nothing. Rather, Beauvoir leaves it up to us to nd our way via a politics that is localized, a ective, and agonistic.

Form, A ect, Politics The Second Sex stages a series of conversations across multiple identities and perspectives. More simply put, Beauvoir puts several di erent people into conversation, yet their identities and situations are permeable to each other and to the world. The people, as described by Beauvoir, are each situated by ontological, a ective, economic, and historical conditions, but emerge transformed from the conversation as received by readers, opening up new opportunities for political collectivities to emerge. We should notice, too, that the text experiments in cross- and inter-disciplinarity, putting biology, physiology, philosophy, literature, qualitative sociological record, history, economics, psychology, and political science all into conversation about the meaning and hierarchy of sexual di erence. These conversations diagnose both good and bad feelings about gender and belonging that are the products of patriarchal oppression. They also show how ideology and myth-making are themselves a product not only of systems, structures, and material conditions, but also of a ective states and interactions that both arise from and result in material e ects. Beauvoir asks us, via the conversation she constructs within the text and solicits beyond the text, to revisit and explore the anxiety produced by bodily facts, turn away from myth, ideology, history, and linguistic and institutional structures and practices of oppression to embrace ambiguity, better imagine our world, and radically recreate its meanings. Her choice of conversational style, or “talking about” women as she colloquially puts it, simultaneously gives credence to diverse and unconventional claims to authority (from the body, from women’s experience, from heterogeneous locations) and unmasks and debunks traditional masculine claims to authority produced and reproduced in science, psychoanalysis, historical materialism, religion, and literature. The conversation Beauvoir constructs, and the way she invites multiple perspectives into her text by experimenting with this style, is especially adept for political thinking true to conditions of freedom as nonsovereignty, inter-subjectivity, and an enactment of future possibilities for collective political action. Indeed, conversation for Beauvoir works both within and beyond the text as an a ective and emotive political appeal to bring a new community of women into being, one that is not founded on any “natural” or already existing identity that can be discovered. The Second Sex brings our attention to several features at once: the emotions, biological realities, historical, economic, and social situation of the men and the multiple women she puts into conversation; the structures of feeling, as well as the material realities, that condition women’s “lived experiences;” and nally, the a ect generated in our own responses to the text. Beauvoir’s method demonstrates that a ective emotional states of the people in conversation create speci c political assemblages, organizations, and modes-of-being, themselves noticeable and irreducible to the workings of structures and ideologies. Not only does Beauvoir note that the dominant masculine response to the human predicament of embodiment and nitude precipitates feelings of hostility, fear, and anxiety that result in the creation of myths and ideologies about sexual di erence, she further argues that women, too, absorb and replicate these emotions and attitudes, and they are imprinted on female bodies. Female melancholy, narcissism, anxiety, shame, and investment in romance enhance patriarchal structures and ideologies and themselves substantially obstruct women’s individual and collective political agency, while also potentially signaling dissent, or at the very least, discomfort with the way things are. Ultimately, the form of the text itself invites new conversations: it unfolds as a political appeal, producing a community beyond the text inviting readers to invent new subjectivities, new thinking, and indeed to create a di erent future. As I see it, Beauvoir’s substantive argument contains three interrelated parts. First, structural conditions of oppression arise from the myth of Woman, an ideology produced contingently via political meanings about sexual di erence. These meanings, themselves a product of an a ective state (male hostility and fear in response to the facts of human nitude, bodily facticity, and immanence), are assigned to bodies to reduce the complexity, contingency, and indeterminacy of biological, historical, and psychoanalytic “data.”

Second, these constructed meanings perpetuate inequality (marking men as transcendent and women as immanent) to produce conditions of patriarchal oppression that are bolstered by both “good” feelings such 3

as participation and belonging to a “woman’s culture” of femininity, and “bad” or “ugly” feelings — shame, narcissism, melancholy, and thwarted desire—when one falls outside the boundaries or inexpertly or inadequately belongs. These emotions and a ective assemblages are not quite captured by standard analyses of materially or economically situated power, structures, or ideology; and yet they are key to exploring more precisely why and how women’s agency and freedom are obstructed within patriarchal systems, and whether or how they might express dissent. Third, Beauvoir’s text brings another a ective moment into play via her chosen form of conversation and the literary techniques she employs: the appeal to readers to break from oppressive gender bonds and disassociate from femininity in order to create a new future.

The Rites and Rights of Conversation Beauvoir introduces her topic of conversation, “a book on woman,” in an ironically dismissive way. She says that the “subject is irritating, especially for women; and it is not new:” Indeed, “enough ink has owed over the quarrel about feminism; it is now almost over: let’s not talk about it anymore. Yet it is still being talked about” (3). There is no doubt that by opening the book we have stumbled upon a creative and sometimes ba

ing textual beast. Introducing “woman” as a subject that is suitable, although irritating, to “talk

about,” the text unfolds as two sequential parts of an extended conversation; or we might think of it as like attending two dinner parties, with di erent guests talking about the same topic, during back-to-back evenings. Volume I features male authority gures—scientists, politicians, historians, psychoanalysts, philosophers, playwrights, theologians, and novelists—declaiming on the roots, legitimacy, and meanings of sexual di erence. With the introduction of a diverse group of women in Volume II, the conversation gets even more heated and we see the world from a new perspective. Here we meet famous and minor characters from ction, authors of autobiographies, Beauvoir’s friends and acquaintances, actresses, prostitutes, wives, mothers, girlfriends, girls and friends—sharing the “lived experiences” of becoming women. One of the techniques that Beauvoir employs throughout the rst volume of The Second Sex is to give male authority gures space to speak for themselves and in conversation with other authority gures while at the same time undermining, sometimes explicitly and sometimes in more subtle ways, their assumed right to shape, determine, and dominate conversation. Beauvoir admits early on that she “used to get annoyed in abstract discussions to hear men tell [her]: ‘You think such and such because you’re a woman’” (5). In response to this conversation stopper, Beauvoir says a woman is forced to answer, “I think it because it is true,” rather than “You think the contrary because you are a man.” “It is understood a man is in his right by virtue of being a man; it is the woman who is in the wrong” (5). Today, a woman could hold her own, if not carry the day, by responding: “you think the contrary because you are a man.” Yet this assertion of equal particularity, or equally shared and competing claims to authority, much like the proliferation of new gender identities or the right to marry who one happens to love regardless of gender, does not ultimately serve to undermine masculine authority and norms of bourgeois ideology. Beauvoir is doing something di erent, and far more radical and potentially transformative, than to simply add more voices to the mix when she stages conversations in The Second Sex. Another textual technique at play is Beauvoir’s mimicking of male voices in a complex and what can be a confusing patchwork that sometimes results in readers not knowing who or what position Beauvoir is endorsing. Beauvoir does indeed warn us about her strategy: “It is noteworthy that physiologists and biologist all use a more or less nalistic language merely because they ascribe meaning [in this case, gendered hierarchical meaning] to vital phenomena; we will use their language” (26). But she also steps in at key moments, aggressively inserting herself into conversation to make a pointed and often damning

observation. Commenting on the conclusion that the ovum is likened to immanence and the sperm to transcendence, for example, Beauvoir says: “In truth, these are merely ramblings” (28). As readers, though, we have to be attentive: we must never turn away for even a moment, for we might lose the thread. Were that to happen, we might not recognize who is speaking when, as in several instances, Beauvoir cedes the oor to a misogynistic male scientist or historian who chimes in with great gusto to conjure images of “devouring femininity” and “woman’s dream of castration” (33). Beauvoir indicates repeatedly in the chapters on “Facts” that anxiety, fear, and disgust are common responses to biological realities and historical contingencies. Chapter one on “Biological Data,” for example, begins by noting that the term “woman,” when uttered by “those who like simple answers” such as “womb,” “ovary,” or simply “female,” is hurled as an insult; “female” is “pejorative not because it roots woman in nature” but rather due to the “disquieting hostility” “woman triggers in man” (21). And so, he (a singular term connoting the ideological mandates rendered true by scienti c authority) abandons scienti c method to “ nd a justi cation in biology for this feeling” (21). Strikingly, the conversation that Beauvoir constructs amongst male scientists reveals that “scienti c” ndings on biological reproduction, the demands of the species, and the signi cance of sexual di erence are all motivated by the search to nd justi cation for a “feeling,” in this case, hostility. Myths, too, are a response to certain ugly, or at least unsettling and uncomfortable, feelings such as anxiety. Myths rescue men from the existential dilemma of longing for both “life and rest, existence and being;” they cast woman as an “embodied dream;” “the perfect intermediary between nature that is too foreign to man and the peer who is too identical to him;” “She pits neither the hostile silence of nature nor the hard demand of a reciprocal recognition against him; by unique privilege she is a consciousness, yet it seems possible to possess her in the esh” (2011, 160). Male myths, many and variable, depict woman as “privileged prey” as well as “Mother,” “Spouse,” “Idea;” (2011, 161–163); they co-exist in “opposition, and each has a double face” (2011, 161–163.). Like science, myths are not the products of rational thought; instead, they spring from men’s “hearts,” inspired by disgust, horror, embarrassment, fear, loathing, and repulsion (164–165, all Beauvoir’s terms). Myths arise in response to the grotesque truth of women’s esh: the “chaotic obscurity” of women’s genitals; the “quivering gelatin that forms in the womb;” the “living magma” of the “pregnant woman’s stomach;” the “swollen breasts of the wet nurse;” the “regions of immanence” he “wants to escape;” the “roots he wants to pull himself away from” (163–165). What unfolds in the rst volume of The Second Sex, thus, highlights some of the political features of Beauvoir’s keen interest in a ective states revealed in conversation. Moving between and amongst people in conversation, identities are seen as inherently unstable and relational, and a ects as shifting and moving to both stabilize and destabilize material conditions and ideological perspectives. Put into staged conversation with each other, male authorities show how their identities as authority gures are built on shifting sand, and they reveal their a ective preoccupations—fear, disgust, repulsion, hostility, and anxiety. These emotions motivate and undergird patriarchal ideology and structures, and themselves form a complex assemblage of emotions that hold men, and as we shall see, women too, emotionally, anatomically, and psychically captive to the hierarchy of sexual di erence. What we learn in Volume II when Beauvoir includes women in the conversation to talk about their own bodies and experiences is no surprise: women are drawn into the web of these a ective states by the demand to “be women, stay women, become women” (3, my emphasis). There are good feelings generated by the comfort that one receives from belonging to the community of women who embrace and manage femininity, and bad or ugly feelings experienced by belonging inexpertly or not at all. And yet, via the both formal and a ective techniques Beauvoir utilizes to create new conversations (the staging and the appeal), we more clearly see the links between patriarchal structures and systems and their a ective, particularly their emotional, hold on us. This method, she wagers, not only helps us see our shared world anew, it may also spark new antagonisms and solicit our investment in creating conditions for the emergence of new alliances.

Femininityʼs Damaging Allure The conversation that Beauvoir sets into motion amongst male authorities in Volume I discloses the way that feelings motivate oppression, lodge their e ects on our bodies, and work with and through patriarchal structures and ideologies to hold us captive and limit our political agency. Volume II of The Second Sex can be read as tracking what Lauren Berlant calls the “bargaining with power and desire in which members of 4

intimate publics always seem to be engaging” (2008, viii). But while Berlant addresses these a ects as they register in popular culture—sentimental novels, lms, and musicals—when we change the form, as Beauvoir does to solicit the complaint via staged conversations, we also enhance their political potential. While Beauvoir is exceedingly attentive to the attractive a ective links between oppression and identity, as well as the way these links emotionally bond us with each other and with repressive power, she simultaneously calls for dissociation from identity categories and the feelings, both good and bad, that they solicit. Put as an explicitly political question, Beauvoir asks: does femininity ever become a site of resistance whereby a ects produced and nurtured via oppression can lead elsewhere? What we will see in the reading that follows is that while Beauvoir exposes both the attractive allure of femininity as well as the pathological characteristics its demands engender (Marso 2006), her appeal to her readers via the conversational form invites us to embrace the risks of freedom and collective action that a dissociation with identity and its a ects makes possible. 5

Volume II begins with an (in)famous phrase: “One is not born, but rather becomes a woman.” Many scholars have interpreted this phrase as introducing a distinction between sex and gender to claim that sex is natural and gender is cultural, but Beauvoir never saw the body in these terms. She argues instead that ontology is a concrete and political reality (we have bodies, we reproduce, we die, we are slaves to the species, we are con gurations of cells, blood, tissues, bones, and muscle), and that the meanings ascribed to sexual di erence, itself created as a key and central di erence, stems from an actively emotive fear of 6

bodies, biology, and the complexity and vitality of life processes. Rather than claim anything about gender, sex, and the relationship between the two, Beauvoir’s text questions and undoes any and all assumptions about women by posing the topic for conversation in the form of the question: “what is a woman?” (5). Thus circumventing what has been called the “category of women” debates or the “subject question” in 7

feminist discourse, Beauvoir acts as if women exist, since for all practical purposes they do, in order to question the way the idea of “woman” and the meanings of “femininity” take hold—physically, structurally, ideologically, and emotionally—in women’s lives. Dismantling all claims about the “eternal feminine” while at the same time rejecting nominalism (“women are not men,” she admits (4), Beauvoir says that nevertheless we can and should, in fact, speak in everyday language about and to women even though, and maybe precisely because, we do not know the answer to the question of what it is or what it means to be a woman. Indeed we must speak with and to those identi ed as women, and even speak emotively as if the category were meaningful, in order to begin to dismantle the many mechanisms that undergird the hierarchy of sexual di erence. Thus recognizing the draws and dangers of a ectively lived identity and community, Beauvoir’s rhetoric willingly calls to women as female-identi ed selves, with their habits and experience drawn and lived through femininity, but the conversation unfolds to question the very ground on which such experience is located. So doing, she creates a conversation amongst female strangers that “feels” intimate and revelatory in order to challenge the emotional basis (our ties to femininity) of this same intimacy and shared feeling. Rather than track the way a ective bonds and women’s emotional life are presented in The Second Sex, scholarship on the text has tended to focus on Beauvoir’s theorization of situation to explain her unique contribution to understanding women’s oppression under patriarchy. Beauvoir argues that all humans are situated, located as we are within constraints of biology, history, social and political conditions, the

existence and experience of time as linear and non-linear, ideologies and systems, the existence of others, and webs of discourse. Beauvoir recognizes these constraints, and furthermore argues that some of them— the ontological aspects of conditions within biology, for example, such as time and death—should be embraced. To avow and embrace ambiguity would be to accept that we are each simultaneously self and other, transcendence and immanence. Throughout her oeuvre, especially in The Ethics of Ambiguity, Beauvoir seeks to understand how some subjects (race, class, gender, and power are interlinked here) have been able to deny ambiguity, systematically and structurally, by assuming the role of transcendence for themselves and con ning others to immanence. In The Second Sex, Beauvoir says women often acquiesce to conditions of oppression by acting in some combination of bad faith and reasonable assessment of their situation. Women do, she reminds us, have a vested material interest in assuming their inferior position: “Refusing to be the Other, refusing all complicity with man, would mean renouncing all the advantages an alliance with the superior caste confers on them.” But there is an emotional component as well. Claiming freedom triggers the angst that accompanies making free choices. Ever present is “the temptation to ee freedom” and make yourself “into a thing.” This is what Beauvoir calls “an easy path” one where “the anguish and stress of authentically assumed existence is avoided.” She concludes this part by noting “the man who sets the woman up as an Other will thus nd in her a deep complicity” (10). Hence women often make no claims as transcendent subjects as a result of several interacting components: lacking the concrete means, sensing the necessary links connecting her to men, and deriving a certain satisfaction “from her role as Other.” The claim that women are emotionally and a ectively invested in their role as “other” via psychic and social investment, via training in techniques to develop and perform femininity, and via participation in an emotive “women’s culture” has been mostly neglected in Beauvoir scholarship. But, as we will see, Beauvoir returns to the emotional and a ective register again and again in Volume II to explore why and how bad faith can be such an attractive option, why and how the bonds that hold us captive look, and can even sometimes feel so good. (All quotations this paragraph, 10.) Part of the attraction of belonging to what Berlant (2008, viii) has called an intimate public, in this case an a ectively felt “women’s culture” built around norms of femininity, is that “aloneness is one of the a ective experiences of being collectively, structurally unprivileged.” When you are part of a women’s culture, when you conform to the demands of femininity, you can feel better. Not only do you get positive reinforcement from patriarchal structures and from the individual men to whom you are attached, you also get the feeling of belonging to a culture that points beyond the self. As Berlant explains, “women’s culture” enacts a “fantasy that my life is not just mine, but an experience understood by other women, even when it is not shared by many or any” (2008, x). Within the conversations she stages, Beauvoir reveals that women repeatedly consume the message that positive feelings arise from belonging to “the second sex” as men have shaped it. And indeed, while women are often able to take pleasure in relinquishing agency as she shows us in the chapters on “The Narcissist,” “The Woman in Love,” and “The Mystic,” at the same time, the conversations illuminate that ugly feelings of anxiety, melancholy, envy, or the ongoing sense that one does not belong, are possible, acceptable, and potentially able to be politically mobilized. One of several things Beauvoir accomplishes in the conversation she creates in Volume II is to show that the pleasurable feelings women are supposed to get through their identities as “wives,” “mothers,” “girlfriends,” and “sexual partners” are, after all, often not those that women actually end up having. Beauvoir’s chapter on “The Married Woman,” as just one example, asks whether being a wife, the “destiny that society traditionally o ers women,” is all it promises. Even the “single woman” is de ned by marriage though she might be “frustrated by, disgusted at, or even indi erent to this institution” (439). Both good and bad feelings are exposed, and explored, by drawing us into conversation through our identity as “women,” as beings who are supposed to feel content by ful lling patriarchal roles.

Anticipating contemporary work in cultural and feminist theory, but solicited di erently through the conversational form as mobilized through people (both real and ctional), Beauvoir brings attention to the emotions and anxieties of women, diagnosing these a ects as a response to situation expressed on and by the body and its comportment. She says, for example, that many women end up feeling melancholic as a result of being “locked into the conjugal community” (470). Listen to the following passage Beauvoir quotes from a diary: I am terribly, terribly sad, and withdrawing further and further into myself. My husband is ill and out of sorts and doesn’t love me. I expected this, yet I could never have imagined it would be so terrible. Why do people always think I am so happy? What no one seems to realize is that I cannot create happiness, either for him or for myself (488). Beauvoir reads this young woman’s unhappiness as a social condition: “This distress is what often causes long depressions and various psychoses in the young woman … In particular, in the guise of di erent psychasthenic obsessions, she feels the giddiness of her empty freedom” (491). More recently, Sarah Ahmed diagnoses that unhappiness gets attached to particular individuals, or “sticks to some bodies” (Ahmed 2004, 131) as a psychic condition but is generated through past histories of political, material, and social signi cance. As she shows in The Promise of Happiness (2010), emotions coalesce in social and material form to falsely appear for individuals as speci c orientations that are the result of conscious choice. An example of this is Beauvoir’s remark that the young girl said to be “ashamed” of urinating in a squatting position, or the male whose penis expresses his “pride” should make us wonder “how the subject’s aspirations can be embodied in an object” (55). While a ects do appear on particular bodies, it is the failure of emotions to be located solely in a particular body or object that allows them to reproduce and generate the e ects that they do. It seems that as individuals, we are oriented on the right path or the wrong path, that our “unhappiness” or “melancholy” is the result of the wrong choice or a wrong relationship to our world. But with Beauvoir and Ahmed, we see that unhappiness, shame, and pride, for instance, are constituted by other means; they are saturated signs, rather than individual symptoms. In another passage, Beauvoir describes the “pathological melancholy” that some women feel after having an abortion as a feeling of guilt induced only by the atmosphere (the a ects that circulate in and through bodies) that condemns the women who make this di

cult choice (531). Reading with Beauvoir and Ahmed helps us to see a ects and emotions such

as unhappiness, melancholy, worry, anxiety, grief, obsessions, and so on, as produced within a social system, in this case under patriarchy. Reading this way, we see the circulation of a ects between and across bodies and histories as registering a potential critique. Invoking another common emotional state for women, Beauvoir talks about worry to diagnose it as lack of freedom. “Worrying” because she is prevented from “doing” anything, “long, despondent ruminations” ensue as the “specter of her own powerlessness” (645–646). Forms of melancholy are in other passages linked more directly to what Beauvoir, anticipating Berlant, speci cally calls “the female complaint”: “together, women friends groan individually about their own ills and all together about the injustice of their lot, the world, and men in general” (646). She cites and interprets the diary of Sophia Tolstoy: January 11, 1863: My jealousy is a congenital illness, or it may be because in loving him I have nothing else to love; I gave given myself so completely to him that my only happiness is with him and from him. January 15, 1863: I have been feeling [out of sorts and] angry that he should love everything and everyone, when I want him to love only me … (496). Whereas Berlant reads the female complaint as “the bitter vigilance of the intimately disappointed,” (2008, 1), Beauvoir’s analysis portends a politics, seeing the fact of complaint as an expression of “impotent anger” (496). Listening to this and the thousands of other experiences mobilized through the voices of

women in the text, Beauvoir wagers that readers will see that what is framed as “private” or “personal” emotions and feelings are constructed through political and social contexts. While Beauvoir admits that these behaviors and symptoms cannot be categorized as collective agency or anything approaching a conscious rebellion, she says that we can interpret them “as protest” (2011, 649). Berlant argues that the female complaint fuses feminine and feminist rage “hailing the wounded to testify, to judge, to yearn, and to think beyond the norms of sexual di erence, a little” (2008, 1). We might ask: how much is “a little?” Certainly not enough, but where might it take us? In the following and nal section, I return to the signi cance of the conversational form to draw out its most explicit political implications.

Conversation and Collective Political Action As Beauvoir constantly reminds us, seeking meaning through identi cation with god, myths, humanity, or any a priori or transcendent universal, even the belief in revolution, destroys the space and time between us, and thus destroys politics. Although a section near the end of the text on “The Independent Woman” o ers a half-hearted embrace of socialist-world policies to get women into the workforce as a guarantee of concrete freedom (721), Beauvoir makes a clear break with a revolutionary historical dialectics to show not only that material contradictions and conditions are not enough to guarantee dissent and change, but that a ective relations are themselves material and must be seen as such. Theorized as an “endless becoming,” Beauvoir sees each person’s point of departure as creating “requirements and appeals to which only the creation of new requirements will respond” (Beauvoir 2004, 110). This open, never-ending, appeal and potential response of individual subjectivities, each themselves continually breaking the bonds of pre-set identities, happens within a context where “our judgment alone” (120) allows us to examine the conditions of our lives. Because “there exists no heaven where the reconciliation of human judgments is accomplished” (131) and because we are each singularly situated but necessary in our freedom as “foundation” for the existence of others, it is only through reaching out to others in their freedom that we can create a new and potentially liberating future. The formal conditions of conversation, that “there must be men ready to hear me close by, and that these men must be my peers” (Beauvoir 2004, 137) is both met and not met in The Second Sex. There were men close by, but several were clearly not ready to hear Beauvoir’s voice. She also says, though, that many, both women and men, heard and responded to her appeal. Beauvoir says she is told the book sometimes “helped women” and she says this is partly because “it expressed them, and they in turn gave it its truth” (1992, 203). Could it be the case that hearing the female complaint, learning the truth of the origins of myths in male anxiety and fear, and making space for conversation between and amongst women is, itself, what feminist politics is about? Do these acts themselves create the possibility to encourage collective action? If we read The Second Sex as an appeal to solicit our judgments, and see politics as taking the form of an unending, open, and necessary conversation, we can see this text and its central question (what is a woman?) as a political conversation. Rather than being “now almost over,” (3) it is instead perpetually new.

References Ahmed, Sara. 2004. “A ective Economies.” Social Text 79(22): 117–139. Google Scholar WorldCat Ahmed, Sara. 2010. The Promise of Happiness. Durham: Duke University Press. Google Scholar Google Preview WorldCat COPAC Apter, Emily. 2013. Against World Literature: On the Politics of Untranslatability. London: Verso. Google Scholar Google Preview WorldCat COPAC Beauvoir, Simone de. 2004 [1944]. “Pyrrhus and Cineas.” In Philosophical Writings, edited by Margaret Simons, Urbana: University of Illinois Press. Google Scholar Google Preview WorldCat COPAC Beauvoir, Simone de. 1948. The Ethics of Ambiguity. New York: Citadel. Google Scholar Google Preview WorldCat COPAC Beauvoir, Simone de. 1992 [1963]. Force of Circumstance, II: Hard Times 1952–1962. New York: Paragon. Google Scholar Google Preview WorldCat COPAC Beauvoir, Simone de. 2004. Philosophical Writings, edited by Margaret A. Simons. Urbana: University of Illinois Press. Google Scholar Google Preview WorldCat COPAC Beauvoir, Simone de. 2006. Diary of a Philosophy Student, edited by Margaret A. Simons. Urbana: University of Illinois Press. Google Scholar Google Preview WorldCat COPAC Beauvoir, Simone de. 2008. Wartime Diary, edited by Margaret A. Simons. Urbana: University of Illinois Press. Google Scholar Google Preview WorldCat COPAC Beauvoir, Simone de. 2010 [1949]. The Second Sex, translated by Constance Borde and Sheila Malovany-Chevallier. New York: Vintage. Google Scholar Google Preview WorldCat COPAC Beauvoir, Simone de. 2011. “The Useless Mouths” and Other Literary Writings, edited by Margaret A. Simons. Urbana: University of Illinois Press. Google Scholar Google Preview WorldCat COPAC Beauvoir, Simone de. 2012. Political Writings, edited by Margaret A. Simons. Urbana: University of Illinois Press. Google Scholar Google Preview WorldCat COPAC Berlant, Lauren. 2008. The Female Complaint: The Unfinished Business of Sentimentality in American Culture. Durham: Duke University Press. Google Scholar Google Preview WorldCat COPAC Kruks, Sonia. 2012. Simone de Beauvoir and the Politics of Ambiguity. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Markowitz, Sally. 2009. “Occidental Dreams: Orientalism and History in The Second Sex.” SIGNS 34(2): 271–294.

Marso, Lori. 2006. Feminist Thinkers and the Demands of Femininity: The Lives and Work of Intellectual Women. New York: Routledge. Google Scholar Google Preview WorldCat COPAC

Marso, Lori. 2010. “Feminismʼs Quest for Common Desires.” Perspectives on Politics 8(1): 263–269. Google Scholar WorldCat Marso, Lori. 2012a. “Simone de Beauvoir and Hannah Arendt: Judgments in DarkTimes.” Political Theory 40(2): 165–193. Google Scholar WorldCat Marso, Lori. 2012b. “Thinking Politically with Simone de Beauvoir in The Second Sex.” Theory & Event 15(2).

Marso, Lori. 2013. “Solidarity Sans Identity: Simone de Beauvoir and Richard Wright Theorize Political Subjectivity.” Contemporary Political Theory 13(3): 242–262. Google Scholar WorldCat Marso, Lori and Patricia Moynagh. 2006. Simone de Beauvoirʼs Political Thinking. Urbana: University of Illinois Press. Google Scholar Google Preview WorldCat COPAC Moi, Toril. 2010. “The Adulteress Wife.” The London Review of Books 32(3): February 11. http://www.lrb.co.uk/v32/n03/torilmoi/the-adulteress-wife Google Scholar WorldCat Moskowitz, Perry. 2014. The Somatic Sex: Bodies in Simone de Beauvoirʼs Aesthetic Politics. Honors Thesis. Union College, Unpublished. Ngai, Sianne. 2005. Ugly Feelings. Cambridge, MA: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Patterson, Yolanda. 1986. “Simone de Beauvoir and the Demystification of Motherhood.” Yale French Studies 72: 87–105. Google Scholar WorldCat Plessix-Gray, Francine du. 2010. “Dispatches from the Other.” New York Times, May 27. http://www.nytimes.com/2010/05/30/books/review/Gray-t.html?pagewanted=all Google Scholar WorldCat Schwarzer, Alice. 1984. Conversations with Simone de Beauvoir. New York: Pantheon. Google Scholar Google Preview WorldCat COPAC Spelman, Elizabeth. 1988. Inessential Woman: Problems of Exclusion in Feminist Thought. Boston: Beacon Press. Google Scholar Google Preview WorldCat COPAC Thurman, Judith. 2010. “Introduction.” In The Second Sex, trans. Borde and Malovany-Chevalier, ix–xxi. NY: Vintage. Google Scholar Google Preview WorldCat COPAC 1

Possibly this is a result of its strong links with inspiring womenʼs liberation movements in the late 1960s and early 1970s in the United States, in France, and across the globe, and the pronounced tendency within feminist movements to conceptualize time as unfolding either in a linear and progressive improvement narrative (wherein the text would be seen as long surpassed), or as tinged by nostalgia for the past and disappointment about the failure to deliver a promised future (wherein the text would be read nostalgically or in anger). I diagnose stances towards feminist “time” and the labeling of the waves in the generational model to make a political argument for reading feminism as genealogy in Marso 2010.

2

There has been a return to Beauvoir in recent years, particularly by feminist philosophers and academics studying her literature and fiction. Particularly important are the 2010 complete (albeit controversially received) translation of The Second Sex and the several volumes of Beauvoirʼs work, edited by Margaret A. Simons with scholarʼs introductions to each piece, published by the University of Illinois Press. Several volumes in this series have already been published (2004, 2006,

2008, 2011, 2012). Attention to the political implications of Beauvoirʼs work, however, has been limited. See Marso and Moynagh 2006; Marso 2006; Marso 2010, 2012a, 2012b, 2013; and Kruks 2012. 3

I borrow Sianne Ngaiʼs (2005) phrase “ugly feelings” here to talk, as she does, about how such feelings, ongoing and sustained within oppressive structures, contribute to forms of suspended agency. e.g., in her chapter on “Envy,” she talks about how envy is an a ective response to perceived inequality, rather than a sign of deficiency within the subject.

4

Berlant (2008, viii) defines an “intimate public” as “marked by a commonly lived history; its narratives and things are deemed expressive of that history while also shaping its conventions of belonging; and, expressing the sensation, embodied experience of living as a certain kind of being in the world, it promises also to provide a better experience of social belonging—partly through participation in the relevant commodity culture, and partly because of its revelations about how people can live.”

5

I have changed Borde and Malovany-Chevalierʼs translation of this important line in light of Toril Moiʼs (2010) critical review of their translation. Moi notes that when this line reads, as they put it, “one is not born, but becomes, woman,” rather than “one is not born, but becomes, a woman,” it makes it sound as if a girl grows up to be the incarnation of the male myth of Woman, rather than one woman among many, but still subject to womenʼs situation.

6

Rather than depicting sex as natural and gender as cultural, Beauvoir analyzed the body as somatic, active, and a ective, as well as created by and interpreted and lived through situation. For an insightful reading of Beauvoirʼs body politics as it emerges in her aesthetic theory see Moskowitz 2014.

7

“And the truth is that anyone can clearly see that humanity is split into two categories of individuals with manifestly di erent clothes, faces, bodies, smiles, movements, interests, and occupations; these di erences are perhaps superficial; perhaps they are destined to disappear. What is certain is that for the moment they exist in a strikingly obvious way” (4).

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Charles Beitz, Political Theory and International Relations  Nancy Bertoldi https://doi.org/10.1093/oxfordhb/9780198717133.013.17 Published: 04 October 2019

Abstract Charles Beitz’s Political Theory and International Relations (PTIR) played a pioneering role for contemporary international political theory by bringing together two domains of inquiry that had proceeded largely independently from each other in the twentieth century. This chapter will assess PTIR’s contributions to international political theory and explore its continuing relevance for debates on sovereignty, human rights, and globalization in a plural world. After reviewing the ways in which PTIR shaped the evolution of both international relations theory and political theory by questioning the central assumptions of international anarchy and political autonomy and by establishing cosmopolitanism as the dominant mode of analysis for international political theory with its groundbreaking argument for a global di erence principle, the chapter will conclude by identifying several productive tensions in Beitz’s work that can further enrich contemporary discussions of global justice.

Keywords: international political theory, cosmopolitanism, global justice, global di erence principle, sovereignty, human rights, globalization Subject: Political Theory, International Relations, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Charles Beitz’s Political Theory and International Relations played a pioneering role in the creation of a new domain of inquiry on international ethics and remains a classic today. This chapter will assess Beitz’s contributions to international ethics by exploring the continuing relevance of his work for debates in international political theory. After reviewing the ways in which PTIR shaped the evolution of both international relations theory and political theory, the chapter will consider the persuasiveness of Beitz’s views on sovereignty, human rights, and globalization in a plural world and conclude by identifying a number of productive tensions in Beitz’s work which can further enrich contemporary discussions of global justice. The greatest accomplishment of PTIR was to systematically bring together two traditions of inquiry that had 1

largely been disconnected from each other at the time of its writing. Before its publication, most work in

political philosophy focused primarily on the justi cation and limits of obligations to the state, and most mainstream analyses of international relations (IR) cast international a airs as recalcitrant to traditional 2

moral analysis. At the time Beitz wrote PTIR, the main source of normative skepticism in IR stemmed from the characterization of the international realm as anarchic in the Hobbesian sense. In a highly in uential statement of the dominant realist perspective on international a airs, Kenneth Waltz (1959) had described international relations as a state of war and posited anarchy as the central category for theorizing international a airs. Even those who critiqued the Waltzian realist picture took the anarchy assumption for granted. Thus, leading accounts of international cooperation explored the possibilities for cooperation under anarchy, and even the staunchest proponents of international society described international 3

relations as anarchical.

One of the most signi cant achievements of Beitz’s groundbreaking work was to question the anarchy assumption that most IR scholars took for granted. Anarchy, as a conceptual category, heavily relies on Hobbes’s formulation of the state of nature, which is invoked by IR scholars to depict the international realm as one where reasonable expectations for a general observance of moral laws are lacking. As Hobbes famously put it, life in the state of nature is nasty, brutish, and short (Hobbes 1651/1991). While the miseries of the state of nature provide a good reason for individuals to agree to leave the state of nature and place themselves under the rule of an absolute sovereign who can provide for their security, the presence of the state mitigates existential threats to life adequately for Hobbes for the argument not to be carried to its logical conclusion. As a result, no global leviathan is established and international a airs remain in a state of nature. As Beitz observes, describing international relations as a Hobbesian state of nature performs two functions for IR theorists: it allows them to, rst, characterize the most signi cant causes of war as structural, stemming from the anarchic character of the global state of nature where reasonable expectations for norm-based cooperation cannot exist, and, second, to ground moral obligation on rational self-interest. PTIR o ers both an empirical and a normative critique of these skeptical uses of the Hobbesian state of nature by IR scholars. First, Beitz aptly points out that the image of international a airs suggested by a Hobbesian state of nature is empirically false. States are not the only actors in IR; a broad international consensus for nonviolent con ict resolution exists; unlike individuals in a state of nature, states do not have equal power and vulnerabilities; unit independence is impossible; it is not true that reliable expectations of compliance depend on a global leviathan; and high degrees of compliance can in fact be achieved even without centralized enforcement (35–50). These empirical discrepancies reduce the analytical power of the Hobbesian state of nature. Second, Beitz emphasizes that the state of nature cannot easily be deployed for purposes of normative prescription. This is because rational self-interest, even of an enlightened kind, cannot provide an adequate basis for international morality. An account of international morality must instead clarify how all a ected interests can be balanced by an impartial process (50–63). Crucially, it is persons and not states that must be seen as having rights of self-preservation in such an impartial process. These observations highlight the shortcomings of relying on an easy analogy between states and persons. Together, Beitz’s rejections of the analytical and normative uses of a Hobbesian state of nature in IR open the door for international ethics. “To say that international skepticism is incorrect,” argues Beitz, “is to say that international political theory is possible” (65). If international skepticism is not a tenable view, what can be said of its main alternative? Beitz identi es “the view represented by Pufendorf,” which he labels “the morality of states,” “as the most widely favored alternative” (65). The morality of states perspective informed leading statements of international ethics at the time of PTIR’s publication, such as Michael Walzer’s (1977) classic discussion of just and unjust wars. The two most striking features of the morality of states view, Beitz argues, are the principle of state autonomy and the absence of principles of global distributive justice (65–66). He considers both of these tenets highly problematic, and proceeds to reject them. “While the idea of state autonomy is widely held to

be a fundamental constitutive element of international relations,” Beitz writes, it is “neither fundamental nor adequate as a justi cation of either the supposedly derivative principles of nonintervention and selfdetermination or the moral objections to imperialism and economic dependence” (69). As in his critique of Hobbesian skepticism, Beitz proceeds by questioning the analogy between states and persons in his critique of the principle of state autonomy. Thus, Beitz suggests that states’ rights of autonomy are not analogous to the liberties of individuals, but rather derived from them, as speci ed by considerations of social justice. The principle of political autonomy for states is morally justi ed only when states satisfy appropriate principles of social justice. Accordingly, the justi cation of both non-intervention and self-determination requires a reference to domestic social justice. As Beitz puts it: “Unjust institutions do not enjoy the same prima facie protection against external interference as do just institutions, and in fact, other things equal, interference with unjust institutions might be justi ed when it has a high probability of promoting domestic social justice” (121). Similarly, political and economic dependence are morally objectionable not in themselves but because they “produce or support unjust domestic institutions” (122). Powerful as this argument is, it is also limited in a number of ways. First, Beitz famously leaves the content of social justice open. While insisting that “a complete normative theory of international relations would require an account of domestic social justice,” Beitz intentionally chooses not to provide such a theory and allows the content of appropriate principles of social justice to diverge, among other things in relation to 4

variations in levels of development or diversity in cultural traditions (1999, 122 and afterword). Second, it is not clear that Beitz’s argument can resolve boundary questions in the way that he has in mind, as David Miller (2005) has pointed out. Given that no government can be justi ed by the consent of those it governs, Beitz argues that the morality of decolonization depends on whether political independence would enhance domestic social justice or not. The same argument would apply in the assessment of the morality of secession in any divided society. As Miller puts it: “social justice, conceived as Beitz does in broadly Rawlsian terms, is not an idea that can be used to settle the boundaries of the political community within which it is going to be applied” (384). It is only once we know who is to be included in the political community that we can talk about what principles of social justice they would hypothetically endorse on contractarian grounds. Third, it is possible to wonder whether the principles of non-intervention and selfdetermination are derivative from the idea of political autonomy in the way that Beitz suggests. It is not unreasonable to think that it might be the other way around: that a moral idea of self-determination provides the justi cation and limits for both a principle of political autonomy and an associated (and quali ed) prima facie right to non-intervention. This seems to be the view held by John Rawls (1999), David Miller (2005), and Iris Young (2007), despite their many di erences on other issues. If it is the case that an ideal of self-determination is the prior moral value that both justi es and limits political autonomy, not much rests on the analogy Beitz criticizes between the liberties of persons and the liberties of states. Instead, political communities of a certain kind (as captured by Rawls’s idea of a well-ordered society or Miller’s idea of a responsive society, for example) are entitled to a right of political autonomy in order to realize the important goals embedded in the moral ideal of collective self-determination. While this would still not settle boundary questions, it might be a more fruitful way of conceptualizing political autonomy, one that is likely to be more in line with most people’s considered moral judgments. Despite these limitations, Beitz’s questioning of the principle of state autonomy remains relevant today as one of PTIR’s most important accomplishments, given how entrenched this principle remains in international law and political theory. Ideals of state sovereignty shape the global normative order in important ways, alongside ideals of human rights. Despite the normative development of the doctrine of the Responsibility to Protect, and the evolution of practices of intervention that have moved the normative balance more towards the protection of human rights than in the past, the tensions between the moral claims of states and those of individuals remain unresolved in many domains. How far does a state’s autonomy extend? Does a state have to satisfy a basic core of human rights or more extensive criteria of social justice to qualify for political autonomy? What are the minimal requirements of well-orderedness or

responsiveness? Which ideals of social justice are appropriate for assessing these questions? How are state rights and human rights to be balanced in relation to the important moral claims of persons outside the state’s borders? Does a state have the obligation to relieve poverty on a global scale? Does a state have the obligation to keep its borders open? Does a state have the obligation to make transfer payments to enhance human rights and social justice abroad? While many of these questions require detailed contextual treatments of the key interests and issues they raise for a satisfactory response, they all speak to the place and limits of political autonomy in a just global order, especially in relation to the larger question of striking 5

the right balance between state rights and human rights.

One of PTIR’s most well-known contributions concerns Beitz’s treatment of global distributive justice, which simultaneously established cosmopolitanism as the dominant mode of inquiry in international political theory. After having found both a realist pursuit of the national interest and a legalist adherence to the basic tenets of the morality of states wanting as a foundation for international ethics, Beitz o ers his own controversial view of what global justice requires. Famously, he argues that “a strong case can be made on contractarian grounds that persons of diverse citizenship have distributive obligations to one another analogous to those of citizens of the same state” (128) More speci cally, if one supports Rawlsian principles of domestic social justice, Beitz argues, there is no reason to limit the application of these principles to the state. Even in a world of largely self-su

cient states with minimal interaction, Beitz suggests that Rawlsian

principles of social justice would require a global resource redistribution principle that can mitigate the social e ects of arbitrary inequalities in national natural resource endowments (140–142). In addition, conditions of growing international cooperation and interdependence necessitate a global application of Rawls’s di erence principle, which calls for inequalities to be justi ed in reference to whether they are to the greatest bene t of the least-advantaged (151). PTIR’s groundbreaking argument for a global application of Rawlsian principles of distributive justice set the stage for the emergence of a vigorous debate in international political theory, which has had lasting in uence. In one of the earlier contributions to this debate, Thomas Pogge (1989) argues that Rawlsian principles of justice need to be applied globally in light of the presence of a global basic structure. “In the modern world, there are no self-contained national societies” (7) writes Pogge, requiring moral scrutiny of the inequalities generated by global institutions from the vantage point of the least advantaged (9) and recognition of the moral arbitrariness of nationality to the allocation of these inequalities (247). In subsequent work, Pogge (2002) applies this insight to the problem of world poverty, emphasizing the causal role of the global basic structure in generating poverty and articulating an institutional cosmopolitanism based on human rights in response. The attempts of Beitz and Pogge to develop a Rawlsian theory of global justice eventually led John Rawls himself to systematically consider the implications of his theory of justice for international relations. In The Law of Peoples (1999), Rawls frames his rejection of a global di erence principle as a direct response to Beitz and Pogge (115) and explicitly contrasts his own international extension of social liberalism to the cosmopolitan liberalism of PTIR. As Rawls puts it: “The ultimate concern of a cosmopolitan view is the wellbeing of individuals and not the justice of societies.” (119) This is exactly how Beitz characterizes the di erence between PTIR and Rawls’s view in the afterword to the second edition of PTIR written twenty years after the book’s initial publication: as a dispute between social and cosmopolitan liberalism. In contrast to social liberalism, Beitz writes, cosmopolitan liberalism “does not take societies as fundamental and aims to identify principles which are acceptable from a point of view in which each person’s prospects, rather than the prospects of each society or people, are equally represented” (215). The distinction between social and cosmopolitan liberalism that the debate between Beitz and Rawls brought to the fore remains one of the most important divides in international political theory, with David Miller’s (2007) nationalist social liberal approach to global justice and Peter Singer’s (2004) utilitarian conception of cosmopolitan liberalism o ering prominent examples of each camp. PTIR regards the tension

between these two views to be “the most fruitful problem in international political theory” (214). Contextual analyses of important issues in international political theory also re ect varieties of the two positions. To illustrate, Allen Buchanan’s classic discussion of secession (1991) implicitly works within a primarily social liberal framework in positing secession to be a remedial right of last resort in the face of systematic social injustice, while Daniel Philpott (1995) proposes a more cosmopolitan democratic right to secede to all persons who collectively opt for this. In his important treatment of the ethics of immigration, Joseph Carens (2013) tries to wear both hats: the rst half of the book is argued within a social liberal framework that takes the right of states to control their borders for granted, while the second half of the book questions this presumption along cosmopolitan lines, making the moral case for open borders. In developing a strongly cosmopolitan account of global distributive justice, Beitz decidedly settles the tension between the moral claims of states and persons in favor of persons. In Beitz’s view, it is persons who are represented in a Rawlsian global original position, persons whose hypothetical agreement is sought in the selection of principles of global distributive justice, and persons who are the subjects of a global di erence principle, even if states may have special responsibilities to implement this principle (153). Perhaps more importantly, it is an underlying conception of individuals as free and equal moral persons 6

that grounds Beitz’s later reconstructions of Rawls’s theory of justice.

In light of this shift in Beitz’s emphasis from the global basic structure to the equal moral standing of all persons, a certain degree of ambiguity characterizes PTIR with respect to the place of global cooperation and interdependence in a cosmopolitan moral view. Many commentators (Brown 2005, 371–379; Caney 2005, 389–399; Rengger 2005, 361–369) have read Beitz as having abandoned his original view about the moral relevance of interdependence to the argument for global distributive justice. It is worth recalling that the factual presence and operation of a global basic structure plays an important role for other in uential Rawlsian cosmopolitan theorists like Pogge. While Beitz has denied that he has retreated from his former argument about interdependence, he has acknowledged that tying the justi cation of principles of global justice to a conception of free and equal moral persons, as he does in his subsequent articles and in the afterword to PTIR, “leads to a di erent conception of the ethical signi cance of the international basic structure than what was suggested in the original text” (1999, 203). This new conception of the moral relevance of the facts of international interdependence to the normative argument for global distributive justice is complex and Beitz’s own formulation deserves being quoted at length: On the one hand, it now seems wrong to say that these facts explain, in any very speci c way why principles of international distributive justice should constrain the present structure of the world political economy. For the justi cation of international principles does not depend on the extent of international interaction or the details of the institutions that organize it. On the other hand, if there were no international basic structure—if, for example, there were no appreciable international capital ows, little trade, no international economic institutions, and only rudimentary forms of international law—then we would not nd principles of international distributive justice of any practical interest … What the facts about international interdependence and the global structure demonstrate is that this cannot be said about the actual world as we have it today. This world contains institutions and practices at various levels of political organization— national, transnational, regional, and global—which apply to people largely without their consent and which have the capacity to in uence fundamentally the course of their lives (1999, 204). But can one have it both ways? Why should the presence of a global basic structure that signi cantly in uences the life chances of persons without their consent merely establish a practical interest in principles of international distributive justice but be irrelevant to the justi cation of these principles in a cosmopolitan view? Is not the operation of such a global basic structure an essential part of the equal treatment of persons who are conceived to be free and equal? The question points to a broader di

culty in

Rawlsian theories of social justice about how to identify the basic structure, a di

culty that is perhaps

especially evident in the international realm given the absence of a single world state. The point is worth stressing, because even today, one of the most persuasive aspects of PTIR in the classroom, the claim that most students immediately relate to in a relatively uncontroversial way, is Beitz’s argument from global interdependence to global distributive justice. But it is precisely this relationship that remains in need of further clari cation and development. An additional di

culty with Beitz’s cosmopolitan argument in PTIR concerns the suitability of his account

of international distributive justice for a plural world, rooted as it is in the outward extension of a single conception of domestic justice. The crux of Beitz’s argument is that the realm of international relations su

ciently resembles domestic politics for the same principles of international distributive justice to be

adopted for the regulation of international inequalities (1999, 198, 200). In this connection, Beitz di erentiates between weak and strong statements of cosmopolitanism about global distributive justice. As Beitz sees it, strong cosmopolitanism is the more speci c view that “the applicable requirement is a globalized form of the principle of distributive justice advanced by John Rawls in A Theory of Justice,” while weak cosmopolitanism remains “agnostic about the content of international distributive justice” (1999, 198). Notwithstanding this di erence, both views require “that international justice should be regarded as the extension of a corresponding doctrine of distributive justice for domestic society” (1999, 199). Beitz’s remarks on strong cosmopolitanism o ered in relation to enlarging the scope of Rawls’s two principles of justice are instructive about what the extension process would look like in ways that are relevant regardless of what conception of domestic justice is being extended outward: Assuming that Rawls’s arguments for the two principles are successful, there is no reason to think that the content of the principles would change as a result of enlarging the scope of the original position so that the principles would apply to the world as a whole. In particular, if the di erence principle (“social and economic inequalities are to be arranged so that they are … to the greatest bene t of the least advantaged”) would be chosen in the domestic original position, it would be chosen in the global original position as well (1999, 151). Similarly, “it is wrong to limit the application of contractarian principles of social justice to the nationstate; instead these principles ought to apply globally” (1999, 158). Thus, “cosmopolitan liberalism extends to the world the criteria of distributive justice that apply within a single society” (1999, 215). Whatever principles of social justice apply domestically must also apply globally (1999, 122). The symmetrical relationship between social and international justice that Beitz posits in PTIR signi cantly limits the plausibility of his cosmopolitan theory of distributive justice in a plural world, given the likely lack of global agreement about which conception of domestic justice to extend in this manner. Beitz acknowledges this di

culty in his remarks on strong cosmopolitanism: the plausibility of the international

resource redistribution and global di erence principles that Beitz derives from Rawls depends on whether one already accepts a Rawlsian theory of domestic social justice in the rst place. As Beitz explicitly admits: “If one is inclined to reject Rawls’s theory in the domestic case, then the case for a theory of global justice like the one suggested below is signi cantly weakened” (1999, 129). But the same problem would plague any particular conception of domestic social justice. Thus, even weak cosmopolitanism, which is agnostic about which particular conception of social justice to extend to the world, nevertheless insists on the global applicability of some given doctrine of domestic justice. The di

culty becomes more pronounced when it is

remembered that in his critique of political autonomy, Beitz does not provide a single conception of domestic social justice that should apply to all societies regardless of their levels of economic development or cultural traditions. Instead, PTIR leaves the content of domestic social justice open, repeatedly referring to “appropriate principles of social justice.” But if international justice is understood to be an outward extension of domestic principles of justice, and if it is reasonable to think that most conceptions of social

justice are bound to be controversial, what, then, constitutes the content of international distributive justice in a plural world that lacks agreement on a single conception of domestic social justice? Beitz cannot e ectively answer this question in PTIR, because he does not allow for the possibility of asymmetry between domestic and international principles which would enable a freestanding justi cation for international justice. In his later work, especially in The Idea of Human Rights, Beitz explicitly moves away from his earlier focus on domestic social justice, arguably opening the door to such an asymmetry. While Beitz’s goal there is not to develop a full- edged theory of global justice, his freestanding account of human rights as an emergent international practice nevertheless creates an implicit disjuncture between domestic and international obligations. Accordingly, human rights o er an “articulation in the public morality of world politics of the idea that each person is a subject of global concern” (2008, 1). On the basis of this emergent cosmopolitan idea, human rights establish “standards for domestic institutions whose satisfaction is a matter of international concern” (Beitz 2008, 128) and for which international action can be e ectively taken to remedy state failure (2008, 137, 142–144). Given the fundamental interests the emergent practice of human rights strives to protect as a matter of international concern and the (remedial and preventive) coercive actions that this may justify, it is not unreasonable to think that human rights can give content to a freestanding theory of international justice today. If Beitz’s freestanding theory of human rights can be read as constituting an important part of an asymmetric theory of international justice, as I believe it can, it is important to note that the practical cosmopolitanism it articulates diverges from the earlier cosmopolitanism of PTIR in signi cant ways. Most strikingly, Beitz clearly and explicitly di erentiates international justice, as captured by the doctrine of human rights, from domestic social justice (2008, 142), and suggests that it is not plausible to expect social justice issues to be matters of international concern. It is also not the case that social justice, extended outwards, gives content to international justice. Instead, the content of international justice is derived directly from an emergent international practice. The moral signi cance of this emergent international practice and its ability to specify the content of human rights also leads to Beitz’s newfound appreciation of the di

culties posed by de facto political departures from the practice. This is in marked di erence to PTIR,

where Beitz regards similar departures as indicating only the dangers of a faulty application of correct principles in particular cases, rather than as presenting a serious moral dilemma (1999, 185–191). By contrast, The Idea of Human Rights takes very seriously criticisms of double standards in the pursuit of human rights—for example, through selective military interventions—or historical precedents whereby human rights are invoked by rich and powerful states to perpetuate their global advantage and domination (2008, 201–209). Such selective or abusive historical invocations of human rights are problematic, Beitz thinks, because they can erode the legitimacy and normative authority of the emergent international practice of human rights itself. Beitz’s new sensitivity to the problems that political action poses for a normative practice is a welcome development that can go a long way towards addressing some of the concerns about the dark side of the historical record of cosmopolitanism. Despite the promising ways in which it complements PTIR by articulating a freestanding asymmetric theory of international justice, Beitz’s new practice-based cosmopolitanism also has several drawbacks. First, Beitz provides only a cursory treatment of the fundamental individual interests that ground human rights, despite the central role these interests play in the justi cation of the content of human rights. “What is essential,” writes Beitz, “is that the importance of the interest, seen from the standpoint of a reasonable bene ciary, should be intelligible to reasonable persons who might be called upon to protect it” (2008, 138). Many points in this formulation need to be further eshed out, especially in relation to how reasonable persons are to be characterized in a plural world and what kind of process makes their fundamental interests intelligible to each other even across serious di erences. Second, in developing a practical conception of human rights that heavily relies on key features of an emergent practice, Beitz’s account

remains ironically both too close and too far from contemporary human rights practice. On the one hand, in an explicit rejection of views which derive the authority of human rights from a deeper order of values that is independent from actual practice, Beitz ties the idea of human rights too closely to contingent historical developments. Should the evolution of this contingent practice take a di erent direction, the idea of human rights, as we know it, would need to be radically transformed, possibly in ways we would not feel 7

comfortable with. On the other hand, Beitz’s practice-based justi cation of the appropriate content of a human rights doctrine is too far removed from our contemporary historical practice because of the moral weight Beitz attaches to empirical considerations about whether e ective international action can be taken to advance speci c rights. Accordingly, Beitz suggests that given our current state of knowledge about practical possibilities, there is no human right to democracy, and that many of the women’s rights that are delineated in current human rights instruments are not appropriately matters of international concern. If human rights provide the closest equivalent we currently have to a freestanding account of international justice, then they should presumably include aspirational rights even if e ective international actions cannot be taken to advance them. The di erences between PTIR and The Idea of Human Rights illustrate broader debates in international political theory pertaining to the respective moral standings of individuals and political communities, especially in relation to the speci cation of political legitimacy in a plural world. Despite the shift in focus from “domestic social justice” to “international human rights” that these two works present, they nevertheless share several commitments as common articulations of Beitz’s cosmopolitanism. Both views regard persons as equal subjects of global concern regardless of where they may live, what their nationality may be, or which groups they may belong to (2008, 1; 1999, 181–182, 199–200). Both views also adopt an instrumental conception of political life and political institutions. Beitz is explicit about this on a range of di erent issues. In PTIR, he repeatedly maintains that the state and boundaries have merely derivative moral signi cance (1999, 52–55, 64, 182) and also suggests that the strongest moral argument against colonialism and economic dependence concerns the possible instrumental contributions of political independence to domestic justice (1999, 102–104, 121–122). Similarly, in The Idea of Human Rights, Beitz o ers instrumental justi cations for rights and institutions, as illustrated by his rejection of a human right to democracy. “The most familiar argument of democratic institutions has an instrumental structure,” writes Beitz (2008, 175). This instrumental argument “accounts for the desirability of democratic institutions in terms of the results, broadly construed, they are likely to produce” (2008, 175). In moving from a contextual argument for democracy to a general one, Beitz further notes that “the persuasiveness of an instrumental justi cation of democratic institutions is likely to depend on empirical contingencies regarding the society at which justi cation is directed” (2008, 176). Thus, in determining whether a general human right to democracy can be justi ed, Beitz suggests: “the central questions are whether democratic institutions exhibit any systematic tendency to protect urgent interests more e ectively than other types of regime and whether democratic transitions are more likely to be successful in more—rather than in less— developed societies” (2008, 157). After reviewing the available evidence on these two questions, Beitz concludes that “the empirical basis of the generalization of familiar arguments for democracy to unfamiliar cases is more unsettled than one might have believed” (2008, 180). Beitz’s discussions of anti-poverty rights and women’s rights adopt a similar instrumental structure. Overall, both in his earlier and later cosmopolitanisms, Beitz consistently regards “institutional structures, both domestic and international, as an instrument for the satisfaction of the just interests of individual persons” (1999, 216). Beitz’s instrumental conception of political rights and institutions is not broadly shared. There are good reasons to think that his instrumental approach may present an overly narrow view of political life and that it may be unable to articulate important human values and interests, especially in a plural world. Margaret Moore makes a similar point in her critique of Beitz’s implicitly (rather than explicitly) instrumental conception of natural resources. As Moore puts it:

Beitz’s cosmopolitan argument assumes that the only relationship between land and the people is an instrumental one, where the land is viewed, potentially, as a source of wealth, as material to be worked or exploited, or otherwise transformed into economic use-value. However, this instrumental conception is not how all people view the land on which they live. (2010, 139) After giving multiple examples of indigenous and nomadic groups who reject the instrumental view, Moore notes that the non-instrumental alternative is also deeply relevant to many hotly contested issues in modern industrial societies, whenever land and resource development projects are at odds with environmental preservation, historical protection, or religious respect. In later work, Moore adds that “this non-instrumental conception is not con ned to small, nomadic or traditional societies: it is extremely widespread, because it is implicit in all particularized territorial claims” (2012, 94). Such claims “can only be explained by appealing to non-instrumental (e.g., symbolic or cultural attachment) values … Many national minorities and indigenous groups claim entitlement to particular pieces of land for reasons quite speci c to their historical relationship to the land” (Moore 2012, 94). The force of Moore’s critique is even more evident in areas where Beitz explicitly adopts an instrumental approach to politics. What is true of peoples’ possible non-instrumental relationship to land could no doubt also be true of their relationship to their most basic political institutions and cherished political rights. Unfortunately, Beitz’s cosmopolitanism is not well-attuned to potentially non-instrumental arguments, despite his recent attempts to be more sensitive to issues of cultural resonance. To conclude, Beitz’s PTIR had a tremendous impact at the time of its publication and remains very important today for three reasons. First, it pioneered the eld of international political theory as we have known it since the late twentieth century by bringing together two domains of inquiry (political theory and international relations) that had proceeded largely independently from each other. Second, it challenged the core assumptions of these two elds. Most signi cantly, it questioned the assumptions of international anarchy and state autonomy, which were ubiquitous at the time and can often be taken for granted even today. Third, it established cosmopolitanism as the dominant mode of ethical analysis for international political theory. Ironically, the success of the book also sets the stage for its limitations by e ectively narrowing, rather than broadening, the conversation in international political theory. While there may have been good reasons for making these choices at the time, Beitz nevertheless gives a selective and narrow presentation of the three traditions (realism, international society, and cosmopolitanism) that he engages 8

with in PTIR, and this is something that can be remedied by future work in international political theory.

Perhaps as importantly, in the development of both his earlier and later cosmopolitanisms, Beitz explicitly adopts a narrowly instrumental conception of politics, which is arguably inadequately appreciative of the value of collective self-determination in a plural world. Nevertheless, Beitz’s work is still the leading text for discussions of international ethics, and contains a number of underexplored productive tensions which can advance our understanding of key questions in the eld. These tensions include the relationship of principles of global justice to the facts of global interdependence, the basis and justi cation of fundamental human interests, the relationship between conceptions of social justice and international justice (with the possibility of introducing an asymmetry of principles), and the place of collective self-determination in a theory of global distributive justice (with the possibility of incorporating non-instrumental views of politics). Just as it pioneered a new eld of inquiry when it was rst published, PTIR can continue to expand the frontiers of the eld, especially if treated as the great start of a conversation in international political theory, rather than the end of the discussion.

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Notes 1.

Lu (2005, 401–408) also emphasizes this point in her review of the bookʼs impact.

2.

The classic example is Wight (1966, 17–34).

3.

For cooperation under anarchy, the classic work Keohane (1984). For the conception of an anarchical society, the classic work is Bull (1977).

4.

Beitz also points towards a contractarian theory of reasonable endorsement in both part 1 and part 3 of the book, but

does not develop it. 5.

For excellent examples of such contextual treatments, see Carens (2013) on the ethics of immigration; Buchanan (1991) on the ethics of secession; Daniels (2008) on global health; and Rao (2010) on the ethics of protest movements.

6.

As Beitz explicitly puts it in the a erword to PTIR: “For it is not the case that we begin with an actually existing basic structure and ask whether it is reasonable for individuals to cooperate in it. Rather, we begin with the idea that some type of basic structure is both required and inevitable, given the facts about the extent and character of social and economic relations, and work towards principles the structure should satisfy if it is to be acceptable to individuals conceived, in Rawlsʼs phrase, as free and equal moral persons.” (203). See also Beitz (1983, 591–600)

7.

Barry and Southwood make a similar point. Barry and Southwood (2011, 369–383).

8.

Chris Brown (2005) makes this point well in an insightful review of Beitzʼs selective engagement with the three traditions. Beitzʼs response (2005) is informative for clarifying the reasons for his selections.

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Isaiah Berlin, Four Essays on Liberty  Alan Ryan https://doi.org/10.1093/oxfordhb/9780198717133.013.8 Published: 06 July 2017

Abstract This chapter on Isaiah Berlin’s Four Essays on Liberty centers on the most famous piece in it, “Two Concepts of Liberty.” As a matter of genre, it is an essay in conceptual analysis. Because liberty is a historically in ected concept, it is also an essay in the history of ideas. The chapter argues that Berlin was a “Cold War liberal” only in the limited sense that he campaigned against all doctrines that licensed the sacri ce of real individuals on the altar of impersonal entities such as the proletariat or the nation, and Soviet Communism was a salient case both because of the Cold War and Berlin’s own Russian origins. Individuals have an inviolability that governments of any stripe must not infringe. That is the core of negative liberty. Positively, Berlin’s faith was that unimpeded, individuals with adequate resources would spontaneously lead varied and vivid existences.

Keywords: Isaiah Berlin, liberty, Cold War liberalism, liberalism, negative liberty Subject: Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

For many years, Isaiah Berlin was said to be a wonderful conversationalist, but a reluctant writer. Maurice Bowra famously quipped, “Like Our Lord and Socrates, Berlin talks much but publishes little.” It was not true: Berlin wrote and published a great deal, but it was in the form of essays and lectures, and often in fugitive and out-of-the-way places. When Bowra wrote this in a letter to Noel Annan in 1971, it was true enough that Berlin had published only one book as conventionally understood, and that it had appeared three decades earlier: Karl Marx, the intellectual biography that Berlin published in 1939, and the book that revealed his talent as a historian, or perhaps more exactly a biographer, of ideas. Characteristically, it was delivered very late and the typescript had to be drastically cut to meet the publisher’s demands. A subsequent book, Vico and Herder, was for two decades projected under several di erent titles, sometimes as three and sometimes as ve “critics of the Enlightenment.” Published in 1976, it was less a book than two very long essays, and was soon reissued in expanded form as Three Critics of the Enlightenment. Only late in Berlin’s life, indeed often posthumously, and through the e orts of the indefatigable Henry Hardy, were Berlin’s writings of all kinds—more and less substantial essays, lectures, memorial addresses,

introductions, reviews, and radio and television broadcasts—corralled, tidied up, footnoted, put into book form, and a orced by four volumes of letters. Four Essays on Liberty—republished long after as Liberty, with ve essays and much ancillary material—was thought by Berlin himself to be the most important statement of his ideas on freedom. At the time of its rst publication, he hankered to include a fth essay, “From Hope and Fear Set Free,” or to substitute it for “Political Ideas in the Twentieth Century,” for reasons that will emerge below. But by the time he broached the idea with the long-su ering editors at Oxford University Press, their patience was exhausted, and the book appeared in 1969 as Four Essays on Liberty (FEL). The four essays were “Political Ideas in the Twentieth Century,” “Historical Inevitability,” “John Stuart Mill and the Ends of Life,” and “Two Concepts of 1

Liberty.” They had very di erent afterlives; “Two Concepts” was Berlin’s Inaugural Lecture as Chichele Professor of Social and Political Thought at Oxford, delivered in 1958. It has ever since been taken as the de nitive statement of a distinctive liberalism, and has been endlessly discussed. The elusiveness of the claims made in the lecture and the contentiousness of what appears to be the lecture’s defence of a negative or “let-alone” conception of liberty has kept critics busy for more than ve decades. It became a classic in much the same way as John Stuart Mill’s Utilitarianism: endlessly analyzed, savagely criticized and passionately defended, demolished, and reconstructed. “Historical Inevitability” embroiled Berlin in a running battle with E. H. Carr, but for both political and more narrowly intellectual reasons, the topic lost its urgency. “John Stuart Mill and the Ends of Life” never sparked much interest: its picture of Mill as a good-natured but muddled thinker whose liberal instincts were at odds with the utilitarianism to which he notionally subscribed was, at the time, generally accepted as accurate enough; and die-hard Millian liberals—should such implausible creatures have existed in the 1950s—were thinner on the ground than die-hard Marxists or brutal “realists” of E. H. Carr’s stripe. The view that Mill was a more formidable gure than Berlin supposed gained ground only a decade later. Political theorists have written a good deal both about Mill and about Berlin, but though their di erent liberalisms have often been compared and contrasted, Berlin’s account of Mill is rarely called on for the purpose of reconstructing Mill’s liberalism. The rst essay appeared in Foreign A airs in 1950; it was a contribution to a collection of essays on the world at mid-century. As Berlin observed in the Introduction to Four Essays, that gave it a particular slant that it would not have had two decades later. Berlin himself noted that it had made no great stir. It did, however, provoke an exchange with George Kennan to which we shall brie y return in due course. At the risk of slighting Berlin’s innumerable critics and commentators by ignoring their views, and adding injury to insult by repeating what I have written elsewhere, I take up three themes. The rst is broadly methodological: to what intellectual genre do the essays belong? Berlin professed to have turned away from philosophy to the history of ideas, and o ered a simple explanation of having done so. Nonetheless, it is not obvious that he did any such thing, as distinct from practising philosophy in a less austerely analytical fashion than he had done during the 1930s and 1940s. Bernard Williams, drawing on Nietzsche’s insistence that only concepts with no history are capable of de nition—a view that Williams shared—maintained that Berlin continued to be a philosopher. The concept of liberty is paradigmatically historical and can only be understood genealogically. Political philosophy must be pursued historically, if in a somewhat elusive sense of “historically.” My second question is itself historical: was Berlin a “Cold War liberal,” and given that he plainly was, what light does that shed on his liberalism? We should reckon with the possibility that it may shed little light doctrinally, however much it illuminates Berlin’s choice of subject matter and his chosen approach to the topics he discussed. I am unsure about the correct answer, not least because it is bound up with what one might call the Russianness and, to a lesser extent, the Jewishness of Berlin’s concerns. Critics have complained that although Berlin wrote a great deal about Russian thinkers, he never wrote directly about the Holocaust; nonetheless, it and the horrors of Stalin’s Russia were never far from his mind. My third question is doctrinal: given that “Cold War liberal” is a historical label, what was the liberalism that

Berlin constructed, what did it rest on, and what is its staying power? Commentators have come up with a variety of labels for Berlin’s liberalism, usually emphasizing his pluralism, sometimes emphasizing the anti-foundationalist message of his work, and at other times emphasizing his doubts about the rationalism of the Enlightenment. The discussion here will not add more labels, but will try to bring out the way in which Berlin’s liberalism is both very defensive—reacting to threats from dictators and manipulators, and the zealots and fanatics who supply them with their ideas—and very optimistic, insistent on the capacity of ordinary people to get on with their lives in interesting and imaginative ways if they are not starved, bullied, bamboozled, or humiliated.

Berlin as Historian or Philosopher Berlin often claimed that he turned away from philosophy and to the history of ideas because he had come to think that philosophy made no discoveries, while he wanted to know more by the time he had nished with intellectual life than he had known at the beginning. In fact, he o ered more than one account of the change of direction; one had less to do with the thought that philosophy did not uncover the truth about the world than with C. I. Lewis’s observation that even if we reached the truth it might be very dull. The history of ideas o ered Berlin the chance to engage with a lot of interesting long-dead people with whom he might have had enlivening discussions had they still been alive. The history of ideas as practised by Berlin was very unlike the history of ideas as practised by professional and deep historians of ideas, a fact re ected in the relative lack of interest in his work shown by historians of ideas compared with the interest shown by political theorists and “public moralists.” His approach owed much to the Oxford historian and philosopher R. G. Collingwood, who characterized historical method as rethinking past thoughts; it also owed a good deal to G. B. Vico’s description of fantasia, the faculty of re-imagining the inner lives of the dead and the distant. Berlin admired Collingwood’s work, and thought, rightly, that Collingwood had been underestimated by his Oxford colleagues. Berlin did not engage with the arguments between defenders of the “covering law” theory of historical explanation and their opponents as an issue in the logic of the social sciences, but his practice was squarely on the side of those who espoused what one might term the “idiopathic” method: eliciting the meaning of events to those who took part in them, where the explanation of that meaning to later generations was more akin to translating a text than to adducing a causal law under 2

which events of the kind at issue might be brought. Although Berlin did not devote any sustained attention to methodological issues in political theory—the contrast with John Rawls is striking—he wrote at length about historical explanation, engaging with the arguments both of his contemporaries and the social and political thinkers of the Enlightenment and its critics. Overambitious thinkers were taken to task not only for intellectual presumption but even more for the political disasters their ideas threatened. The target of his criticism was the dehumanizing e ects of what Hayek had usefully called “scientism,” the misapplication of a particular view of scienti c method to human behavior (Hayek 1979; Berlin 2002). In “Historical Inevitability,” for instance, Berlin provides a characteristically sweeping account of the aspirations of Enlightenment thinkers such as La Mettrie and Condorcet, who hoped that human behavior would either be amenable to explanation by an enlarged physics, or explicable and predictable by a more speci cally historical science; but he adds a footnote to declare that he is not defending a view of scienti c method, whether inductive or hypothetico-deductive, or of historical method. There is a strong suggestion in the footnote, one repeated elsewhere in the essay, that di erent sorts of history may in fact resemble di erent sorts of natural science (Berlin 2002, 96). That seems obviously right, as does the thought that some kinds of natural science may resemble history more than they resemble other kinds of natural science; wildlife biology is not very like quantum mechanics, but epidemiology is not wholly unlike economic history. In any case, the message of the essay is not methodological, perhaps surprisingly in view of the fact that it is an attack on the idea of historical determinism. Berlin’s target is any doctrine that depicts human beings as the playthings of historical forces too vast, or too ill-understood, to control. Whether we are urged

to side with the forces of history and assist them to bring about some eventual Utopia or to stand aside and relax in the con dence that Geist or some other superhuman but immaterial power will ensure that everything will be as it should be, the common vice of all such doctrines is that they obliterate the individual by implying that individuals bear no responsibility for what happens in history. If individuals bear no responsibility for events, there is no point in moralizing at the impersonal forces that govern their lives, either. We may resign ourselves to the way the universe works, hope that it will turn out for the best, or, no doubt, decide that it would have been best that man had never been born; what we cannot do is write history on the assumption that historical actors were free to act other than as they did. Berlin thought that we could write history no other way than by assuming they were free agents. One way we must qualify Berlin’s claim to have renounced philosophy for the history of ideas is by recognizing the philosophical acuteness of the argument that underlies his insistence that we cannot behave as though determinism is true; it anticipates both Peter Strawson’s Freedom and Resentment and Stuart Hampshire’s similar claims. We ordinarily react to other people’s behavior as if it was freely chosen, because we react to our own in that way. Berlin goes one step further. Contrary to the old tag tout comprendre, c’est tout pardonner, he argues that it may be, and in our own case often is, that the more we know the less forgiving we are of the bad behavior in question. This is not to say that Berlin thought that Marxism and psychoanalysis o ered no insights into human behavior worth having; his frequent references to Spinoza, Marx, and Freud as the three great Jewish liberators was tongue in cheek but not mocking. What he resisted was methodological monism, the view that there was a Holy Grail of scienti c understanding that would supersede the everyday forms of mutual understanding that we employ in our ordinary interactions. I have said elsewhere that Berlin did not write the history of ideas as historians of ideas think of it—that his modus operandi is as far from that of Cambridge “contextualists” as from that of Marxists unmasking our ideological delusions or psychoanalytical historians uncovering our subterranean motivations. Yet, it is not only stylistically that Berlin’s approach to writing political theory was very di erent from that of his younger contemporaries who wrote and write what is unequivocally agreed to be political philosophy. The author of FEL was doing something di erent from the author of A Theory of Justice, which appeared two years later. Post-1945 Oxford philosophy was deeply committed to the thought that philosophy was conceptual analysis, understood as seeking “the” meaning of whatever terms were at issue; the notion that meaning was use had su

ciently taken hold for most of us at the time to think that progress was made by

seeing how terms were used in their usual settings. The methodological elusiveness of Berlin’s work is suggested by the fact that “Two Concepts of Liberty” is anything but such an analysis. Juxtapose it with H. L. A. Hart’s The Concept of Law, and the di erence is stark. By the same token, the contrast with John Austin’s work is quite as striking; “A Plea for Excuses” is the sort of delicate exploration of “what we say when” in which Berlin never engaged. Berlin, Hart, and Austin were close friends, but Hart’s work was “Austinian” in a way Berlin’s after 1950 never was. Yet Berlin was engaged in conceptual analysis, or if “analysis” suggests something implausibly precise, he was engaged in conceptual illumination. “Two Concepts of Liberty” may not be devoted to rendering two concepts clear and distinct in the best Cartesian manner, but the intention is to illuminate at least two conceptualizations of freedom. We will return to the success or failure of the project, but at this point we should focus on the connection between conceptual analysis and the history of ideas as Berlin understood it. The simplest thought is that Berlin’s approach was dialogical, or conversational, an artless, or more plausibly a faux-naïf conversation across time and space in which Berlin engaged whomever it might be in a discussion of issues that would illuminate the way his interlocutor conceptualized the world, and by contrast the way we conceptualize our own. This raises the obvious question why conceptual analysis or perhaps “conceptual explication” is best pursued historically. The answer must be reconstructed from Berlin’s practice, but is not obscure. The natural sciences aim to reach a determinate view of a conceptually unchanging nature; the human sciences

do not. The natural sciences have gone through dramatic conceptual shifts, but nature has not. Human societies and individual human beings have changed their conceptualization of themselves, as both cause and e ect of changes in their values and behavior. The rest of nature cannot and does not. When explicating “our” conception of freedom, for instance, Berlin raises the question whether ancient Athenians possessed our conception of political or civil liberty. His conclusion is that they did not. Citing Pericles’s famous funeral oration, Berlin agrees that Pericles glories in the fact that Athenians are public-spirited and resourceful ghters without being coerced by the whips of Persian slave drivers or the savagery of Spartan law; nonetheless, Berlin insists, our conception of liberty—permitting a man to stay out of the public sphere if he chooses—is expressly repudiated by Pericles. One might think in a contrarian moment that when Pericles says that we do not say of such a man that he minds his own business but that he has no business here, he must in fact possess our conception of liberty; if he did not, he could hardly disvalue it. Berlin’s is the better view: we see the man who turns his back on public a airs as employing a genuine liberty, even if misguidedly, while Pericles does not see it as an exercise of freedom at all. Athenian freedom is de ned not negatively by the absence of tyrants and oligarchs but positively by membership of the self-governing citizen body; the Athenians have no master but themselves. Our conception of civil and political freedom includes freedom from political participation, while theirs did not. In general, Berlin followed Mill and Hobbes in insisting that the issue of the freedom of the will is irrelevant to issues of social and political liberty. Nonetheless, the long discussion of determinism in the Introduction to Four Essays connects directly with the themes of “Two Concepts of Liberty,” as well as with the themes of “From Hope and Fear Set Free.” Unlike many thinkers, Berlin thought it was an empirical question whether determinism was true. What it would be like to discover that it was true is utterly unclear, but Berlin may have held Paul Feyerabend’s view that the fact that we cannot coherently conceive what it would be like to think of ourselves in wholly naturalistic, causal terms does not entail that we shall never know enough about ourselves to be forced to do so. Berlin focuses on the moral implications rather than the conceptual tangles. In the Introduction to Liberty he seems to adopt the view of Stuart Hampshire: we cannot see ourselves as simply part of the natural order and therefore ought not to treat others as simply part of the natural order. This implies, as Berlin insists, that we can treat other persons as things even if we ordinarily do not; we can refuse to share their rst-person perspective on the world, and regard them as objects to be manipulated. It is because it is possible to behave thus that it is important to defend freedom against everyone who believes that for whatever reason they are entitled to treat everyone else as creatures to be manipulated, coerced, or by whatever other means corralled into behaving as their controllers wish.

Liberty in the twentieth century The urgency that permeates Berlin’s writing on freedom and its enemies has a very obvious cause. His various accounts of the intellectual origins of the threats to freedom that unnerved him are not straightforward, but the provocation for thinking about them is clear enough. Berlin’s personal history played a substantial role, although he usually played it down. For most eastern European Jews, the four decades between the outbreak of the First World War and the death of Stalin were an almost unbroken record of disaster. Very few of Berlin’s Polish and Russian relatives survived the Second World War. Berlin himself led a charmed life; his parents had the resources to leave the Soviet Union in 1921 and establish themselves comfortably in Britain. By his early twenties, he was an academic star and in demand as a guest at the smartest London dinner tables. After All Souls in the 1930s, he had a “good war,” mostly spent in the British Embassy in Washington, reporting on American public opinion to the British Foreign O building close friendships with the o

ce, and

cials, journalists, and academics who in uenced American foreign

policy then and after the war. He also engaged in some delicate maneuvering to keep Theodore Weitzman informed about the attitude of British and American o

cials to Zionist plans for a postwar Jewish state:

delicacy was essential since their attitude was hostile, and Berlin was trying to assist Weitzman to undermine or evade the policies of his employers. One visit to the Soviet Union immediately after the war revealed the disasters that had befallen his extended family; another revealed Stalinism’s destructive impact on private life and cultural vitality. The defeat of Nazism and Japanese militarism was a very partial victory for liberal values: it had been achieved by an alliance that included a dictatorship that murdered as many Soviet citizens as the Nazis had done, and brought down an “Iron Curtain” across central Europe. In 1949, when Foreign A airs asked Berlin to write the essay that became “Political Ideas in the Twentieth Century” for an issue on the world at mid-century, it seemed to Berlin that what was distinctive about the twentieth century was the rise of anti-individualist, ruthlessly instrumental modes of thought. He was hardly alone in this. In the 1930s, Bertrand Russell, John Dewey, and Morris Cohen contributed to a little book on the theme of “Why I am not a Communist or a Fascist”; all three took it for granted that large numbers of people had concluded that liberal democracy was headed for extinction. The failure of democracy to “take” in the states created in central Europe by the Versailles settlement only added to the sense that the tide of history was running against liberalism, individualism, and democracy. Berlin’s focus was on the ideas behind the horrors of the twentieth century, rather than the horrors themselves. He met his critics halfway, and never directly blamed irrationalist romantic nationalists for the horrors of Nazism, nor Marx for the horrors of Stalin; it was the terribles simpli cateurs who did the damage. Why the doctrines they simpli ed were vulnerable to this destructive simpli cation was partially answered in “Political Ideas in the Romantic Age”; on the one side, excessive rationalism and too uncritical a faith in science led in the direction of treating human beings as manipulable elements in an over-arching project that few could understand, but whose outcome would satisfy them, or at any rate their successors for whose sake they had been sacri ced; on the other side, excessive anti-rationalism, which entitled those who had an intuitive grasp of the great currents of history to recruit followers for a project to which they might be sacri ced in large numbers. Nazism and Soviet Communism contrived to su er from both these excesses at once, and the common core was a contempt for the rights of individuals. One curious feature of the essay, apart from implausibly citing Fourier as one of the begetters of the horrors of the twentieth century, was Berlin’s 3

antipathy to utilitarianism, and to the activities of philanthropic foundations. The common thread is Berlin’s hostility to moral or political creeds that sacri ce individuality to any cause whatever. That was the burden of his response when George Kennan wrote to complain that Berlin had provided very little in the way of a philosophical defense of the liberalism threatened by so many disparate forces. Berlin had no con dence that philosophy could provide such a defense; responding to Kennan, he simply asserted that he believed devoutly in something very like Kant’s principle that none of us is to be treated merely as a means to the ends of others. That philosophy could demonstrate that such a principle was logically, or

conceptually, irresistible he did not believe. Writing to another correspondent in the early 1950s, Berlin contrasted his views with those of Herbert Hart and John Plamenatz, both of whom, he thought, supposed that philosophy could arrive at the truth about social and political issues. In a footnote to the 1969 reprinting of the essay, Berlin observed that the worst features of Stalinist Russia had diminished, but went on to say that many of these features had reappeared in much the same form in the emergent states of Asia and Africa that had failed to escape the tyrannical features of the colonial states they had replaced. That raises the awkward question of Berlin’s status as a “Cold War liberal.” During the 1960s and 1970s, when opposition to the American war in Vietnam led to innumerable confrontations between students and university administrators, and sometimes to pitched battles between protesters and 4

police, Berlin was noticeably silent. Many of his close friends were opposed to the war, but others were in favor and deeply implicated in its origins; his English friends were uniformly hostile, but McGeorge Bundy was active in the early escalation of the con ict and Joe Alsop defended the war to the bitter end, though many other of Berlin’s American friends were resolutely opposed. Berlin’s location in the “Cold War liberal” camp left him shifting uneasily from foot to foot. That the war was hideous and unwinnable was soon apparent; nonetheless, anyone who loathed the Soviet Union as deeply as Berlin must begrudge any move that gave the Soviet Union a propaganda victory, as defeat in Vietnam would. Berlin was not tempted to excuse Soviet misbehavior as the irresistible result of a species of original sin. Unlike many other commentators, he never thought that what Marx and Russell concurred in describing as the “half-Asiatic” character of Tsarist Russia doomed twentieth-century Russia to some form of despotism, whether left or right. Pre-revolutionary Russia might easily have turned, as slowly and imperfectly as western European states had done, into a liberal democratic state like other European states. It was not inevitable that things turned out as they did.

Two Concepts This brings us to the liberalism of “Two Concepts of Liberty”. The essay itself is very characteristic inasmuch as it employs Berlin’s familiar tactics of argument by ventriloquism and recruits a familiar cast of heroes and villains. It is also far from providing in the tin exactly what it advertises on the label. Certainly, two—or more—concepts of liberty are discussed, but only inter alia. “Two Concepts” begins with an impassioned defense of the need to take political philosophy seriously, reminding us that this was a time when commentators had declared that political philosophy was dead. Berlin’s justi cation for taking political philosophy seriously was practical and utilitarian; the century had been littered with the victims of fanatics inspired by one or another philosopher. Ideas mattered. Berlin did not go into the details of just who had begotten just which disasters, but he thought that far from engaging in “mindless” brutality, both Lenin and his Fascist counterparts had been ideologically intoxicated. Bad ideas had to be combatted by better ideas. A liberal culture needed to keep up an interest in political philosophy in self-defense. This is an aspect of Berlin’s role as a “Cold War liberal” on which there has been a good deal of comment in connection with the role played by the CIA in funding the Congress for Cultural Freedom, and sustaining journals such as Encounter to which Berlin was a distinguished contributor. The two concepts in question are discussed swiftly and on the whole lucidly in the rst few pages of the (very long) lecture. Negative liberty is explicated as referring to the range of activities not obstructed by other persons’ actions; it is distinguished from simple inability with one of Berlin’s favourite aphorisms: “It 5

is not lack of freedom not to y like an eagle or swim like a whale” (2002, 169). Even here, Berlin slides between explicating freedom as such and narrowing the focus to political freedom. He does this elsewhere in other essays and in the Introduction to Four Essays. One may, of course, think that the most important kind of liberty is political liberty, but Berlin comes close to implying that freedom—he uses “freedom” and “liberty” interchangeably—just is political liberty. There is a good reason for this, although it emerges only

between the lines. Benjamin Constant’s famous essay on La liberté des anciens comparée à celle des modernes does not talk of two concepts, but Constant’s distinction is Berlin’s. The liberty of the ancients is essentially political—a share of the sovereign authority—while modern freedom is essentially private. Its centerpiece is freedom of religion, an idea unknown to the ancient world even in societies that were, on the whole, relaxed and tolerant about the diversity of religious belief, but it also embraces, for example, freedom of occupation, and freedom of movement, the everyday freedoms Americans and Britons took for granted. Constant’s understanding of the liberty of the ancients in e ect provides Berlin’s positive conception of liberty. It focuses on the concept of sovereignty. Berlin construes the positive conception as answering the question, “who or what controls or determines what I do?” He agrees that much of the time little separates the positive and negative conceptions; if others do not constrain me, I determine what I do, and that is the end of the matter. It is when Berlin elaborates on what he sees as large, quasi-metaphysical background assumptions about human nature, the need for community, the nature of moral knowledge, and the plurality of human ends, that “Two Concepts”, so to speak, takes o

and large oppositions appear, few of

which rely on the thought that there are two—or more, or perhaps fewer—concepts of liberty. Since it is neither necessary nor useful to paraphrase Berlin’s extended discussion of all these issues, a short sketch of his targets may su

ce. This provides a partial explanation of why Berlin was right to wish to include “From

Hope and Fear Set Free” in Four Essays, and allows a very short summary of what Berlin’s liberalism amounted to. Berlin has, on this reading, three main targets. The rst is what he thinks of as the Stoic “retreat to the inner citadel.” If freedom consists in the non-frustration of our wishes, one way of achieving it is to reduce our wishes to what can be achieved. There is a subtext, which is that the Stoic cultivation of apatheia involves a separation of inner and outer which is the reverse of life-enhancing; I cannot a ect what happens to my body, so I will not care about it, but I can a ect what happens to my reactions to it, so I will cultivate a degree of self-control su

cient to ensure that I, the inner self, remain always my own master. This why the

slave may be freer than his master: the master is the slave of his passions, the slave is master of his. Berlin’s objections to this are like Hegel’s. To be free, we must have a su

cient range of worthwhile options

available, and the slave does not. My view is that the Stoic conception is indeed a conception of freedom, and that Berlin’s characterization of the retreat to the inner citadel is wrong; that is, the slave possesses a freedom from fear that is genuinely a form of freedom. Moreover, he remains his own master in the sense that his legally recognized master cannot substitute his will for the slave’s. Nonetheless, Berlin’s point is right in the same way as Hegel’s; to be able to endure whatever the world throws at us is not the same as enjoying a wide range of life-enhancing options. The second target is political theories that invoke a “real self,” which is identi ed with, as it might be, the General Will, or the Hegelian State, or the ideal community invoked by writers such as T. H. Green. Positive freedom is obedience to the real self. Plato did not couch his political ideals in terms of freedom but he provided the metaphysical essentials of theories of the real self in terms that the Stoics took over, contrasting obedience to reason with slavery to the passions. It might be complained that Berlin plays down the insistence of Kant and subsequent Idealists such as Green, that positive freedom is parasitic on negative freedom; Berlin’s coinage of “compulsory rational freedom” fails to do justice to their insistence that unless individuals have a real choice between the better and the worse, they cannot achieve anything properly called moral liberty. Berlin, indeed, acknowledges that Kant provides what he, Berlin, sees as the essence of a theory of negative political liberty. Nonetheless, there have been enough thinkers who have taken over Rousseau’s view that a man who is forced to obey the General Will is thereby “forced to be free” and employed it in the sense to which Berlin objects to justify his criticism. If Kant and Green were cautious, other English Idealists, among them Bernard Bosanquet, were less so. The third target is, of course, the doctrine of the unity of the good, on which most theories of a “real” or “true” self depend. The good is what our true self is drawn to; removing obstacles—hindrances to the good

life, as the Idealists put it—is to increase our freedom. To this Berlin opposes his well-known insistence on moral pluralism. Not all goods are consistent with one another; we often have to choose one and reject another in the absence of any compelling argument that we have made the right choice. This is neither relativism nor simple scepticism; Berlin insists that the incompatible goods he has in mind are genuinely goods, and the loss involved in rejecting one or another is a genuine loss. Certainly, there is a degree of skepticism here, but no more than the moderate skepticism of Hume’s moral theory. The crucial point is negative: the rationalist who insists that there must be some way of ranking goods in such a way that there is always a right answer to the question, “what should I do; how should I live?” is wrong. This is why “From Hope and Fear Set Free” contains, as Berlin thought, the underpinnings of Berlin’s extended argument in “Two Concepts”. The somewhat disparate nature of the targets of Berlin’s criticism re ects the fact that there are many moral and political theories that subscribe to the view that there is, or must be, one right answer to moral and political dilemmas. What they have in common is that they are wrong. Curiously, one of Berlin’s closest friends and interlocutors, Stuart Hampshire, who devoted many years of a long and distinguished intellectual career to a sympathetic engagement with Spinoza, the archetype of the rationalist that Berlin had in his sights, was as much a pluralist as Berlin on the issue of what kind of life was most worth leading. Hampshire held that we could reasonably expect to converge on principles of justice, but not on the larger questions of “how to live.” Self-understanding is not to be despised, however; we may hope to free ourselves from irrational miseries and fears, thereby achieving the limited, somewhat teeth-gritted, goal that Freud memorably described as the replacement of neurotic misery by ordinary unhappiness. On that, Berlin and Hampshire probably saw eye to eye. It was the totalizing expansion of those aims that Berlin rejected. What, then, was the liberalism that Berlin espoused in “Two Concepts” and elsewhere? Brie y, it was negative in being a liberalism of fear; violence and gratuitous cruelty were great and obvious evils. More interestingly, perhaps, what was to be eschewed was a politics that allowed individuals to be deployed as the raw material of schemes to which they did not consent. Herzen’s question, “are we to tell the present generation that they are sad caryatids supporting the dancing oor of the future?” animated this negative liberalism. I have said elsewhere that “no sad caryatids” might well be taken as the motto of Berlin’s liberalism (Ryan 2015:318; 2016:123). It is worth noting in passing that Berlin’s individualism was very unlike that of American libertarians who rest individual inviolability on a conception of self-ownership that Berlin never found persuasive. Given the centrality of the thought that we must have a wide range of acceptable options to choose from before we can reasonably be said to be free, he was amenable to the idea that even if the redistributive e orts of a moderate welfare state limited the freedom of the best endowed to do just what they chose with their resources, it might nonetheless increase freedom overall. How one could be sure that this had been achieved was another matter; we had to make rough and ready estimates of gains and losses, but no precise metric was to be had. Even if there was no way of knowing whether freedom overall had been enhanced, Berlin’s pluralism sustained the thought that humanitarian and communitarian goals might well justify some trimming of the freedom of the powerful and rich. The old slogan, “freedom for the pike means death for the minnow” was one whose force he felt. If Berlin’s theory of negative liberty is not libertarian “let alone” so much as “no sad caryatids,” what of the positive face of freedom? There is little help to be had from Berlin himself, for the very good reason that there is no one form of life that a free person will wish to follow, and Berlin was not eager to instruct others in how to live. What has sometimes been complained of as an aesthetic liberalism, which valued the picturesque qualities of human life without an adequate assessment of the costs of rich and vivid ways of life to those who led them, re ected his sense that where people were not bullied, starved, manipulated, or bamboozled, they would spontaneously lead diverse and interesting lives. It is in that sense that Berlin’s liberalism is optimistic as well as defensive. It is also in that sense that Berlin’s liberalism contrives to be both political and apolitical at the same time. The importance of political liberalism in something like the sense in which Rawls understood it is that in the absence of a regime in which the usual liberal rights are

accepted and enforced, we are vulnerable to both o

cial and private oppression; but political engagement

in itself has no priority over other forms of activity. Pericles was wrong, if not about his fellow Athenians, at least about us.

References Berlin, Isaiah. 2002. Liberty: Incorporating Four Essays on Liberty. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Hayek, Friedrich A. 1979. The Counter-revolution of Science: Studies on the Abuse of Reason. Indianapolis: Liberty Press. Google Scholar Google Preview WorldCat COPAC Ryan, Alan. 2015. “Berlin, Isaiah [1909–98].” In The Encyclopedia of Political Thought, edited by Michael T. Gibbons. Chichester, West Sussex, UK; Malden MA: Wiley Blackwell. Google Scholar Google Preview WorldCat COPAC Ryan, Alan. 2016. “Isaiah Berlin, J. S. Mill, and Progress.” In Isaiah Berlin and the Enlightenment, edited by Laurence Brockliss and Ritchie Robertson. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC

Notes 1

First published in Foreign A airs, by Oxford University Press, by the Council of Christians and Jews, and by Oxford at the Clarendon Press, respectively.

2

As always, caution is required; Berlin was a close friend of Patrick Gardiner, whose The Nature of Historical Explanation espoused a covering law account. Gardinerʼs account in fact needed only “rule of thumb” generalizations to provide the “covering,” rather than strict causal laws.

3

The irony of Berlinʼs reliance on the goodwill of both the Ford and Wolfson Foundations in establishing Wolfson College is too obvious to note.

4

Silent about the war, that is to say; his Romanes Lecture on Turgenevʼs Fathers and Children was a strikingly long-drawnout expression of his own ambivalent reactions to the young students who criticized his silence.

5

Quoting Helvetius.

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

James Buchanan and Gordon Tullock, The Calculus of Consent  John Thrasher, Gerald Gaus https://doi.org/10.1093/oxfordhb/9780198717133.013.25 Published: 06 November 2017

Abstract The Calculus of Consent: Logical Foundations of Constitutional Democracy is a groundbreaking work in democratic theory. This chapter argues that it is of continued relevance today, due both to its methodological innovations and its use of those innovative techniques to solve the fundamental problem of democratic justi cation. In Calculus, James Buchanan and Gordon Tullock fuse economic methods, political theory, and the normative project of showing how democratic institutions of a particular sort can be justi ed contractually, creating a unique form of democratic contractualism that came to be known as “Constitutional Political Economy” and the more general research program of “Public Choice Theory.” Although these pioneering techniques have been integrated into mainstream political theory, the interest of their normative project has not been similarly appreciated.

Keywords: James Buchanan, Gordon Tullock, contractualism, democratic theory, constitutional political economy, public choice theory Subject: Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

In the preface to The Calculus of Consent: Logical Foundations of Constitutional Democracy (hereafter Calculus), James Buchanan and Gordon Tullock describe their work as a “fence-row” e ort, an attempt to work the soil closest to the disciplinary fence between political theory and economics (xv). But, as Peter Ordeshook has argued, Calculus was not mere working on the disciplinary boundaries, it “sought to destroy” them (2012, 424). The public choice school that Buchanan and Tullock launched with Calculus, along with the spiritually similar work of William Riker and his followers, has largely accomplished the work of dissolving many of the disciplinary boundaries between economics and political theory. If this were all that Calculus accomplished, it would be critical in the history of political thought but not a classic in the sense that it should still be read and studied today. Its enduring interest is not in its methodological innovations, but rather in the more fundamental innovation of developing a formal

democratic theory in a contractarian philosophical framework anchored in comparative institutional analysis. As we hope to show, there is still much to learn from this analysis.

The Foundations of Democratic Justification Calculus advances new methods in an attempt to solve an old problem: the problem of democratic justi cation. While democracy claims to be the “rule of the people” in any actual democratic system we actually nd the rule of some people over others. More formally, the winning coalition in any election is able to impose its authority on the losers. This is true however large the majority happens to be, and however small the minority is, unless the vote is unanimous; and even then, there may be an excluded minority of those who did not or could not vote. Yet at the heart of the democratic ideal is the principle that all are inherently free and equal, with no natural authority to rule over one another. How odd then to start from freedom and equality and end with majority coalitions imposing their policies on minorities merely because they have the numbers to do so. Once we see this oddity we are confronted with the question: how could the authority of democratic assemblies over free and equal persons be justi ed? This is the problem of democratic justi cation, a problem that animates Calculus. Buchanan and Tullock sought to solve this fundamental problem through a form of contractual constitutionalism. Their innovation is to do seek to do so without presupposing de nite answers to enduring philosophical or ethical questions, such as whether more freedom or equality is better than less. Instead, they adopt a contractual framework that assumes only that individuals are rational: they will only consent to institutional rules that are likely to be as bene cial as any alternative. This allows Buchanan and Tullock to model unanimous consent as a contractual agreement on rules that everyone in society would have reason to endorse. By modeling democratic justi cation contractually, Buchanan and Tullock also capture the idea of “rule of the people,” without invoking any conception of a “general will.” This point helps to identify what Buchanan and Tullock see as the proper target of agreement: the rules by which we will make future decisions, a constitution. Their rational individuals know that they will need rules, enforcement mechanisms, and a way to make new rules or change old ones. The meta-rules that govern each of these can be understood as the fundamental constitution of a society. The key elements of their approach then are: (a) the assumption of rational individualism and (b) the linking of unanimity as a democratic concept with the economic concept of Pareto e

ciency (14). Surprisingly, these weak

assumptions produce a conclusion for a unique constitutional system based on super-majority rules.

Logrolling and Contractarianism A feature of Calculus typically missed is its optimism. Public choice theory is commonly characterized as anti-democratic, or as undermining faith in the democratic process (Barry 1989; Christiano 1996, 2004). Rightly understood though, Calculus is an almost giddy endorsement of democracy (of a speci c form) in the face of what looked like dire prospects for democratic theory. In the wake of Arrow’s impossibility theorem, it was unclear whether democracy could be rationally justi ed at all (Riker 1982). Many believed that Arrow had shown that no rule for collective social choice, no voting rule, could be both collectively rational and fair. Buchanan and Tullock dissented from this mainstream interpretation of Arrow’s theorem in their preCalculus work. The error, they claimed, was at the heart of Arrow’s approach to understanding collective choice. It is a mistake, Buchanan argued, to think of democratic institutions as mechanism for aggregating 1

individual preferences into some coherent collective choice (Buchanan 1954a, 1954b). Collectives are not

individuals and, as such, there is no obvious reason that they should be bound by the consistency 2

constraints of individual rationality. In later work Tullock pursued a di erent route, arguing that Arrow’s general possibility theorem was “generally irrelevant” because of the role that institutions, agenda setters, and, most importantly, logrolling have on making collective social choice possible (Tullock 1967). Calculus developed these basic insights, applying a methodologically individualist analysis to collective choice, thus making pellucid the importance and dynamics of democratic practices such as logrolling. The starting point for political analysis is the sometimes cooperating, sometimes con icting, wills and interests of individuals. The essential function of democratic institutions is to induce mutual gains by resolving con icts through exchange. As Tullock argues in his appendix to Calculus, “logrolling eliminates the basic problem” of democratic aggregation, at least as it concerned Arrow and his predecessors (Tullock 1999, 333). Logrolling can introduce additional information about the relative intensity of preferences. This information can be used by individuals to trade a vote on an issue on which they have little at stake for a vote on a matter they care more about. The idea is that I will be willing to help you secure passage of proposal A, which matters little to me, if you help me secure proposal B. By linking votes on di erent issues, it is possible to nd agreement by exchange where before there was none. This expands the possibilities of forming a winning coalition on any particular issue, changing the model of democratic aggregation from a static one of taking given binary preferences and generating a collective ordering (a model that Arrow showed would be either unfair or incoherent) into a dynamic process of adjustment and compromise wherein preferences of di erent intensities over di erent issues can be linked though trade (Thrasher 2016). Here we have the beginning of what Buchanan would call “politics as exchange” (Brennan 2012). Buchanan and Tullock commence by putting aside the traditional questions of political inquiry: “Political theory has concerned itself with the question: What is the State? Political philosophy has extended this to: What ought the State to be? Political ‘science’ has asked: How is the State organized? None of these questions will be answered here” (Buchanan and Tullock 1999, 3). They argue that they are not concerned with what “the State or a State actually is” or even what the state ought to be, but with “what we think a State ought to be” (1999, 3). Note they are not seeking to show what the state ought to be or do, full stop—a normative theory of the state from a sort of Archimedean perspective. Instead, the aim is to present a model of how “we”—the constituent individual actors, with their own goals and concerns—could consent to rules that provide a framework for their interactions. Calculus is, rst and foremost, an attempt to develop a method of justifying constitutional institutions to individuals who have no antecedent reason to endorse any particular constitutional structure. Political philosophy changes from a project of justifying the authority of the state, or one’s obligation to the state, to an understanding of how political rules can be based on consent, and politics transformed into exchange. This constitutional focus is at the heart of the book’s distinctive contractarian method. Constitutions are the fundamental rules that govern collective choice, rules specifying how we make further rules. Contracting about constitutions is deciding how to decide. This contrasts with contemporary moral and political philosophy, which typically sees the contractual device as revealing what is truly, from the impartial perspective, just (e.g., Scanlon 1998). Calculus interprets the social contract in empirical and dynamic terms, about what types of constitutions can emerge given certain sorts of agents. The striking innovation of this project is the cross-fertilization of democratic theory and contractarianism. Not only can a contractarian method show how democratic governance can be justi ed, techniques from actual democratic institutions (most notably logrolling) are shown to solve a thorny problem in contractarian theory. As Rawls later wrote, a “normalization of interests” is typical in social contract theories (2007, 226). That is, it is supposed that, to secure agreement, the diversity of the parties must be reduced. If the parties are too diverse, it is supposed, their disagreements will swamp the basis for contractual consensus. The social contract would thus seem impossible. To obviate this, Rawls homogenizes the utility functions of the parties in the original position by introducing primary goods, which all value the

same (Gaus and Thrasher 2015). In that case, choice in the original position becomes functionally identical to the choice of one person over prospects. This approaches makes it possible to achieve “agreement” (there is, after all, only one person left!), but at the sti

price of the thorough homogenization of contracting

agents. Buchanan and Tullock set out to show that a society composed of diverse individuals could nd enough common ground to endorse at least one constitutional form; so they must avoid both (a) introducing so much diversity into the contractual process as to make agreement impossible and (b) securing agreement by homogenizing individuals. They navigate between these extremes by relying on logrolling, a core idea we have already considered. Logrolling allows one voter to o er “side payments” (deals about votes on other issues) to another, rendering agreement possible. Rather than being eliminated, diversity is commensurated through what amounts to political exchange. As in the market diverse interests and preferences are satis ed through trade. In Calculus individual, often con icting, wills and interests are thus the starting point. This “contractual turn” in political theory is a departure from what Buchanan calls the “organic” approach to politics, which takes the collective will or collective good as the unit of analysis. The question is how to identify the possibilities of nding agreement over the basic political institutions, rather than showing that a particular institutional arrangement is uniquely good by some external standard of goodness or utility.

Individualism and Constructivism To understand how a “politics as exchange” justi cation of a democratic constitution works, however, we need to look at how the individuals—the parties to the agreement—are modeled. Rawls’s method of “normalizing” disagreement leaves us with impersonal parties who are so similar that they can be modeled as a single rational chooser: the real problem of choice given diversity is abstracted away. Buchanan and Tullock need to show their contractarianism yields agreement without homogenization. Without this Calculus will not be able to solve the problem of democratic justi cation. It is critical to keep in mind that the problem of deep individual di erence is part and parcel of their individualist approach. This problem does not arise on “an organic conception” of the state. “If an organic conception of the state is accepted, the theory of collective choice-making is greatly simpli ed. The collectivity becomes an individual, and the analyst need only search for the underlying value pattern or scale which motivates independent State action” (11). That is, a state conceived as a super-individual or entity not reducible to the individuals who make it up (11). There are many versions of such organicism in the history of political philosophy, but their references to “German political philosophers” and the “general will” suggest that they have in mind those in uenced by Hegel and Rousseau (12). According to this version of organicism, individuals cannot be understood as existing outside of a social reality that reaches its perfect form in the modern nation-state. Buchanan and Tullock argue that this conception of the state is antithetical to the liberal tradition and especially to democracy. More generally, any conception of 3

democracy relying on a “collective will” is suspect.

In Calculus the decision-making of a collective must be reduced to the individuals who compose it, and normatively, the value of the collectivity must be reduced to the satisfaction of individual purposes that rules and institutions promote. As Buchanan and Tullock argue, “analysis should enable us to determine under what conditions a particular individual in the group will judge a constitutional change to be an improvement; and when all individuals are similarly a ected, the rule of unanimity provides us with an extremely weak ethical criterion of ‘betterness,’ a criterion that is implicit in the individualist conception of the State itself” (14, emphasis added). They thus develop a rational justi cation of a system of collective choice that is ultimately grounded only on the value of system to the individuals who employ it.

Articulating this individualistic contractarian standard requires an account of the individuals who compose their model society and their standards for rational choice: “[T]he separate individuals are assumed to have separate goals both in private and social action. The goals may or may not be narrowly hedonistic. … We need make no speci c assumptions concerning the extent of equality or inequality. …” (15). The model does 4

not assume “Homo economicus,” motivated solely by self-interest (17). Their model of rational agency is more general, insisting only that agents prefer more rather than less of whatever they value. Given this, the only possible justi cation of a political order is one that appeals to the rationality of those who are to live under those rules. Here we see an intimation of the public reason tradition developed by Rawls and others, or at least one important aspect of it. Individuals endorse rules because they view them as the least expensive way to achieve the collective and individual goods that social cooperation provides. Justi cation must appeal to individual rationality, not because of strong assumptions of moral freedom and equality, but because the individualistic postulate leaves us with no other possible justi cations. This basic individualistic approach of Calculus applies to both the economic and political spheres: the political and economic agent is the same person. Calculus thus rejects a traditional assumption that in social or collective matters individuals are moved wholly or mostly by the public interest or common good. Buchanan and Tullock insist this bifurcation of agency is untenable: it is psychologically unlikely that individuals can pivot from their individual point of view to a collective point of view (19). People are people and choices are choices, be they moral, political, or economic. Individuals will choose rationally, or rather we should model them as rational choosers, whatever the object of choice. The psychology of the individual should, according to Buchanan and Tullock, be invariant across di erent choice contexts. This psychological claim is open to doubt. People often behave di erently in di erent contexts (Nisbett and Ross 1991). A man may act and think di erently, for instance, in his role as a father and as a citizen. Stanley Benn argues that this phenomenon is a central part of our moral psychology (1988, ch. 3). The important point, however, is not so much a matter of psychology but of rational consistency. A plausible model of human agency certainly should not suppose a sort of schizophrenia, acting in one way in private and being another person in public. But this is only a problem if, as we have argued is mistaken, private individuals are assumed to be inherently self-interested, and they must shed their self-interest when entering the public arena. This thin model of rationality, taken largely from economic theory, allows both that one may rank various political, economic, moral, and personal outcomes in a variety of ways, and that this ranking, because consistent, can be represented as a unitary utility function. To contextualize the utility functions of a chooser then will not necessarily render his choices inconsistent; it will though make the evaluation of the rational choice exceedingly di

cult (Sen 1993). Constitutional

choice is all about evaluating di erent contexts or institutional settings for rational choice. If the agent’s choices change substantially from context to context there will be no xed point from which to evaluate the rational thing to choose in changing institutional contexts. To usefully model constitutional choice, it thus greatly simpli es matters to assume agents with xed, decontextualized, globally consistent, utility functions. Rawls does the same thing by radically decontextualizing choice in the original position via the introduction of the “veil of ignorance.” Buchanan and Tullock introduce a “veil of uncertainty” in 5

constitutional choice, leading choosers toward more general rules. Because an individual will be uncertain about the e ects that particular rules will have on him or his group in the future, “his own self-interest will lead him to choose rules that will maximize the utility of an individual in a series of collective decisions with his own preferences on the separate issues being more or less randomly distributed” (78). Once we understand politics as simply a mechanism for diverse individuals to secure bene ts, we immediately confront the inevitability of some seeking to bene t themselves at the expense of others. “It is precisely the recognition that the State may be used for such purposes which should prompt rational individuals to place constitutional restrictions on the use of the political process. Were it not for the

properly grounded fear that political processes may be used for exploitative purposes, there would be little meaning and less purpose to constitutional restrictions” (13). Political institutions are thus understood as a “machine” or “artifact” that allows individuals to pursue their interests in collective choices. The regulative goal of designing such a machine is enhancing the outcomes for the individuals living under them, both in securing these goods and avoiding exploitation. Individuals bear the costs and capture the bene ts of political institutions, so comparisons can only be made on the basis of the cost and bene ts of outputs to individuals. If rules are to e ectively constrain behavior, rational individuals must conform to them, even when doing so thwarts their interests. This threatens the enterprise of Calculus with the traditional compliance problem for contractarian theories (Gaus 2011, ch. 2). Individuals may be able to rationally choose various rules on the basis of how those rules will bene t them, but it is a conceptually separate question whether they will nd it rational to follow those rules once they are in place. Hobbes’s Foole is the classic example of someone who knows the rules and can see their point, but doesn’t see reason to comply when they instruct him to refrain from pursuing his interests. This compliance problem plagued later contractarian theorists such as David Gauthier (1986, ch. 6), leading him to introduce a revisionist conception of individual rationality—one that guaranteed that rational individuals would not follow the example of the Foole. Buchanan and Tullock do not take this revisionary route; insofar as they address this issue at all, they assume that compliance can be ensured by institutional incentives and punishments, changing the payo s so that even Fooles will usually 6

see the wisdom of compliance.

Consent and E iciency Calculus judges a proposed political system or reform to be “optimal” if all would endorse the system or reform as an improvement. We are thus led to the familiar Paretian conception of e

ciency in economics,

but given a revised interpretation in the political, constitutional context. In traditional economic theory, institutions are taken as given, exogenous, constraints and the evaluation of optimality proceeds from that starting point. If a change in allocation improves the condition of at least one person by her own lights without making anyone else worse o

(by their lights), the change improves e

ciency (it is Pareto

superior); when no such changes can be made, the allocation or state of a airs is e

cient (it is Pareto

optimal). This approach is inappropriate in comparative institutional analysis, however, because in this context we cannot assume that the change in allocations takes place against xed institutional background conditions. Indeed, it is changes in those very institutional parameters that the individual is evaluating. The Pareto standard in Calculus is thus merely a representation of voluntary or consensual choice: if all would agree to move from constitution A to B, then B is Pareto superior. It is not supposed that individuals value e e

ciency in itself; they do not choose an option because it is

cient—it is not an individual or collective goal. A constitution is Pareto optimal simply because no other

feasible constitution would be chosen by everyone (or, somewhat more precisely, there is no other feasible constitution which at least one person would choose to adopt and to which all others are indi erent). This demand for unanimity expresses a respect for individuals and their aims: no collective decision is justi ed if it renders any individual worse o . The manifest problem is that the decision costs of securing unanimity are excessive. Achieving unanimity in any deliberative body has high “transaction costs”: individuals have an incentive to strategically hold out or form coalitions to improve their bargaining power. Calculus shows how we can capture many of the bene ts of unanimity without incurring these costs. This solves the problem of democratic justi cation by showing how every person in a given society would choose a constitution that operationalized unanimity. The key here is that collective choice procedures impose costs as well as delivering bene ts. A simple majoritarian

rule makes it relatively easy to collectively decide, say, to secure a public good, but the majority might secure much more of the good than some minority desires, leaving the outvoted minority with additional costs in terms of higher taxation or borrowing to purchase more of a good than they wanted—a sort of forced purchase. On the other hand, if the rule makes it too hard to reach agreement, we incur high negotiation costs, which might be so high as to entirely block securing the public good. In order to balance these costs, Buchanan and Tullock maintain that rational individuals would unanimously agree to endorse a non-unanimous collective choice rule—but not the majority rule. This leads us to one of the most famous graphs in political philosophy:

Figure 1

Buchananʼs and Tullockʼs Cost Curves We see that if N voters are required for passage (unanimity) the “external” costs that one group can impose on another are zero: if everyone must agree, then we are assured that if there is any move it will be Pareto superior. But the “internal,” decision-making, costs are very high. If we wish to minimize both costs, we should adopt a “k rule,” where k is typically greater than N/2 +1 but less than N. That is, a supermajoritarian collective choice rule. Calculus’s defense of a super-majority rule for collective choice can be seen as an attempt to devise a workable approximation of unanimity—what might be called “practical Paretianism” (Gaus 2011, 538– 545). Much of Buchanan and Tullock’s analyses of logrolling and bicameralism are exercises in practical (approximate) Paretianism. The other side of this practical Paretianism is a rejection of simple majoritarianism. We can see from Figure 1 that there is no reason to think that net costs will be minimized at N/2 +1, majority rule. According to Buchanan and Tullock, “majority rule has been elevated to the status which the unanimity rule should occupy” (1999, 96). Like Kenneth May (1952), Buchanan and Tullock argue 7

that there is one and only one uniquely justi able collective choice rule. Unlike May, however, the rule they justify is not simple majoritarianism. At best, they argue, majority rules should be seen as a possible alternative to unanimity only if the “cost of securing widespread agreement” on contentious political issues is especially high (96). Importantly, as they later show, “without side-payments, there is nothing in any particular voting rule to insure collective decisions will move the group to the Pareto-optimality surface or that such decisions will keep the group on this surface once it is attained” (189). In this context, a “sidepayment” is some additional advantage that “sweetens” the initial deal for some parties, raising them at least to the level of indi erence between any proposed change and the status quo. Majority voting, or indeed any form of voting, cannot be justi ed along Paretian lines without the possibility of side-payments or logrolling. Indeed any voting rule (including dictatorship) that involves full side-payments leads to Pareto

optimal collective decisions. That is, given a large enough package of side-payments any collective decision, no matter how many external costs are imposed, can be choice-worthy so long as the side-payments o set the external costs of the decision. This trivially follows from requiring full side-payments, but it is nevertheless enlightening. From the point of view of Paretianism, the mechanics of a voting system are not as important as system’s distribution of costs. If all costs must be compensated the system will always tends toward Pareto optimality; if costs need not compensated, it will not. An implication is that any non-unanimity rule will tend to impose uncompensated costs on some individuals: all such rules allow the losers to bear uncompensated costs. Here again, we see the conceptual link between the institutional unanimity rule, the Pareto standard, and consent. This point becomes more important when we look at the institutional evaluation of di erent collective choice rules.

Constitutional Political Economy The central model of Calculus constitutes an answer to the question: “when will an individual member of the group nd it advantageous to enter into a ‘political’ relationship with his fellows?” (43–44). Note that Buchanan and Tullock do not ask when collective action should be pursued, or when we should engage in collective action, but when an individual will think it is valuable or rational to resort to politics. An important feature that distinguishes Buchanan and Tullock from their contemporaries, especially Rawls and Harsanyi, is their “cost model” of collective choice. When engaging in collective action a rational individual seeks to maximize net bene ts: to secure the maximum bene ts at the minimum feasible costs, involving both decision-making and external costs (44). One may want to decrease the costs that other individuals may impose through activities like theft is by hiring police. This reduces the external costs imposed by other individuals—one of the “externalities” of social life. One may also want to secure a bene t that is di

cult or impossible to achieve alone, for instance a public good like clean water or improved roads.

The central question of Calculus is how to minimize the cost associated with collective life for each individual in society through collective choice rules or, better, constitutional rules embodied in institutions. This approach is importantly di erent from the traditional way of justifying collective action found in most contractarian theories. These theories tend to model justi cation as a rational choice based on the relative bene ts of competing alternative regimes of rules or collective choice procedures. In the Rawlsian original position, for instance, the choice of ideal regime types is based on the attractiveness of the system’s distributive outcomes as judged from the view of a representative person’s (and her descendants’) life prospects, as measured in terms of “primary goods,” such as income, wealth, and opportunities. In their di erent ways the contractual choice procedures of John Harsanyi (1958, 1982), David Gauthier (1986), and Ken Binmore (1994, 1998, 2005) also take up this ideal distributive perspective. The problem, as Buchanan and Tullock point out, is that purely distributive variations in institutional frameworks cannot be evaluated by a unanimity rule (201). Individuals can evaluate a proposed change only given some starting point in utility space; they cannot meaningfully evaluate two di erent possible utility spaces (or distributions) from “nowhere” in terms of Pareto optimality. A starting point must be picked—we can only go up or down in reference to a baseline. Any Pareto-superior move is justi ed, but a move from one Pareto optimal distribution to another will be worse for someone. Buchanan and Tullock’s analysis commences with zero costs on the choosing individual: political association imposes no costs on them. This is their baseline for evaluating whether individuals have reason to want to engage in collective choice. The cost model claims that individuals will choose institutional collective choice rules (constitutions) that will be most likely to reduce the costs that others can impose on them while maximizing bene ts from collective action. As we saw a unanimity rule tends to prevent the

imposition of external costs in collective choice, but the process itself is costly. Majority rule externalizes costs from the decisive majority to the minority (and generally oversupplies collective goods, the costs of which the minority must partly bear). The optimal rule minimizes both types of costs and will, therefore, be uniquely justi able to rational individuals, supposing that they cannot be certain whether they will be in the majority or minority. Any political decision to move from one state of a airs (which entails a distribution) to another inevitably involves the creation of costs as well as bene ts: the aim of constitutional choice in Calculus is to devise rules that allow individuals the opportunity to pursue the bene ts of collective action while, as far as possible, minimizing the costs. Anarchy is expensive, but so is leviathan. Calculus seeks a middle path between these two extremes that can complete the Madisonian task of establishing constrained institutions of collective choice. Buchanan and Tullock seek to do so through “politics as exchange” (Brennan 2012). If suitably constrained by Paretoapproximating institutions, politics is mutually bene cial, creating positive “gains from trade” that the possibility of peaceful social life allows. Constitutions that allow for politics as exchange provide a framework for mutually bene cial improvements, and obtain consent from rational individuals living under them. The normative project that comes out of Calculus is to employ the Pareto criterion to evaluate whether institutional structures are improvements from the status quo or a no-cost baseline. Buchanan and Tullock thus present a plausible claim to have solved the problem of democratic justi cation: each person in a society, no matter how diverse, will have reason to endorse and follow one and only one type of constitution, one that implements the unanimity rule in the way that they have described.

Conclusion Calculus’s project is to solve one of the deepest and thorniest problems of political theory, that of democratic justi cation. It has been, and remains, a controversial project. Calculus was instrumental in launching the constitutional political economy research program that has borne fruit in political science, economics, and political theory. A large part of the current work in public choice is dedicated to showing the bene ts and drawbacks of various institutions from the point of view of unanimity. This is practical Paretianism in its most detailed and sophisticated form. This approach to political theory and political economy follows directly from Buchanan’s claim that political theorists should not tell us “what the state should be” but instead should develop a positive theory that can work hand in hand with normative evaluation. In Calculus, Buchanan wrote: Normative theory must be erected upon and must draw its strength from the propositions of positive science, but it is only when this extension of normative theory is made that “reform” in existing institutions can be expected to emerge from specialized scholarship. Indeed the only purpose of science is its ultimate assistance in the development of normative propositions. We seek to learn how the world works in order to make it work “better,” to “improve” things: this is as true for physical science as it is for social science (306). Even if one disagrees with the substantive claims in Calculus, and even if one isn’t con dent that Buchanan and Tullock successfully solved the problem of democratic justi cation, the method and approach to political theory on display in Calculus is its true legacy. Despite the fact that much of has been incorporated into the mainstream, there is still a tremendous amount one can learn from Calculus.

References Arrow, Kenneth J. 1963. Social Choice and Individual Values. Revised Edition. New Haven: Yale University Press. Google Scholar Google Preview WorldCat COPAC Barry, Brian. 1989. Theories of Justice. Berkeley: University of California Press. Google Scholar Google Preview WorldCat COPAC Benn, Stanley I. 1988. A Theory of Freedom. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Binmore, Ken. 1994. Game Theory and the Social Contract, Vol. 1: Playing Fair. Cambridge, Mass: The MIT Press. Google Scholar Google Preview WorldCat COPAC Binmore, Ken. 1998. Game Theory and the Social Contract, Vol. 2: Just Playing. The MIT Press. Google Scholar Google Preview WorldCat COPAC Binmore, Ken. 2005. Natural Justice. New York: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Brennan, Geo rey. 2012. “Politics-as-Exchange and the Calculus of Consent.” Public Choice 152(3–4): 351–358. Google Scholar WorldCat Buchanan, James. 1954a. “Social Choice, Democracy, and Free Markets.” Journal of Political Economy 62(2): 114–123. Google Scholar WorldCat Buchanan, James. 1954b. “Individual Choice in Voting and the Market.” Journal of Political Economy 62(4): 334–343. Google Scholar WorldCat Buchanan, James and Geo rey Brennan. 2000. The Reason of Rules, Vol. 10: The Collected Works of James M. Buchanan. Stanford: Liberty Fund Inc. Google Scholar Google Preview WorldCat COPAC Buchanan, James and Gordon Tullock. 1999 [1962]. The Calculus of Consent: Logical Foundations of Constitutional Democracy. Volume 3 of the Collected Works of James Buchanan. Indianapolis: Liberty Fund. Google Scholar Google Preview WorldCat COPAC Christiano, Thomas. 1996. The Rule of the Many: Fundamental Issues in Democratic Theory. Boulder Colo.: Westview Press. Google Scholar Google Preview WorldCat COPAC Christiano, Thomas. 2004. “Is Normative Rational Choice Theory Self-Defeating?.” Ethics 115(1): 122–141. Google Scholar WorldCat Gaus, Gerald. 2010. “The Limits of Homo Economicus: The Conflict of Values and Principles.” In Essays on Philosophy, Politics & Economics: Integration & Common Research Projects, edited by Christi Favor, Gerald Gaus, and Julian Lamont, 37–68. Stanford: Stanford University Press. Google Scholar Google Preview WorldCat COPAC Gaus, Gerald. 2011. The Order of Public Reason: A Theory of Morality and Freedom in a Diverse and Bounded World. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Gaus, Gerald. 2012. “Constructivist and Ecological Modeling of Group Rationality.” Episteme 9(3): 245–254. Google Scholar WorldCat

Gaus, Gerald. 2018. “It Canʼt Be Rational Choice All the Way Down: Comprehensive Hobbesianism and the Origins of the Moral Order.” In Tensions in the Political Economy Project of James M. Buchanan, edited by Peter Boettke, Virgil Storr, and Solomon Stein. Arlington, VA: Mercatus Center. Google Scholar Google Preview WorldCat COPAC Gaus, Gerald and John Thrasher. 2015. “Rational Choice in the Original Position: The (Many) Models of Rawls and Harsanyi.” In The Cambridge Companion to The Original Position, edited by Timothy Hinton, 39–58. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Gauthier, David. 1986. Morals by Agreement. Oxford: Clarendon Press. Google Scholar Google Preview WorldCat COPAC Harsanyi, John. 1958. “Ethics in Terms of Hypothetical Imperatives.” Mind, July, 305–316. WorldCat Harsanyi, John. 1982. “Morality and the Theory of Rational Behavior.” In Utilitarianism and Beyond, edited by Amartya Sen and Bernard Williams, 39–62. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC List, Christian and Philip Pettit. 2011. Group Agency: The Possibility, Design, and Status of Corporate Agents. New York: Oxford University Press. Google Scholar Google Preview WorldCat COPAC May, Kenneth O. 1952. “A Set of Independent Necessary and Su icient Conditions for Simple Majority Decision.” Econometrica 20(4): 680–684. Google Scholar WorldCat Nisbett, Richard E. and Lee Ross. 1991. The Person and the Situation: Perspectives of Social Psychology. Philadelphia: Temple University Press. Google Scholar Google Preview WorldCat COPAC Ordeshook, Peter C. 2012. “The Calculus of Consent: Reforming Political Science.” Public Choice 152(3–4): 423–426. Google Scholar WorldCat Rawls, John. 1958. “Justice as Fairness.” The Philosophical Review 67(2): 164. Google Scholar WorldCat Rawls, John. 2007. Lectures on the History of Political Philosophy. Edited by Samuel Freeman. Cambridge, Mass: Belknap Press of Harvard University Press. Google Scholar Google Preview WorldCat COPAC Riker, William. 1982. Liberalism Against Populism: A Confrontation Between the Theory of Democracy and the Theory of Social Choice. Reissue. Long grove, Il: Waveland Press. Google Scholar Google Preview WorldCat COPAC Scanlon, T. M. 1998. What We Owe to Each Other. Cambridge, Mass: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Sen, Amartya. 1993. “Internal Consistency of Choice.” Econometrica 61(3): 495–521. Google Scholar WorldCat Thrasher, John. 2016. “The Ethics of Legislative Vote Trading.” Political Studies 64(3): 614–629. Google Scholar WorldCat Tullock, Gordon. 1967. “The General Irrelevance of the General Impossibility Theorem.” Quarterly Journal of Economics 81(2):

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Notes 1

Arrow responds in the second edition version of Social Choice and Individual Values, arguing that Buchanan has misunderstood him and that his “confusion” is the result of substituting “verbal quibbling for genuine argument” (Arrow 1963, 107, n42). The consensus seems to be that Arrow is correct in this respect. Notably though, Amartya Sen agrees with Buchanan that an external “collective rationality” condition was an assumption of Arrowʼs original theorem (Sen 1993, 503–504).

2

Interestingly, recent trends in social choice theory and political theory have started to argue in favor of viewing collectives as individuals and of attributing rationality constraints to their collective judgments, see in particular List and Pettit (2011). For criticism of this approach see Gaus (2012).

3

They single out early social choice theory as resting on this mistake (12; see also Buchanan (1954a,b) and the text above). They also attack Marxist conceptions of politics as being based on a similar mistake, namely that politics is the vehicle for economic classes to achieve their ends.

4

Buchanan is not always clear—or perhaps consistent—about this. In some works his motivational assumption is indeed identified as “Homo economicus” who is essentially self-interested (Buchanan and Brennan 2000, vol. 10, ch. 4). Cf. Gaus (2010).

5

But compare Rawls (1958) where something like a veil of uncertainty is used as a functional equivalent for the later “veil of ignorance.”

6

In later work, Buchanan is very concerned with the human ability to rationally follow social rules. He discusses the ability to make rules for oneʼs self as a form of self-contracting, recognizing the inter-temporal problems of compliance that this ability creates (Buchanan 2000, 118–121; Buchanan and Brennan 2000, 83–91). See Gaus (2018) for a discussion of Buchananʼs analysis of norm-based preferences.

7

For May (1952), this only holds for two options.

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Judith Butler, Gender Trouble  Clare Chambers https://doi.org/10.1093/oxfordhb/9780198717133.013.59 Published: 06 June 2017

Abstract This chapter discusses Judith Butler’s Gender Trouble (GT) and its legacy in political theory. It sets out ve themes of GT: the claim that identity is always the result of power; the interplay between sex, gender, and desire; the critique of “identity politics,” including any feminism that posits a stable category of “women”; the concept of performativity; and the possibility of change via subversive performance. The chapter then goes on to discuss the major impact that GT has had on feminist theory, queer theory, trans theory, and intersectionality, along with the surprising lack of impact on theories of multiculturalism and identity theory more broadly. Finally the chapter discusses some main criticisms of the book.

Keywords: Judith Butler, Gender Trouble, feminism, performativity, identity politics, queer theory, intersectionality, gender, trans Subject: Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Judith Butler understood her argument in Gender Trouble: Feminism and the Subversion of Identity (GT) to be both feminist and deeply unsettling for feminism. As she writes in the original Preface: Contemporary feminist debates over the meaning of gender lead time and again to a certain sense of trouble, as if the indeterminacy of gender might eventually culminate in the failure of feminism. Perhaps trouble need not carry such a negative valence (xxvii). The indeterminacy is the question of how to understand gender di erence. Feminism purports to be a theory by and for women, thus premised on the notion of female identity and women’s interests. At the same time, the drive to understand gender inequality leads feminists to reject claims that women are naturally or essentially di erent from men. A dominant strategy within feminism has been to distinguish sex and gender, with sex referring to biological di erence and gender referring to cultural di erence. The distinction allows feminists to say that any essential sex di erences do not explain or justify gender

di erences, which are non-essential. But Butler wishes to attack the sex/gender distinction from a feminist 1

angle, arguing that both gender and sex are the result of politics, of discourse, and of power.

Butler’s annihilation of the gender binary and attendant sexual inequality is radical and liberating. If even sex di erence has no truth other than that ascribed to it by social norms and cultural construction, then there is no form of sex inequality immune to critique and, ultimately, to change. But GT also disrupts feminism, for if there is no pre-political or stable category of “women” then it is not clear who feminism properly represents, in whose interests it ought to work, or who has the right to attempt to answer these questions. That is to say, feminism as a movement by and for women becomes, on Butler’s account, not merely normatively problematic but internally contradictory. Feminism ghts gender oppression, but for Butler any insistence that feminism is “for women” is an insistence on the very gender binary that is the source of that oppression. The focus of GT, then, is feminism and gender, and within political theory it is feminists and queer theorists who have engaged with it. But the book has implications for all forms of identity politics. Its general claim is that identity is always the result of politics. We are constructed by our context, and the idea that some features of our selves are more signi cant than others, more coherent than others, and appropriately the subject of categorization and representation, is inherently an act of politics rather than taxonomy. Butler’s ideas are complex and nuanced but the basic insight is that there is nothing essential to the body that marks out our genitals, or our chromosomes, or our reproductive organs (rather than, say, our eye color, or the length of our femur, or the size of our heart) as the appropriate markers by which to construct an entire system of social division. Similarly, there is nothing natural or pre-political about the idea that our religious beliefs, our ancestral background, or our nationality should be the basis for representation and justice claims (rather than, say, our aesthetic preferences, our moral judgments, or our emotional responses). An identity politics grounded on, as opposed to engaging with, the notion of cultural, religious, or national identity is thus just as problematic as a feminism grounded on rather than engaging with, the notion of gender identity. In what follows I rst outline the main themes of the book and draw attention to their relevance to mainstream political theory. I then brie y note the legacy of the book within political theory, particularly feminist and queer theory. I end by considering some criticisms that have been made of the work.

The Argument of GT In what follows I outline ve central themes of GT: 1. The claim that identity, including sex/gender identity, is always the result and not the cause of power, discourse, and politics. 2. The account of the interplay between sex, gender, and desire. 3. The critique of “identity politics,” including any feminism that rests on the idea of a stable and prepolitical category of “women.” 4. The concept of performativity. 5. The account of the possibility of change via subversive performance.

No Pre-political Identity GT’s central claim is its critique of the idea of a pre-political identity, as in the “sex” half of the sex/gender distinction. Butler starts by noting that the sex/gender distinction has radical implications that are not always fully understood. If “sex” and “gender” are distinct, such that gender cannot be fully explained by reference to sex, then there is no reason why the feminine gender should always accompany the female sex, or the masculine gender the male sex. Moreover, if gender is not explained or caused by sex, there is no reason to think that there should be only two genders. If a female can be feminine or masculine, why could she not in principle be both, or neither (10)? We are limited here by language, for we have few satisfactory words for genders that are neither or both masculine or feminine. “Androgyny” is one term, but others like “butch” and “femme” remain strongly within the gender binary. The limitations of language to describe persons, actions, or experiences outside of the gender binary connects to another theme: the idea that the dominant system of gender oppression renders those persons, actions, and experiences unintelligible and unliveable. At stake, Butler argues, is not merely whether certain ways of being are respected or valued, but rather their very possibility. What sort of gender are we able to conceive ourselves as having? Is it even conceptually possible to exist outside of the dominant normative categories of male and female, masculine and feminine? As social norms shift, identities such as “gay” and “lesbian” become more recognized and possible, but other gendered attributes remain unnamed and unimagined. Butler frequently refers to this exclusion of non-traditional genders as violent (viii; cf. Chambers and Carver 2008, 78

).

The sex/gender distinction leads us, then, to the radical position that there can be more than two genders and that these genders do not need to map on to sex in any regulated way. But the argument goes further. Butler uses the work of feminist biologists such as Anne Fausto-Sterling, and radical theorists such as 2

Michel Foucault and Monique Wittig, to argue that even sex is the result of politics and of power. There are several strands to this argument. One is the denial that there are, biologically, two discrete sexes. We de ne sex using at least three di erent biological features: visible genitals, internal reproductive organs, and 3

chromosomes. In “normal” men and women these three features cohere, but there are many people,

commonly referred to as “intersex,” for whom these three features of sex are not aligned, or who have ambiguities in one or more feature (such as genitals that could be described as either a large clitoris or a small penis). It follows that the idea that there are two distinct and discrete sexes is a cultural act of naming, not a biological fact. Butler uses the work of Foucault and Wittig to explain how the categories of sex are produced through power and discourse. If there is no biological truth to the idea that there are two distinct sexes, then the act of identifying people as female or male is inherently social, and enforcing speci c norms of behavior for each sex becomes an inherently political act of power. Thus Butler follows Wittig in concluding “Because ‘sex’ is a political and cultural interpretation of the body, there is no sex/gender distinction along conventional lines; gender is built into sex, and sex proves to have been gender from the start” (144).

Interplay between Sex, Gender, and Desire How, then, are sex and gender established? For Butler, the answer must include an account of the normative role of heterosexuality. Under what other feminists might call patriarchy but Butler terms “the heterosexual 4

matrix,” heterosexuality is normatively required. Homosexuality is marked out as not merely unusual but also deviant, as a violation of some rule that is supposedly and paradoxically both biological and cultural (168). Butler argues that gender roles are established through, and at the same time as, the norms of heterosexuality.

According to the patriarchal gender binary, there are two distinct sexes, and these cause and explain two distinct genders. It is because a person is of the male sex that he will have the masculine gender, and one marker of maleness and masculinity is sexual attraction to persons of the female sex, who therefore have the feminine gender and therefore are sexually attracted to men. Sex, gender, and desire become mutually supporting and causally linked. It follows, and this is an essential part of Butler’s critique, that the gender binary is not merely sexist, it is also fundamentally homophobic. Butler emphasizes, however, that it is not a result of her argument that heterosexuality is essentially reactionary or oppressive, or homosexuality essentially subversive or liberating. She rejects political lesbianism, insofar as it is adapted as a strategy for escaping “heterosexual constructs.” Instead, she argues, “power relations continue to construct sexuality for women even within the terms of a ‘liberated’ heterosexuality or lesbianism” (39). The goal is not to escape power relations, for that would be impossible. The aim rather is to subvert those power relations that are oppressive.

Critique of Identity Politics The arguments of GT lead to a general skepticism of the idea of womanhood as fundamental to feminism. There is no such thing as a “woman” outside of the socially constructed gender binary, so to situate feminism as always-already by and for women is to fail to engage with one of the main causes of gender oppression. Butler understands this claim to be one also found in Foucault (122). Butler critiques some aspects of Foucault’s account, but she endorses the fundamental idea that a feminism that is based on identity is lacking (xxix). This idea that identity is always the result of power and of social norms is even more clearly applicable to identities such as culture, religion, and nationality. These identities are seldom thought to rest on anything so immutable as biology, so their location within politics and discourse is well-established. The general conclusions of GT thus apply just as well to these forms of identity politics: The foundationalist reasoning of identity politics tends to assume that an identity must rst be in place in order for political interests to be elaborated and, subsequently, political action to be taken. My argument is that there need not be a “doer behind the deed,” but that the “doer” is variably constructed in and through the deed (181). Relatedly, Butler sees claims of unity as conceptually awed and normatively problematic. The problem with attempting to base feminism on some supposedly stable category of women is that it can be done only at the expense of imposing an arti cial unity on that category of women, a unity which inevitably excludes certain people and renders certain deeply political matters beyond the purview of political debate.

Performativity 5

GT is perhaps best known for its use of the concept of performativity. For Butler, performativity is the way that gender is produced and maintained. If gender is not caused by biology, and if it is tied to heterosexuality only by social norms and social construction, we need an account of how an individual develops and sustains a gender identity. Butler’s claim is that gender is not a nal resting place, but something that must be constantly replenished. For Butler, “If the inner truth of gender is a fabrication and if a true gender is a fantasy instituted and inscribed on the surface of bodies, then it seems that genders can be neither true nor false, but are only produced as the truth e ects of a discourse of primary and stable identity” (174). Although gender is not the result of biological sex or some inner true identity, according to the norms of the gender binary it must appear to be so. What this means is that people must display a stable gender identity:

they must engage in a sustained gendered performance. The concept of performance captures both that gender is something that is acted rather than a revelation of an internal core, and that gender is maintained by repeated actions rather than by internal thoughts. Thus gendered enactments “are performative in the sense that the essence or identity that they otherwise purport to express are fabrications” (173). And gender must be performed in order to maintain and display it: “As in other ritual social dramas, the action of gender requires a performance that is repeated. This repetition is at once a reenactment and reexperiencing of a set of meanings already socially established; and it is the mundane and ritualized form of their legitimation” (178). These sustained and repeated gendered performances give the impression that gender is internally caused. We expect that gender “operates as an interior essence that might be disclosed, an expectation that ends up producing the very phenomenon that it anticipates” (xiv). We expect, and are supposed, to “naturally” identify with the gender to which we are assigned by society and by our visible bodily features. We thereby embrace, accept, and amplify any interests, or activities, or rules of deportment or appearance that cohere with that gender, and repress or ignore those that do not. As a result, we present a coherent gender performance, and that very performance reinforces the idea that we really are members of the performed gender. “We” is, of course, a term that replicates the normative requirements of the gender binary; there are many people who are unable or unwilling to maintain the gender performance required of them, and the “violence” done to them is one of the concerns of GT.

Change and Subversion How, then, to disrupt the gender binary? GT has been so in uential not just because it o ers an account of how sex di erence and heterosexuality are normatively maintained, but also because it o ers the potential for change and subversion. Butler famously argues that drag is one way of making explicit, and therefore undermining, the idea that gender identity is natural and stably caused by biological sex. In a drag performance, one believes that one is watching a “real” man “pretending” to be a woman. The performance is understood as a fake, a copy of a real woman performed, for laughs, by a real man. However, Butler argues that our belief that the performer is “really” a man is deeply problematic. In order for the performer to be a “real” man the performer would have to have male genitals and enact a male gender. But as he is clothed, we cannot see his genitals, and as he is performing drag, we cannot see the gender he enacts when o stage. The result is that the drag performance forces us to confront the separateness of biological sex and performed gender: “In imitating gender, drag implicitly reveals the imitative structure of gender itself—as well as its contingency” (175). GT thus presents drag as a form of subversion of the gender binary. The sense in which it is subversive has often been misunderstood, though, so that in the tenth Anniversary Preface Butler felt the need to clarify. Her claim is not that there is something shocking, transgressive, or inherently liberating about cross6

dressing that makes drag subversive. Her claim is rather that drag is subversive simply because it makes explicit the essential performativity of gender, and there is subversion inherent to making explicit that which is usually concealed. Butler often uses the idea of parody when talking about the subversion of drag. Again, though, the point is not that parody undermines any particular gender identity. It is not that drag parodies femininity and thus shows femininity to be a sham. Instead, drag parodies the very idea of a “true” gender identity, and it is that idea of a true identity, not any particular version of gender identity, that should be disrupted (175). As Butler puts it, “Drag is an example that is meant to establish that ‘reality’ is not as xed as we generally assume it to be” (xxiv).

Legacy Within feminism it no longer makes sense to start from a position of assuming an essential womanhood. Butler writes “What worried me most [when writing GT] were the ways that panic in the face of [minority gender] practices rendered them unthinkable. Is the breakdown of gender binaries, for instance, so monstrous, so frightening, that it must be held to be de nitionally impossible and heuristically precluded from any e ort to think gender?” (viii). A twenty- rst-century feminist is likely to answer “of course not!” and GT is at least part of the reason. Herta Nagl-Docekal states that “In the context of today’s debate in feminist theory, the conventional wisdom no longer di erentiates between nature and culture or sex and gender” (2004, 15), and while Butler is by no means the only theorist who motivates this statement she is an important part of the picture. Within political theory, several feminists directly engage with Butler’s work to develop accounts of agency. A key text in feminist political theory is Feminist Contentions (Benhabib et al. 2005), in which Butler, Seyla Benhabib, Nancy Fraser, and Drucilla Cornell debate each other’s work. The book is a genuine interaction, rather than a set of responses to Butler, but it demonstrates how issues raised by Butler—issues of agency, identity, determinism, and change—became a central part of feminist debate. It also demonstrates the dilemmas that many feminists, including Butler, felt as to whether post-modern and post-structural theory are useful to the feminist cause. For Chambers and Carver, “It seems highly unlikely that at any level [Butler] was writing the book as an introduction to post-structuralist philosophy for feminists, although arguably that is what the book became” (2008, 47). Another area of feminist theory in uenced by GT is intersectionality. Intersectionality is the observation that women’s experiences are shaped not just by their gender but also by their race and class, that ethnic minority and working class women su er oppression that is distinct from that su ered by ethnic majority or middle class women. Part of the theory of intersectionality is the idea that the category of “woman” is problematic, since it conceals other di erences of race and class. This idea does not originate in GT (hooks 1983; Spelman 1988; Crenshaw 1991) but many later discussions of intersectionality and the idea of an essential or universal womanhood have had to take account of Butler (Zack 2005; Chambers and Carver 2008, 4). For Evelien Geerts and Iris van der Tuin, while “It would be too much to claim that Butler was solely responsible for mainstreaming intersectionality … the popular reception of [her] books in the feminist theoretical canon has made the subject of intersectionality more accepted” (2013, 174). Butler’s work has had a profound in uence on queer theory—an impact which, according to Moya Lloyd, “cannot be overestimated” (2007, 2). Cheshire Calhoun (2007) cites Butler as one of the eld’s founders, along with Michel Foucault, Eve Kosofsky Sedgwick, and Gayle Rubin, thanks to her insistence that sex, gender, and sexuality are all culturally constructed. Although GT barely mentions trans issues, discussing transgender only in the few pages given to the example of drag, its argument has placed trans politics at the heart of queer theory (Prosser 1998, 24; Sedgwick 1993, 1). But Butler’s work has not had a similar legacy in other areas of identity politics. GT was published in 1990, 7

amidst intense focus on identity politics within political theory. It was contemporaneous or nearly so with Okin (1989), Kymlicka (1989), and Young (1990), and preceded Taylor (1992), Benhabib (1992), Rawls (1993), Tully (1995), and Kymlicka (1995). GT’s main thesis, that identity is always the result of power, politics, and discourse, and that identity is therefore a deeply problematic thing on which to ground politics, is of fundamental relevance to the debates on multiculturalism that dominated political theory for much of the decade after its publication. It has been cited vastly more times than any of the works just listed, 8

including Political Liberalism. And yet the only one of those works to cite GT at all is Benhabib 1992.

GT has had far greater in uence than the vast majority of contemporaneous works in political theory. Its subject matter is central to the concerns of political theory. And yet its impact on some of the major works in

the discipline is minimal. This puzzling state of a airs is perhaps best explained by two things: First, while GT’s implications are signi cant and general, it focuses on gender, an area typically ignored by political 9

theorists who are not explicitly feminist. Second is GT’s style, to which I next turn.

Critique In this nal section I discuss seven criticisms of GT: 1. Its language is wilfully obscure and di 2. It is voluntaristic and gives insu

cult.

cient weight to embodiment.

3. It is deterministic and o ers no possibility for change. 4. Its critique of universalism cannot theorize cross-cultural, hegemonic patriarchy. 5. It contains insu 6. It is insu

cient normative resources to criticize oppression.

ciently, or anti-, feminist.

7. Its rejection of embodiment and its treatment of drag undermine actual transgendered people and experiences.

Language As just noted, one criticism that is often made by philosophers in the analytical tradition is that GT is too di

cult to read. Nussbaum (1999), for example, scathingly writes “It is di

Butler’s ideas, because it is di

cult to come to grips with

cult to gure out what they are. Butler is a very smart person. In public

discussions, she proves that she can speak clearly and has a quick grasp of what is said to her. Her written style, however, is ponderous and obscure.” GT is di

cult to read in places, but it is perfectly comprehensible if given some attention, and it is certainly

no more di

10

cult than the work of many philosophers rmly within the analytical tradition.

One critic who

takes care not to dismiss GT for being hard to read is Susan Bordo: “I am a professional philosopher and I had to read sections over and over before I was able to gure out what Butler was saying in them. This di

culty is not at all unusual among works written for specialized, philosophically trained audiences; it’s in

the grand philosophical tradition to reduce ordinary readers to tears. … The problem comes from the limitations that this places on the appropriate audience for this book” (1992, 173). In the tenth Anniversary Preface to GT Butler addresses these complaints: “we underestimate the reading public, its capacity and desire for reading complicated and challenging texts, when the complication is not gratuitous, when the challenge is in the service of calling taken-for-granted truths into question, when the taken for grantedness of those truths is, indeed, oppressive” (xvii).

Voluntarism Unsurprisingly, Butler’s attack on the idea of pre-political sex, or commonality among women, proved controversial. Lynne Segal notes that many feminists “respond only with bewilderment or exasperation to Butler’s claim that both sex and gender, including any notion of the ‘female’ or of ‘women’, are but regulatory ctions. Disconcertingly she admits no limit or constraint emerging from anatomical bodies (such as a capacity for impregnation and child-bearing) on the ctions, or inscriptions, which discourse have been able to produce or implant in their construction of ‘women’ and ‘female embodiment’” (1994, 192). Butler (1993, x–xi) engages with this critique: To claim that the materiality of sex is constructed through a ritualized repetition of norms is hardly a self-evident claim. … For surely bodies live and die; eat and sleep; feel pain, pleasure; endure illness and violence; and these “facts,” one might sceptically proclaim, cannot be dismissed as mere construction. Surely there must be some kind of necessity that accompanies these primary and irrefutable experiences. And surely there is. But their irrefutability in no way implies what it might mean to a

rm them and through what discursive means.

Which is to say: the materiality of the body certainly matters, and is a fundamental part of human experience, but it is not the end of the matter: it still needs constructing, theorizing, problematizing. Bordo similarly nds the account of drag as subversion in GT overly voluntaristic. She notes that Butler does not engage with any evidence as to whether people do in fact react to drag in the way that she proposes, with a new-found awareness of the contingencies of gender, and suggests instead that many drag performers and artists understand their performance as occurring rmly within, and possibly even as reinforcing, the gender binary (1992). Butler herself admits this possibility in the tenth Anniversary Preface (xiv).

Determinism In contrast, Benhabib criticizes GT for being overly deterministic, since it seems to allow no way to escape the social construction of gender and identity: How can one be constituted by discourse without being determined by it? A speech-act theory of performative gender constitution cannot give us a su

ciently thick and rich account of gender

formation that would also explain the capacities of human agents for self-determination (Benhabib et al. 2005, 110). Benhabib thus worries that GT does not provide the resources to explain the “capacities for agency and resigni cation it wants to attribute to individuals” (Benhabib et al. 2005, 111), leaving the possibility of subversion mysterious. Benahbib endorses Butler’s critique of a uni ed, essentialist identity, but argues that Butler goes too far into determinism and seems to preclude all agency (1992, 215). She thus identi es Butler’s project as deeply problematic not merely for traditional identity politics, but for any transformative politics at all. This critique of determinism is also made by Lois McNay, who argues that the all-encompassing nature of Butlerian social construction makes it di

cult “to distinguish whether an act is politically e ective or not”

(2000, 46). Indeed, McNay argues that Butler’s attempt to avoid “crudely voluntaristic interpretations of performativity” go too far: “the individual is conceived as the passive e ect of discourse” (2008, 167).

Readers will note that criticisms of GT as too determinist and too voluntarist are, at least, in tension with each other. For Lloyd this suggests a con ict between two aspects of Butler’s account: “performativity understood as constitutive of the subject and a more theatrical sense of performance where an actor volitionally plays a part” (2007, 58). Certainly the account of performativity has been both evocative and controversial. Are we trapped within our performances, mere puppets reciting patriarchal scripts? Or are we creative artists, playfully donning high heels or cowboy hats, fetish wear or aprons? Chambers and Carver consider the criticism of determinism misplaced (2008, 45). It is the very commitment to a pre-political substance or identity that is a commitment to constraint. Butler’s account, in contrast, leaves everything undetermined and open to change. They maintain that Butler needs to answer the foundational challenge posed by critics, “how can you understand sex as a product of the discourse of gender without simply ignoring the body?” but that an answer can be given (2008, 66).

Universalism For Fraser (in Benhabib et al. 2005, 162), Butler’s work “has much to o er feminists.” She particularly lauds Butler’s account of performativity, since it highlights how gender identity is historically constructed and therefore malleable. However, Fraser argues that GT’s account of subversion and the overthrow of oppression is de cient: GT’s “internal normative resources—rei cation of performativity is bad, derei cation is good—are far too meagre for feminist purposes.” Fraser also argues that GT’s critique of the universal is limiting. Without theorizing across cultural contexts, how can we make sense of a hegemonic, dominant, cross-cultural patriarchal order? (Benhabib et al. 2005, 163). Nagl-Docekal also criticizes Butler’s rejection of the universal: “Butler is not right when she assumes that feminist politics which claims a we necessarily is founded on essentialist assumptions. The common ground of women assumed here is that they experience a certain oppression, not that they share certain feminine characteristics” (2004, 203 n. 83). Perhaps it makes sense to talk of a group that has a constructed identity that can nevertheless be mobilized politically. An example might be the working class in Marxist analysis: though clearly the result and not the cause of capitalism, working-class identity and consciousness can be the cause of revolutionary action. There is an important di erence, however. Pointing to the existence of the working class is not in itself a violent act of capitalism. While the working class would not exist without capitalism, once capitalism exists the working class exists too, as a real category with objective membership criteria. For Butler one cannot even point to the existence of maleness or femaleness, or place a person within the category of male or female, without wielding “the violence of gender norms” (xix). That there is no non-violent de nition of gender is the basis of Butler’s critique. Nonetheless, for Nagl-Docekal, conceptions of the universal can serve as the emancipatory aim of discourse ethics: as a conclusion on which participants must agree, rather than as a prior act of exclusion. Butler declares herself open to this possibility (xviii).

Normative Resources Butler frequently o ers caveats as to the subversive potential of drag and other minority practices, caveats that de ect some of the criticisms of her work as overly voluntaristic: the performance of gender subversion can indicate nothing about sexuality or sexual practice. Gender can be rendered ambiguous without disturbing or reorienting normative sexuality at all.

Sometimes gender ambiguity can operate precisely to contain or de ect non-normative sexual practice and thereby work to keep normative sexuality intact. (xiv) Butler’s point, then, is not to deny the claims of queer theorists that oppression of sexual minorities is an important part of gender oppression, but rather to remind us that being in a sexual minority is neither a necessary nor a su

cient part of subverting that oppression. She refuses to go further: “I am not

interested,” she insists, “in delivering judgments on what distinguishes the subversive from the unsubversive” (xxi). Her insistence that all gender identities and sexual practices are necessarily the result of power and of discourse, and her refusal to distinguish subversive from reactionary gender practices, may render her account somewhat lacking in the normative resources that are necessary in order to engage in political action (Chambers 2008, 85–86; see also Fraser in Benhabib et al. 2005, 162–163). Post-structuralist theorists such as Butler pay more attention to, and o er more sophisticated analyses of, power than theorists in the analytic or Anglo-American tradition. They understand the importance of social norms and have the conceptual resources to criticize the analytic theory’s more voluntarist, individualist, and asocial conceptions of choice. Post-structuralists can, however, nd themselves lacking normative resources with which to distinguish oppressive social norms from unproblematic ones, or to identify when mere subversion becomes emancipation. Analytical political theory can be of use here, o ering normative resources with which to assess the multifaceted, concealed power behind social norms.

Anti-feminist Butler has been criticized by various feminists. Some argue that her focus on identity and performance misses the key injustices faced by women: violence, unequal pay, discrimination (Nussbaum 1999). Others argue that Butler’s work makes it di

cult to mount feminist critiques of inequality (Je reys 2005, 18;

Langton 2009). In assessing these critiques it is useful to distinguish the claim that Butler distracts from the claim that she distorts. Feminism is often dismissed as a distraction by anti-feminists who retort that there are much more important political concerns than purportedly harmless or irrelevant “women’s issues,” such as critiques of beauty or pornography. It would be similarly unhelpful and even anti-feminist to say that if Butler’s work does not address all, or even the most prominent, facets of gender inequality then it cannot be legitimately feminist. After all, a fundamental trait of feminism is the assertion that the domain of the political is wide for women, and thus in general. The claim of distortion is much more serious, though, and this is the charge levelled by Nussbaum, Langton, and others. If Butler’s account makes it impossible to understand and oppose concrete oppression, disguising constraint and abuse as mere failures or alternative understandings of performativity, that would be a serious charge against it. It is here that the normative resources available to Butler must become explicit, along with her account of subversion. Chambers and Carver see great scope in Butler’s account of subversion, for if Butler is right that gender inequality is inextricably bound up with the heterosexual matrix, then acts that subvert that matrix also take a toll on inequality (2008).

Transphobic Butler’s work has been in uential in queer theory, but its impact has been mixed. Some queer and trans theorists criticize GT for undermining transgendered and transsexual experience. Prosser argues that Butler’s account seems to undermine transgender identities by failing to account for the strong sense of cross-gender identity that is felt by many trans people; crucially, it ignores or even questions the possibility of “the embodied transgendered subject” (1998, 26). The role of transgender in GT is to illustrate the performativity of gender, that “gender is drag” (Prosser 1998, 28), that transgender is subversive, and that transgender is queer, claims that con ict with the self-understandings of many trans people. Butler (1993, 2004) has engaged with and responded to these claims. However, accusations that Butler’s work is problematic for transgender persist (Bourcier 2012).

Conclusion GT remains Butler’s most in uential work, but since its publication she has returned to its themes many times, clarifying and extending its concepts and claims. Some of her later work speci cally responds to criticisms of GT, weakening their force; in other cases, her later writings make earlier criticisms still more apt. Nonetheless, GT continues to make an impact all of its own, and political theorists will nd signi cant rewards if they allow themselves to be troubled by it.

Acknowledgments I should like to thank participants in the University of Cambridge Women’s Lunches in Political Thought and Intellectual History for their comments.

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Kymlicka, Will. 1989. Liberalism, Community, and Culture. Oxford: Clarendon Press. Google Scholar Google Preview WorldCat COPAC Kymlicka, Will, 1995. Multicultural Citizenship: A Liberal Theory of Minority Rights. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Langton, Rae. 2009. Sexual Solipsism: Philosophical Essays on Pornography and Objectification. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Lloyd, Moya. 2007. Judith Butler: From Norms to Politics. Cambridge: Polity Press. Google Scholar Google Preview WorldCat COPAC McNay, Lois. 2000. Gender and Agency: Reconfiguring the Subject in Feminist and Social Theory. Cambridge: Polity Press. Google Scholar Google Preview WorldCat COPAC McNay, Lois. 2008. Against Recognition. Cambridge: Polity Press. Google Scholar Google Preview WorldCat COPAC Nagl-Docekal, Herta. 2004. Feminist Philosophy. Oxford: Westview Press. Google Scholar Google Preview WorldCat COPAC Nussbaum, Martha. 1999. “The Professor of Parody.” The New Republic Online. Google Scholar WorldCat Okin, Susan Moller. 1989. Justice, Gender, and the Family. New York: Basic Books. Google Scholar Google Preview WorldCat COPAC Prosser, Jay. 1998. Second Skins: The Body Narratives of Transsexuality. New York: Columbia University Press. Google Scholar Google Preview WorldCat COPAC Rawls, John. 1993. Political Liberalism. New York: Columbia University Press. Google Scholar Google Preview WorldCat COPAC Sedgwick, Eve Kosofsky. 1993. “Queer Performativity: Henry Jamesʼs The Art of the Novel,” GLQ: A Journal of Lesbian and Gay Studies 1: 1.

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Notes 1

The sex/gender distinction has frequently been denied by non-feminists, including evolutionary social theorists and some orthodox or traditional religions, who argue that cultural gender inequality can be explained and justified by biological, natural, or otherwise essential sex di erence.

2

This focus on power is what makes Butlerʼs work political theory, according to Chambers and Carver (2008, 17).

3

According to Fausto-Sterling 1.7% of live births are a ected by some form of nondimorphic sexual development (2000, 53).

4

Butler herself worries that “The very notion of ʻpatriarchyʼ has threatened to become a universalizing concept that overrides or reduces distinct articulations of gender asymmetry in di erent cultural contexts” (45–46).

5

As Moya Lloyd notes, the concept of performativity had been used, prior to GT, by Jacques Derrida and J. L. Austin— influences that Butler cites only in subsequent works (2007, location 1163).

6

For criticisms of Butler based on this (mis)interpretation of the role of drag in her account see Je reys 2003.

7

All references in this chapter are taken from the tenth anniversary edition and thus appear as Butler 1999.

8

Some theorists do engage with both Butlerʼs work and the work of analytical liberalism and multiculturalism. Examples include Benhabib 1992, Chambers 2008, and McNay 2008.

9

Most works on social justice do not engage with gender inequality, despite gender being significantly correlated with economic inequality as well as with violence, demeaned status, lack of equality of opportunity, and other central aspects of justice.

10

For some analytical philosophers, any di iculty in understanding non-analytical philosophy is interpreted as a criticism of the writer, whereas any di iculty in understanding analytical philosophy is interpreted as a criticism of the reader. Feminists seem particularly vulnerable to the problem of not being taken seriously by readers who are simply not willing to put the careful attention and e ort into their reading that they would give to non-feminist work.

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

G. A. Cohen, Karl Marx’s Theory of History—A Defence  Peter Dietsch https://doi.org/10.1093/oxfordhb/9780198717133.013.57 Published: 11 February 2016

Abstract Cohen’s book is one of the founding publications of Analytical Marxism, aiming to reconstruct and in some cases reformulate some of Marx’s core claims using the rigorous tools of contemporary philosophy. The rst part of the chapter analyzes Cohen’s defense of the controversial idea of historical materialism. Can the idea that history follows some underlying law of progress, which is central to Marx’s writing, stand up to scrutiny? This part of the chapter discusses, rst, the radical challenges to historical materialism formulated by rational choice Marxists such as Elster; second, a series of objections against functionalist explanation in the social sciences more generally; and, nally, some modi cations Cohen made to his account of historical materialism in his later writings and in response to these critiques. The second part of the chapter analyzes Cohen’s conception of exploitation to illustrate the theoretical potential of Analytic Marxism more generally.

Keywords: Analytic Marxism, historical materialism, functional explanation, methodological individualism, exploitation, justice, self-ownership, luck egalitarianism Subject: Political Economy, Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

More often than not, those who hold on to a theory in decline do so in dogmatic fashion, turning justi ed 1

scienti c belief into blind commitment . When G. A. Cohen published his ground-breaking Karl Marx’s Theory of History—A Defence (KMTH) in 1978, he set out to do the opposite. Convinced that “we have not 2

progressed so far that it is time to stop reading Marx” (xxviii), his objective was to mount as rigorous a defense as possible of one of the central tenets of Marx’s philosophy. His argument was directed as much to those who had already declared Marxism intellectually dead as to those who either accepted it without questioning its content or defended it with inappropriate means. Marx’s writings have many facets. Cohen himself identi es at least four: “a philosophical anthropology, a theory of history, an economics, and a vision of the society of the future” (345). While the theoretical relations between these di erent aspects are controversial, it is fair to say that historical materialism, that is, Marx’s theory of history, for many Marxists represents a constitutive element of their theoretical

outlook. Rightly or wrongly, they believe that if you do not accept the idea that, in short, “social viability is determined by conduciveness to productive progress” (J. Cohen 1982, 257), then you are not really a Marxist. There are good reasons to believe that Marx too considered this idea a sort of backbone of his worldview (see Spiegel 1990, 457). It is the background against which other parts of his work—his theory of exploitation, his evaluation of the role of religion or of the state, for instance—are to be read. It is this central, but also perhaps most controversial, plank of Marx’s writings that Cohen set out to defend. One of the key innovations of Cohen’s argument is to bring new tools to this defense of historical materialism, namely “those standards of clarity and rigour which distinguish twentieth-century analytical philosophy” (ix). In his famous quip against those who do not accept these standards, and are unwilling to systematically subject their arguments to criticism, he described what they did as “bullshit Marxism” (xvi). Independently of whether Cohen’s defense of Marx’s theory of history is successful or not, his book turned out to have a much broader impact. Its publication is commonly acknowledged as marking the birth of Analytic Marxism (AM), a research program that generalizes Cohen’s goal in KMTH: a systematic evaluation 3

and potential recycling of Marxist ideas using the tools of modern social science and philosophy. While Cohen would have been the rst to emphasize that a research program can rarely be traced to a single publication, the role of his book in putting AM on the agenda was no doubt substantial. According to Cohen, what unites Analytical Marxists is that their “commitment to Marxist theses (as opposed to our commitment to socialist values) is not absolute in the way that the commitment to analytical technique is” (xxiv). The goal of this chapter is to present some of the central debates that Cohen’s book triggered. I shall proceed in two steps. First, I will lay out Cohen’s defense of historical materialism, the objections and debate it generated, and, nally, the modi cations Cohen himself thought appropriate in response. As already mentioned above, this debate targets the core of KMTH. Second, I will use Cohen’s work on the concept of exploitation to illustrate the potential of AM more generally, that is, beyond the defense of historical materialism. While most of this work takes us to Cohen’s publications post-KMTH, Cohen does address these issues in KMTH and they represent a natural continuation of a project that starts there.

What, If Anything, Can Justify Historical Materialism? Cohen’s and Marx’s versions of historical materialism are part of a long tradition of theories that see history as a form of progress through stages. Earlier examples of this tradition are Leibniz’s theodicy or Kant’s moral theology. Marx, inspired by Hegel, attempts to formulate such a theory without appeal to a superintending agent that ensures the progress in question. Yet, even once we arrive at Cohen, the idea that persists is that there is some form of underlying law of progress according to which history unfolds. Here is a mature statement of Cohen’s position: “The heart of historical materialism is the thesis that there is, throughout history’s course, a tendency towards the growth of human productive power, and that forms of society (or economic structures) rise and fall when and because they enable and promote, or frustrate and impede, that growth” (364). More speci cally, this pattern of reasoning applies at two levels: “(1) The level of development of the productive forces in a society explains the nature of its economic structure, and (2) its economic structure explains the nature of its superstructure” (Cohen 1982, 488). Omitting some of the nuances, the forces of production include the means of production including labor; the economic structure refers to the relations of production, that is, the relations of e ective power (as opposed to the legal ownership) between participants in the productive process; and the superstructure depicts legal, political, and ideological features of society (Vrousalis 2015, 20).

For reasons of space and simpli cation, my analysis of the explanation put forward by Cohen in these two statements exclusively concentrates on the former, which Cohen, following Marx, calls the primacy thesis (136). Cohen a

rms that the primacy thesis is premised on the development thesis, that is, the claim that 4

“[t]he productive forces tend to develop throughout history” (136). In other words, “the character of the forces functionally explains the character of the relations” (160). Van Parijs (1993, 14) provides a useful formalization of this kind of functional explanation:

  (*) pf =>   (rp => ΔP F )   => rp

5

“Crucial to any functional explanation is the double occurrence of the feature to be explained: once as the last consequent, and once as the antecedent of the disposition” (van Parijs 1993, 14). In the present case, a given level of development of the productive forces explains a given type of relations of production because of the latter’s disposition to promote the development of the productive forces. Or, as Cohen puts it, “if the relations suit the development of the forces, they obtain because they suit the development of the forces” 6

(161). If they do not suit them, they fetter them.

Cohen thinks that historical materialism stands and falls with this kind of functional explanation. Does it stand up to scrutiny? In what follows, I will discuss two reactions to Cohen’s above argument. The rst reaction, exempli ed by Jon Elster’s comments on KMTH, rejects the idea that functional explanation can play a role in the social sciences. Consequently, Elster also abandons historical materialism and advocates a kind of Marxism that is signi cantly further removed from the original. The second reaction, illustrated using Philippe van Parijs’s further development of Cohen’s argument, is somewhat more optimistic. Van Parijs believes that historical materialism might be saved against its critics, but he remains unconvinced that saving it is the most constructive way forward.

Fundamental Scepticism Toward Functional Explanation in the Social Sciences Elster challenges Cohen on a number of related fronts, many of them aimed at undermining functionalism. For instance, he disagrees with Cohen about the dynamics underlying social change. Cohen is optimistic about the prospects of a social order to be overthrown when it does not promote the development of the productive forces. Yet Elster argues that even if the interests of the dominant class happened to coincide with the general interest (which might in itself be rare), any direct action by this class would suggest an intentional rather than a functional explanation (Elster 1980, 124). Second, Elster believes functionalism to be inconsistent, “because positive long-term e ects could never dominate short-term e ects in the absence of an intentional actor” (Elster 1982, 459). While this criticism is related to the rst point, it raises a distinct concern. The rst challenges the plausibility of a functional explanation relative to an intentional one, whereas the second suggests that, when applied to the long term, functional explanation cannot succeed without appealing to an intentional actor. Third, Elster attacks Cohen for not specifying the causal mechanism underlying his ostensibly functional explanation. Whereas natural selection provides such a mechanism for functional explanations in biology— which Elster has no trouble accepting precisely for this reason—Cohen does not provide a parallel mechanism for historical materialism. Concerning the rst two points, we shall come back to possible replies in defense of historical materialism in the next section. As to the last one, Cohen replies to this particular charge by stating that “one can support the claim that B functionally explains A even when one cannot suggest what the mechanism is, if

instead one can point to an appropriately wide range of instances in which, whenever A would be functional for B, A appears” (Cohen 1982, 490). At the same time, he recognizes that Marxists including himself have not done nearly enough to substantiate this argument (Cohen 1982, 491). In light of the numerous disputes between Cohen and Elster in their various exchanges, it is easy to lose sight of the fundamental disagreement between them. All three of the above points are emblematic of Elster’s preference for intentional and causal explanations over functional ones in the social sciences (see Elster 1985b). This preference, and his rejection of functional explanation in the social sciences, is grounded 7

in a rm commitment to methodological individualism. “Without a rm knowledge about the mechanisms that operate at the individual level,” Elster states, “the grand Marxist claims about macrostructures and long-term change are condemned to remain at the level of speculation” (Elster 1982, 454). It is the holist character of Cohen’s functionalist defense of historical materialism that Elster judges unacceptable. 8

It is fair to say that this di erence re ects a fundamental rift that divides Analytical Marxists. Roughly speaking, those who agree with Elster fall into the subcategory of what is sometimes called Rational Choice Marxism. They hold that whatever is valuable in Marxism can and should be expressed using the methodological framework of choice theory—both rational choice theory and game theory (Veneziani 2012). In other words, they deny that there is a distinctive and viable Marxist methodology. Cohen’s response to this challenge is noteworthy and has two components. The rst is a counterattack on decision theory, denying that it is up to the task at hand. While Cohen acknowledges the value of game theory to analyze strategic behavior, “[w]hen we turn from the immediacy of class con ict to its long-term outcome game theory provides no assistance, because that outcome, for historical materialism, is governed by a dialectic of forces and relations of production that is background to class behaviour, and not explicable in terms of it” (1982, 489). When Cohen asserts that “for Marxism there are also items more basic than actions at its center” (1982, 489), this sounds like an outright rejection of methodological individualism. In the introduction to the 2000 edition of KMTH, and thus with some hindsight, Cohen’s stance on the issue is more ambiguous. Here he a

rms that “a micro-analysis is always desirable and always in principle

possible, even if it is not always possible to achieve one in practice at a given stage of the development of a particular discipline” (xxiii). One way to read this passage is as a concession that the functional explanations Cohen defended in 1978 represent a second-best explanation in lieu of an analysis of the behavior of individuals that is not yet available. We shall come back to Cohen’s own reassessment of historical materialism later. As to his debate with Elster, we can draw the two following, tentative conclusions. First, the burden of proof seems to lie squarely on defenders of functional explanations à la Cohen and their arguments against the paradigm of methodological individualism in the social sciences today (but see, for a quali ed defense, Kincaid 1990). Second, that said, their critics lack a knock-down argument to conclusively discard the plausibility of such functional explanations altogether.

Meeting Three Challenges to Functional Explanation à la Cohen Whereas the head-on attack on Cohen by Elster intends to steer Analytical Marxism into a di erent theoretical direction altogether, other reactions to the central thesis of KMTH are more charitable. Before dismissing Cohen’s defense of historical materialism, one needs to formulate it in its strongest form. One particularly helpful contribution from this perspective is van Parijs’s analysis of the di historical materialism as well as of the responses available to defend it. The central di

culties of

culties, says van

Parijs, consist in reconciling the explanatory primacy that historical materialists à la Cohen wish to give to both the productive forces (over the relationships of production) and to the economic base (over its

superstructure) on the one hand with “(1) the idea that ‘non-material’ structures play a signi cant role; (2) the idea that history is an (objectively) ‘goal-directed’ process; and (3) the idea that political action may play a decisive role” (van Parijs 1993, 9) on the other hand. Van Parijs calls these the “primacy puzzle,” the “paradox of teleology,” and the “riddle of historical determinism.” Let us look at them in turn. First, once again focusing on the relation between productive forces and productive relationships, how can historical materialists maintain the explanatory primacy of the former over the latter given that the latter clearly do exert an important in uence over the former? They can do so by restricting the primacy claim to the context of contradictions between the productive forces and the productive relationships. “[W]henever there is contradiction, i.e. non-correspondence, between the two dimensions, the non-material structure (relationships of production, superstructure) adjusts to the material one (productive forces, economic base), and not the other way round” (van Parijs 1993, 10). According to van Parijs’s interpretation, within a non-contradictory productive structure, the adjustment takes place slowly (rp => ΔPF), whereas the adjustment in the face of a contradiction between material and non-material structure takes place quickly (pf => rp) (van Parijs 1993, 13). This claim will still be contentious and open to empirical refutation, but it makes a rst important step toward solving the primacy puzzle. The second di

culty of historical materialism, namely the paradox of teleology, we have already brie y

touched upon earlier. Imputing a telos of sorts to historical development, toward which humanity progresses, is a strong thesis and traditionally involved an appeal to controversial metaphysical assumptions—see also Elster’s second critique above, which states that functional explanation cannot avoid appeal to an intentional actor in the long run. According to van Parijs and pace Elster, Cohen’s functional explanation manages to do without such metaphysical baggage by embedding the slow dynamics into the fast one (see earlier in the chapter). The disposition of the relationships of production to promote the development of the productive forces in the slow dynamics is precisely what explains the fact that a particular set of productive forces calls for a particular type of relationships of production (van Parijs 1993, 14–15). Third and nally, how can one reconcile the primacy of the material structures with the idea that people’s actions do make a di erence? In other words, how can historical materialism avoid the implausibility of determinism? The resolution of the primacy puzzle has already shown “that not all combinations of material structures … and non-material structures … are possible, or at least viable—i.e. that only some of the logically possible combinations constitute stable equilibrium states, or attractors, of the social system” (van Parijs 1993, 10). Van Parijs suggests that when there is an attractor con ict, that is, when a given historical situation could develop into two or more di erent social equilibria, human agency makes a di erence (van Parijs 1993, 15–16). This conceptual picture allows us to reconcile the primacy of the material forces for the determination of the mode of production in the long run with the idea that human agency matters. It also speaks to Elster’s rst critique mentioned above by making room for intentional 9

explanation in a historical materialist world.

Even if these possible defenses of historical materialism certainly would need to be developed further and will not convince all sceptics, they do help to strengthen its cause. That said, while van Parijs believes that they show historical materialism to be coherent, he does agree with its critics that rendering the theory more concrete and, in particular, verifying it, will present important di

culties (van Parijs 1993, 17). This

leads him to a conclusion that reveals a di erent kind of scepticism than Elster’s: “Fairness to functionalist Marxism demands that it be rehabilitated …. But it does not demand that we believe it to be the most fruitful avenue for future research” (van Parijs 1982, 509).

Toward Restricted Historical Materialism It is the mark of great philosophers that they can revise their views. Later in life, Cohen himself came to question aspects of his defense of historical materialism in KMTH. These are stated in chapters XIII and XIV of the second edition of KMTH. Cohen sums up his mature view by saying that “I do not now believe that historical materialism is false, but I am not sure how to tell whether it is true or not” (341). Here, I would like to highlight four reasons for this. First, and following on from the last quote, Cohen concedes that “we still have only a rather crude conception of what sort of evidence would con rm or discon rm historical materialism” (341). While Cohen would most likely agree with van Parijs that developing historical materialism into a “ ‘formal-empirical’ general theory of history, would re ect a ‘positivistic’ misunderstanding of its real claims” (van Parijs 1993, 17), he recognizes that one cannot expect people to buy into historical materialism on the basis of a leap of faith alone. However, producing corroborating evidence for functional explanations in the social sciences seems particularly di

cult if not impossible.

Second, Cohen has come to doubt the plausibility of Marx’s philosophical anthropology, and wonders how modifying the latter would impact the defense of historical materialism. How so? Marx’s philosophical anthropology focuses on humans in their capacity as essentially creative beings. Human beings will be ful lled when they can deploy their productive powers creatively. With hindsight, Cohen deems this position to be one-sided, because it neglects “a human need to which Marxist observation is commonly blind, one di erent from and as deep as the need to cultivate one’s talents. It is the need to be able to say not what I can do but who I am … ” (348–349). Marx’s treatment of institutions that are central in serving the human need for identity, such as states or religions, con rms that he underestimates their role. The potential problem for historical materialism lies in the fact that this human need for identity can hardly be explained in materialistic terms. While Cohen acknowledges the possibility that this might damage historical materialism (see the next point), he maintains that if it does, it is not because historical materialism is connected in any systematic way to Marxist philosophical anthropology (363). Third, the challenge that the previous point presents for historical materialism is that the latter might be overly ambitious because it “unduly depreciate[s] [sic] forms of consciousness like religion and nationalism” (367). It is in response to this worry that Cohen proposes the most substantive revision of his historical materialism. He draws a distinction between inclusive and restricted historical materialism and, by endorsing the latter, limits the domain to which his functional explanation is supposed to apply. “In inclusive historical materialism material and economic development explains the principal features of other, non-economic or spiritual, developments. But restricted historical materialism says of spiritual phenomena only that they do not govern materialist development, and it commits itself to materialist explanation of spiritual phenomena only when, were they not so explained, they would be seen to control material development” (384; emphasis added). As the name suggests, restricted historical materialism is less ambitious when it comes to the realm of social phenomena to which functional explanation applies. Fourth and perhaps most signi cantly for the AM project as a whole, Cohen emphasizes that “scepticism about historical materialism should leave the socialist project more or less where it would otherwise be” (342). In other words, probably contrary to Marx and certainly contrary to many Marxists, Cohen believes that one can provide an assessment of the desirability of social arrangements independently of one’s theory of history. This is the project to which Cohen himself turned later in his career (Vrousalis 2015, 41). By doing so, he implicitly recognizes that the most useful theoretical tools for facilitating progress toward socialist ideals lie in normative political economy rather than in the theory of history. As we shall see in the next section, both KMTH and Cohen’s subsequent work make an important contribution to deploy Marx’s writing for this project.

Rehabilitating the Concept of Economic Exploitation Cohen’s particular blend of AM has considerably more to o er than a defense of historical materialism. The one contribution I wish to single out here is Cohen’s attempt to rehabilitate the Marxist concept of exploitation for social critique in a modern economy. For our purposes, this attempt can be divided into two steps, namely rst the critique of where the traditional Marxist account of exploitation falls short and, second, the positive argument about what should replace it. For Marx, the insidious character of exploitation under capitalism lies in the fact that it does not need to be backed by a coercive threat, as was the case under feudalism. As Cohen puts it, “[b]ecause the wage worker owns his labour power, he cannot be threatened with violent reprisal if he withholds it, but because he lacks means of production, no such threat is needed: he must, on pain of starvation, enter the labour contract” (83). According to Cohen, the Marxist charge of exploitation relies on what he calls the “Plain Argument” (1988, 228): 1. “The labourer is the person who creates the product, that which has value.” 2. “The capitalist appropriates some of the value of the product.” 3. “The labourer receives less value than the value of what he creates.” 4. “The capitalist appropriates some of the value of what the labourer creates.” Therefore 5. “The labourer is exploited by the capitalist.” At rst sight, one might think that the rst premise of this argument presupposes the labor theory of value. However, in his classic article on the labor theory of value and exploitation, Cohen shows that the question of what creates value is irrelevant to the question of why the partial appropriation of the product of the laborer by the capitalist is problematic from a normative perspective (cf. Vrousalis 2014, 152). Once one acknowledges the irrelevance of the labor theory of value to the above argument, so Cohen argues, one needs to look for a di erent normative grounding of exploitation. Elsewhere, Cohen uses the illustration of “cleanly generated capitalist relationships” (1990, 384

.) to

argue that whatever this alternative theoretical ground might be, it should drop the idea that all capitalist– labor relationships are exploitative. A cleanly generated capitalist relationship is one in which two individuals start with the same external endowments. Subsequently, one of them makes a series of choices that results in a wealth inequality, which then induces the poorer individual to accept a wage o er from the richer one. The challenge for Analytical Marxists consists in nding a coherent way to draw a line between cases that are exploitative and those that are not. Cohen’s own positive theory of exploitation stems from the belief that “[t]he central lacuna in the Plain Argument is a statement about the distributive background against which the labour contract is concluded” (1988, 233). I shall make two observations about the way in which Cohen lls this lacuna. First, even if—as we have seen above—contemporary Marxists should reject the labor theory of value, that is, the idea that only labor creates value, they intuitively endorse the idea that workers have an entitlement to value they do create. Put di erently, Marxists seem implicitly committed to the idea that workers have a right to the fruit of their labor. Reading Robert Nozick’s Anarchy, State and Utopia (1974), Cohen realizes that libertarians use the very same idea under the label of self-ownership to defend a minimal state with no

redistribution of income. Cohen (1995, chapter 6) asks whether Marxists can share the premise of selfownership with libertarians without endorsing what, to them, are repugnant inequalities tolerated by the latter. Incidentally, Cohen notes that liberal egalitarians such as Rawls or Dworkin do not face this dilemma, because they consider talents to be arbitrary from a moral point of view and thus reject self-ownership altogether. Where could a Marxist who endorses self-ownership get o

the bus before it drives him to accepting

signi cant inequalities in income and wealth? One potential strategy is to claim that self-ownership is incomplete as a principle of justice. Left-libertarians (Vallentyne 2000) adopt this strategy when they say that self-ownership tells us nothing about external resources that are not produced by human beings. They then argue that these external resources should be distributed according to a principle of equality. Cohen (1995, chapters 3–5) argues that this “strategy will not succeed, and [that] egalitarians are therefore obliged to criticize the thesis of self-ownership itself” (1995, 229). At this point, other theorists have been more optimistic than Cohen about the compatibility of selfownership and an egalitarian society. What unites them is the idea that even in the realm of human artefacts, self-ownership is too weak a concept to justify signi cant inequalities. One of the most prominent examples in this category is van Parijs (1995), who claims that a large share of the inequalities in a modern economy represent economic rent rather than the fruit of individual labor. Consequently, these inequalities can be reduced through taxation without violating self-ownership. Christman could be seen as generalizing this insight when he states that “[w]henever allocations of resources in market settings are the result of competitive forces external to the direct relation between desert basis and reward, then the rewards received (or the costs incurred) are not deserved” (1994, 96). Another argument in this category is to point to the fundamental impact of the division of labor on economic production (Dietsch 2008). As already underscored by Adam Smith, the division of labor increases productivity manifold. But if the economic output of a specialized individual depends on the cooperation of other members of society, the explanatory role of self-ownership diminishes. The principle might be su

cient to ground the entitlement of an

individual working in autarky, but it does not tell us anything about the distribution of the cooperative surplus. For all the reasons discussed in this paragraph, one might think that Cohen perhaps abandoned self-ownership prematurely. Second, having understood the negative argument about why Cohen thinks that self-ownership will not be able to ll the central lacuna in the Plain Argument in a satisfactory manner, let us turn to Cohen’s positive view on the question of what can. As Vrousalis shows, “Cohen’s mature view of exploitation” is a “luck egalitarian de nition of exploitation” and is informed by the notion of involuntary advantage. “Cohen construes ‘involuntary disadvantage’ as any morally signi cant lack ‘for which the su erer cannot be held responsible, since it does not appropriately re ect choices that he has made or is making or would make’” (Cohen 1989, 916 cited by Vrousalis 2014, 156). Note how this allows Cohen to maintain that at least some types of cleanly generated capitalist relationships are exploitative. If some of the wealth di erential that develops after two individuals have started out with the same external endowments is due to a di erence in internal endowments, that is, due to the fact that one individual is more talented than the other, then the resulting advantage would be involuntary and problematic from Cohen’s perspective. This yields a narrower, but at the same time more robust, conception of exploitation compared to that we nd in Marx. These are the normative foundations on which Cohen’s late work on justice (e.g., 2008) is built. Even if one does not accept this line or argument, and thus Cohen’s positive contribution to the theory of exploitation (e.g., Vrousalis 2014), his concise analysis of where traditional Marxist approaches to exploitation went wrong represents a valuable contribution in its own right. The fact that contemporary political philosophy and political economy contains relatively few works on exploitation is a serious shortcoming. The e orts by Analytical Marxists such as Cohen and Roemer to rehabilitate the concept opens

up possibilities for critiques of political economy that draw on the resources of Marx’s insights without committing Marx’s errors.

Conclusion “If the aim of AM was to discover the rational kernel of Marxist theory, and then reconstruct Marxism on that basis, it is tempting to conclude that ‘the operation succeeded (more or less), but the patient died’” (Levine 2003, 132 cited by Veneziani 2012, 650). If there is one author for whom this assessment of AM is too pessimistic, it is Cohen. In his hands, the patient has received a new infusion of life. Granted, Cohen might not have saved historical materialism. But he certainly gave it the strongest defense it has received to date. That in itself is an important contribution. Before one can dismiss historical materialism, one has to either criticize its strongest possible formulation or, at the very least, demonstrate why other theoretical starting points are more promising. Even though KMTH was celebrated as principally defending historical materialism, I think that its most valuable contribution is much wider. AM à la Cohen as deployed in KMTH encourages us to perform the operation Cohen performed for historical materialism for other aspects of Marx’s thought. As Cohen himself has shown with the analysis of the concept of exploitation, there are rich theoretical resources to be extracted from Marx’s writings. Many contemporary readers of Marx feel that he often asked the right questions of capitalism, even though the answers he gave might have been less convincing. AM encourages us to reformulate those questions for today’s socio-economic context. To once again use the example of economic exploitation, modern theories of justice do not have much to say on the concept. This is a serious blind spot, and AM has the potential to ll this void. The same might be true for the phenomenon of capital concentration, of the role of credit in society, and a number of other aspects of Marx’s thought. Cohen did more than merely rehabilitate aspects of Marx’s work. He used them to inspire a research program that has come to stand on its own feet.

References Ashton, Trevor Henry and Charles H. E. Philpin. 1985. The Brenner Debate: Agrarian Class Structure and Economic Development in Pre-Industrial Europe. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Brenner, Robert. 1986. “The Social Basis of Economic Development.” In Analytical Marxism, edited by John E. Roemer, 23–53. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Christman, John. 1994. The Myth of Property. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Cohen, G. A. 1982. “Reply to Elster on ʻMarxism, Functionalism, and Game Theoryʼ.” Theory and Society 11(4): 483–495. Google Scholar WorldCat Cohen, G. A. 1988. History, Labour and Freedom. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Cohen, G. A. 1989. “On the Currency of Egalitarian Justice.” Ethics 99: 906–944. Google Scholar WorldCat Cohen, G. A. 1990. “Marxism and Contemporary Political Philosophy, or: Why Nozick Exercises some Marxists more than he does any Egalitarian Liberal.” Canadian Journal of Philosophy, supplementary volume 16: 363–387. Google Scholar WorldCat Cohen, G. A. 1995. Self-Ownership, Freedom and Equality. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Cohen, G. A. 2000 [1978]. Karl Marxʼs Theory of History—A Defence. 2nd edn. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Cohen, G. A. 2008. Rescuing Justice and Equality. Cambridge, MA: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Cohen, Joshua. 1982. “Review of Karl Marxʼs Theory of History—A Defence by G. A. Cohen (1978).” Journal of Philosophy 44: 253– 273.

Dietsch, Peter. 2008. “Distributive Lessons from Division of Labour.” Journal of Moral Philosophy 5(1): 96–117. Google Scholar WorldCat Elster, Jon. 1980. “Cohen on Marxʼs Theory of History.” Political Studies XXVIII(1): 121–128. Google Scholar WorldCat Elster, Jon. 1982. “The Case for Methodological Individualism.” Theory and Society 11(4): 453–482. Google Scholar WorldCat Elster, Jon. 1985a. Making Sense of Marx. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Elster, Jon. 1985b. Ulysses and the Sirens—Studies in Rationality and Irrationality. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC

Heath, Joseph. 2015. “Methodological Individualism.” In The Stanford Encyclopedia of Philosophy, edited by Edward N. Zalta, Spring. . Google Scholar Google Preview WorldCat COPAC Kincaid, Harold. 1990. “Assessing Functional Explanations in the Social Sciences.” Proceedings of the Biennial Meeting of the Philosophy of Science Association 1: 341–354. Google Scholar WorldCat Levine, Andrew. 2003. A Future for Marxism? London: Pluto Press. Google Scholar Google Preview WorldCat COPAC Nozick, Robert. 1974. Anarchy, State and Utopia. New York: Basic Books. Google Scholar Google Preview WorldCat COPAC Przeworski, Adam. 1985. Capitalism and Social Democracy. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Przeworski, Adam and John Sprague. 1986. Paper Stones: A History of Electoral Socialism. Chicago: Chicago University Press. Google Scholar Google Preview WorldCat COPAC Roemer, John. 1981. Analytical Foundations of Marxian Economic Theory. Cambridge, MA: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Roemer, John. 1982. A General Theory of Exploitation and Class. Cambridge, MA: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Roemer, John. 1986. Value, Exploitation, and Class. New York: Harwood Academic Publishers. Google Scholar Google Preview WorldCat COPAC Roemer, John. 1988. Free to Lose. Cambridge, MA: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Spiegel, Henry W. 1990. The Growth of Economic Thought, 3rd edn. Durham: Duke University Press. Google Scholar Google Preview WorldCat COPAC Vallentyne, Peter. 2000. “Introduction: Le -Libertarianism—A Primer.” In Le -Libertarianism and Its Critics: The Contemporary Debate, edited by Peter Vallentyne and Hillel Steiner, 1–20. Basingstoke: Palgrave Macmillan. Google Scholar Google Preview WorldCat COPAC Van Parijs, Philippe. 1982. “Functionalist Marxism Rehabilitated.” Theory and Society 11(4): 497–511. Google Scholar WorldCat Van Parijs, Philippe. 1993. Marxism Recycled. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Van Parijs, Philippe. 1995. Real Freedom for All. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Veneziani, Roberto. 2012. “Analytical Marxism.” Journal of Economic Surveys 26(4): 649–673. Google Scholar WorldCat Vrousalis, Nicholas. 2014. “G.A. Cohen on Exploitation.” Politics, Philosophy & Economics 13(2): 151–164. Google Scholar WorldCat

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I would like to thank Pablo Gilabert, Jacob Levy, and Nicholas Vrousalis for their helpful comments.

2

Unless indicated otherwise, all references are to the 2000 edition of KMTH.

3

Fuelled by the annual meetings of the September Group, which brought together a handful of researchers with a common interest in reviving elements of Marxʼs writings for a modern context, “AM has provided some classic analyses in economic theory (Roemer, 1981, [1982, 1986]); political philosophy (Elster 1985[a]; Cohen, 1988, 1995, [2000]; Roemer, 1988; van Parijs, 1993); history (Ashton and Philpin, 1985; Brenner, 1986); class theory (Wright, 1985, 1997) and political science (Przeworski, [1985]; Przeworski and Sprague, 1986)” (Veneziani 2012, 649).

4

As Vrousalis emphasizes, “the argument for the development thesis has two parts: the first relies on an a priori claim about human nature, and the second on an empirical claim about actual historical development. The first claim is that human beings are, on the whole, rational, and that, when faced with scarcity, they will be inclined to take opportunities that expand productive power, and thus reduce scarcity. The second claim seeks to fill in the lacuna in the argument for the development thesis by pointing out that productive progress has been much more common than productive regress in human history” (2015, 23–24). For a critique of KMTH that centers on the plausibility of both of these aspects of the development thesis, see Joshua Cohen (1982).

5

pf = a given level of development of the productive forces; rp = a given type of relationships of production; ΔPF = the development of the productive forces.

6

For an in-depth analysis of fettering, see Vrousalis 2015, 24–26.

7

Methodological individualism “amounts to the claim that social phenomena must be explained by showing how they result from individual actions, which in turn must be explained through reference to the intentional states that motivate the individual actors” (Heath 2015).

8

One that, presumably, contributed to Elsterʼs departure from the September Group in 1993 (see KMTH, xix).

9

See also Vrousalis, who emphasizes that under Cohenʼs historical materialism, “it is precisely because of what historically situated agents (individuals, groups, or classes) do, not despite what they do, that certain economic and social forms are historically bound to occur” (Vrousalis 2015, 23). Cohen makes essentially the same point (1988, 56).

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Robert Dahl, A Preface to Democratic Theory  Eric MacGilvray https://doi.org/10.1093/oxfordhb/9780198717133.013.30 Published: 11 February 2016

Abstract Democracy can be understood as a mechanism for making decisions and as an ideal of social life. The defense of “polyarchy” that Robert Dahl provides in A Preface to Democratic Theory takes a negative position on both dimensions. It is not concerned with enabling “the people” to decide political outcomes, but rather with ensuring that no one has unchecked decision-making power. Nor is it concerned with developing people’s capacities to the fullest, but rather with harnessing their competitive energies so that no one can impose their will unilaterally on the whole. Ironically, the moral underpinnings of this approach lie in the Madisonian system that Dahl rejects. Like Madison, Dahl focuses on the republican aim of preventing the arbitrary exercise of power rather than the democratic aim of securing popular control over elected o

cials. Unlike Madison, Dahl argues that the

success of this project depends on social rather than constitutional factors.

Keywords: A Preface to Democratic Theory, Robert Dahl, James Madison, democracy, polyarchy, republicanism, arbitrary power Subject: Comparative Politics, Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Political thought in the twentieth century was preoccupied with anxiety about democracy: about its strengths and shortcomings, the conditions under which it could be created and sustained, and above all about its meaning. The latter concern may seem puzzling given that the de ning events of the century were two bloody and world-encompassing wars, each fought (at least in the eyes of the victors) in democracy’s name. The paradox is captured nicely by E. B. White, who was asked in 1943 to de ne the word democracy by the Writer’s War Board, a wartime propaganda organization. “Democracy,” he replied, “is a request from a War Board, in the middle of a morning in the middle of a war, wanting to know what democracy is” (1943). Few scholars wrestled more persistently, insightfully, or in uentially with the question of democracy’s meaning in the postwar period than Robert Dahl (1915–2014), who was serving in 1943 as a foot soldier in the second of those world wars, and who went on to a long and distinguished career in the Department of Political Science at Yale University. And there is no better introduction to Dahl’s thinking about democracy

than the aptly titled A Preface to Democratic Theory (1956). Despite its aws—about many of which Dahl was characteristically candid in later years—this short volume, originally delivered as the Walgreen Foundation Lectures at the University of Chicago, set the stage for much of his subsequent work, including his three best-known books, Who Governs? (1961), Polyarchy (1971), and Democracy and Its Critics (1989). (It is a mark of Dahl’s range that each of these books made a seminal contribution to a distinct sub eld of political science: American politics, comparative politics, and political theory, respectively.) Dahl himself remarked that “it would not be far o

the mark to say that o

and on for the next three decades, I published essays 1

and books to which A Preface was the preface” (2006 [1956], xii).

As its title suggests, A Preface to Democratic Theory does more to de ne an agenda for further research than to make an empirical contribution in its own right: Dahl proposes rather modestly to “consider some representative democratic theories in order to discover what kinds of problems they raise” (2006 [1956], 1). The theories that he considers are, depending how one counts, three or four in number: “Madisonian democracy,” “populistic democracy,” “polyarchal democracy,” and the “American hybrid,” which is either an example of polyarchy or a blending of polyarchal and Madisonian elements (Dahl is not entirely clear on this point). In a nutshell, Madisonian and polyarchal democracy are presented as competing alternatives to the populistic commitment to majority rule, which Dahl takes to be conceptually and empirically confused, and polyarchy is found to be the superior of the two. However instead of starting with a critique of majority rule and then considering the alternatives, Dahl starts with a discussion of the Madisonian model as defended in the Federalist (chapter one), then doubles back to a critique of “populism” (chapter two) before introducing his preferred polyarchal alternative (chapter three) and examining its American incarnation 2

(chapter ve). The decision to begin and end with the American case may have been driven by the Walgreen Foundation’s mission to promote the study of American institutions, but it nevertheless makes for a somewhat awkward presentation. The most immediately striking feature of the book is its e ort to reduce the theories that it considers into propositional form so that their key claims can be more easily identi ed and analyzed. The result is a great victory for clarity, if not always for accuracy: even where it may seem to the reader that Dahl’s argument has gone astray, he nevertheless makes it easy to see where it has done so, which is of course no small virtue. Dahl adopted this approach, as he later remarked, out of frustration with the lack of clarity of much of the political theory of his own day, engagement with which he likened to “digging for soft shell clams: the 3

harder I dug the more the argument seemed to disappear into the sand” (2006 [1956], xvii).

If Dahl handles the particular theories that he considers with a fair amount of analytical rigor, his understanding of democracy itself is considerably looser: “[D]emocratic theory,” he argues, “is concerned with the processes by which ordinary citizens exert a relatively high degree of control over leaders” (2006 [1956], 3). This appeal to popular control neatly inverts Joseph Schumpeter’s famous de nition of democracy as an “institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the people’s vote” (1942, 269). Indeed, while 4

Dahl’s conclusions are often taken to support Schumpeter’s brand of “realism,” his picture of political life is not one of relatively ignorant and powerless individuals being manipulated by savvy elites, but rather of 5

organized groups jockeying to protect and advance their interests. Political leaders are therefore constrained by the behavior of the various “minorities” that support and oppose them—not only via 6

elections but also during the “interelection period” —and “the distinction between democracy and dictatorship” is measured by an “increase [in] the size, number, and variety of minorities whose preferences must be taken into account” (2006 [1956], 132–133). Despite this emphasis on group competition, Dahl follows an older tradition of democratic theory in arguing that “[p]rior to politics, beneath it, enveloping it, restricting it, conditioning it, is the underlying consensus on policy … among a predominant portion of the politically active members”; most importantly on the question of which groups are recognized as “legitimate” participants in the political process. This

consensus has of course changed substantially over time: “a century ago in the United States,” he reminds us, “it was a subject of political debate whether the enslavement of human beings was or was not desirable” (2006 [1956], 133). It follows—though he is not as explicit about this in Preface as he was in later work—that we should not identify the institutional forms with which democracy is currently associated with the 7

democratic ideal itself, or rule out the possibility that further progress toward that ideal might be made. However, Dahl is strangely silent on the question of whether there is anything to be said for this kind of

progress, morally speaking—a silence which re ects a more general impatience on his part with questions 8

of moral justi cation, and an apparent skepticism (at least at this stage of his career) that any coherent moral defense of democracy or of any other political ideal could be given. This skepticism emerges with particular force in chapter two of Preface, where he considers whether a moral case can be made for “populistic” democracy: Historically the case for political equality and popular sovereignty has usually been deduced from beliefs in natural rights. But the assumptions that made the idea of natural rights intellectually defensible have tended to dissolve in modern times. Unless it is simply an elliptical mode of argument that might be cast in more precise language, the logic of natural rights seems to require a transcendental view in which the right is ‘natural’ because God directly or indirectly wills it … It is easy to see that such an argument inevitably involves a variety of assumptions that at best are di

cult and at worst impossible to prove to the satisfaction of anyone of positivist or skeptical

predispositions (Dahl 2006 [1956], 45). Dahl nds it equally unlikely that populism can be justi ed on instrumental grounds, since it is impossible to predict what the consequences of majority rule relative to some other possible arrangement would be over any signi cant period of time. A commitment to democracy, he concludes, “undoubtedly require[s] extensive social indoctrination and habituation.” Is it desirable that this kind of indoctrination take place? Dahl admits that “sooner or later we must make some basic ethical assumptions,” but refuses to “pursue the ultimate ethics of political equality and popular sovereignty any further” (2006 [1956], 47–48). This brings us to Dahl’s most distinctive methodological move: the shift from a “purely logical” (or more precisely purely normative) to a “descriptive” approach, and thus to the analysis of “polyarchal democracy” for which he is justly famous. In chapter three of Preface Dahl proposes “to consider as a single class of phenomena all those nation states and social organizations that are commonly called democratic by political scientists, and by examining the members of this class to discover, rst, the distinguishing characteristics they have in common, and, second, the necessary and su

cient conditions for social

organizations possessing these characteristics” (2006 [1956], 63). It is easy to see why he adopted this approach: if our interest in democracy arises from the fact that we nd ourselves committed, for reasons that we cannot fully explain, to a set of political practices that are called democratic, then it is reasonable to de ne the scope of our inquiry by appealing to those practices. It is also easy to see why many critics have argued that Dahl con ates the descriptive with the normative: if he can provide no moral reason to further democratize the polyarchal status quo, then it is reasonable to conclude that he thinks it is good enough, 9

democratically speaking.

However this conclusion is too hasty, since even as early as Preface Dahl makes a clear, though mostly tacit, moral case in favor of polyarchy. Ironically, it is easiest to see the grounds for this case by looking more closely at his grounds for rejecting the Madisonian alternative. Madison was motivated, Dahl argues, by a desire to “bring o

a compromise between the power of majorities and the power of minorities” (Dahl 2006

[1956], 4), or in other words to prevent majority tyranny. So far, so good. Dahl then attributes to Madison the view that tyranny is properly de ned as “every severe deprivation of a natural right,” and this is where

he drives his wedge: if we are skeptical that there are such things as natural rights (as he thinks we should be), then this de nition of tyranny, and thus the entire rationale for Madisonian democracy, falls to the ground (2006 [1956], 6, 22–27). In other words, instead of being a compromise between majority and minority power, the Madisonian system appears to Dahl as a compromise between majority and minority rights, with no clear account of what the rights in question are or how they should be traded o

against each

other. “[T]he resulting logical confusion,” he concludes, “is almost incredible; but the long persistence of logical inconsistencies hints at the ful llment of some deep-seated social need. In the United States this may be the minimization of severe con ict” (2006 [1956], 36). On its face this is a peculiar line of argument, since the only mention of “natural rights” in the Federalist is made by John Jay, not Madison, and refers not to the protection of those rights but rather to their 10

surrender.

It is of course true that Madison and the other Founders appealed to natural rights in a variety

of other contexts, but there is little evidence to suggest that the elaborate system of separated powers, checks and balances, indirect elections, and so on that is defended in the Federalist—and that Dahl takes to be the heart of “Madisonian democracy”—was designed with their protection in mind. Moreover, Madison himself does not describe this system as a democracy—not surprisingly, since the word “democracy” was seldom used as a term of praise prior to the nineteenth century. Rather, the stated aim of the Federalist, as set out by Hamilton in the rst paper, is to demonstrate “the conformity of the proposed Constitution to the true principles of republican government,” and indeed, as Madison puts it in the tenth paper, to show that it provides “a republican remedy for the diseases most incident to republican government.” In one sense these terminological issues are not very signi cant, since (important caveats about slavery and restricted su rage aside) few people today would hesitate to apply the term “democracy” to the “republican” system that Madison describes—and since Dahl admits that “non-tyrannical republic” would 11

be the more historically accurate term (2006 [1956], 10).

However, attention to the republican aims of

Madisonian “democracy” exposes the blind spot in Dahl’s analysis. Madison de nes tyranny in Federalist 47 as “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many,” a de nition which Dahl rejects as “unnecessarily arbitrary and argumentative” since, on his view, the accumulation of power “is not obviously or intuitively undesirable.” He takes it that Madison has simply elided the empirical claim (a dubious one, in Dahl’s view) that the accumulation of power will inevitably lead to “severe deprivations of natural rights” (2006 [1956], 6, 12). Two features of Madison’s argument cast doubt on this inference. First, he does not defend the separation of powers as a means of protecting rights, natural or otherwise; rather, he calls it an “essential precaution in favor of liberty.” And second, the authority to whom he appeals in this context is not John Locke, who was of course the source for Je erson’s famous appeal to natural rights in the Declaration of Independence, but rather the French aristocrat Charles de Montesquieu, whose magnum opus The Spirit of the Laws (1748) was cited more often during the Founding period than any other book besides the Bible. Montesquieu, like Madison, equates liberty with the absence of tyranny, and is credited with inventing the doctrine that liberty so understood requires the separation of the executive, legislative, and judicial powers of government. His reasoning is straightforward: he de nes political liberty as “the right to do everything the laws permit,” and thus as the “tranquility of spirit which comes from the opinion each one has of his security” in a law-governed society. It is a necessary condition for the enjoyment of this kind of liberty that not only ordinary citizens, but also the government itself, be law-abiding. And because governments are typically in an excellent position to disobey their own laws with impunity, he concludes that liberty can only be secured if the power to make, enforce, and apply the law is placed in di erent hands: “When legislative power is united with executive power,” Montesquieu argues, “there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically. Nor is there liberty if the power of judging is not separate from legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would

be the legislator. If it were joined to executive power, the judge could have the force of an oppressor” (1989 [1748], 155–157). This line of argument rests on the traditional republican association of liberty with the absence of arbitrary power—that is, of power that can be exercised at will (ad arbitrium) by those who hold it. On this view, the insecurity and vulnerability that the presence of arbitrary power creates has a distorting e ect on people’s behavior, and thus on their character, as they try to ingratiate themselves to, or at least to avoid o ending, the power in question. Montesquieu’s appeal to fear is therefore crucial: republican liberty does not consist in the absence of constraints, but rather in the absence of arbitrary power, and thus of the fear that 12

constraints can be imposed by the powerful at will.

Because the human tendency to seek and abuse power

is so pervasive, the enjoyment of republican freedom is always a matter of careful institutional design: “So that one cannot abuse power,” Montesquieu argues, in language that Madison echoes in Federalist 51, “power must check power by the arrangement of things” (1989 [1748], 155). In short, Montesquieu and Madison hold exactly the view that Dahl rejects as “unnecessarily arbitrary and argumentative”; that the accumulation of unchecked power is not only bad in itself, but constitutive of tyranny and therefore 13

destructive of freedom.

Individual rights, like laws more generally, may be used to de ne the terms under

which individuals can and cannot be interfered with. But the important point for a republican is not the exact content of those rights—still less their status as “natural” or “God-given”—but rather the fact that they set clear limits on governmental power, making it easier for ordinary citizens—and, of course, for the judicial branch of government—to see when that power has been abused. Dahl’s empirical criticisms of the Madisonian system remain compelling; in particular, his observation that the two claims for which Madison is best known—that the failure to assign the legislative and executive powers to independent branches of government will lead inevitably to tyranny, and that “extended” republics are less vulnerable to majority tyranny than smaller ones—have not been borne out by the 14

political experience of the last 200 years.

However, attention to the republican project of preventing the

arbitrary exercise of power, and thus of securing the “tranquility of spirit” on which freedom depends, provides Madisonian “democracy” with the coherent moral aim that Dahl nds lacking. Moreover, this project is not only consistent with the aims of the “polyarchal” system that Dahl defends in the later chapters of Preface, but makes possible a more straightforward defense of that system than the “democratic” one that Dahl himself o ers. The term “polyarchy” was coined by Dahl and his colleague Charles Lindblom in their book Politics, Economics and Welfare (1953), published just a few years before A Preface to Democratic Theory. There the term is used to de ne a middle ground between two simpler forms of social decision-making: hierarchy, in which leaders control non-leaders unilaterally, and bargaining, in which leaders (or actors more generally) control one another reciprocally. Polyarchy is concerned with what we might think of as the properly political relationships in which power is asymmetrically possessed by leaders who must nevertheless take the preferences of non-leaders into account. Needless to say, few authority relationships allow leaders to utterly disregard the preferences of their subordinates, just as few bargaining relationships are perfectly reciprocal. Practically speaking, then, polyarchy de nes a broad range of authority relationships between 15

the ideal types of pure dictatorship on the one hand and pure democracy on the other.

However, while Dahl and Lindblom point out that polyarchy is often confused with democracy in ordinary language, they do not portray it as a type of democracy, or even as a benchmark for measuring the extent to which democracy has been realized. Rather, they treat it as a means of solving what they call “the First Problem of Politics”: “the antique and yet ever recurring problem of how citizens can keep their rulers from becoming tyrants.” Polyarchy solves this problem—albeit in an “untidy and highly imperfect way”—by ensuring that “leaders … win their control by competing with one another for the support of non-leaders,” and that “non-leaders … have the opportunity to switch their support away from the incumbent leaders to 16

their rivals.”

Of course the mere presence of competition is not enough, since leaders might still collude

with each other and/or manipulate non-leaders in such a way that e ective control of their behavior becomes di

cult or even impossible. Dahl and Lindblom therefore list six criteria for the choice of leaders

and policies that jointly de ne the existence of polyarchy, a list that Dahl expands to eight in Preface: (1) every member expresses a preference among the alternatives. (2) each member’s preference is weighted equally. (3) the alternative preferred by the most members wins. (4) any member can add an alternative to the agenda if he or she wishes. (5) all members have identical information about the alternatives. (6) alternatives with more votes displace those with fewer votes. (7) the orders of elected o

cials are executed. 17

(8) interelection decisions are made in this way, subordinated to decisions made in this way, or both.

Needless to say, no existing organization completely satis es all of these criteria, and it is doubtful whether any organization could. Dahl therefore treats them as “maximizing conditions” the satisfaction of which could in principle be measured, so that by summing organizational performance along each dimension “it would be possible and perhaps useful to establish some arbitrary but not meaningless classes of which the 18

upper chunk might be called ‘polyarchies’” (2006 [1956], 73–74).

This empirical research program was

brought to fruition some fteen years later with the publication of Polyarchy, which played a pioneering role 19

in de ning the now crowded eld of democracy measurement.

This raises the question of why we should maximize along these particular dimensions—and why we should call the result “democracy.” The proximate reason, of course, is that they de ne the conditions under which ordinary citizens can “control” their leaders, which as we have seen is Dahl’s working de nition of democracy. But this raises the prior question of what kind of control we are talking about and why it is desirable. The answer, as we will see, and as the discussion by Dahl and Lindblom suggests, is the same one that Madison gives, and that Montesquieu gave before him: that the control of leaders is a necessary condition for avoiding tyranny, and thus for enjoying (republican) freedom. In other words a polyarchal democracy, like a Madisonian one, can properly be described as a “non-tyrannical republic.” What then does polyarchy add to (or subtract from) the Madisonian model? Dahl focuses on two points of disagreement, one methodological and the other substantive. The methodological di erence is the claim that “the rst and crucial variables to which political scientists must direct their attention are social and not constitutional” (2006 [1956], 135; cf. 22, 83). This is so, he argues, for two reasons. On the one hand, unless there is an underlying commitment on the part of ordinary citizens to the norms of polyarchy, a constitutional system of checks and balances will present no more than (in Madison’s famous phrase) a “parchment barrier” to the abuse of power by the government and the groups in whose name it acts. On the other hand, when there is such a commitment, Dahl suggests, experience shows that constitutional checks are super uous. It follows, he argues, that polyarchy is “functionally dependent upon the extent to which the various processes for social training are employed on behalf of the norms” on which it rests—although, as he goes on to point out, there is reason to think that “the extent to which social training in the norms is indulged is itself dependent upon the amount of consensus that already exists on the norms.” “The relationship between social training and consensus,” he concludes, “is thus a perfect instance of the henand-egg problem” (2006 [1956], 76–78). Dahl’s argument that political scientists should focus on the social rather than the institutional prerequisites of democracy helped to bring about a sea change in the comparative study of political

20

regimes.

However his insistence on the irrelevance of constitutional mechanisms is overdrawn, for

reasons that he himself goes on to state: “Constitutional rules are mainly signi cant,” he argues, “because they help to determine what particular groups are to be given advantages or handicaps in the political struggle” (2006 [1956], 137). In a polyarchal system, where group competition is the very essence of politics, such advantages can of course be decisive and, when they are constitutionally entrenched, almost impossible to eradicate. Consider, for example, the institution of slavery and the legal imposition of secondclass citizenship for former slaves, which were (imperfectly) undone only after a civil war and another century or more of social, political, and legal con ict. Consider also the over-representation of small states 21

in the U.S. Senate, which is unlikely ever to be undone.

This brings us to the second, more substantive di erence between polyarchy and Madisonian democracy. Dahl attributes to Madison, reasonably enough, the motivation to “erect a political system that would guarantee the liberties of certain minorities whose advantages of status, power, and wealth would, he thought, probably not be tolerated inde nitely by a constitutionally untrammeled majority,” and credits him with articulating a “satisfying, persuasive, and protective ideology for the minorities of wealth, status and power who distrusted their bitter enemies—the artisans and farmers of inferior wealth, status, and power, who they thought constituted the ‘popular majority.’” However, Dahl argues that these concerns proved to be unfounded because, as he succinctly puts it, “the poor and uneducated disenfranchise themselves” through non-participation, and because even when they do participate they “have less access than the wealthy to the organizational, nancial, and propaganda resources that weigh so heavily in campaigns, elections, legislative, and executive decisions” (2006 [1956], 30–31, 81). Not only is the majoritarian threat to property overblown in Dahl’s view, so too is the threat of majority tyranny more generally. Indeed, Dahl denies that majority rule exists in any meaningful sense, because in modern democracies a large and non-representative proportion of eligible voters do not vote at all (except where voting is compulsory), and because many of those who do vote do not see much di erence between the candidates, vote contrary to their stated policy preferences, or agree with their chosen candidate only on certain issues. Most importantly, most voters do not try to in uence policy between elections, so that elected o

cials are not tightly constrained by majority opinion even when it exists—although they are

often constrained by attentive and vocal minorities. The real signi cance of elections and political competition, he concludes, is not to express the will of the majority, but rather to “vastly increase the size, number, and variety of minorities whose preferences must be taken into account by leaders in making policy choices.” The result is neither majority rule nor minority rule, but rather “minorities rule” (2006 [1956], 22

124–133, quoted at 132).

In what sense, then, do ordinary citizens “control” their leaders in a polyarchal democracy? The success of a polyarchy should be measured, Dahl argues, by “the extent to which various minorities in a society … frustrate the ambitions of one another with the passive acquiescence or indi erence of a majority of adults or voters” (2006 [1956], 133); as he later put it, “there must be multiple centers of power, none of which is or can be wholly sovereign” (1967, 24). “[T]he more fully the social prerequisites of polyarchy exist,” he concludes, “the less probable it is that any given minority will have its most valued freedoms curtailed 23

through governmental action” (2006 [1956], 135). This vision of a system of “social checks and balances”

through which clashing minorities secure their freedom through an ongoing process of mutual resistance is of course consistent with, and in some respects identical to, the republican strategy of multiplying factions that is laid out by Madison in Federalist 10—although as we have seen Dahl denies that expanding the size of the polity is a necessary or su

cient condition for achieving this outcome.

Dahl implies that the “social prerequisites” for polyarchy are present in the United States and other advanced Western democracies—and suggests in passing that they are not present in “numerous Latin American states” (2006 [1956], 83)—but he does not make any serious e ort in Preface to show that this is the case, nor does he provide any evidence in support of the claim that “a preponderant number of

politically active Americans believe themselves to be members, at least part of the time, of one or more minorities … whose goals might be threatened if the prescribed political authority of majorities were legally unlimited” (2006 [1956], 30). These issues are taken up, at least on a local scale, in Who Governs?, but we 24

must leave the empirical claims of that work—and the criticism that it has attracted—to one side here.

For

our purposes the crucial point is a normative one: the contrast that Dahl draws between polyarchy, pluralism, and freedom on the one hand and populism, dictatorship, and tyranny on the other makes it clear what his normative commitments are, even if he is not entirely explicit. A polyarchal democracy is a nontyrannical republic—or, since that expression is strictly speaking a pleonasm, simply a republic in the classical sense of that term. Polyarchy can therefore be added to the long list of strategies that republicans have devised for preventing the arbitrary exercise of power, thereby securing the conditions under which ordinary people can live in “tranquility of spirit” as free and equal citizens. The point of parsing terminology in this way is not to stipulate correct usage; the words “democracy” and “republic” each have a long and complicated history, and Dahl’s use of the former term, while distinctive, is not eccentric. However, attending to the republican roots of Dahl’s view allows us to see more clearly the distinct values at which it aims. Normative democratic theorists typically evaluate democracy along two dimensions: as a mechanism for making decisions, and as an ideal of social life. Dahl’s conception of democracy takes a negative position on both dimensions. It is not concerned with enabling ordinary citizens to decide political outcomes—an aim which he thinks is empirically and conceptually incoherent. Rather, it is concerned with ensuring that no individual or faction has unchecked decision-making power. Nor is it concerned with creating the social conditions under which the capacities of ordinary people can be fully developed, whether indirectly through political participation or directly through public policy. Rather, it seeks to harness the competitive—and at times dominating—energies of the various interests that exist in a given society in such a way that none of them is able to impose its will unilaterally on the whole. In short, Dahl de nes democracy in terms of security—a view that is egalitarian only in the sense that its ideal endpoint is an arrangement in which all groups have e ective access to the ongoing process of interest adjudication, and thus enjoy the resulting protections. Dahl worked tirelessly throughout his career to bridge the gap between normative democratic theory and empirical political science. Despite the irenic spirit in which this project was undertaken, the results have been rather one-sided. On the one hand, Dahl has had an outsized in uence among empirical students of democracy: di erences of detail and emphasis aside, the leading empirical models of democracy and democratization today are directly descended from the polyarchal model that Dahl and Lindblom worked out in the 1950s. On the other hand, Dahl’s in uence among normative democratic theorists has been correspondingly modest: polyarchy is typically presented as the “realistic” baseline against which more normatively ambitious views are de ned, and past which students of normative democratic theory quickly move. What is gained in ambition, however, is lost in clarity, and thus in e

cacy: normative democratic

theorists have often struggled to show not only that their ideals can be realized, but what it would mean, empirically speaking, for them to be realized, and how we could know whether and to what extent they had been or not. The implication is clear. Dahl’s in uence among empirical political scientists—and in the broader public sphere—cannot be credited entirely to the attractiveness of his conception of democracy, or even to its “realism.” It is due in large part to the fact that he had the skill and patience to make the normative claims that underlie his position intelligible and empirically tractable. The onus is on the proponents of other conceptions of democracy to do similar work on behalf of their favored views. Some progress along these lines has been made by proponents of deliberative democracy, who treat democracy as a means of building a legitimate political order (e.g., Fishkin 2009; Steiner 2012; Neblo 2015), and among proponents of epistemic democracy, who treat it as a means of making good or correct decisions (e.g., Knight and Johnson 2011; Landemore 2013). It is nevertheless fair to say that these (admittedly more complex) projects are still in

their infancy empirically speaking. It is also fair to say that unless further progress is made, democratic theory is likely to stagnate in normative as well as in empirical terms. I began this essay by pointing out that political thought in the twentieth century—and up to the present day —has been preoccupied with anxiety about the meaning of democracy. This is not surprising; in a world where even dictators rest their claims to authority on an appeal to “the people,” it is natural that the question of which regimes properly count as “democratic” should be especially salient. Nor, given the ideological power of the word, is it surprising that there is disagreement about how this question should be answered—or that many people have been dissatis ed with the answer that Dahl sketches in A Preface to Democratic Theory, and that he re ned and deepened over the next fty years. What we call “democracy” is, after all, a loose collection of social and political arrangements that serve multiple and sometimes con icting purposes. Understanding, if not agreement, can be furthered by clarifying what those purposes are and by keeping them distinct from each other. In this respect, as in many others, Dahl’s book remains a model for future work.

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1

Dahl adds that “[i]t was only when Democracy and Its Critics was published in 1989 that I felt I had at last approached something like a rounded presentation of democratic theory” (2006 [1956], xii). These remarks are taken from the foreword to the expanded edition of Preface that was published in 2006. I have confined discussion of the 2006 foreword and a erword mostly to the notes, since the “classic” status of the book is of course a product of Dahlʼs original text.

2

Chapter four takes up what Dahl calls the “intensity problem”; that is, the problem of determining whether “government should be designed to inhibit a relatively apathetic majority from cramming its policy down the throats of a relatively intense minority” (2006 [1956], 90).

3

Again the remark is taken from the 2006 foreword. Of more dubious value are Dahlʼs e orts to work out some of his arguments using formal notation, a practice that he later attributed (rather ruefully) to his recent reading of Kenneth Arrowʼs Social Choice and Individual Values (1963 [1951]). Although Dahl mentions Arrowʼs famous impossibility theorem in a note (42–43n)—and complains that it has “so far been totally ignored by political scientists”—it plays only a cameo role in his critique of majority rule. Even Democracy and Its Critics, published at the height of the influence of “social choice” theory, contains only a single mention of Arrow (146).

4

See, e.g., Pateman (1970, ch. 1).

5

Here Dahl builds on a tradition of analysis that was pioneered in Bentley (1908), and influentially extended in Truman (1951).

6

Dahl faults Schumpeterʼs “otherwise excellent analysis of democracy” for downplaying the role of “elections and interelection activity … in determining policy”: 2006 [1956], 131 and note.

7

As Dahl later put it, “it is important to maintain the distinction between democracy as an ideal system and the institutional arrangements that have come to be regarded as a kind of imperfect approximation of an ideal”: Dahl (1971, 9n; cf. 10–11); see also Dahl (1989, 222–224 and part 6).

8

Dahl takes the question of moral justification more seriously at Democracy and Its Critics, chapters six–seven, where he argues that a commitment to democracy rests on two prior moral commitments, which he calls “the idea of equal intrinsic worth” (of persons) and “the presumption of personal autonomy.”

9

For early versions of the critique see, e.g., Duncan and Lukes (1963), and Walker (1966), to the latter of which Dahl responds (1966). See also Pateman (1970, 15 .), and, for a useful overview, Skinner (1973).

10

Specifically, in Federalist 2 Jay argues that “the people must cede to [government] some of their natural rights in order to vest it with the requisite powers.” Madison makes a passing reference to “sacred rights” in a rhetorical passage near the end of Federalist 14. There are of course frequent references throughout the Federalist to rights without the modifier “natural,” on which see the paragraph that begins “This line of argument rests…”.

11

Dahl provides a useful discussion of the Madisonʼs use of “democracy” and “republic” in Dahl (2003 [2002], 179–183; cf. 155–158 of the 2006 a erword to Preface).

12

For the most sophisticated contemporary defense of the republican conception of freedom see Pettit (1999 [1997]); for a more historical account see Skinner (1998). Dahl considers and rejects the possibility that freedom might coherently be defined as the absence of constraints at Preface, 27–29.

13

A Preface to Democratic Theory was published just before the avalanche of scholarship on the influence of republican ideas in early modern political thought, and on the American Founding in particular. Early landmarks of this literature include Robbins (1959); Bailyn (1967); Wood (1969); and Pocock (1975). The older view that American political thought has always centered around a “Lockean consensus” on the importance of natural rights and government by consent is o en associated with Hartz (1955). Dahl cites the essay that became chapter two of that book at Preface, 10n.

14

On the separation of powers see Dahl (2006 [1956], 12–13, 20–22, 83); on extended republics see 16–17, 29–30, and cf. 167– 169 of the 2006 a erword.

15

Dahl and Lindblom (1953, 23, 276, 280, and chs. 10–11).

16

Dahl and Lindblom (1953, 273, 283); on the relationship between polyarchy and democracy see 276, 284.

17

I have condensed Dahlʼs language slightly; see Dahl (2006 [1956], 84); and cf. Dahl and Lindblom (1953, 277–278) for the earlier, shorter list. Dahl substantially revised and expanded these criteria in later work; see in particular Dahl (1971, 3) and Dahl (1989, 221–222).

18

Dahl raises the question of whether the criteria should be weighted but does not pursue the issue: (2006 [1956], 73); cf. (1971, 206–207), and the solution proposed in Coppedge and Reinicke (1990, 56–57).

19

For a recent survey of the field and a proposal for how to move forward see Coppedge, Gerring et al. (2011).

20

Early landmarks of this literature include Lipset (1960) and Almond and Verba (1963).

21

Dahl discusses the e ects of Senate malapportionment (Dahl 2006 [1956]), 112–118. The conflicts over slavery and its legacy are mostly treated as a political rather than a constitutional matter, but cf. 169–171 of the 2006 a erword.

22

This line of argument is of course in considerable tension with the claim that there must be an “underlying consensus on policy” in order for democratic politics to be possible, and that “disputes over policy alternatives are nearly always disputes over a set of alternatives that have already been winnowed down to those within the broad area of basic agreement” (2006 [1956], 132–133).

23

The phrase “social checks and balances” is introduced at (2006 [1956], 22); cf. 83 where the more ambiguous phrase “social separation of powers” also appears.

24

For an acute critique see Morriss (1972).

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Anthony Downs, An Economic Theory of Democracy  Russell Muirhead https://doi.org/10.1093/oxfordhb/9780198717133.013.32 Published: 02 September 2020

Abstract Anthony Downs’s Economic Theory of Democracy has been marginalized in normative democratic theory, notwithstanding its prominence in positive political theory. For normative theorists, the “paradox of voting” testi es to the reality of moral motivation in politics, a species of motivation foreign to Downs’s theory and central to the ideals of deliberative democracy that normative theorists developed in the 1980s and 1990s. The deliberative ideal displaced aggregative conceptions of democracy such as Downs’s model. The ensuing segmentation of normative democratic theories that assume moral motives (like deliberative democracy) and positive models of democracy that assume sel sh motives (like Downs’s theory) leaves both without the resources to diagnose the persistence of ideological partisanship and polarization that beset modern democracies. Engaging Downs’s theoretical contributions, especially the median voter theorem, would constitute a salutary step toward a democratic theory that integrates normative and positive theory.

Keywords: aggregative democracy, deliberative democracy, ideology, paradox of voting, partisanship, median voter theorem, polarization, positive political theory, Downs, An Economic Theory of Democracy Subject: Political Theory, International Relations, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Anthony Downs’s An Economic Theory of Democracy (ETD) is a seminal work whose in uence in political science remains robust over a half-century after its publication (1957), especially in positive political theory. Yet its place is obscure in normative democratic theory of the twenty- rst century. This re ects the failure of rational-choice theory to account for the most elemental political act most citizens undertake— voting. But it also re ects a regrettable severing of normative and positive theory that has closed o normative democratic theory from certain dimensions of politics such as the nature of ideological disagreement and partisanship. To see how Downs might serve as a resource for contemporary democratic theory, it is important to understand why his in uence was eclipsed in the normative domain of democratic theory in the latter decades of the twentieth century.

Democratic Theory before Rawls If we return to the late 1960s—prior to the publication of Rawls’s A Theory of Justice—democratic theory was split between an older sociological tradition and a newer economistic understanding represented by Schumpeter and Downs (Downs 1957; Schumpeter 2008). In the sociological understanding, democracy could be understood best as constituted by social norms embedded in social practices and legal conventions. Talcott Parsons’s functionalist sociology was the most scienti c of the sociological approaches, perhaps (Parsons 1951). The question to be asked, in this tradition, was how certain essential and universal social functions were served by the institutions and practices of a particular place. In the economic view, by contrast, what mattered was not the relationship between the particularity of local traditions and institutions and the universality of certain essential social functions, but the elemental self-interest maximizing disposition of human nature. It is possible, in the economic view, to unpack politics exactly in the manner that economists understand markets. Instead of entrepreneurs seeking pro ts by starting rms, politicians seek power by running for o

ce. And instead of consumers purchasing products, voters

purchase party platforms and leadership teams. Like consumers, voters are informed and manipulated by a steady stream of advertising. The question for democratic theory in the late 1960s was which strain of theorizing o ered more diagnostic power. Surveying both traditions, Brian Barry concluded that both the sociological tradition and the newer economic orientation remained “primitive” and undeveloped. “The theoretic literature of both ‘economic’ and ‘sociological’ approaches is surprisingly spare,” he noted (Barry 1970, 182). He assessed both theories with respect to the goal of generating “veri ed theories and general propositions” (Barry 1970, 183). Democratic theory in Barry’s view was simultaneously a normative and descriptive enterprise: normative because democracy itself was normatively desirable, descriptive because “theory” meant a series of generalizations that organized empirical facts and predictions. For his part, Barry paid careful attention to Downs’s theory and its predictions. Barry found one of the most important of Downs’s predictions—the median voter theorem—both empirically convincing and normatively comforting. The median voter theorem sees voters arrayed on a single dimension of disagreement (left-right) and says that when public opinion is unimodally distributed (centered around a single median), parties in a two-party system will gravitate, indeed collide, at the center. This seemed an accurate description of parties in the United States in the decades after the Second World War—a period that many now see as an anomalous golden age of bipartisan cooperation. At the time, many thought indistinguishable parties were a failure of the system to provide voters with a “real choice.” Barry, for his part, did not share this view. “If actively exercising a choice between sharply contrasted alternatives is considered to be an end in itself,” Barry says, then the politics of Downs’s theory would be unsatisfying. “If, however … a system is to be judged by the extent to which it satis es the wants of the voters,” Barry observes, then the result is “democratic enough” (Barry 1970, 108). Indeed, for Barry, Downs’s median voter theorem can amplify the normative case for democratic authority. The idea of democratic authority says that the fact a law was passed democratically is a pro tanto reason to obey the law, regardless of the content of the law itself. Downs’s theory shows why, under certain plausible conditions, democratic laws will be supported by a majority and why citizens can expect to be on the winning side more than half the time (Barry 1991). In short, Barry saw how Downs’s theory o ers an aggregative defense of democracy: if Downs is right, democracy can be expected to aggregate individual preferences in a manner that accurately re ects and thus satis es the majority. The iron law of oligarchy, by which we can expect that a small team of elites will always concentrate power, does not in fact betray the interests of the democratic majority. While Barry was acutely aware that satisfying the majority was not the only factor in assessing the moral legitimacy of democracy, he certainly saw it as part of the democratic defense. If Downs was right—and Barry thought that with respect to the median voter theory, he was—then

we can expect the aggregative function of democracy to work as it should, which means that in one important respect, delity to majority preferences and interests, the reality of democracy should track the ideal of democracy.

The Paradox of Voting While Downs’s median voter theory formed the theoretical core of aggregative theories of democracy, another aspect of his theory revealed a fundamental defect in the economistic conception of democracy: in Downs’s theory, it is irrational to vote. “Unfortunately for theory,” says Carole Uhlaner, “people do vote” (Green and Shapiro 1994, 50). This is “the paradox that ate rational choice theory,” as Morris Fiorina wrote (Mansbridge 1990, 14). Although Downs insisted that his formal model of politics should stand or fall based on its predictions, the paradox of voting alone threatened to make rational choice theory unreliable as an empirical guide to politics. More important for the course of normative democratic theory, the way this defect was diagnosed opened the door to a new kind of more purely normative theory, and in particular to the theory of deliberative democracy. Voting is irrational in Downs’s theory because the bene ts of voting will almost always be outweighed by the costs. In precise terms, the bene t of voting is the net bene t of preferred candidate or party’s victory, multiplied by the probability that one’s vote will decide the outcome. Since in any sizable electorate this probability is vanishingly small, the bene t of voting is almost always zero. The costs of voting, even if they only amount to the shoe-leather one wears out walking to the polls, will invariably be greater than the bene ts. This makes the fact that millions of people do vote a paradox. Downs attempts to explain away the paradox by suggesting that voters understand how voting sustains a democratic regime; since voters have an interest in a democratic regime, each is willing to “do his share” to make the system work (270). In cost-bene t terms, the “price” of non-voting included the probability of a catastrophic destruction of democracy. Other rational-choice theorists of the time explained the paradox in a similar way. William Riker speculated that citizens are not so much trying to avoid the destruction of democracy as they are seeking the bene t of the satisfaction that comes from complying with the ethic of good citizenship (Riker and Ordeshook 1968). People understand that good citizens vote, and thus see voting as a patriotic act of allegiance. So even if there is no chance that their vote will change the outcome, and thus no crudely strategic interest in voting, there is still a powerful bene t that voters experience. Barry de nitively diagnosed the logical aw with this analysis: the sense of “doing his share”—of getting satisfaction from doing one’s duty with respect to contributing to the costs of providing a public good—is a foreign concept for economics. The only way political economists like Downs and Riker can explain the paradox of voting is to ascribe moral motivation to voters—that is, a motivation to do the right thing irrespective of the discrete costs and bene ts. For political theorists like Barry, the satisfaction of complying with an ethic of duty cannot be reduced to a kind of economic “bene t” that weighs in a cost-bene t analysis, since moral motivation is di erent in kind and its point is to cause one to suspend or displace the ordinary incentives of cost-bene t analysis. Transforming moral motivation into just another economic bene t “forces us to ask,” Barry says, “what really is the point and value of the whole ‘economic’ approach” (Barry 1970, 15). To be sure, Barry himself was not a wholesale critic of Downs or the economistic approach to explaining political behavior. For Barry, the paradox of voting did not vitiate the theory but rather revealed the “limits of the economic approach” (Barry 1970, 19–23). Still, for many theorists the paradox of voting puts into question the entire methodology of rational choice explanation. As Alan Ryan wrote, given the paradox of voting, “it is no wonder that social scientists should turn their attention to some of the nonmaximizing

activities in which people are engaged, such as staging social dramas or planning their lives as works of art” (Ryan 1978, 69). The failure of Downs’s model, and by extension, all rational-choice economistic models of explanation, to account for the most elemental political act liberated normative theorists to pursue new and more purely normative directions in democratic theory. The limits of rational choice explanation clari ed what for normative theorists is often a given: moral motivation is di erent in kind from economic or prudential motivation. What Downs and the paradox of voting showed normative democratic theorists is that this kind of moral motivation is not simply a hypothetical possibility: it is an everyday feature of the ordinary political world. Voting, the most ordinary act of democratic politics, testi es to the frequency and power of moral motivation in politics. The concept of the citizen as motivated by something larger than individual self-interest would take normative democratic theorists away from aggregative conceptions of democracy and toward deliberative conceptions. For if voting is by de nition an act of duty, motivated by moral reasons rather than by strategic ones, then it is the kind of action that transcends individual self-interest. And if ordinary democratic citizens by the millions nd transcending self-interest something they can accomplish, then it is realistic to imagine that democracy itself might be characterized by deliberations about the common good. The paradox of voting revealed that deliberative democracy could be a genuine possibility for democratic life. Jane Mansbridge, for instance, explored this possibility fully in the 1970s; her work at the juncture of empirical and normative theory examined how it is plausible for voters to get “beyond self-interest.” These empirical investigations (in Mansbridge’s case, of Vermont town meetings and participatory workplaces in the 1970s) illuminated how it is possible for democratic citizens to act from cooperative, social motives. Subsequent theorists took Mansbridge’s real-world investigations of in a more theoretical direction. John Rawls and Joshua Cohen, for instance, work out a justi catory theory of deliberative democracy that puts the giving and taking or reasons at the center of democratic life (Cohen 1997; Rawls 1999). In the democratic theory of Rawls and Cohen, self-interest recedes from the central place economistic theories accord it. It is not too much to say that it nearly disappears from the ideal of democracy: democracy has nothing to do with self-interested behavior. While the place of self-interest is more apparent in Habermas’s theory, the assumption remains—contrary to Downs—that citizens can be motivated by something other than self-interest narrowly conceived, and that politics can be something more than an adversary contest of those with competing interests (Habermas 1998, 139–141). Even agonistic models of democracy are more about the “agonism that is inherent in all human society” than they are about the self-interested or interest-maximizing dispositions of individuals (Mou e 1999, 754). By illuminating the role of moral motivation in politics, the paradox that ate rational choice theory allowed normative democratic theory to minimize the place of self-interested action in models of democracy. As Downs and aggregative models of democracy were relegated to the margins of normative democratic theory, so empirical democratic theory came to be segmented from normative theory. In 1968, a political theorist like Brian Barry could survey the main alternatives of democratic theory and evaluate them for their ability to explain and predict political things. Democratic theory was at once a normative and empirical enterprise. By 2008, the normative and empirical approaches to democracy had become largely disconnected. Downs lived on in positive political theory, which develops formal models of politics that, like Downs’s theory, are meant to explain and predict. But Downs largely disappeared from normative 1

democratic theory.

Downsian Democracy: The Median Voter Theorem The marginalization of Downs and economistic models of democracy in normative democratic theory has come at a steep price. It has allowed normative democratic theorists to overlook the fact of disagreement in politics, and to evade thinking carefully about the kinds of aggregative institutions that democracy will need if even the most deliberative polity will still be characterized by persistent disagreement (such as, for instance, political parties). The spatial model of democracy that is at home in Downs’s theory invites theorists to conceive of the distribution of public opinion and to think through the consequences for political institutions. It is an invitation normative theorists should accept: democratic theory should inquire into what kind of ideological disagreement we should wish to see in democratic politics—if any. Insofar as there is disagreement, theorists should speak to questions of institutional design, especially with respect to institutions that aggregate opinion so that political action is possible even amid disagreement. The oversights of contemporary normative theory and the promise of Downsian theory come into focus when we consider the second theory (along with the paradox of voting) for which Downs’s theory has become renowned: the median voter theorem. As mentioned above, the median voter theorem says that when public opinion is clustered in the center (or distributed unimodally on a left-right axis) and there are two main parties, the parties will collide in the center, each aligning itself with the median voter, and thus each rendering itself ideologically indistinguishable from the other. This model described the character of U.S. parties at the time Downs’s book was published—so well that some readers considered it trivial (Ban eld 1958, 324–325). Everyone understood that American parties were ideologically indistinct, catchall a airs. What was trivial prediction in 1957 today seems like an irretrievable golden age of bipartisanship in the twenty- rst century, when parties in Congress are farther apart ideologically than at any time since Reconstruction (Rosenthal and Poole 2014). Why this is so is a matter of enduring debate. Some argue that institutional defects such as gerrymandered districts, primary elections that attract only ideological purists, and the deregulation of campaign nance have allowed small more ideologically-inspired groups to impose their preferences over the wishes of more numerous center (Fiorina 2005). Others argue that voters themselves have become more polarized, at least when we restrict our view to the engaged electorate that pays attention to public a airs and is more likely to vote (Abramowitz 2013). Either way—whether elites betray a centrist electorate or the electorate itself is not so centrist—we no longer inhabit a Downsian democracy.

Making Sense of Ideology Diagnosing why partisanship has become more extreme takes us into the realm of ideology—something that in some respects is at the center of Downs’s theory, and in other respects disappears in his theory. Making sense of ideology and the role it plays in modern democracy is one important area of inquiry where integrating the Downsian approach with normative political theory may generate important insights. Visually, ideology is at the center of Downs’s theory: spatial models of democratic competition are simply visual images of voters or parties graphically displayed along a single ideological axis. Yet at the same time, Downs’s theory gives us very little insight into the nature of ideological conviction or ideological change (Medearis 2001). By contrast, ideology is at the heart of normative democratic theory: the ideas about justice that constitute ideology are the main subjects of democratic theory. But normative democratic theory has been relatively silent on the kind and degree of partisan contestation that well-functioning democracies should exhibit. This impasse explains both why integrating Downsian positive political theory and normative democratic theory would be fruitful. But it also suggests why such an integration would be di

cult. Normative

democratic theorists and Downs each see something about ideology the other cannot. Normative political theorists often take for granted the reality of political ideas: they assume that ideas matter in the respect that people can form, act from, and revise their understanding of justice or the “good society.” Positive political theorists, on the other hand, tend to see ideology either as a veneer that makes personal ambition publicly presentable or as an informational shortcut that connects particular policies with particular interests. For Downs, “ideology” simply refers to a “verbal image of the good society and of the chief means of constructing such a society” (96). As parsimonious as this de nition is—and in some respects it is the simplest and most essential de nition of ideology one can nd—it is also misleading, even within the terms of Downs’s own theory for it says nothing about the value of ideology to those who espouse it. In Downs’s theory, o

ce-seeking partisans espouse ideological convictions not because they genuinely are

motivated by such convictions, but simply because the pretense of ideological conviction helps them realize what they want: “power, prestige, and income” (30). Non-political people (or voters) often perceive political people (o

ce-seekers) exactly this way, as insincere and power-hungry. That is one reason why,

in Downs’s account, o

ce-seekers have to espouse an ideology and to stick with it. In order to be credible to

voters, they need to seem to care about something larger than themselves and their own power—that is, ideas. But there is no reason to assume (in Downs’s view) that politicians’ care for ideas is genuine. Ideology o ers other bene ts as well. Voters also use ideological and partisan labels as essential shortcuts in assessing whether a multitude of governmental policies align with their own views—it is simply cheaper to stay informed about two or three ideologies than about dozens or hundreds of governmental policies. It is not that either ambitious o

ce-seekers or voters in Downs’s model are ideological; it is that they use

ideology to help them get what they want. Voters use ideology to help sort out how to vote. O

ce-seekers

use ideology to help themselves get elected. In Downs’s model, there is no such thing as genuine ideological conviction. For Downs, ideology is not genuine. What matters are not ideas but utility curves: some have a preference for power, prestige, income, and the thrills of the political game—these people want to win o

ce and use

ideological labels to advertise themselves to the public. Others have preferences for ordinary things—good schools, good roads, higher incomes, steady jobs—and these people use ideological labels as a shortcut that equips them to select from competing o

ce-seekers the team most likely to maximize their utility.

This points to the immense space that separates Downs’s positive democratic theory from normative democratic theory. Political theorists generally assume that ideas about a good society are authentic, and might genuinely motivate political action. This goes back to the idea of moral motivation in Kant’s moral theory. Normative political theorists tend to believe that it is possible to have what Kant calls a sense of “duty” or what Rawls calls a “sense of justice”—that is, to be motivated by a sense of what’s fair and right, impartially considered. In the neo-Kantian view, ideas about fairness and justice and the good society are not merely tools we use because we are ambitious. Rather, we might become ambitious and desire to make a di erence in the political world because of the ideas we hold. The vocation of normative political theory is to understand, to inspire, and to guide. It could do none of these if ideas were merely instrumental, like marketing slogans pitched by a car company (“quality is job one!”). The economic approach to political ideas undercuts the possibility that ideas in their own might matter, that there might be better or worse ideas, and that this better-or-worseness might have a consequence for politics. As Ford Motor Company must care rst (and last) about maximizing its pro ts, and thus deploy ideals (like “quality”) only to persuade people to buy its vehicles, so partisan o care rst (and last) about winning o

ce-seekers are assumed to

ce. So they must advance other ideas— “change,” “opportunity,”

“freedom,” “justice”—instrumentally, to make good on their ambition. They want o

ce for the

grati cation of their own idiosyncratic desires (for “power, prestige, and income”), not for the sake of enacting policies they sincerely believe conduce to the common good (28, 30). “Politicians in our model,” Downs says, “never seek o rewards of holding o

ce as a means of carrying out particular policies. Their only goal is to reap the

ce per se. … Parties formulate policies in order to win elections, rather than win

elections in order to formulate policies” (28). Rational-choice reductionism may explain the motivations of many political people—not to mention many other people who do what they do only to maximize their own personal interest. But it is not clear that the desire for power, prestige, and income by themselves would make politics a very compelling vocation. Members of Congress, for instance, have neither much prestige nor power. They have sizable sta s, true. But they cannot order their sta s to wash their cars, do their laundry, clean their homes, have sex with them, donate to their campaigns, or perform any number of personal services they might want or need. To be sure, members of Congress do have a substantial kind of authority: they can direct a few dozen people to perform tasks that are directly related to the job of a public representative. But is this the sort of power that excites? Is it power at all, in a general sense that can be detached from the ends of a representative—serving the common good (Lukes 2004)? One might similarly interrogate whether the prestige and income of elected o explain the motivation to serve in public o conduce to the common good, it is di o

cials is su

ciently robust to

ce. Without some conviction about what policies and principles

cult to make sense of why someone would nd election to public

ce (much less reelection) so desirable. As Patricia A. Hurley says, “In truth, very little” makes the job

desirable. “There are plenty of other jobs that pay more money, are less demanding, and even feed one’s ego more generously than those of U.S. representative or senator. Pursuing reelection as an ultimate goal makes little sense” (Hurley 2001, 259). The more parsimonious and perhaps more accurate assumption is that among the reasons people run for o

ce are those they in fact put forward: because they care about the country and want to empower those

principles and policies that they think are in the public interest. Some may indeed want income, prestige, and power (why not, other things equal?), but given the various competing and often more promising paths to these goods, it would be … well, irrational to seek them primarily in politics. What makes a political life rational is that one cares about public things and has opinions and convictions about the most e ective way to pursue the public good. The best assumption is that people go into politics because they want to make politics their vocation. It might also be accurate to say something similar about those with less interest in o

ce, but who pay some

attention to politics and who generally vote: politics may only be an occasional avocation, but they too do what they do because they care about the public good. These types—the active, engaged, and attentive public—are generally partisans in the sense that they a feeling of party identity and loyalty. Their party presents and represents, in a loose way, the conception of a good society (the ideology) they believe in. Ideology (and partisanship) is not just the veneer that makes private ambition palatable to the wider public, nor is it just a brand name that a ords voters an informational shortcut. Rather, it is a motivational force that no comprehensive account of politics can neglect. To acknowledge this is to invite curiosity about the content of ideologies: what visions of the good society have been most forceful in the political world? Are some more persuasive on examination than others? Are some more compelling, or more reasonable? These questions are the soul of normative political theory, and the way Downs’s model undercuts them perhaps explains why normative democratic theorists have largely looked past Downs’s theory in forming their own theories. But more urgently, it is also at the root of how Downs’s model failed to anticipate the changes that transformed American democracy from a Downsian polity where the parties clashed in the center into a

more partisan and polarized polity. Perhaps, as some say, only political elites really have become more ideological, and the centrist electorate has simply sorted itself more consistently (Levendusky 2009). Perhaps the electorate too has become more partisan, or at least the attentive public (Abramowitz 2013, 45– 50). Either way, there has been an ideological shift. Downs cannot explain such a shift, because Downs takes the ideological shape of public opinion as a given and explains the ideological shape of elites as an instrumental response to public opinion. There are no ideological entrepreneurs in his model—activists, writers, insurgent candidates who care about the principles and policies that de ne the regime. No one in the model tries to disrupt the existing shape of public opinion by persuading people to believe something new. This—the history and practice of persuading people to believe something new—is what normative political theory is about. It is also what drives human history. If normative political theorists in general care about what Downs neglects, ideological conviction, they too often neglect what Downs sees as essential to modern democracy: partisan contestation. For instance, a powerful strain of political theory aims to settle contestation by locating the “most reasonable” conception of justice (Rawls 1999, 578). Often, normative political theorists try to clarify fundamental questions that give rise to permanent arguments; but just as often, they locate fundamental questions and try to answer them de nitively. In this respect, Downs sees something that political theorists often miss: he understands that every democracy contains partisan contestation. Political theorists can appreciate ideology, but not permanent partisan contestation; Downs can appreciate partisanship, but not the reality of ideology. Taken together, both neglect aspects of the ideological and electoral contestation that constitute modern democracy.

The Normative Purpose of Rational Choice Theory This neglect in turn directs us to a point of origin that contemporary normative democratic theory and contemporary positive democratic theory share. Positive political theory was originally invented not merely to describe the world, but to transform it. Originally, positive political theory aimed to diminish if not eradicate the religious ideals of the good society, the ancestor of today’s ideological ideals of the good society (see Hobbes, the founder of positive political theory). It sought to replace religion in politics (that is, ideology) with something more reliable and negotiable: self-interest. Where ideals of the good society are vulnerable to profound uncertainty—it is di society, and it is doubly di

cult to know what justice and morality require of a whole

cult to know what policies best conduce to these requirements—it seems more

solid and more reasonable to base one’s judgments on matters close at hand: one’s own condition, experience, and prospects (Fiorina 1981, 5). In contrast to what we know close at hand, ideology is full of speculation. It requires more certainty than can ever be possessed, more information than can ever be accrued, and more con dence than can be justi ed; in this sense, ideological convictions are irrational. The presence of real ideological convictions threatens to disrupt the prospect of decent, stable democracy. The most disruptive prospect arises when both the people and political elites are ideologically polarized. As Downs himself says, a bimodal (or polynomial) distribution of opinion stretch democratic institutions to their limits. Some think that this is the prospect that U.S. politics presently faces. While many seem to believe polarization will render the government unworkable, in some respects, polarization is a welcome force, as it gives authoritative expression to widely-held views that the era of bipartisan compromise neglected (Mann and Ornstein 2012). But the worry nonetheless expresses a general and long-standing discomfort with ideology that re ects the deeper concern that democracy cannot handle much ideological contestation. It was this concern that motivated a much earlier generation of political theorists to invent rational choice.

Hobbes, for instance, was concerned about religious con ict—the early-modern analogue to ideological con ict in that it cannot be arbitrated by reference to evidence that is obvious to the senses. Any argument that relies on supernatural revelation, as with the religious arguments between Catholics and Protestants and between various sects of Protestantism, is an argument that can in principle go on forever. Arguments that go on forever invite violence— rst because violence seems the only way to settle things, and second, because merely being disagreed with conveys a kind of o ense that prompts people to violence. As a result, in the course of trying to win everything for the political world, people expose themselves to a manner of threat. Politics would go better, in Hobbes’ view, if we could base it on things we can agree about rather than on things that in principle can never generate agreement. When it comes to the health or excellence of the soul, we can never agree, because no evidence is available to the senses that can settle what counts as an excellent soul. But when it comes to the body, we can agree—a vital body is better than a dead or sickly one. A politics that focuses on the body is more rational, not because the goods of the body are more rational than the goods of the soul, but because we can all agree on what counts as good for the body, while we shall never agree about what is good for the soul. Hobbes’s aim was to construct a politics without disagreement by persuading people that we can agree about the importance of peace, security, and longevity, even if we can never agree about the goods of the soul. Hobbes does not say that peace and longevity are the only rational things to want. Rather, they are what it is rational to want from politics. By contrast, it is not rational to want a politics that empowers what our consciences individually dictate, since this leads to a con ict that can never be settled with evidence apparent to the senses, and thus can only be settled by war. So it is rational to want a politics that secures material ends—in particular, the preservation of our bodies. This materialist strain of modern political thought—common to Hobbes, Locke, Rawls, and many others— holds that it is rational to expect politics to secure material goods like health, longevity, and wealth, while it is not rational to expect politics to secure ideational or spiritual goods like virtue, friendship, or piety. Its dominance re ects the success of the rational-choice political project, which in its originating moment sought to recalibrate what people found it rational to expect from politics. Contemporary rational-choice theorists like Downs describe their aims less ambitiously, and seem ignorant of the normative purpose at the heart of rational-choice theory. For his part, Downs tries to avoid saying anything about what it is rational to expect from politics: people want whatever they want, and whatever they want Downs tries to accommodate in his theory. He is concerned with instrumental rationality—the rationality that equips us to pursue e

ciently what we want, whatever that is—not substantive rationality,

which enables us to discern what is worth wanting or what it is reasonable to expect from politics. Yet Downs quietly builds into his model Hobbes’s materialistic conclusion: o

ce-seekers want all-purpose

resources like power, prestige, and income, and voters, though they use ideologies, only use them as useful shortcuts to locating the policies and programs that best align with their own preferences. Those preferences are implicitly presumed to be material. In Downs’s view, voters do not have ideological goals per se. They are not like Puritans in seventeenth-century Connecticut, or like the Islamic State extremists in Syria and Mosul (ISIS) in the twenty- rst century. Voters want material results, and use ideology to select the team of o

ce-seekers most likely to deliver them.

Ideals and Politics Hobbes and his followers in contemporary rational-choice theory are right: it is more rational to expect politics to deliver material goods than spiritual and ideational goods. It is easier to secure agreement on what counts as desirable with respect to material goods (that is, more), and the techniques of provision are easier for political leaders to master. To canvass the great commercial societies of the West today is to see the achievement of Hobbes’s insight. These are polities where few try to win the “whole truth” for politics, where instead governments and public o

cials devote their energies to securing conditions of economic

growth, low unemployment, and rising incomes. Much political debate centers on how to most e ectively secure these goals. But the resurgence of ideological partisanship in the United States and Europe is a reminder that politics is never only about shared material goals and rival economic ways of securing them. Partisanship is fueled by the o

ce-seeking ambitions of the few, always—but also by the reality of ideological convictions.

Sometimes this ideological contestation introduces new dimensions of con ict to politics, complicating the one-dimensional left-right axis of Downs’s spatial model with supplemental axes of con ict. At other times, the con ict engages fundamental questions about material distributions, and ts comfortably on the familiar left-right axis (where left is more socialist, and right is more defensive of unequal property holdings). But in both cases, politics is about ideas—ideas about who deserves what, about virtue, about liberty and the limits to governmental authority, about equality, civic action, and the good society. There is no way to understand contemporary democracy without engaging the ideas that move people and thus animate political contestation. Downs puts permanent partisan contestation at the center of his model of democracy, but cannot appreciate ideology as a real force of its own. He cannot see that normative causes are themselves empirical causes: normative causes (like the “liberal cause,” the “conservative cause,” the “old cause”) motivate action. Unlike Downs, normative democratic theory takes the substance of political ideas seriously—but has di

culty seeing the legitimacy of permanent partisan contestation. Because Downs does not take ideas

seriously, he can appreciate how ambition will generate partisan contestation (even when the parties do not stand for anything distinctive). Because normative democratic theorists take ideas seriously, they can see how moral convictions drive political ambition. Combining the two would equip democratic theory to make sense of the ideological contestation and partisanship. To intelligibly relate our own political predicament to a normative ideal of democratic politics, we will need to repair the disconnection of empirical and normative democratic theory. There is no better place for normative theorists to start than with the work of Anthony Downs.

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Note 1.

There are important exceptions to this generalization, especially to be found in those theorists who bridge social choice theory and normative theory; see for instance Hardin 2003; Buchanan and Congleton 2003. For a sampling of normative democratic theory that does not mention Downs see Bohman and Rehg 1997; Cunningham 2002; Elster 1998; Held 2006. I do not mean to suggest that these specific surveys and collections should treat Downsʼs theory more explicitly, I only adduce them as evidence for the disconnection between Downsʼs theory and normative democratic theory.

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Ronald Dworkin, Taking Rights Seriously  Richard Bellamy https://doi.org/10.1093/oxfordhb/9780198717133.013.18 Published: 05 April 2017

Abstract Taking Rights Seriously is concerned above all with due process, both in law and politics. In this respect, his theory of law and critique of legal positivism frames his theory of politics. He conceives both law and politics in terms of a “right to equality,” the aim being to show individuals equal concern and respect. However, whereas he regards legal process as a matter of principle, orientated toward viewing our relations with others in terms of justice, he treats political process as dealing only with policy and focused on promoting the general welfare. The result is an account of law and politics that is original yet idiosyncratic. Though he sees rights-based judicial review as legitimately trumping utilitarian democratic decisions, his account of legal deliberation is in its way democratic, as his view of civil disobedience illustrates, and could apply as much—if not more—to legislatures as to courts.

Keywords: Dworkin, rights, utilitarianism, equality, legal positivism, democracy, judicial review, civil disobedience Subject: Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

The articles reprinted in Taking Rights Seriously (Dworkin 1978, henceforth TRS) appeared over the previous decade, with the earliest—“The Model of Rules”—dating back to 1967. Today, it is hard to imagine an academic context in which either legal and political philosophy, or the institutions they seek to account for and justify, might not take rights seriously. Over the intervening period, rights have become the dominant discourse of both the theory and practice of law and politics; TRS played a signi cant part in that shift. However, Dworkin’s arguments di er in key respects from those of many contemporary rights theorists, re ecting the distinctiveness of the intellectual, disciplinary, and political contexts in which he developed them. First, his theory of rights was framed as a critique of legal positivism and utilitarianism—the two components of what he termed “the ruling theory of law” (vii). These theories gained their ascendency by o ering radical criticisms of, and an alternative to, natural rights theories—not least their alleged arbitrary deployment to defend the privileges of the well-o

few against the interests of the disadvantaged many

(ix–x). Dworkin’s account seeks to escape these criticisms by showing that rights may be adequately grounded and used by potentially oppressed minorities, while still leaving scope for majority decisionmaking promoting the public interest (xv). Second, and in many respects most importantly, Dworkin’s theory is a general theory of law (vii–viii). His account of rights seeks to overcome supposed lacunae in legal positivism while o ering a more determinate account of judicial reasoning. Dworkin’s views on substantive topics have appealed to political and moral philosophers with little interest in legal philosophy per se. These philosophers tend to assume that his account of law o ers little or no constraint on his moral and political theory, and that he conceives of law and legal theory as little more than a branch of applied ethics. This is a mistake. As TRS illustrates, it would be truer to say that morality and politics form, for him, a branch of “applied legal theory.” Finally, Dworkin was an American liberal in Oxford and London, whose theory evolved against the backdrop of his home country’s civil rights movement and protests against the Vietnam War. He saw liberalism as embattled, attacked by left and right for its individualism and rationalism (vii). As he noted, similar charges were also laid against legal positivism and utilitarianism (x). Yet these were not the grounds for Dworkin’s dissent from the ruling theory. On the contrary, he sought to defend an explicitly individualist and rationalist “liberal theory of law” (vii), and saw such a defense as resting most coherently on the very theory of rights these doctrines rejected (xi). It would be reductive to say that he merely rationalized the liberal judgments of the Warren Court; for one thing, his views often proved more liberal and radical than the Court’s. Rather, he attempted to o er a better rationale for the claims presented to the Court than the claimants often themselves provided, and for the response he believed judges should, could and—whether they realized it or not—in part did make when assessing their claims. Three further introductory remarks are in order. First, as I noted above, TRS is a book of essays, written over a decade, and of very di erent kinds. Some are more occasional pieces than others; some focus on general jurisprudence concerning the nature of law, others on applications of the particular jurisprudence of liberal democracies to topics such as civil disobedience and a

rmative action, and a few on the character of

liberalism itself. The book does not lay out in a systematic way Dworkin’s theory of law and rights. Instead, it exempli es it through exploring various disparate topics: Hart’s (1961)  Concept of Law, Hard Cases, or Rawls’ (1971) argument from the original position in A Theory of Justice. Nevertheless, Dworkin (2011) later made clear that he believed his views on particular topics formed part of a coherent whole. Although his overall vision is not laid out in TRS in anything like the systematic way he came to do, it contains the guiding principles concerning the independence, unity, and interpretative character of moral values that inform his mature view. Moreover, in TRS the origins of this approach in a moral reading of the theory and practice of constitutional law that is then extended to all other areas of human endeavor are especially noticeable. Second, political theorists more familiar with Dworkin’s later writings on social justice will notice its conspicuous absence in TRS. Even the famous essay on Rawls is concerned with method, defending Dworkin’s constructivist approach by contrast to Rawls’s use of the Original Position, rather than with the virtues or otherwise of Rawls’s two principles. Nevertheless, the incorporation of the individualistic assumptions of choice and responsibility into arguments for egalitarian redistribution that would motivate his distinctive social egalitarianism, with its focus on equality of resources, can be found in his more general ambition in TRS to balance the collective perspective o ered by utilitarianism with the individualism of rights within an overarching egalitarian framework focused on equality of concern as well as of respect (xv). Third, this approach also owed from his juristic starting point, re ecting a preoccupation with due process. Many commentators have been perplexed by Dworkin’s claim that rights derive from a core “right to equality” that re ects the underlying “political morality” of liberal democracies. However, this thesis can be traced back to a belief in equality before the law as the central commitment of a justi ed legal and political system. In Dworkin’s view, such equality is achieved by a due process o ering the prospect of a fair

trial and being able to put one’s case in a fair and equitable way. Indeed, this processual approach proves central to both his legal and political theory.

Between Legal Positivism and Natural Law: Dworkinʼs Theory of Law TRS begins with the opening salvos of the Hart–Dworkin debate (chapters 1–4, and in particular chapters 2–3). Carried out largely by others, this debate dominated Anglo-American legal philosophy right up to (and beyond) Hart’s posthumous postscript to The Concept of Law (for an overview, see Shapiro 2007). Dworkin o ered a brilliant if tendentious characterization of legal positivism in general, and Hart’s version in particular, as a “model of and for a system of rules” (22). He made three main claims about this model (17). First, that it identi ed laws as the laws of the community by “their pedigree or the manner in which they were adopted or developed.” Second, that laws that can be identi ed in this way exhaust the law, so that if a judge or administrator faces a case that is not unambiguously covered by an existing rule they cannot “apply the law” but can only exercise their discretion. Finally, that a legal obligation consists of abiding by the duties imposed by a valid law to do or not do certain things. So conceived, legal positivism had a broadly Benthamite rationale to remove the lack of clarity and arbitrariness about the law which Bentham believed inherent to appeals to a mysterious natural law, even in the “modern” form of human rights. Two implications of this Benthamite position prove particularly important for Dworkin. First, Bentham believed that one could make a distinction between “expository” and “censorial” jurisprudence, between what the law is and what it ought to be. This argument has sometimes been regarded as entailing a sharp separation of law and morality, and TRS tends to adopt that view. However, arguably legal positivism merely involves the more modest position that what the law is can be identi ed without moral or evaluative concepts as to what the law ought to be in particular circumstances. It does not entail that the law cannot contain any moral principles. Second, Bentham was infamously antagonistic to doctrines of natural rights, deeming them “simple nonsense,” with “natural and imprescriptible rights, rhetorical nonsense—nonsense upon stilts,” lacking any ontological basis. They simply re ected the personal desires of those claiming them, giving a veneer of legitimacy to often sel sh passions. Bentham did not deny that valid moral claims could have the features of a right. He merely insisted that they had to be made on the basis of utility, as “securities against misrule.” In criticizing the model of rules, Dworkin suggested that a moral reading of the law is not only possible but also unavoidable given law was thoroughly normative. Consequently, “expository” jurisprudence was necessarily “censorial” in character. Dworkin argued this did not imply a return to natural law, and could be undertaken in a way that respected legal certainty and what he later termed law’s integrity. Therefore, a moral view of the law could be more than an arbitrary identi cation of the law with one’s own subjective (and self-serving) position. Moreover, at the heart of this moral reading was a conception of individual rights. Dworkin sought to avoid the charge of “nonsense” by denying that rights “are spooky sorts of things that men and women have in much the same way as they have non-spooky things like tonsils.” He claimed that his theory did “not make ontological assumptions of that sort” (139). Rather, rights are “a special, in the sense of restricted, sort of judgment about what is right and wrong for governments to do” (139). He wanted to avoid identifying rights as core interests or goods of human beings. Yet he also wanted to deny that rights were simply correlative to legal duties. Rights are neither independent “things” nor merely formally enacted legal rights, but rather a kind of moral judgment that, he suggests, inhere in the nature of law, at least within liberal societies (198–199). Dworkin’s rejection of positivism and his conception of rights thereby form two sides of the same coin: a moral account of the law. Dworkin accepted that human beings make law at a particular time and place.

However, he disputed all three aspects of the so-called “model of rules” mentioned above: pedigree, gaps, and obligations. Dworkin argues that settled law embodies not only rules but also principles. Unlike rules, principles—such as “no person may pro t from his or her wrong”—do not simply apply or not apply. Rather, they operate as reasons that can be accorded di erent degrees of “weight” according to both the case at hand and interplay with other principles. Dworkin’s view that principles inhere in any system of laws leads him to deny that either the identi cation of law or the very notion of legality turn on the “pedigree” whereby written laws come into being. Instead, legality follows from the judgments of legislators, lawyers, citizens, and above all judges as to what understanding of the law in any given case best coheres with its underlying principles. Dworkin contends that public o

cials, such as judges, but also ordinary individuals in their public capacity as citizens, have a

duty to integrate the legal principles found in the law into a coherent whole that presents the entire system of laws in the best possible moral light. Yet this integrative process is a matter of “construction” (162). Dworkin eschews not only the model of rules but also what he calls the “natural model,” whereby the aim of a coherent ordering of principles is to mirror an objective moral order. The constructive model makes no such assumption. As such, it makes no assumption that all our moral intuitions ought ultimately to cohere; it allows that we might reject some because they seem at odds with the best ordering of the principles we are able to construct. Dworkin claims this process of construction is a collective and public enterprise. Though he extends the model of construction to moral reasoning more generally, he regards it as exempli ed by judicial reasoning. The natural model would see judges as each o ering his or her view of what the objective moral order is, making it necessary to nd some Archimedean point for adjudicating between their di erent understandings. Without such adjudication, they could regard disagreement as evidence of subjective preferences or inaccurate inferences and observations. By contrast, Dworkin sees judges’ e orts to accommodate precedents to a set of principles inherent in the law that might justify them as a necessarily collaborative exercise, one that seeks to discover the common morality behind the di erent judgments various judges have made. Nevertheless, in so doing judges do not simply adopt the conventional morality as found in widely accepted social rules. They make substantive moral judgments and seek to develop the morally best explanation and justi cation of the law as it has developed. This raises Dworkin’s critique of the second feature he associated with positivism, the view that in the absence of a rule, judges must ll the resulting gap in the law by using their discretion to “invent” rights that seem to them appropriate in the given case. At best, only peer and social pressures hold them in check. Against this position, Dworkin argues that there is always a “right answer” to what the law requires in a given case, including those cases not covered by any existing legislation. Even when there is no settled rule covering a given case it remains “the judge’s duty … to discover what the rights of the parties are, not to invent new rights retrospectively” (81). A judge adopting the model of construction engages in a process of “discovery” of what an appropriate weighing of the principles underlying the entire body of settled law requires in any given case. Dworkin admits this is no easy task—indeed, it turns out to be a task of Herculean proportions, requiring “a lawyer of superhuman skill, learning, patience and acumen, whom I shall call Hercules” (105). However, even if only a hypothetical Hercules could arrive at a de nitively right answer based on the morally “best” reading of what the principles behind settled law require in any given case, he contends all judges are obligated to try. Not being Hercules, we may come to di erent views (80)— indeed, the limits of our practical reasoning make disagreement almost inevitable. That does not invalidate the process of construction. This brings us to what is in many respects the most radical, if also the most neglected, aspect of Dworkin’s argument, his critique of the positivist account of legal obligation. He believed not only judges but also citizens can and should engage in the constructive model of law. However, doing so challenges the view that we are necessarily under a legal obligation to obey validly made law. I remarked earlier that the protest movements of the 1960s framed the development of Dworkin’s theory. Activists found various forms of civil

disobedience important tools in the movements of the time, from “freedom riders” who rode interstate buses to protest segregation to draft resisters objecting to the Vietnam War. As Dworkin observed, a standard view—even among these activists—was that as civil disobedients rather than revolutionaries they were duty-bound to su er the legal consequences of disobeying even those laws they considered unjust (206–207). Dworkin disagrees; that position assumes the “pedigree” account of legal validity. On the constructive account, the unjust law may be invalid because it fails to re ect the best reading of the principles that ground the law. That may be true even if a court has a

rmed it. After all, multimember

courts often divide, while constitutional courts frequently revisit and overturn past decisions (213). So the judicial system itself acknowledges it can make mistakes. Therefore, “no judicial decision is necessarily the right decision” (185). As a result, a civil disobedient need not regard him or herself as necessarily defying the law, so much as suggesting that the court and government may have made a moral and legal mistake as to what the law is. He accepts that when individuals morally disagree about the state of the law, then it may be necessary for some authorized agent to “have the nal say on what law will be enforced” to avoid anarchy (186). It will then be a matter of individual prudence whether those who continue to disagree acquiesce or not (213). However, if they continue to disagree, they are not necessarily doing wrong. On the contrary, society and the law may gain from their so doing, because their actions form part of the collaborative e ort alongside the courts and government to get the law right by encouraging them to try their best to do so (213). Critics have raised a host of problems with Dworkin’s account of the law. Positivists have never insisted on a hard and fast separation of law and morality. For example, Hart always acknowledged that in legal systems such as the United States “the ultimate criteria of legal validity explicitly incorporate principles of justice or substantive moral values.” Likewise, statutes “may be a mere legal shell and demand by their express terms to be lled out with the aid of moral principles” (1961, 199). Meanwhile, “inclusive” legal positivists have developed this argument further and argued that legal positivism can allow moral tests of legality without even requiring that they have a given pedigree (Coleman 1982, 44). Like Hart’s “rule of recognition,” such moral tests may originate as a social rule, a convention among judges and citizens, whereby certain moral norms are legally binding. Controversies about the bearing of this rule need not undermine the existence of such a convention; they re ect disagreements about its application to particular cases rather than about its content. Indeed, Hart himself endorsed this reading in his posthumously published response to Dworkin’s critique (Hart 1994, 250, 253, 258). Nonetheless, positivists do a

rm that at times it is possible to say: “this is law but too iniquitous to obey or

apply” (Hart 1961, 203–207). Many have wondered whether Dworkin denies this. If not, then his account of legal construction will only yield a suitably moral view of the law in cases where the settled law incorporates liberal moral principles. In illiberal regimes such as Nazi Germany, apartheid South Africa, or the antebellum United States, it remains unclear how Hercules might reach liberal conclusions without appealing to natural law (Mackie 1977, 166–168; Dyzenhaus 2007). At the very least, it would appear that in such instances Dworkin must accept a distinction between “expository” and “censorial” jurisprudence (MacCormick 1982, 191; Hart 1994, 270–271). Two important aspects of Dworkin’s legal theory are highlighted by such criticisms. The rst is that though Dworkin appeals to principles in the settled law, he places no great weight on settlement per se. Laws that might appear settled can be challenged and even e ectively disapplied by appeal to a constructive reading that shows them to be inconsistent with the law’s underlying principles, while the understanding of these principles themselves and their relation to past and future cases remain likewise open to debate and revision. Despite the hypothesis of an objective “right answer,” right answers as such do little work in his argument, and he ridicules as “nonsense” the idea that “there is always a “right answer” to a legal problem to be found … locked up in some transcendental strongbox” (216). As Waldron (2004) has remarked, Dworkin’s theory is more about process than result. It is a theory of the practice of legal argumentation, a

practice that, as we saw, he seeks to make as open as possible. The importance of law lies in the way it shapes debate by encouraging all concerned to order their mutual legal relations in a coherent and principled manner, consistent with the moral and political values of the community as a whole. The second aspect concerns his account of rights. Though rights in his theory relate more to moral principles found within the law than to legal rights resulting from duly enacted rules, he says little about their basis (MacCormick 1982, 193). As I noted, Dworkin denies that rights follow from interests in particular goods, including—most controversially, given his liberalism—any right to liberty, an idea he dismisses as “absurd” (178–179, 268–272). Instead, he o ers two rather abstract reasons why we should take rights seriously— rst, “the vague but powerful idea of human dignity,” second, “the more familiar idea of political equality” (199). The second most motivates Dworkin’s argument (272–273). Indeed, he even talks of “a right to equality,” whereby “the weaker members of a political community are entitled to the same concern and respect of the government as the more powerful members” (199). Again, this emphasis on dignity and equality can best be understood as a corollary of his view of the rule of law as a process of principled legal debate that “encourages each individual to suppose that his relations with other citizens and with his government are matters of justice” and “to discuss as a community what justice requires those relations to be” by promising “a forum in which his claims about what he is entitled to have will be steadily and seriously considered at his demand” (Dworkin 1985, 32). To take rights seriously is less to get rights right, than to show that the rights of all are given due consideration by conducting legal and political debate in an equitable way. As he famously put it, the “‘right to equality’ is not ‘a right to equal treatment’ but a ‘right to treatment as an equal,’” a right “not to an equal distribution of some good or opportunity, but … to equal concern and respect in the political decision about how these goods and opportunities are to be distributed” (273). The legal rights he believes we can invoke to speci c liberties follow from the requirements of equal concern and respect in such a political and legal process. His views of both the rule of law and of rights might be thought to promote the politicization of the law. Some have thought Dworkin’s account leads legal actors to assume a role more appropriately left to legislators (Mackie 1977). Of course, Dworkin denies that these legal debates entail legislating, given that they involve discovering, not inventing the law. However, his description of the legal process might be regarded as equally applicable to the political process, possibly more so (Waldron 1999; Bellamy 2007). Yet, Dworkin regards it as an inherently legal mode of argument, at variance with, and a necessary corrective to, that of political debate, with both playing a complementary role in a democracy.

Between Utility and Rights: Dworkinʼs Theory of Politics Dworkin’s theory of law seeks to combine the advantages of legal positivism and natural law while overcoming their alleged disadvantages. Similarly, his account of politics and rights aims to employ the resulting principled view of law to counteract the disadvantages of the utilitarianism he perceives as inherent to democratic decision-making, while preserving its advantages. He views his deliberative conception of the nature of law as complementing the largely aggregative character of politics. If the former purports to secure the values and principles of the political community, above all the rights of individuals to equal concern and respect, the latter supposedly ensures that state policies serve the general welfare. In this way, he hopes to retain the radical progressivism of utilitarianism while upholding a liberal attention to individual rights. His view of these rights largely re ects this account of the complementary roles of law and politics. Although Dworkin says little about the basis of rights, he does describe their nature and purpose. Rights are “an anti-utilitarian concept” in being something that it would be “wrong for the government to deny to [someone] even though it would be in the general interest to do so” (269). Such “individual rights are

political trumps held by individuals” (xi). That sounds anti-collectivist and libertarian in character, prompting the Benthamite worry that rights might serve as spurious metaphysical justi cations for placing the self-serving individual interests of a privileged minority above the general interest of the majority. Dworkin seeks to dispel such objections by accepting the legitimacy of redistributive and regulatory governmental action on largely utilitarian grounds, while reserving the appeal to rights to those whose voices may still go unheard in such calculations of utility, particularly under-privileged minorities. Dworkin conceives of democracy as consisting in the aggregation of the preferences of citizens in order to arrive at policies that support the general interest. In his view, majoritarian decisions arrived at by a fair, free, and equal vote provide the most practical way to determine those policies that best promote the greatest happiness of the greatest number. Somewhat surprisingly from a traditional rights-based liberal perspective, he sees such a process as for the most part justi ed, because largely consistent with the core need for governments to treat people “with equal concern and respect” (272–273). Dworkin argues that this “postulate of political morality” demands equal and impartial processes for the allocation of goods that do not suppose “one citizen’s conception of the good life of one group is nobler or superior to another’s” (273). By counting everyone as one and only one, Dworkin maintains that utilitarian calculations “seem not to oppose but on the contrary to embody the fundamental right of equal concern and respect.” They treat “the wishes of each member of the community on a par with the wishes of any other” (275). On Dworkin’s account, human rights do not re ect core interests with a special weight that a utilitarian calculation might fail to take into account. So long as the right to be treated as an equal gets recognized, then many of the rights liberals have traditionally invoked as constraints on democratic governments may be justi ably overridden for the sake of utility. I observed that, unlike many liberals and libertarian-minded conservatives, Dworkin contends there is no right to liberty as such but only to those liberties—like freedom of speech—necessary to protect the right to be treated with equal concern and respect. Consequently, he has no objections to an interventionist state that restricts various economic freedoms, such as property rights or freedom of contract, in order to advance social welfare overall. Indeed, he accepts that the state may need to regulate individual liberty in a variety of ways to secure certain kinds of public goods that are desired or more deeply valued by most people. He famously argues that there is no right to be free to drive both ways on Lexington Avenue (191, 269–278). If restricting drivers to one direction facilitates the overall ow of tra su

c, then that would be a

cient reason for limiting an individual’s freedom. Likewise, he regards state-imposed limitations on

working hours, such as those declared in Lochner to be incompatible with the freedom to enter into labor contracts involving more than ten hours of work per day, as allowable for the general welfare (278). So is taxation to support such public goods as state education, health care, art galleries, and museums. He supports policies not only to prohibit discrimination on grounds of race or gender, but also to enforce desegregation and reverse discrimination, through various kinds of a

rmative action. All such policies

prove allowable insofar as they can be regarded as products of an impartial, egalitarian procedure for promoting the general welfare. None of the above examples lead Dworkin to invoke the need for an “anti-Utilitarian” concept of rights. On the contrary, he remarks that “the vast bulk of the laws which diminish my liberty are justi ed on Utilitarian grounds” (269). Why, then, are anti-utilitarian “trumps” necessary? The answer turns out to be because of an alleged fault in the way democracy operates, whereby its egalitarianism proves “often an illusion” (275). Two related distinctions do the work in producing this judgment. The rst is a distinction between personal and external preferences (234–235, 275–276). An individual’s personal preferences are for, or derive from, the satisfactions that individual seeks personally to gain from certain goods and advantages. By contrast, an individual’s external preferences concern how they believe goods and advantages should be assigned to others. Dworkin contends that the only defensible form of utilitarianism is one that counts only personal and not external preferences. A calculation of utility that includes external

preferences will not treat all those involved with equal concern and respect in the process of decisionmaking. A white supremacist holds the external preference that a black person should count for less than a white person. Certain people hold religious views about homosexuality and contraception that lead them not only to prefer avoiding these activities themselves, but also that others abstain from them. Dworkin regards such external preferences as a form of “double counting” (235), since the external preference for what others should do is in addition to one’s personal preference for what one should do oneself. As such, it o ends the utilitarian injunction of everyone counting for one and only one. A number of commentators have found this argument a little obscure and the ban on external preferences either too broad or too narrow to support the values Dworkin holds (Hart 1979, 219–220). It appears too broad in seeming to rule out the external preferences of, say, liberal heterosexuals in support of gay rights. It appears too narrow, in that rights would have no purchase at all among an electorate of highly tolerant and liberal voters, who simply express personal preferences. However, construing Dworkin’s argument simply as an attempt to re ne utilitarianism—a construal he admits encouraging—is perhaps misleading. The key issue is that he seeks to avoid policies being made in ways that o end neutrality by treating some people as worthier or less worthy than others on account of personal features for which they have no responsibility. Dworkin considers it impossible to know whether such external preferences have gured in democratic decision-making or not, or how decisive they may have been. His argument is that when it seems likely that they will in uence public decision-making given the character of the society, as in laws governing free choice in sexual relations in a community where many hold views that condemn certain choices as immoral, then rights will need to be upheld by courts. Democratic processes cannot be depended upon to take su

ciently seriously those rights needed to sustain the right to be treated with equality of

concern and respect. Dworkin’s second distinction, between policy and principle, enters here. Arguments of policy involve showing that a political decision “advances or protects some collective goal of the community as a whole,” whereas arguments of principle “justify a political decision by showing that the decision respects or secures some … right” (82). Dworkin o ers this distinction as a way of describing a division of labor between democratic politics and liberal law that justi es a clear functional separation between the two branches, and the possibility for courts to strike down democratically enacted legislation on principled grounds. Yet, it is unclear that the two can be easily distinguished (Greenawalt 1977). A statute might speci cally direct courts to consider di erent policies in order to see which promotes the general welfare. Legislation may also bestow rights on individuals, with the purpose of promoting a policy deemed to favor the general welfare. Dworkin suggests that in such cases courts should consider the “special political theory that justi es this statute, in the light of the legislature’s more general responsibilities, better than any alternative theory” (108). But if the legislature’s more general responsibility is to promote the general welfare, we seem to be back to square one. Moreover, if—as Dworkin suggests—on policy issues the legislative process is the most appropriate, then how can a court ever be competent to overrule it? Likewise, upholding constitutional rights may involve courts making policy as to how to institute a given right. Yet, suppose the legislature has considered issues of constitutional principle in the making of policy. Perhaps, as in the United Kingdom under the Human Rights Act, it has explicitly undertaken a principled discussion of the implications and impact of the policy for rights. Some of the legislation issuing from such a process may even have the promotion of a constitutional principle as its focus. Dworkin recognizes that citizens and judges can both disagree on matters of principle, and that to take rights seriously can only be to consider them duly, showing equal concern and respect to the views involved and ensuring they are fully and equitably considered. His argument seems to be that democratic politics does that less well than courts simply because matters of principle are less in the foreground. But suppose they are in the foreground, that their due consideration forms an explicit part of the legislature’s remit and one that is undertaken seriously? Sometimes Dworkin suggests that the mere act of legislative voting indicates a lack of principled

deliberation (e.g., Dworkin 1996). Yet multimember courts disagree in good (and bad) faith too, and vote to decide. Can judges legitimately strike down these policies by invoking rights as trumps if these trumps have already been played in the deliberations of the legislature? Is this not a most egregious form of double counting? Dworkin’s account of the moral nature of law and the centrality of a right to equality may not commit us, as he believed, to some form of legal constitutionalism. Potentially, it works as well as a basis for political constitutionalism. Dworkin’s comments on civil disobedience can be read in a highly political way, empowering citizens to participate in the moral debate about the nature of law. In later writings, he even insisted that a key virtue of the judicial protection of constitutional rights lay in the way it could spark a broader public debate. Yet he remained opposed to allowing citizens to decide such rights-questions themselves, through the democratic process. In part, that could be because he sought to retain his critique of the pedigree element of the model of rules. If we regard democratic elections and legislative debates as engaged in principled argument on a fair and equal basis, then the fact that the pedigree of law lies within such a process gains additional weight. It suggests that judges may not be taking rights as seriously as they ought if they disregard the seriousness with which they have already been debated by citizens (Waldron 2008). That does not mean that judges can play no role in the debate. Legislatures necessarily take a general view, even if not necessarily one that sacri ces principle to policy, while courts deal with individual cases. As a result, courts can discover that, in given circumstances, a law may have unfortunate consequences for particular individuals in ways that legislatures may not—possibly could not—have foreseen. In such cases, courts can play a vital role in prompting further deliberation by the legislature of individual rights. Yet this need only take the form of “weak” review, requesting that the legislature reconsider its legislation in the light of the di

culties highlighted by a case (Bellamy 2012). Given the court’s view can be as mistaken as

the legislature’s, provided politicians engage in a process that takes rights seriously, there can be no justi cation for handing the nal decision to the judges. Indeed, to do so fails to treat citizens and their elected representatives as having equally valid views on the topic of which laws are to govern their relations with others (Waldron 1999, 302; Bellamy 2007, 93–100). One might argue that for a legislature to review its own decision would allow it to be judge in its own case. But Dworkin has no objection to courts reviewing their own precedents. On the contrary, he welcomes it. The evidence indicates that in most cases legislatures defer to judicial misgivings. Where they do not—as in the recent case of prisoners’ voting rights in the United Kingdom—the issue is usually legally and politically highly controversial. However, it is also a matter that a future legislature, with a di erent composition, can decide di erently. After all, MPs can be and are regularly removed by the electorate, rendering them responsive to the moral arguments of the electorate in a way courts rarely are. Dworkin’s critique of democracy has the character of a self-ful lling prophecy. Nothing is more likely to lead politicians not to take rights seriously than suggesting they have no particular responsibility to do so. The few normative arguments he o ers for this division of labor either prove incoherent or involve problems that apply as much to courts as to legislatures. By contrast, many of his arguments highlighting the role of a due process in taking rights seriously suggest that courts and democracy can work best together rather than separated, with each seen as a forum of principle.

Conclusion TRS enlivened both legal and political theory, not least in pointing to the links between the two. Yet, though its criticisms forced those criticized to sharpen and develop their arguments, none have felt the need to concede defeat. As often happens with important books, Dworkin’s inspired others both to criticize his arguments and to develop his ideas in ways he neither anticipated nor would necessarily have welcomed. In particular, I have suggested that a book inspired by the need for a moral reading of the law can provide a basis for an account of the morality of law-making. Therefore, a twentieth-century classic of legal theory may become a classic of political theory for the twenty- rst century.

References Bellamy, R. P. 2007. Political Constitutionalism. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Bellamy, R. P. 2012. “Rights as Democracy.” Critical Review of International Social and Political Philosophy (CRISPP) 15(4): 449– 471. Google Scholar WorldCat Coleman, J. L. 1982. “Negative and Positive Positivism.” In Ronald Dworkin and Contemporary Jurisprudence, edited by M. Cohen , 28–48. London: Duckworth, 1984. Google Scholar Google Preview WorldCat COPAC Dworkin, Ronald. 1978. Taking Rights Seriously. Cambridge: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Dworkin, Ronald. 1985. A Matter of Principle. Cambridge: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Dworkin, Ronald. 1996. Freedomʼs Law. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Dworkin, Ronald. 2011. Justice for Hedgehogs. Cambridge MA: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Dyzenhaus, D. 2007. “The Rule of Law as the Rule of Liberal Principle.” In Ronald Dworkin, edited by A. Ripstein, 82–108. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Greenawalt, K. 1977. “Policy, Rights and Judicial Decision.” In Ronald Dworkin and Contemporary Jurisprudence, edited by M. Cohen, 88–118. London: Duckworth, 1984. Google Scholar Google Preview WorldCat COPAC Hart, H. L. A. 1961. The Concept of Law. Oxford: Clarendon Press. Google Scholar Google Preview WorldCat COPAC Hart, H. L. A. 1979. “Between Utility and Rights.” In Ronald Dworkin and Contemporary Jurisprudence, edited by M. Cohen, 214– 226. London: Duckworth, 1984. Google Scholar Google Preview WorldCat COPAC Hart, H. L. A. 1994. “Postscript” to The Concept of Law, 2nd edn. Oxford: Clarendon Press. Google Scholar Google Preview WorldCat COPAC MacCormick, N. 1982. “Dworkin as a Pre-Benthamite.” In Ronald Dworkin and Contemporary Jurisprudence, edited by M. Cohen, 182–201. London: Duckworth, 1984. Google Scholar Google Preview WorldCat COPAC Mackie, J. 1977. “The Third Theory of Law.” In Ronald Dworkin and Contemporary Jurisprudence, edited by M. Cohen, 161–170. London: Duckworth, 1984. Google Scholar Google Preview WorldCat COPAC Rawls, J. 1971. A Theory of Justice. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC

Shapiro, S. J. 2007. “The Hart–Dworkin Debate: A Short Guide for the Perplexed.” In Ronald Dworkin, edited by A. Ripstein, 56–81. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Waldron, J. 1999. Law and Disagreement. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Waldron, J. 2004. “The Rule of Law as a Theatre of Debate.” In Dworkin and his Critics, edited by J. Burley, 319–335. Oxford: Blackwell. Google Scholar Google Preview WorldCat COPAC Waldron, J. 2008. “Can There Be a Democratic Jurisprudence?” Emory Law Journal 58(4): 675–712. Google Scholar WorldCat

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Jon Elster, Sour Grapes  Eric Schliesser https://doi.org/10.1093/oxfordhb/9780198717133.013.51 Published: 08 May 2018

Abstract This chapter evaluates Jon Elster’s Sour Grapes: Studies in the Subversion of Rationality thirty- ve years after publication. In the rst section of the chapter, Elster’s work is put in intellectual context. The chapter draws attention to the signi cance of Elster’s framework in changing our understanding and scope of rational choice theory. It argues that the focus on adaptive preferences has opened up important questions for any political theory and policy science confronting the relationship between experts and the agents theorized. In the second section of the chapter Elster’s aesthetics and his critical treatment of Foucault is re-evaluated and found to be less compelling. In particular, Elster’s critique of a certain kind of consequence explanation is criticized.

Keywords: Elster, Adaptive Preferences, Sour Grapes, Rational Choice Theory, Technocracy, Foucault, Consequence Explanation Subject: Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Introduction ,1

Jon Elster’s (1983)  Sour Grapes: Studies in the Subversion of Rationality (SG) elegantly weaves together conceptual analysis, decision theory, and political theory; it subtly draws on literature, social psychology, and history in ways that were and remain very uncommon within analytic philosophy. In doing so, it brilliantly and judiciously exploits evidence of behavior from di ering institutional contexts (culturally and temporally apart), for example, Imperial Rome (by way of Veyne’s study Le Pain et le Cirque) and Soviet Russia (by way of Zinoviev’s satirical novel, The Yawning Heights) [developing Elster 1980]. Its main claim is that “preferences underlying a choice may be shaped by the [given] constraints” (ix). Hereby Elster recovers in an analytic register Frank Knight’s forgotten insight that “wants which impel economic activity and 2

which it is directed toward satisfying are the products of the economic process itself” (1922, 457).

However, Elster’s position is more precisely articulated and broader than Knight’s because he does not focus only on the economic process.

Elster’s main claim matters because a standard way of conceiving rational action is as the satisfaction of one’s preferences (within constraints). The satisfaction of preferences is also an important way of 3

understanding freedom. But if Elster is right, then this conception of rational action (and freedom) presupposes a distinction (between preferences and constraints) that cannot be assumed without sometimes risking missing the point or the very nature of some (class of) action(s). A central, in uential example that Elster develops to illustrate the position, and which provides him with the title of his book, is the one of sour grapes or adaptive preferences, that is, “preferences shaped by a 4

process that preempts” or undermines “choice” (111). Cases that involve such improperly shaped preferences come in many varieties: they may reduce cognitive dissonance, be instances of rationalization or so-called Stockholm syndrome as well as examples of complicity in one’s own deprivation. Elster carefully distinguishes among them. Elster’s analysis undermines any simplistic reliance on a rational choice theory (hereafter RCT) model that takes revealed preference for granted; this is, of course, still standard practice, even an increasingly 5

sophisticated, developing research program, in contemporary economics. For Elster’s work encourages one both to explore the conditions under which decisions are made as well as to promote institutions and policies that can facilitate more autonomous decision-making (SG 129–130; see, e.g., Pettit 1996). But acceptance of the existence of adaptive preferences also encourages the economist or utilitarian moral theorist or policymaker, who would otherwise rely on revealed preference, into discounting some agents’ actions (or their very agency), to ignore their testimony, and to suppose, paternalistically, that she knows better than the agent. Elizabeth Barnes (2016, 135–137) has analyzed some of the risks that follow when experts embrace the existence of adaptive preferences in the subjects they study in order to ignore, say, the 6

testimony of those considered irrational or confused.

The historical signi cance of SG consists, thus, of three main features. First, SG is presented as a companion to Elster’s earlier (1979) Ulysses and the Sirens, which explores the idea that people “sometimes are free to choose their own constraints” (ix). Together these books challenge “orthodox” RCT. Alongside in uential 7

works by psychologists, Elster’s book helped generate a general shift in the perception of RCT; mainstream economists were forced to concede that even though they once treated RCT as a positive (that is, empirical) 8

theory, it is better understood as a normative theory. In Elster’s terminology: if preferences are adaptive and, thus, even if revealed in action and exhibiting (empirical) systematic and stable patterns of behavior, then they are not necessarily rational in the thick (that is, morally relevant) sense. For the institutions and practices that shape their behavior may be less than just. If the sensitive welfare economist or consequentialist-utilitarian wishes to avoid merely replicating existing injustice(s), she cannot take 9

people’s behaviors as uncontroversial input into her welfare function.

Second, Elster’s books helped to undermine what I call the “technocratic conception of society.” I mean here to capture the following three features of an enduring image of society present in a broad swath of 10

twentieth-century political philosophy and the policy sciences, especially, economics.

It is (i) characterized by the ideal that with social knowledge and its progress, substantial political disagreement can be eliminated. Here is an example from Milton Friedman’s Nobel lecture: “Many countries around the world are today experiencing socially destructive in ation, abnormally high unemployment, misuse of economic resources, and, in some cases, the suppression of human freedom not because evil men deliberately sought to achieve these results, nor because of di erences in values among their citizens, but because of erroneous judgments about the consequences of government measures: errors that at least in principle are capable of being corrected by the progress of positive economic science” 11

(Friedman 1977, 453).

In particular, (ii) this ideal of con ict-free politics presupposes (as is clear from the Friedman quotation) considerable value-unanimity in society. So, for example, in a famous article at the heart of RCT, the Chicago-school economists, Stigler and Becker write, “one may usefully treat tastes as stable over time and similar among people;” establishing this point “is the central task of this essay” (1977, 77). When valueunanimity is granted then one can appeal to representative agents and ordinary welfare economics is 12

possible as a kind of (social) engineering science.

The technocratic conception requires (iii) an image of science in which one of the central aims of policy scientists is to achieve consensus. In economics this idea goes back at least to Sidgwick’s (1883)  Principles of Political Economy. It was a central feature of Lionel Robbins’s (1932) in uential methodological statement: “for the sake of securing what agreement we can in a world in which avoidable di erences of opinion are all too common, it is worth while carefully delimiting those elds of enquiry where this kind of settlement is possible from those where it is not to be hoped for—it is worth while delimiting the neutral area of science from the more disputable area of moral and political philosophy” (135). This technocratic conception is also embraced by John Rawls; his approach can be understood as o ering a decision procedure that generates unanimity about the basic structure of society (Rawls 1971, 139

., 263–

264). In fact, in doing so, Rawls appeals to Knight’s claim that “legislative discussion” is an expert, 13

“objective inquiry” and not a contest between interests!

So, Rawls accepts the third condition even outside

science, for “moral philosophy” (1971, 264). Moreover, Rawls writes: By way of summing up, the essential point is that despite the individualistic features of justice as fairness, the two principles of justice are not contingent upon existing desires or present social conditions … By assuming certain general desires, such as the desire for primary social goods, and by taking as a basis the agreements that would be made in a suitably de ned initial situation, we can achieve requisite independence from existing circumstances. The original position is so characterized that unanimity is possible; the deliberations of any one person are typical of all. Moreover, the same will hold for the considered judgments of the citizens of a well-ordered society e ectively regulated by the principles of justice. Everyone has a similar sense of justice and in this respect a well-ordered society is homogeneous. Political argument appeals to this moral consensus. (1971, 263) So, here Rawls clearly also subscribes to the rst two features of the technocratic conception, including a representative agent model. For present purposes this description of Rawls will su

ce.

Let me return to Elster. Elster self-consciously accepts that unanimity is the goal of “collective rationality;” as we have seen, he self-identi es with the (Habermasian) aim of a transformation of preferences by way of public and collective discussion (35). But Elster also plays an e ective “Devil’s Advocate” (35) against the plausibility of this goal by raising “seven objections” to it (36

.). These objections collectively point to the

need for “institutions” that secure the right sort of unanimity in the rst place (40). For Elster if one embraces the technocratic conception of society in the context of sub-optimal institutions one assumes that “one will get closer to the good society by acting as if one had already arrived” (41). Sometimes this could be true (in the way that thinking one is autonomous and free may facilitate better personal outcomes), it may also represent wishful thinking or, worse, political quietism. So, while Elster supports the technocratic conception, his forthright analysis displays its many shortcomings. Another way in which Elster undermines the technocratic conception is by his insistence that judgment matters (16–17). This is exempli ed by his insistence that judgment and insight cannot be eliminated from science (18–19). Elster’s position is, in part, due to the fact that he recognizes (again echoing Knight) that

genuine uncertainty cannot be eliminated from all decisions (12). Once one understands that judgment and insight are ineliminable from one’s decision procedure, one cannot expect consensus. So, while Elster does not intend to undermine the technocratic conception, SG leaves this conception badly shaken. Third, another important feature of Elster’s book is that it represents an important episode in the history of philosophical Marxism: Elster embraces “methodological individualism” in order to combat the “stagnant state” of “Marxist theory” (143). Elster also non-subtly rejects the once common marriage of Marxism and Freudianism associated with the thought of Althusser. In fact, SG’s rejection of the Freudian unconscious as a “theoretical entity” (“a highly desirable goal” (153)) is so thoroughgoing that Elster ties himself in knots over the phenomenon of self-deception, which, because he does not allow sub-conscious thought, he takes to be incoherent (despite “massive clinical, ctional and everyday experience attesting to the reality of the phenomenon” (150)). That being misguided can be fruitful, is displayed by the fact that his rejection of subconscious thought also helps him produce some of his best and memorable insights on the character of wishful thinking. The upshot of Elster’s embrace of “methodological individualism” is to insist that a theory of ideology requires an “understanding of the psychological mechanisms by which ideological beliefs are formed and entrenched” (143). This general point has been amply vindicated in recent years. Philosophers have been developing what we may call an analytic theory of ideology that can also explain how persistent beliefs can 14

originate in the institutions and actions that serve the interest of the powerful.

Before I turn to a more critical analysis of some central commitments of Elster’s book, I note that part of the joy in reading SG is to be found in many of the local arguments and asides. For example, in commenting on the fact that “our knowledge about social causality is too slight to permit con dent predictions about the e ects of an as of yet untried system” (95), Elster adds a lovely footnote in which he sides with Tocqueville against Burke (and Popper) on the merits of piecemeal social engineering. He observes correctly that “by requiring initial and local viability of institutional reform, the incremental method neglects the fact that institutions which are viable in the large and in the long term may not be so in the small and in the short term” (95, n. 124). In the next section, I develop some technical criticisms of Elster. Here I register two general criticisms of SG. First, SG systematically overlooks the possibility that some preferences and constraints may be constructed simultaneously (perhaps rst in speech and then deed). This matters for political philosophy because Elster takes political orders/regimes largely for granted. While he allows changing of wants by “rational and public discussions” (at 141, referring back to I.5 and its discussion of the political “transformation of preferences rather than aggregation” of preferences (34)) his notion of broad “collective rationality” (42) has no space for the radical, even violent, transformation of institutions. He embraces a further status quo bias by insisting that, while acknowledging that intuitions may be “culturally relative,” we “must require of a theory of justice that it does not strongly violate our ethical intuitions in particular cases” (138, emphasis 15

added).

Second, Elster’s strategy of using methodological individualism to argue against Marxists—viz. that much ideology is the “spontaneous invention” by [less powerful] subjects” (166)—is less persuasive. His argument relies on the existence of sour grapes (116 16

ideologies can be invented by the weak,

.). But, even if it is true that, as Nietzsche noted,

the rst origin of an idea is not the whole story. What matters—for

the purposes of explanation and understanding—is to what degree these ideas are also reinforced and promoted by education, social rewards, the penal system, etc. Lots of people originate ideas, but it’s social, institutional, and psychological mechanisms that help to determine their durability and in uence. I develop this point below.

Elster on Meaning In the previous section, I suggested that despite the ways he undermines the technocratic conception of 17

society, Elster does embrace it.

This embrace is exhibited in two further ways that I discuss in this section:

rst, in his treatment of art; second in his rejection of the search for meaning; he thinks the latter is a moral and intellectual fallacy (101

.). What these two have in common is (a) a resistance to a multiplicity of

meaning and (b) a focus on explanation at the level of the individual (c) at the expense of other forms of understanding. In between these two discussions, I explore Elster’s treatment of self-defeating political theories. I argue that he has a tendency to appeal to conceptual claims where substantive argument or empirical evidence would be more illuminating. Before I continue I need to distinguish between two uses of the word “meaning.” In one sense it refers to the import or value of something (e.g., “the search for meaning”). Another use, indebted to Frege’s analysis, 18

picks out the sense of something.

On the whole, analytic philosophers, are interested in the second use and

treat it as an important topic in semantics whereas, say, existentialists are focused on the rst kind. Crucially, there is no logical reason to prevent a term being meaningful in both senses. The discordant section in SG is Elster’s long paragraph on art (II.7) with its jeremiad against conceptual art. It is a surprisingly weak paragraph; I say “surprisingly” because Elster makes excellent, non-reductive good use of novels to illustrate many of his best points throughout SG. Yet, when it comes to conceptual art 19

Elster recycles, in passing, Johnson’s misogyny—the most embarrassing moment in the book.

Elster’s

theory of artistic creation oddly echoes the basic structure of RCT: it “involves maximization under constraints, and … good works of art are local maxima of whatever it is that artists are maximizing” (78). For, an artist’s activity “can be understood only on the assumption that there is something which they are trying to maximize, by ‘getting it right’” (79). Perhaps this is true of history’s best economist, Leibniz’s 20

Divine Artist, but it is a peculiar understanding of much other art.

Given his theory, it is no surprise that

Elster has no conceptual room for conceptual art. I return to this notion of “getting it right” shortly. One of Elster’s reasons for rejecting conceptual art is, however, instructive: such art “certainly violates the principle that the aesthetic value of the work of art should not depend on the time at which it is o ered to the public” (83). This claim cannot do justice to the di erence in aesthetic value between an original (prior in time) and a copy (subsequently in time)—a di erence which a robust account of aesthetic value ought to 21

embrace.

As, for example, Hume (1987) notes, knowledge of the context of production and the intended

ways of experiencing a work of art contributes to aesthetic appreciation and is a condition for the possibility of aesthetic value (“Of the Standard Taste”). What can account for the oddity of Elster’s position? My hypothesis is that his account of aesthetic value is (subtly) modeled on a certain semantics, which is appropriate for the eternal nature of truth in, say, a standard image of mathematics. For Elster art has to be about something de nite. That is, on Elster’s account art must refer. It is undeniable that a lot of art meets this demand. But, unlike a newspaper article or a scienti c theory, a work of art does not become pointless if it is about nothing or even fails to aim to represent anything. Elster’s analysis leaves no room for a work of art to be merely expressive, or aim at our a ects, or intends to be a new move in the history of art (or all of these at once) without aiming to be about anything. Even so Bence Nanay has called attention to Elster’s unappreciated insight against conceptual art, that is, “that it caters for and presupposes an audience that wants to be surprised and shocked (‘Etonne-moi’) and it’s di

22

cult to surprise someone who wants to be surprised.”

(See SG 84.) But this argument should not be

pushed too far: horror lms manage to terrify audiences, who both wish to be terri ed and who are often deeply familiar with the tricks of the trade. Conceptual artists may be as suave as horror- lm-directors at 23

giving their audiences what they want.

Another problem with Elster’s approach to art is that even works of art that do aim to be about something, need not be about one thing or a consistent set of things. SG cannot do justice to ambiguity or equivocation or abundance of, possibly incompatible, senses displayed by a work of art. For, such multiplicity can 24

undermine the consensus of what a work of art is supposed to be about.

So, Elster’s unconvincing analysis

of conceptual art is grounded in his commitment to meaning as the particular sense of something. I have dwelt on Elster’s views on art because this problematic understanding of meaning infects even some of the best parts of SG. I have in mind Elster’s treatment of self-defeating political theories: theories that justify some institutional arrangements with an appeal to by-products (II.9). As Elster argues, while a social explanation in terms of by-products can make sense after the fact, “di

culty arises when one invokes the

same arguments before the fact, in public discussion” (92). As SG notes, there appears to be something self-defeating about invoking a by-product in one’s justi cation of a social institution. So, the jury system would not produce educational e ects on jurors, if jurors thought (following Tocqueville’s analysis) that its main purpose was the pursuit of those educational e ects, rather than deciding cases (96). It is unclear whether Elster thinks this is an empirical or a conceptual truth (or both). The problem is he clearly presupposes that by-products are unlikely to act as “incentives” and be “the motivation to perform” an action (97). But if known by-products are welcome, it is conceptually possible that one’s motive for action could include them. It is, of course, an empirical matter whether a known byproduct could be su

cient to act as a motive, but that’s not required to act as an incentive.

In his treatment of self-defeating political theories, Elster distinguishes usefully between “acting out of self-respect and using political actions as a means to achieving self-respect” (100). Elster thinks the former is a “legitimate preoccupation,” but thinks the latter is “absurd” (e.g., 101). I agree the distinction is useful; it cuts against an obsession with results or consequences. Even so, Elster’s “absurd” seems ungrounded. In fact, Elster’s analysis is unconvincing as becomes clear when he claims that there is the “same confusion” between those that embrace political activities in order to acquire self-respect and “artists [who] declare that the process and not the end result is the real work of art” (101). He goes on to claim that there is “no elegant way of losing” and he belittles the values of “Gentlemen” who “play to play” as opposed to the “Players” who “play to win” (101). While the 1974 Dutch national soccer team would have preferred victory over West Germany in the World Cup nal, its stylish and innovative play, Totaalvoetbal, won not just enduring admirers all over the world, but changed the way the game was understood. My point here is not about soccer (or the merits of Totaalvoetbal), or playing to win. Rather, Elster presents as a conceptual confusion what is really an alternative set of values. Elster is on the side of the Players not the Gentlemen. But it does not follow that the Gentlemen are conceptually confused; nor is there any 25

confusion in an artist who treats the process and not the end result as the real work of art.

The same

applies when Elster claims (against Arendt) that “political discussion and deliberation may be deeply enjoyable or satisfactory, but only when and because they are guided by the need to make a decision. Discussion is subordinate to decision-making, not on a par with it as suggested by Arendt’s wording” (99). Elster clearly thinks Arendt’s view, if it is her view, is obviously misguided; but he forgets that if an activity 26

is enjoyable or satisfactory, then it is self-justifying and also a genuine motive to action.

Again, it is, in part, an empirical matter whether political discussion and deliberation is enjoyable or 27

satisfactory when there is no need to make a decision.

To observe this is not to side with Arendt’s “non-

instrumental conception of politics” (99) and the considerable elitism it shares with the Gentlemen. Rather, Elster has a tendency to settle substantive philosophical disagreement over ends by appealing to tenuous conceptual claims. He may well be right to suggest that many by-product theories of political participation

are self-defeating if they assume liberal or democratic values or Rawls’s (Kantian) publicity constraint (92). But this constraint will not move, say, some political leaders (or theorists) who see in political rule a species 28

of craftsmanship.

Something related is at play in his very polemical remarks on Foucault’s Surveiller et Punir. Elster (104

.)

dislikes a number of things about Foucault’s approach: rst, he detests Foucault’s rhetoric and “eloquence” (including the use of rhetorical questions, the cascade of verbs, etc.); second he dislikes (without explanation) privileging the question Cui bono? (“to whose bene t?”), a surprising stance for a Marxist. More important, he treats Foucault as o ering a consequence explanation. By a consequence explanation, Elster means to refer to the practice, familiar from theodicy, Marxism, and Darwinian theories, to use certain consequences in order to explain causes (in cases when these causes have a tendency or propensity to generate such consequences). So, from the existence or occurrence of an e ect or e ect pattern, one can infer the (prior) existence of a certain cause. This may be shy if one implies that the temporally posterior e ect is in some sense responsible for the existence of the prior cause (as occurs on some interpretations of teleological explanations). But if one can specify a well-established mechanism or law it may well be legitimate (see also Cohen 1982a and 1982b). Elster treats Foucault (and Bourdieu) as o ering especially bad consequence explanations: these lack a mechanism, a feedback mechanism, and even an intentional agent. On a certain conception of social science such oversights might well be thought devastating. If one is in the business of o ering causal explanations, Elster’s insistence that a mechanism ought to be forthcoming is a useful methodological principle. Of course, not all causal explanations require a mechanism before they are accepted. For example, in his Principia, Newton treated forces as causes even when he was unable to o er mechanisms by which they 29

operate.

Either way, Elster refuses to interpret Foucault more charitably as, say, sketching the constraints

on or outlines of an explanation that could subsequently guide a search for mechanisms by other researchers. In fact, throughout his book, Foucault o ers many such how-possible explanations, which show how something could have happened or provides constraints on how something could have happened; these are a respectable step toward a historical explanation. But Elster explicitly notes that in the passage he focuses on, Foucault does not o er a consequence explanation. In fact, it is more sensible, and charitable, to interpret Foucault as primarily o ering an analysis of the possible signi cance of certain historically contingent, but enduring social phenomena in terms of their functions and bene ts. This is, secondarily, compatible with an explanation sketch that can guide further research. After all, one key (transcendental) claim that Foucault makes about punishment (prison, etc.) is that it is taxonomic—it makes a certain form of knowledge possible. Now, while Elster is not really attentive to the transcendental (in the Kantian sense) dimension of Foucault, he recognizes that Foucault is interested in meaning (105). Yet, because the “search for meaning” on Elster’s account “dispenses with mechanisms” it “fails dishonourably” (107; in context Elster is primarily criticizing Bourdieu.) It’s true that if Foucault were exclusively in the business of o ering causal explanations then indeed the absence of mechanism would be a pretty serious charge. But Elster o ers no evidence for this claim. Rather, he projects inappropriate explanatory standards onto Foucault’s text in 30

order to rule out functional explanation in social theory.

It is clear why Elster thinks that a lack of interest in a mechanism is an intellectual fallacy. He seems to think that without some such mechanism one cannot secure explanation (107). Undoubtedly, in the human sciences, mechanisms provide a valuable form of explanation (in addition to Elster (1998) see, especially, Machamer, Darden, and Craver 2000 or Glennan (2017). But it is not necessary. For example, that smoking 31

caused lung cancer was well established before the mechanisms by which it did so were known.

Why Elster

thinks omitting a mechanism is a moral fallacy is less obvious, although he seems to think it (and the

embrace of social by-products more generally) instantiates a “misplaced or self-defeating form of instrumental rationality. It is the fallacy of striving, seeking and searching for the things that recede before the hand that reaches out for them. In many cases it takes the form of trying to get something for nothing” 32

(108).

While Elster has quite a bit to say about the moral problems with by-products, we are never really told what’s wrong with either the search for meaning, in the sense of import, as such without the aim of o ering explanation; or what is wrong with viewing social analysis as an expression or the creation of meaning. If we interpret Foucault as understanding himself as part of the world he describes and, in fact, aiming to destabilize it, in part, with the narratives he o ers, there is nothing mysterious about what’s going on. Elster repeatedly insists not just that Foucault’s practice and the search for meaning is immoral but also that is dangerous (44). But unless one embraces a very strong status quo bias or has very high risk aversion, that immorality and danger can only be established if we are willing, as Elster is not, to evaluate Foucault’s 33

aims and means on their foreseeable, consequentialist merits.

Of course, if one is in the grip of a certain kind of theory of meaning (in the second sense noted above), a search for and the creation of meaning is very misguided. It is also misguided if one has a semantics in which social facts are univocal truth-makers of (social) meaning simply waiting out there to be discovered. If we want to understand, say, ideology (including our own)—one of Elster’s main aims, and presumably one of the sources of SG’s popularity—, we cannot just rely on the reality/ ction distinction alongside a set 34

of psychological mechanisms, we also have to make ourselves feel (by way of sympathetic imagination) the signi cance of a certain set of commitments. After all, even true statements of present social reality can be instances of ideology because they exhibit 35

status quo bias or unwillingness to question existing background institutions and norms.

This is strictly

compatible with the way SG presents an “ideology” which “is a set of beliefs or values that can be explained through the position or (non-cognitive) interest of some social group” (142). So, for example, while economists rely on empirical data-mining or machine-learning evidence within an existing institutional structure, they also bene t from their status as experts of the relations that hold of/within that structure.

Conclusion Sour Grapes generated numerous research agendas: in addition to shaping how a whole generation of analytic Marxists understood the potential of their own tradition, its treatment of adaptive preferences remains in uential and controversial in much wider debates over the nature(s) of rational action and freedom. It encouraged a foundational, ongoing re-evaluation of the scope and nature of RCT. These are no small achievements. In addition, in encouraging theorists and policy experts to take adaptive preferences seriously, it created a renewed interest in exploring the relationships between experts and their subjects. While Elster’s framework does not begin to settle who has the authority under what conditions to impute preferences to agents, he made it possible to ask the question with ever more precision than before. His potential contributions to the analysis of inductive risk and thinking about propaganda seem largely unexplored as of yet. Sour Grapes is an exemplary text in clearly and judiciously interpreting evidence from di erent sciences and humanities; it reminds the reader subtly that many careful distinctions are needed in order to analyze the nature of rational action. It shows how philosophy can contribute to other sciences by being a site of—to use an Elster style concept—judicious integration of insights from many disciplines.

But the book also manifests some of the intellectual vices of twentieth-century analytic political theory: it exhibits a lack of charity and curiosity toward alternative approaches; it too often relies on purportedly technical moves ill-suited for the intended polemical e ects, and it attributes confusion to opponents in instances of substantive disagreement. In these ways the in uence of Sour Grapes is very much of its own 36

time.

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Notes 1

All page numbers in this chapter are to the 2016 edition.

2

Knight (1922) credits his Institutionalist target, J. M. Clark, but the idea goes back at least to Rousseau and Adam Smith (if not Aristotle). Elster writes “individual wants themselves may be shaped by a process” (109).

3

It is the view of freedom that (since Isaiah Berlin) has come to be associated with Hobbes (see Pettit 2011: 695 .). Elster calls attention to the implications of his view on this conception of freedom (SG: 128 .).

4

It undermines it if it, say, encourages resignation or preferences that in some sense or another are unhealthy, inauthentic, or self-undermining, etc.

5

For a sophisticated and influential defense that RCT model is increasingly standard (and ought to be so) in economics, see Gul and Pesendorfer (2008). On my interpretation of Elsterʼs SG, in it he does not deny the predictive and even interpretive success of RCT as long as (i) itʼs not treated as uniquely explanatory nor (ii) always predictive. See Elster (1980), which anticipates many themes of SG, for discussion of the limitations of RCT in political science.

6

For an excellent road map to the issues involved in a global context, see Khader (2011).

7

Elster, who has a sure touch in citing the works that endured (including Kahneman and Tversky 1979), misses the significance of Herbert Simon (1972) when he introduces satisficing (14–18).

8

See Hands (2015); he also o ers an alternative interpretation of the same point, “economics deals with the form of conduct rather than its substance or content.”

9

Elster (SG 113––114) acknowledges the significance of Amartya Sen on the phenomenon of institutionally induced preference reversal. Senʼs and Nussbaumʼs capability approach is, in fact, in part, meant to meet concerns over adaptive preferences, see Nussbaum (2001).

10

Obviously, the term and the topic is the territory of critical theory and sociology of knowledge. My focus is narrower than theirs. I o er examples from market-friendly thinkers because they are not normally associated with technocracy. See Schliesser (2016) for more details on this point.

11

The context of the passage is the furor surrounding his association with the so-called “Chicago Boys” in Chile and the assassination of his Chilean critic Orlando Letelier (Letelier 1976). For the larger story, see Schliesser (2010).

12

See, e.g., the arc that runs from Samuelson (1943) to Harberger (1971). For incisive criticism, see Khan (1992).

13

Rawls (1971: 358, n 16). In the note Rawls cites both Arrow and Knight, focusing on their (limited) agreement and ignoring the deeper disagreement. As Rawls adds (in his own footnote): “in both cases see the footnotes!”

14

See, e.g., Fricker (2007); Langton (2009); Dotson (2011); Haslanger 2012; Stanley (2015). Below I am critical of Elsterʼs onesided focus on psychological mechanisms.

15

On the status quo bias of the use of intuitions in philosophy see Della Rocca (2013).

16

Elsterʼs evidence for the claim rests on his reading of Veyne (117 .).

17

This section has benefitted from public and private comments by Bence Nanay and Michael Mirer on my blog-post, Schliesser (2015).

18

In Frege, this notion “meaning” is distinguished from reference.

19

Elster writes “Conceptual art may impress as a freak of nature can, or a woman preaching according to Dr. Johnson” (82). Johnson seems to be misreported (or misremembered) by Elster. Boswell reports him to have said: “Sir, a womanʼs preaching is like a dogʼs walking on his hind legs” (Boswell 1820, 458; July 31; 1763). The inference to a freak of nature is easily made; but it is also possible to see Johnson making the claim that itʼs like a circus/show act (not so much a freak of nature, but a trained/forced performance), which seems better supported by further context. There is still misogyny, of

course, but in Johnsonʼs version the remark also draws attention to the institution (the circus-master) that permits the preaching (i.e., Quakerism). 20

This conception does o er Elster a means toward explaining the nature of a “minor masterpiece” (82).

21

It is possible to reject such a di erence. But given Elsterʼs conservative respect for our intuitions, he cannot endorse a theory that would e ace the distinction between an original and a fake (copy).

22

See the comments section in Schliesser (2015).

23

It may be the case that this is also an instance of adaptive preferences.

24

Logically there could be a consensus about the multiplicity of meanings of an artwork. So, Elsterʼs position is consistent.

25

For a positive treatment of such artists, see Kraus (2011).

26

Obviously, this is defeasible—if something is immoral or self-contradictory it may not be self-justifying.

27

Some department meetings are more pleasing during the deliberative phase than the deciding phase.

28

This is not incompatible with liberalism (see Sabl 2009 and Schliesser forthcoming 2018).

29

In the case of the inverse square law this was controversial at first, but Newton used it more widely.

30

Dennett has recently (2017) defended and articulated a form of consequence explanation, in natural selection and cultural evolution involving competence without comprehension. These competences are “free-floating rationales,” which are a species of reasons, which are “tracked” by “evolution” (50). In context Dennett is describing “the accumulation of function by a process that blindly tracks reasons, creating things that have purposes but donʼt need to know them” (49). So, freefloating rationales are reasons that do not require being represented (by minds) for their existence: in particular, they are functions that are a consequence of natural selection. Dennett shows that “Free-floating rationales have been as ubiquitous in cultural evolution as in genetic evolution,” (231). Dennettʼs free-floating rationales are also a means to revive respectability of discussion of functions in social science (211–212). It is not entirely clear if Elster could accommodate them.

31

Doll and Hill (1956).

32

In a revealing analogy, Elster links the fallacy to the “disastrous practice” of scientists who aim to secure “fertile disagreement in science” (107–108). For a defense of the practice, see Lefevere and Schliesser (2014).

33

This is now studied in terms of inductive risk. Elsterʼs interest in this topic seems to have gone unnoticed in the flourishing literature since Douglas (2000).

34

On the social scientific nature of verstehen, I warmly recommend Beiser (2011).

35

For an important paper on this topic, see Dotson (forthcoming).

36

I am grateful to a generous audience—including, in particular, Jerry Cummins, Wasseem Yaqoob, and Samuel Zeitlin at Cambridge University, especially my extraordinary commentator, Duncan Kelly as well as M. A. Khan, Alan Nelson, Jon Shaheen, and Jacob T. Levy for useful comments on an earlier dra . The usual caveats apply.

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Frantz Fanon, The Wretched of the Earth  Keally McBride https://doi.org/10.1093/oxfordhb/9780198717133.013.54 Published: 06 September 2017

Abstract Frantz Fanon’s The Wretched of the Earth is a handbook for developing anticolonial revolutionary consciousness. It o ers an analysis of the structures created by colonialism that need to be overcome, and predicts the political distortions that might occur in postcolonial regimes. All three of these themes involve a discussion of structural and interpersonal violence as a central force in politics. Fanon’s political theory traces the interconnected nature of economic, institutional, and psychological racialized violence that undergirds modern global relations. This chapter explores Fanon’s historical analysis of decolonization, emphasizing the di

culty of achieving individual freedom and the pitfalls

of collective and violent struggle. Furthermore, Fanon’s volume predicts the growth of new forms of imperialism, and the continued economic exploitation of former colonies.

Keywords: Frantz Fanon, anticolonial, revolutionary consciousness, postcolonial, racialized violence Subject: Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Frantz Fanon was born on Martinique in 1925, and as the son of a customs inspector he was part of the petit bourgeoisie on the island. This class was taught in both public and private to see themselves as absolutely French; Fanon reported that when he misbehaved at home he was told to “stop acting like a nigger” (1967, 191). During the Second World War, he joined the army to defend Free France. After the war he started a dentistry program in Paris, but then left the city to pursue a medical degree in Lyon. During his military years and medical training, Fanon came to see, gradually, that his citizenship was not the universal one that 1

the French had promised. He started exploring themes of racial consciousness, personal identity, and colonial relationships in writing, culminating in the publication of Black Skin, White Masks (1952). This set him on a path of exploring the alienation that results from colonial relationships, and the psychological mechanisms that both strain against and maintain this system of oppression. Then, in a remarkable transition, in 1956 Fanon liquidated his ambiguous identity—colonized, black, French, Martinican, doctor —and became Algerian. Albert Memmi has emphasized the bizarreness of this decision: “A man who has never set foot in a country decides within a rather brief span of time that this people will be his people, their

country his country until his death, even though he knows neither its language nor its civilization and has no particular ties to it” (1973, 22). Memmi overstates his case since Fanon had spent the three previous years in Algeria, working in the psychiatric hospital at Blida from 1953–56, treating the victims of French counter-insurgency as well as broken Frenchmen waging the war. This experience led to his commitment to anticolonial struggle and the project of Algerian Independence. He would spend the rest of his very short life organizing and writing in support of it, before dying in 1961. The Wretched of the Earth (TWE) is an analysis of the Algerian struggle and bears the stamp of Fanon’s commitment to it, as he refers to Algerians as “we” continuously throughout the text. Conceptually, it reveals the position of an outsider, as Fanon’s text illuminates the transnational struggle for decolonization by repudiating a purely nationalist or personal perspective. His personal rebirth as an Algerian helps provide the key to understanding his assertion that “Decolonization is the veritable creation of new men” (36). Yet his transnational past made it possible for him to write a more generalized narrative of decolonization as a historical process. Fanon’s personal history helped to provide this exceptional perspective on what was unfolding as a furious political event in colony after colony at this particular historical juncture. TWE is one of two anticolonial texts most likely to achieve inclusion in the syllabi of standard courses in the eld of political theory. The other is Gandhi’s Hind Swaraj (2009). The texts’ popularity may have something to do with the fact that they pair together as alternative routes to similar destinations, decolonization. Fanon argued, “Decolonization, which sets out to change the order of the world, is, obviously, a program of complete disorder” (36). Fanon and Gandhi believed decolonization had two aspects. The rst was a highly critical approach to the culture, systems of knowledge, and assumptions created by the colonizing power: a conceptual dis-ordering. Second, a total refashioning of colonized subjects and their self-conceptions was necessary if countries were to achieve meaningful selfdetermination. Decolonization—or overcoming rule from outside forces—means interrupting the logic of 2

that political order and also developing the resources to rule from within.

The rst step in overcoming colonial orders is the radical questioning of the logic, knowledge, and attitudes that accompanied colonizers. Gandhi points out the importance of standing outside of European civilization in order to repudiate European colonization: “Those who are intoxicated by modern civilization are not likely to write against it” (2009, 34). The proposal to stand outside of the current order and question its assumptions is a stance not unfamiliar in the genre of political theory. Nietzsche and Rousseau were other radical naysayers who attempted to unearth the foundations of the thinkers who had preceded them, but who nonetheless have been welcomed into the club. On one level, Fanon’s work ts into the theoretical tradition of exposing the connections between one group’s power and the knowledge that group produces. Edward Said’s Orientalism (1979) is the most in uential exposition of Fanon’s basic insight that the structure of European knowledge is deeply complicit in the violence of colonialism. It would be hard to overstate the in uence that Fanon’s work has played in the development of postcolonial theories of 3

epistemology, identity, and culture. And it is largely through cross-pollination from this scholarship that Fanon’s work has found its way into the oeuvre of contemporary political theory, although recently this has 4

started to change.

Glen Sean Coulthard (2014) has taken Fanon’s work on identity and revolutionary consciousness and applied it to the struggle for indigenous sovereignty in Canada, assembling many lessons from TWE to sort through the alternatives for overcoming domination. Neil Roberts (2015) investigates freedom and slavery through a historical analysis of slave revolts in the Caribbean and Latin America. Sharing Fanon’s emphasis on locating particular struggles in time and space and yet resisting the temptation to assume that freedom can be achieved simply by moving, Roberts argues, “Freedom is not a place; it is a state of being” (11). Finally, Achille Mbembe extends Fanon’s prophetic work about the potential disfunctions of postcolonial regimes in On the Postcolony (2001) and o ers a stunning historical assessment of how the category of

blackness has and continues to organize the modern world in Critique of Black Reason (2017). Robyn Marasco (2015) locates Fanon as an important contributor to the Frankfurt School tradition, arguing that his work provides an essential militant and political element to critical theory. There are two di erent translations of TWE into English. The rst was by Constance Farrington (1963), who articulated and embraced the revolutionary signi cance of the work. In 2004, a new translation by Richard Philcox was issued to correct many of the more egregious translation errors (and typographical errors) in the Farrington translation. But the new translation also updates the language of Fanon for “the contemporary audience,” for example, using the term “the colonized” as opposed to “native.” Gibson (2007) has provided an excellent rumination on the two translations, pointing out that the di erence between the two texts naturally re ects their historical context. Farrington’s 1963 Fanon is a revolutionary 5

gure, while Philcox’s 2004 Fanon is a founder of postcolonial studies.

TWE contributes to many central debates in political theory such as the relationship between freedom and context, the di

cult distinction between personal and collective analyses, and nding political strategy that

is both e ectual and liberating. Let me shape this analysis with another of Sartre’s comments: “Fanon is the rst since Engels to bring the processes of history into the clear light of day” (14). Fanon wants us to see decolonization as more than a personal odyssey or national process; rather it is a larger historical process that becomes manifest through personal experience and national experience but that necessarily transcends both of these realms. TWE should be read in the tradition of Machiavelli, as a guide for individuals, but also a lesson in how to read 6

the motivations, delusions, behaviors, and dynamics of the political landscape at a given time.

 Machiavelli’s The Prince urges us to be cognizant of history, so we understand the dynamics of consolidation and disruption of power. (Machiavelli 1950) Today we read Machiavelli and understand that he was watching the frequently violent consolidation of Europe into nation-states. His text instructs individuals to understand their actions in this new terrain, so they could more successfully (though not invariably so) navigate the new possibilities of political freedom rather than falling prey to the evolution of power structures. Machiavelli scholars have argued that The Prince is to be read as a description of how people act and then advice as to how to manage these tendencies. For example, leaders want to be liked, but should mistrust this desire because it can lead them to curry favor instead of focusing on long-term strategy. Similarly, Fanon spends a great deal of time explaining the world according to a person who has been colonized, but he does so in order to describe the calculations individuals are most prone to make, and explain why the most immediate impulses to action will not be the most e ective path. To understand this central aspect of Fanon’s argument, consider how the colonized person experiences their struggle, humiliation, and anger as emotions on the individual level. Fanon believes that experience on the individual level will inevitably mislead the colonized person into responses that are counterproductive. “The native replies to the living lie of the colonial situation by an equal falsehood” (50). One of the most frequent responses to existing in a world in which one is systematically devalued is to dream of alternative worlds. Fanon recognizes the native’s interest in magic as a way of reframing colonial existence into larger struggles, which one can control. “Believe me, the zombies are more terrifying than the settlers; and in consequence the problem is no longer that of keeping oneself right with the colonial world and its barbedwire entanglements, but of considering three times before urinating, spitting, or going out into the night” (56). The colonized subject can ght these epic personal and phantasmagoric battles on his or her own terms. Fanon also explores how the desire for physical freedom that is denied in the colonized world is realized through dreams. “I dream I am jumping, swimming, running, climbing; I dream that I burst out laughing,

that I span a river in one stride, or that I am followed by a ood of motorcars that never catch up with me. During the period of colonization, the native never stops achieving his freedom from nine in the evening until six in the morning” (52). The desire to achieve freedom is manifest in these singular forms, and both of these instances are also based in the imagination. Fanon describes how the native daydreams of taking the place of the settler, of living in his house, having his servants, sleeping with his wife. “The native is an oppressed person whose permanent dream is to become the persecutor” (53). Role reversal, not regime change, is the guiding vision of someone who seeks only individual vindication. For this reason, as long as the colonized subject sees the process of decolonization on these individual, personal terms, he will be liable to recreate relations of oppression. “The colonized man is an envious man. And this the settler knows very well; when their glances meet he ascertains bitterly always on the defensive, ‘They want to take our place.’ It is true, for there is no native who does not dream at least once a day of setting himself up in the settler’s place” (39). Beyond role reversal is the issue of displacement. Fanon points out that the native intellectual is trained to evaluate herself and her country from the position of European systems of knowledge. “The native intellectual accepted the cogency of these ideas, and deep down in his brain you could always nd a vigilant sentinel ready to defend the Greco-Latin pedestal” (46). This form of education leads to a misrecognition of her actual location; she becomes trained to see her country through the eyes of an outsider. The colony is de ned in relation to the ruling country as a space for development and appropriation, a space that is de ned by its lack of some attributes and its wealth of others. The native intellectual measures the colony with these categories, and cannot see what is actually present and possible. Once engaged in the struggle for self-determination the system of colonial perception falls away, and the colonized subject sees herself as a historical actor in this particular context. “These politics are national, revolutionary, and social and these new facts which the native will now come to know exist only in action. They are the essence of the ght which explodes the old colonial truths and reveals unexpected facets, which brings out new meanings and pinpoints the contradictions camou aged by these facts” (147). Yet even as intellectuals and peasants alike become aware of the realities of their situation through the struggle, their mobilization into a collective unit creates a new source for disorientation. In chapter 3, “The Pitfalls of National Consciousness,” Fanon explains how anticolonial nationalism can mean a continuation of the same politics of oppression. First, the impulse to trade places with the colonial rulers can seduce nationalist leaders. “[N]ationalization quite simply means the transfer into native hands of those unfair advantages which are a legacy of the colonial period” (152). Drawing a contrast with Marx’s vision of how the bourgeoisie can serve as agents of historical progress, Fanon argues that the indigenous middle class created by colonialism is incapable of serving the same role as the middle classes of Europe. “But this same lucrative role, this cheap-Jack’s function, this meanness of outlook and this absence of all ambition symbolize the incapability of the national middle class to ful ll its historic role of bourgeoisie” (153). Aspirational middle classes will want to use the existing colonial structure to their comparative advantage, they will always align themselves with the colonial rulers due to the privileges that they derive from it. Colonialism does create a middle class, but a reactionary one that is brimming with a desire to stand on the shoulders of natives who are less fortunate. Anticolonial nationalist movements led by this population will not move a population forward in history, but rather continue the stagnation of colonial governance. Second, nationalism itself can promote the same kind of magical thinking that characterized the individual native’s response to colonialism. Now, the nation de nes the citizens’ enemies, and tells them it is the fetish that will protect them. “The state, which by its strength and discretion ought to inspire con dence and disarm and lull everybody to sleep, on the contrary seeks to impose itself in spectacular fashion. It makes a display, it jostles people and bullies them, thus intimating to the citizen he is in perpetual danger” (165). The nation creates new monsters, to preoccupy its citizens and insist upon their loyalties. Fanon was

the rst to predict the enlarged position of the state in postcolonial situations without an increase in its 7

capacities.

Fanon, like Machiavelli, can see that in some circumstances political strategies are useful, but these same tools are not useful in all situations. Hence, he embraces nationalism as a tool for creating the collective that can disrupt the colonizing powers. “But if nationalism is not made explicit, if it is not enriched and deepened by a very rapid transformation into a consciousness of social and political needs, in other words, into humanism, it leads up a blind alley. The bourgeois leaders of underdeveloped countries imprison national consciousness in a sterile formalism” (204). For Fanon, one of the problems with colonialism is that it stopped historical development and obscured the possibilities for action within its framework, ascribing agency only to outside actors. Nationalism will ultimately do the same thing, if it is not transformed into a robust vehicle for the development of citizens. Fanon describes his vision of how the magical powers attached to the nation at the moment of independence can be transferred to the people through the relentless message that they are the keepers of their own destinies. The task of decolonization is “to teach the masses that everything depends on them; that if we stagnate it is their responsibility, and that if we go forward it is due to them too, that there is no such thing as a demiurge, that there is no famous man who will take the responsibility for everything, but that the demiurge is the people themselves and the magic hands are nally only the hands of the people” (197). More broadly, Fanon agues the key to avoiding the derailment of decolonization is to see it as a historical episode, “Decolonization, as we know, is a historical process: that is to say it cannot be understood, it cannot become intelligible or clear to itself except in the exact measure that we can discern the movements which give it historical form and content” (36). Fanon is making a handbook for political action, but in a very particular context. Understanding the context is key if action is to be successful. What this means in practical terms for Fanon, is that those who have been colonized need to be able to break out of the personal and/or collective delusions that accompany the process of being colonized and also the process of decolonization. Only by overcoming their misperceptions of their position in the world and the possibilities that lie within it can political action become transformative. The participants in the struggle need to see themselves as responding to the world historical context of colonization. The world they nd themselves in was made by forces larger than the individual settlers before them. Personal vengeance will not bring this world to its end; only by seeing their experience in relationship to the historical framework of colonization can these individual fantasies of freedom be converted into a political restructuring of the world. Decolonization will require remaking the world that colonialism built; this remaking will require understanding the larger structures that are often obscured by individual, and then collective experience. The task is momentous, since frameworks of knowledge, experiences of personal identity, global processes of extraction, and systems of law and politics were developed in conjunction with the colonial system. Colonialism is hegemonic, but like all hegemonies, incomplete. If the native can see that the colony is also—still—a country, a space, a people, then the pervasive logic of colonialism is interrupted. Fanon’s historical perspective means being able to see simultaneously the greater forces at work, and the possibilities for human action within these perimeters. Situatedness, or understanding one’s potential actions through a realistic assessment of the conditions around oneself, will allow people to overcome the previous training of colonialism. Interestingly, it is also a direct opposition to the “zone of nonbeing” that Fanon described in Black Skin, White Masks as a simultaneous presence and absence that colonized subjects experience. How they are perceived is not what they know themselves to be, but just as disconcertingly, how can one know oneself given only the distorted tools that society provides? Fanon argues that the process of understanding where the formerly colonized person exists in concrete time and space is the start of revolutionary consciousness. “The more people understand, the more watchful they become, and the more they come to realize that nally everything depends on them and their salvation lies in their own cohesion, in the true understanding of their interests,

in knowing who their enemies are” (191). Interestingly, though TWE is a handbook for revolutions of decolonization, it makes it clear that there is no set formula for success. Fanon’s ultimate message is that the people need to be taught to apprehend reality and to act collectively in response to it. “The living expression of the nation is the moving consciousness of the whole of the people; it is the coherent, enlightened action of men and women. The collective building up of destiny is the assumption of responsibility on the historical scale” (204). Despite its clear footing in works by Hegel and Marx, TWE has not been seamlessly folded into the tradition 8

of political theory. There are two obvious explanations for this marginalization. The rst is the racialized nature of the book’s analysis and the race of the author, a conjecture that needs little elaboration. The other might be its endorsement of violence as a path to decolonization. TWE argues the violence of colonization can only be disrupted by violence: “From birth it is clear to him that this narrow world, strewn with prohibitions, can only be called into question by absolute violence” (37). There may be some merit to this position, but other thinkers such as George Sorel advocate violence in their theories, so this alone does not explain why Fanon’s work does not play a central role in contemporary political theory. Furthermore, Fanon’s position on violence is not as unequivocal as it may appear. Many thinkers have dwelt upon Fanon’s embrace of violence as a central message of TWE, but others have pointed out that the last chapter of the book examines—with Fanon’s clinical eye—the mental disorders that accompany both the 9

insurgent and counter-insurgent patients in the mental hospitals of Algeria during the war. Fanon knew that violence unmakes people. Bhabha (2004) has argued that the attention paid to violence in TWE is largely misguided, and that readers have been overly in uenced by Jean-Paul Sartre’s introduction to the text written in 1961. But it is clear Fanon sees colonialism as violence that formulates those subject to it; some form of unmaking is absolutely necessary. “[T]he ‘thing’ which has been colonized becomes man during the same process by which it frees itself” (37). I would argue that its marginalization in the eld of political theory may also be due to its disparagement of European thought, and its explicit political commitments. Encountering Fanon’s TWE within the canon of political theory is a serious shock today, precisely because of his blunt assessment of the world created by racism, naked expropriation, and external control. Marx de ned the purpose of critique: “Criticism, has plucked the imaginary owers from the chain, not in order that man shall bear the chain without caprice or consolation but so that he shall cast o

the chain and pluck the living ower” (1963, 44). In line with this

tradition, Fanon sweeps away the claims of European civilization and points out how miserably colonizing powers fail to live up to their own rhetoric. Reading TWE as a nal installment in the canon of European political thought is like encountering a sudden plot twist at the end of a movie where the heroic protagonist is revealed as the evil culprit. Fanon minces no words: “The violence with which the supremacy of white values is a

rmed and the aggressiveness which has permeated the victory of these values over the ways of

life and of thought of the native mean that, in revenge, the native laughs in mockery when Western values are mentioned in front of him” (43). Fanon adds a new, decidedly gritty, texture to the debates in which he engages. Into the narrative of reasoned discourse, strategizing heads, and claims about the human spirit, Fanon lobs the realities of colonial rule: electrodes on genitals, living in squalor, ritual humiliations of every imaginable sort. The discomfort of reading Fanon may be because his world is our own, and he might make us uncomfortable by pointing out the privileges we have and the price that has been paid to maintain them. This is unlike reading Nietzsche who is trying to dethrone Christianity or Rousseau’s quarrel over the state of nature; their struggles lie in the past. Fanon’s world is recognizable as the one today’s reader inhabits. Such brutal realities of colonialism and postcolonialism do not feature centrally in the eld of contemporary political theory. But they should. Global inequalities of wealth suggest that the historical legacies of colonial expropriation have not ceased to be relevant, and also that current economic structures do not distribute wealth or power evenly. The colonial past is not dead, and the postcolonial present is not just. Colonialism

and the problem of decolonization are arguably the great unsolved issues crying out for political attention today. In the di

cult balance between politics and theory, Fanon’s a

liation lies with the political. This is why it

is not surprising that Fanon’s primary acolytes are not in the academy, but rather in political movements. Huey Newton and Bobby Seals reported being inspired by Fanon in drawing up plans for the Black Panther Party. Bobby Sands read the TWE in prison in Northern Ireland, and Steve Biko read the text in his dormitory at college. Amilcar Cabral studied Fanon as he planned the very late overthrow of Portuguese rule in GuineaBissau. Ali Shariati translated Fanon into Persian, and articulated the vision into the Iranian Revolution. 10

TWE is a handbook for those seeking to overturn colonialism.

Because he declares his a

nities so clearly,

is it easy to see him as a political thinker, and perhaps to dismiss him as an ideologue. Jean-Paul Sartre endorsed Fanon’s work in his introduction to the text from 1961: “Have the courage to read this book, for in the rst place it will make you ashamed, and shame, as Marx said, is a revolutionary sentiment” (14). A crucial complement to Fanon’s desire to bring awareness to political actors of their historical situation, is his reframing of the global landscape of power. What is the historical context within which we exist? And as I earlier argued, the historical era of colonization and decolonization is not over, nor should we limit our understanding of this history to particular national contexts. Colonization was a global phenomenon that reshaped every nation on earth, not just those that were colonized. Fanon’s text provides valuable tools for understanding the political landscape today; we need to see how the world was shaped by these processes of extraction and domination as the modern international political system was evolving. We might think that our territory, experience, and knowledge are not part of the colonial system, but a careful reading of Fanon would teach us to look more closely for the patterns that are not immediately apparent. Seeing the larger historical processes as they are manifest in particular locations and political issues today will fundamentally shift our understanding of political reality. For example, the Cold War is generally thought of as a struggle between the United States and Soviet blocs, the front lines of which were in Europe. But in TWE, Fanon explains how the détente of the “Cold War” was created by pushing violent con ict into Africa, Asian, and South America. Post-Soviet era archival research by Arne Odd Westad (2007) amply documents Fanon’s claims. Much of the con ict in postcolonial nations was not due to national instability, but rather the actions of global players that were deliberately occluded. How would our understanding of weak or failing states evolve if we placed these case studies in a robust history of how many natural resources were removed? Or how would international nancial practices look held up to the mirror of colonial investment practices? What might we learn about the practices of the rule of law today by understanding its colonial roots? Political theorists often focus upon the historical context in which texts are produced, but Fanon’s TWE pushes us to historicize our own era in order to attain a clearer sense of contemporary political realities, and our own culpabilities and possibilities within them. Unfortunately, Fanon’s analysis of the structural forces that create and punish racialized bodies is just as pressing today as when he wrote it. Researchers estimate there are 45 million slaves today, more than at any previous moment in world history (the Global Slavery Index, 2016). Prisoners, refugees, and migrants are subject to discourses that question their human status and we have developed new geographies that create legal “zones of nonbeing” in dark prisons, internment centers, and export processing zones. On a global scale, power inequalities between nations have continued to create impunity for those with more status, and increasing desperation for those outside the power elite. Some radical Islamic groups have claimed their status as anticolonial warriors, and citizens of many countries su er the violence that Fanon predicted would characterize postcolonial power structures. Economic exploitation continues apace, though not strictly upon national lines; now colonized subjects can be found within virtually every economy as the global migration of Fanon’s wretched of the earth has grown to historical proportions with the movement of 244 million people in 2015 (United Nations, 2016).

The list of injustices and indignities is overwhelming, and this is precisely why we need Fanon’s encouragement and insights today. He understood that overcoming these systems we have created would not be easy for those who su er by them, and those who bene t from them will use every possible tool to justify or deny their existence. Our humanity is to be rescued only in the struggle against them.

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Notes 1

See Hansen (1999) for a brief yet excellent account of Fanonʼs biography.

2

For more on di erent ways of understanding the process of decolonization, see Kohn and McBride (2011).

3

See postcolonial theorists of culture and identity such as Fuss (1994), McClintock (1995), and Stoler (2002). Philosophers of race such as Gooding-Williams (2005) and Bernasconi (2001) have explored the implications of Fanonʼs work extensively. The ontological elements of Fanonʼs work have also influenced a number of philosophers such as Gordon (2007) and Maldonado-Torres (2007). For overviews of Fanonʼs contributions, see Gibson (2003) and Jinadu (1986).

4

See e.g. Verges (1999). More recently, political theorists have started to use Fanon to explore concepts such as sovereignty and political ethics. See Hirsch (2014) and Ciccariello-Maher (2014).

5

This essay uses the Farrington translation simply due to 25 years of familiarity with it, not out of a strong commitment to the politics behind either one.

6

Tucker (1978) first articulated the resemblance between Machiavelli and Fanon.

7

See Mbembe (2001) for a brilliant explication of this aspect of Fanonʼs argument.

8

Philosophers such as Gordon (1996) have explored Fanonʼs Hegelianism and Martin (1999) investigated his relationship to Marxism.

9

For those who investigate the issue of violence, see Ciccariello-Maher (2010); for a critic who has questioned it see Cocks (2002).

10

Fanon is studied extensively in the context of anticolonial political action, such as Peterson (2007) and Gibson (2011).

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Michel Foucault, Discipline and Punish  Nancy Luxon https://doi.org/10.1093/oxfordhb/9780198717133.013.27 Published: 04 September 2019

Abstract Published in 1975, Michel Foucault’s Discipline and Punish has profoundly a ected how we think about power and hierarchy broadly speaking, as well as their speci c e ects on incarceration. If the text initially in uenced debates on moral autonomy, political agency, and historicist methodologies for political theorizing, its in uence has since widened. The following article (1) brie y presents the argument in Discipline and Punish, and its implications for rethinking power and hierarchy; (2) considers its reception in light of debates around agency, autonomy, and political activity; and (3) nishes by tracing Discipline’s implications for work on subjectivity and subject-formation, incarceration and poverty governance, feminist theory and intersectionality, and inquiry into colonialism and its legacies.

Keywords: power, subjectivity, incarceration, agency, autonomy, feminist theory, intersectionality, Foucault, Discipline and Punish Subject: Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Published in France in 1975 and in the United States in 1978, Discipline and Punish stands as a remarkable text—while undeniably historical in nature, it also revolutionized political inquiry and o ered the de ning account of power in the twentieth century. As the text slowly charts changing carceral technologies and their expansion through society-at-large, the in uences of the nineteenth century past come to press more heavily on the present. Namely, DP outlines the political technologies that produce rst prisoners, and gradually all subjects, on terms other than their own. Unusually for a text focused on penal reform in the late eighteenth century, DP both upended contemporaneous approaches to incarceration and reshaped how political theory grapples with basic questions of power, hierarchy, and autonomy. The Anglo-American academy initially ducked the political dimensions of DP’s irruption onto the academic scene, as well as its roots in contemporaneous politics. Commentators focused on Foucault’s methodological and philosophical claims, and discussion of the text’s politics was largely con ned to cursory attacks on Foucault’s “infantile leftism” (Walzer 1986, 51–68). Anglo-American criticism remained

deeply bound to the Cold War politics of the late 1970s and early 1980s, and to the anxieties these politics provoked around questions of moral autonomy and political agency. Early critics split between those who believed Foucault to be a dangerous thinker whose work drained politics of agency and moral substance, and those who found DP to o er an incisive account of interlocking social and political relations of domination. Since its initial reception, DP has powerfully reshaped the eld of political theory and its understanding of power, subjectivity, and agency. When read alongside companion texts such as Disorderly Families and I, Pierre Rivière, DP o ers glimpses of the agency possible at the interstices of relations of power. Telling the story of the text’s impact on political theory, then, requires recovering the political claims that lie beneath the surface of the text. This essay (1) presents the book’s argument and its implications for rethinking power and hierarchy; then (2) considers its e ects on debates around agency, autonomy, and political activity; and (3) nishes by tracing its implications for work on incarceration and poverty governance, feminist and queer theories, and inquiry into colonialism and its legacies.

From Docile Bodies to Disciplinary Society Framed substantively around changes in French penal legislation between roughly 1750 and 1840, DP traces the evolution of punitive practices of incarceration from the spectacular towards putatively gentle techniques of correction. However much humanitarian reform might appear to lessen the blows of punishment, Foucault argues that punishment instead evolves into a political tactic and means of social control (23). No longer a repressive means of constraint, punishment expands its purview, augmented by those domains that seek to investigate all aspects of criminality. With the sprawling expansion of these discourses and technologies epitomized by the 1840 founding of the penal colony of Mettray comes a carceral system that quickly moves beyond the prison. A fully disciplinary society emerges by the midnineteenth century—in the wake of the French revolution and prior to the revolutions of 1848—that constrains individuals through mechanisms other than the ostensible sites of power in laws, institutions, and constitutions (293–305). The text’s theoretical reach, however, is far greater. In o ering his readers a radically di erent conception of power, Foucault directs attention to those social institutions that span self and political order. To understand both the workings of power and the political subjects it produces, one must look towards formative social institutions: the prison, and the extension of its model to the military, hospitals, and schooling. Foucault thus o ers DP as “a correlative history of the modern soul and of a new power to judge” (23). His account is presented not as a story of the cunning of elites or of reason, but as a genealogy of inadvertent changes and their unintended outcomes—outcomes that have far-reaching e ects on power, subjectivity, and ethics. DP reshapes where political theorists look for power, and how we conceive of political subjects. From the text’s opening scene depicting the botched execution of Damiens, Foucault argues that power rather than freedom now serves as the leitmotif for politics and political theorizing. If power was once spectacularly visible, connected to the in iction of pain, and located in the sovereign, its mode of exercise gradually changed in the mid-eighteenth century. No longer operative only or primarily through a model of sovereignty (and rule organized through constitutions, institutions, and rights) or of commodity exchange (in the context of markets, corporations, and labor), power now permeates the tissue of society itself. It is not exercised simply as an obligation or a prohibition on those who ‘do not have it’; it invests them, is transmitted by them and through them; it exerts pressure upon them, just as they themselves, in their struggle against it, resist the grip it has on them. (27)

Power thus becomes disconnected from the experience of rule. Contrary to usual accounts that emphasize the obligations, contracts, or repressive force that binds citizens and government, Foucault emphasizes the subtle indirection of a power that contours bodies and body politic alike. Drawing on minor pamphlets, tracts, architectural designs, and handbooks, Foucault performs his argument: that the grist of politics has shifted to a lower register with the daily exercises that are the weft and weave of the body politic. Across a range of sites—including the army, the school, factories, and the hospital—Foucault nds the di usion of new modalities of power that seek to control or correct the operation of the body. This control targets corporeal movements and forces rather than representations (137–139). The locus of power thus shifts away from political principles, ideals, and their practitioners, and dissipates into the very tissue of society. Rising above these fantastic fragments, malevolent visions, and half-known histories comes a disciplinary society created haphazardly through responses to the changing politics of the eighteenth century and chance events. Rather than focusing on political concepts or representations—as he had in History of Madness—Foucault instead directs attention to “apparatuses of power” (les dispositifs du pouvoir) and their ability to produce e ects on individual bodies. Such a subjection “can very well be direct, physical, play force against force, bear on material elements, and yet not be violent; it can be calculated, organized, technically thought out, it can be subtle, make use neither of weapons nor of terror, and yet remain of a physical nature” (26). These apparatuses prompt two changes in politics and political theory. First, they represent a move away from the juridical subject and towards an understanding of individuals as de ned through quotidian practices. Second, they divorce moral intention and political technology. Foucault traces the extension of punishment into the mincing timetable of punitive correction that touches on the habits, routines, and standards of evaluation that comprise prisoners’ daily lives. Punishment thus becomes more invasive and ultimately constitutive of interior lives. By the end of the book, Jeremy Bentham’s imagined ideal prison, the Panopticon (designed in 1791 but never built), serves as the historical and gurative cornerstone to Foucault’s argument. Rising from the center of the prison with individual cells arrayed in a circular fashion about it, the panoptical tower with its shaded glass allows prison guards to survey prisoners in their cells without being seen. Forever unsure whether they’re being watched, prisoners internalize and adjust to the presumed gaze of guards. The Panopticon becomes a “generalizable model,” one whose principles of operation become detached from any speci c use and seep into other social institutions. Foucault argues, “Through this micro-economy of a perpetual penality operates a di erentiation that is not one of acts, but of individuals themselves, of their nature, their potentialities, their level or their value” (181). These institutions adapt the prison’s central strategies of hierarchy, normalization, and examination to monitor, distinguish, and regulate their members. Responding to subtle institutional cues, modern individuals come to discipline themselves. Foucault’s discussion of power is never far from a discussion of the knowledge-sites and human sciences that sustain it. The act and practice of judgment becomes central to all of these social institutions, and the new forms of subjectivity they sustain. Judgment becomes an activity that de nes the individual; it gives the details of the crime committed, the nature of the criminal that gave rise to such heinousness, the tendencies latent in human society that might crystallize into criminality with one swift, lightning stroke (17). To justify its reach, it draws on new disciplines such as forensic anthropology, psychiatry, and legal expertise. Foucault concludes, “We are in the society of the teacher-judge, the doctor-judge, the educator-judge, the ‘social-worker’-judge; it is on them that the universal reign on the normative is based” (304). Power and knowledge enter a delicate pas-de-deux in which e orts to know individuals more precisely nish by trapping these individuals within a network of moral expectations and legal codes. Famously, the result is that “the soul is the prison of the body” (30). One of the lasting legacies of DP lies in the text’s dissociation of power from rule. The text reads most obviously as a critique of sovereignty (Brown, 2008), in which power is equated with rule and seen in the enforcement of laws whose authority is located in political institutions, constitutions, and public o

ce. To

capture the gradual bleed of power from impersonal institution to practices of subjection, Foucault argues that a range of daily routines aiming at public order and individual control have come to supersede the obligations de ning political membership. And so, in the eighteenth century, says Foucault, “we pass from a technology of power that drives out, excludes, banishes, marginalizes, and represses, to a fundamentally positive power that fashions, observes, knows, and multiplies itself on the basis of its own e ects” (Abnormal, 48). In place of a single regime of rule, Foucault theorizes those micro-powers whose forms proliferate. Read this way, Foucault participates in the project of earlier critical thinkers such as Marx, Nietzsche, and Weber. Much like these thinkers, Foucault turns to a social site—in his case, the prison rather than the factory, nation, or religion—to chart the structuring e ects of impersonal institutions and the a ective attachments they generate. For all of these thinkers, power becomes domination over nature, one that shapes the very terms of human existence, and that is legitimized in reference to something beyond the borders of community (such as nature, custom, tradition, religion, etc.). Early critics of Foucault argued that his diagnosis could only end in a paralyzing politics vacated of political agency and moral autonomy. These critiques will be engaged in the section on “Rethinking Power, Freedom, and Agency.” For now it’s helpful to note that as the sharpness of these critiques has receded, political theory has come to probe the conditions under which challenges to governance become possible. DP challenges readers to think how late moderns might resist. Foucault’s oft-quoted claim in the Berkeley interview “My point is not that everything is bad, but that everything is dangerous, which is not exactly the same as bad. If everything is dangerous, then we always have something to do” (Dreyfus and Rabinow 1983, 231–232) is now understood to indicate less the impossibility of a pure politics but rather the need to redirect individuals’ unwitting participation, so they might “not be governed so much” (Foucault 1996, 384). If early adherents saw discipline and resistance everywhere—e ectively vacating the framework of political bite—their critics failed to respond to its dystopianism (and read the text on at-footed, literal terms). Both responses fail to engage the book’s central charge: to grapple with the e ects and activity of governance. Doing so requires challenging how asymmetries become stabilized into the hierarchies of rule, and then rescripting the roles of governors and governed alike.

Rethinking Power, Freedom, and Agency DP emerged following a surge of political protest in France, and became swept up in Anglophone debates around power, freedom, and agency. One way to read DP, then, is as a work intended for two audiences: an academic audience and a political one, including prisoners themselves. For its academic audience, DP o ered a stinging rebuke to French Marxist and Hegelian thought, and challenged individualist accounts of agency that dominated the Anglophone academy. More than an esoteric academic dispute, Foucault’s theorization of power sought to capture a punitive society axed around punishment (rather than freedom) and to create a “wanting out,” that is, a more generalized desire for political change. After the intensity of May ’68, French citizens were left groping for a vocabulary with which to criticize the su ocating, disingenuous feel of life in postwar France. From o

cial lies about torture in Algeria, to a tightly controlled

domestic politics, to outdated cultural mores, French society increasingly chafed at the disjuncture between traditional institutions and the social and political changes wrought post–World War II. The following sections examines, rst, DP’s place within the academy; and second, its intersection with Foucault’s prison activism alongside the GIP (Groupe d’Information sur les prisons) that began in 1971. Recovering the tension between DP and Foucault’s political activities exposes a far more complicated account of agency and power. Foucault’s French audience could not fail to be aware of DP’s attack on Sartrean conceptions of freedom and self-transcendence; on Marxist interpretations of history associated with the Annales school; on the primacy of the French Revolution as the supreme “test” for any historical methodology; and on the su ocating atmosphere of a politics still dominated by the conservatism of the elites and political culture

from the days of de Gaulle. Already, Foucault’s earlier texts (1963, 1966) had sought to test disciplinary boundaries and the heavy-handed in uence of Sartrean and Marxist dialectical thinking on French intellectual life. Often classed as “literary,” these texts initiate a shift towards representations of exclusion —a move at odds with Sartre’s self-actualizing freedom and the Marxists’ dialectical movements of History. DP abandoned representation to examine the slow, grinding political mechanisms that come to supplant and diverge from the ideals of public order. The text disrupts usual narratives of freedom and revolutionary change, while revealing the political challenges of unsettling public order. Even as it sought to crack apart the edi ce of dialectical History—a History that often seemed inexorable—DP also pushed back against the individualism of Sartrean existential humanism. Both seemed inadequate to a time when a French politics of protest and anti-colonialism challenged the o

cial French order and made visible its

explicit policing. DP authored a language of resistance to push back against “police order” (Ross 2002). By contrast, Foucault’s American academic audience responded to Discipline from the context of Cold War anxiety about discerning between the uses and abuses of power; how to maximize control and minimize vulnerability; and how to evaluate the “best” public policy in a dawning age of information and technology. Initial reviews framed DP’s project on the terms of political agency and moral autonomy that dominated American debates in political theory in the 1980s. One way to read DP, within the lexicon of the time, is to consider the charge that it is written with a “view from nowhere.” This phrase, as originated by Thomas Nagel, sought to elevate moral philosophy above rampant particularism, emotivism, and bias of any kind (Nagel 1986). Such a disembodied view ought to allow practitioners to assess moral dilemmas, evaluate di erently unappealing outcomes, and assess the likely utility of di erent responses without regret. Viewed thusly, moral philosophy might confront moral dilemmas with strategies of restriction (to minimize vulnerability by restricting “the good life” to achievable ends); commensuration (to seek equivalence across di erent ends or worldviews); or control (to maximize the power of choice in moral agency). Read through such eyes, Foucault’s own “view from nowhere” seems simply to refuse each of these strategies—and impertinently suggests that they curtail moral autonomy rather than enhance it. As a result, critics charged his refusal to participate in these strategies as evidence of a hidden subjectivism, a charge heightened by what appeared to American eyes as an allusive, ornamental writing style. Two critiques were central to the Anglo-American critical reception of Foucault. First, many critics argued that the politics emergent from DP was no more than “anarcho-nihilism,” Foucault’s followers were “Sadean Maoists,” (Delany 1975) and that Foucault o ered no basis to distinguish power used from power abused (Said 1983; Bové 1994). For these critics, a Foucauldian approach makes “helplessness and total control paradigmatic” (Rogin 1989, 147). The comprehensive sweep of technologies of discipline and normalization, sharpened by the use of knowledge to thoroughly de ne, predict, and evaluate delinquent personalities, rendered Foucauldian power inescapable. As Charles Taylor argued, “power does not make any sense without at least the idea of liberation,” and so Foucault’s formulation lacks any sense of political vision (173). With Enlightenment ideals of progress, morality, and justice undercut by political technologies of discipline, Foucault seemed to o er a politics bereft of any political agency or meaningful change. Second, and relatedly, Foucault’s disciplinary society appeared to vacate the possibility of moral autonomy or subjectivity (Leiter 2007). Not only did it deny the existence of a moral nature or essence to be liberated, it also suggested that the primary institutions for political and moral socialization were all but bankrupt (Habermas 1987; Bevir 1999). In such circumstances, why should individuals prefer one regime to another? And when were they obliged to resist? Such questions appeared unanswerable. Foucault’s supporters responded by claiming that with DP he “sought to subvert the time-honored response to demands for prison reform by showing the functional coexistence of prisons with the discourse of humane reform itself” (Patton 1995, 165). Others argued more sharply that prisons serve as the de ning core of a modern punitive society. Thus, the text should be read conceptually, not empirically, “for the new light it casts on the humanist ideals of autonomy and reciprocity” (Fraser 1995, 183; see also Connolly 1983; White 1986), or

more bluntly still as seeking “to subject morality to strip searches” (Connolly 1993). Both sides of these debates now read stilted and strange, as if frozen in place by an ideological politics concerned to establish if Foucault “got it right” and perhaps uneasy with his homosexuality (except Halperin 1997; and Bersani 2009). They miss that Foucault’s books served as disciplinary and political interventions. Ultimately, Foucault wrote not to establish the rightful use of power against its abuses, but to sharpen the question of how we—a “we” left ambiguously de ned—might resist power. Such critiques, however, fail to read DP alongside other Foucauldian texts, exempli ed here by Disorderly Families, that would complicate his account of agency and impersonal institutions. DP o ers the reader a thought-edi ce—one strangely depopulated and mu

ed—that beckons to the reader, draws her in, and by

the book’s close leaves her gasping for air and desperately wanting out. In a perceptive (and critical) review, anthropologist Cli ord Geertz writes that “As with so many prisoners, of so many kinds, it is not getting out but wanting out that generates in Foucault a strange and special vision” (Geertz 1978). By contrast, Disorderly Families (co-authored with Arlette Farge in 1982) is almost entirely given over to people as they speak, act, denounce, cavil, and exhort. Disorderly Families collects ninety-four letters written before 1758 from families who, with the help of hired scriveners, wrote plaints to the king to intervene and resolve family disputes from libertinage to drunken behavior to vagabonding children. These requests for con nement were subsequently directed to and enforced by the local police. Agency su uses these letters. Foucault argues that each request was “a living site assembled out of action and desire, where the production of its author’s self-image projected him into a space he created out of whole cloth and did not passively experience” (Foucault and Farge 2016, 259). Obliged to elevate personal complaint to a level of general concern, ordinary people seized the mechanisms of power to address the king and make demands in the name of a not-yet emergent public order. If DP thinks marginalization on relentlessly institutional terms, Disorderly Families o ers an intensely personal view from the margins or what Foucault calls “a dramaturgy of the real” (Foucault 2019). Taken together, these texts oblige the reader to look more carefully at the politics that emerges from desires for justice. The circulations of letters, letter writers, and police transformed the very scope, nature, and prerogative of police and public order onto the terms of correction. Returning to DP, readers can nd the same circulating clamor in the public audiences capable of overturning sovereign power and producing “two-sided discourses” in which “‘curiosity’ [about crimes] is also a political interest” as “the power that condemned confronted the people that was the witness, the participant, and the possible and indirect victim” (48). That the same people are somehow to counter the later impersonal institutions suggests that any “wanting out” must rise above intention, disposition, or individual action—it must be di erently collective and transformative.

Politics in the Text Foucault experiments with the terms for such collectivity and change through his work with the GIP. Publicly inaugurated in 1971 with a statement signed by Foucault and other scholars, the GIP functioned as a collective committed to uncovering and publicizing abuses of prisoners in French prisons. Less a vanguard group of intellectuals or an interest group seeking penal reform, the GIP sought to empower prisoners to speak for themselves about their experiences and to raise public awareness of the carceral system that served as the guarantor for law and order. At the time, such actions were novel and politically radical; prisoners were viewed neither as political agents nor as persons capable of public speech on their behalf (Veyne 1995, 269). DP thus claims its theoretical roots in political practice, rather than the other way around. Indeed in 1972, Foucault comments that, “writing a sequel to my Histoire de la Folie, which would continue up to the present, is for me without interest. On the other hand, a concrete political action in favor of prisoners seems to me to be highly meaningful” (Foucault 2001: 1164; see also Foucault 1980). Reading DP with an awareness of the GIP’s activities, as well as of Foucault’s other texts from the period, provides a more complicated account of political agency than arises solely from philosophical re ection or historical interpretation. The GIP’s activities led Foucault to explore the terms of regimes of jurisdiction and veridiction, that is, of the ordering of space and of the truth it permits telling. Notably, the 1971–72 revolt at the prison in Toul led prisoners to realize that individual plaints or e orts at escape would undo the collective project of prison activism. The GIP sought to support prisoners as they collected information about prison conditions, voiced demands for change, and “insisted at the same time on the collective experience of thought and on the need for detainees to take the oor” (GIP Manifesto, in Zurn and Dilts 2016, 210). Insistences on collective thought and “taking the oor” (une prise de la parole) became a constant motif in GIP events and printed materials. This political work reverberates with Foucault’s analysis of a “regime of practices” with “practices being considered as the site of imbrication of what one says and what one does, of the rules imposed on oneself and of the reasons given, of projects and evidence” (Foucault 1980, 42). Less an inclusion of new voices, such “seized speech” sought to create new regimes of truth-telling to counter that of o

cial order and to apprehend a public audience on new terms. Indeed, Foucault delayed the publication

of DP so as not to detract from the GIP’s collective political work. While it remains true that it is easier to make the prison paradigmatic of social institutions than to make prisoners paradigmatic of resistance to them, that impossibility should heighten attention to challenges besetting collective action broadly speaking. DP e ectively suggests that to counter the evacuation of agency in social institutions—indeed, the very dissipation of their “public” nature—requires rethinking the practices, scope, and speech associated with collective action. In DP, Foucault brie y references the 1970s prison revolts (268) to introduce a discussion of “the political dimension of illegality” in which “a good many [struggles] were able to turn themselves to account in overall political struggles and sometimes to even lead directly to them” (273–274). With one key change: “people were no longer ghting against … the agents of injustice but against the law itself and the justice whose task it was to apply it” (274). The analysis of carceral society that follows depends on one’s readerly perspective: from the view of institutions, it o ers a primer in paralysis; from the view of popular struggle, it o ers a catalogue of strategic targets. Paradoxically, raising the possibility of paralysis might even be a way for readers to acknowledge the corrosion of public space, to “hear the distant roar of battle” (308), and to begin conversations about what kind of political action might occupy that space di erently, create such spaces anew, or revitalize their public sense. Just as the GIP was seeking more than the inclusion of new voices, I am not arguing that by “adding in” the texts and activities related to DP that we get a more complete Foucault or a more accurate history. Instead, I’m arguing that such readings, and the acknowledgment that they depart from di erent perspectival positions, helps us to grasp that the impossibility of grounding new certainties—and that our

contemporary political challenge is to seek a politics that proceeds nonetheless. What readers see and say about DP depends in part on where they enter into the conversation: what cultural and political conditions illuminate which concepts, practices, and questions and compel readers to pick them up and use them in politics.

Lasting Textual Reverberations The continued implications of DP are extraordinary for their breadth, and their ability to touch on many areas of research in political science broadly speaking, as well as other disciplines. Very few works of political theory have had such pronounced impact on elds ranging from the specialized ones of carceral politics, to broader inquiries into global processes of colonialism and modernity (Rangan and Chow 2008). Across all levels of analysis, DP has pushed a wide swath of political science to think in terms of governance and political practice rather than (only) formal political institutions or rule. Its most lasting e ects have been on our understanding of subjectivity; subject-formation and resistance politics; incarceration and poverty governance; and postcolonial accounts of modernity. Political scientists have found it easiest to assimilate Foucault’s claims in DP to an updated set of claims about ideology and soft power; it has been correspondingly harder to consider the implications of his epistemological claims and the politics or ethics that follows from his critical theory. The early critiques of Foucault linger among those who situate him as a critical neo-Kantian of sorts. Drawing on Foucault’s consistent appropriation of Kant’s political writings (even as he decried Kant’s moral philosophy), these scholars nd in Foucault and DP a critical appraisal of the Enlightenment project of ethical and political self-cultivation (Owens 1994; Allen 2008). Others sought to rethink the Enlightenment politics of freedom from the perspective of critical theory and with emphasis on the interplay between politics and discourse, or power and subjectivity (Tully 1999a; Nichols 2014). Scholars such as Lynne Hu er, Ladelle McWhorter, Jana Sawicki, and Sandra Bartky have radicalized earlier preoccupation with these practices of governance and brought them to bear on gender and sexual relations (Coole 2013); drawing on feminist theories of relationality, they have sought to expand the space for ethical self-cultivation against the society of judges outlined above (Hu er 2009; McWhorter 1999; Bartky 1990; see also Sawicki 1988; Sawicki 2005; Hekman 1996). Anglophone scholars outside the U.S. have given greatest attention to Foucault’s work on governmentality (Innes and Steele 2012), an outgrowth of the analysis of late eighteenth century politics in DP. Their work has given special attention to regimes of risk, insurance, health, and policing (Lemke 2012; Burchell and Gordon, eds. 1991). Within the U.S., DP has been taken to o er the terms to theorize the politics of identity and di erence. While some have focused on Foucault’s claim that self-identity forms itself perennially in opposition to the gure of the excluded (Connolly 2002), others have traced the stubbornness of our “wounded attachments” to those identities and their embeddedness in law, culture, and society (Brown 1995). The result is a misunderstanding of the terms of political contest. Thinking of identity in performative terms restores the perpetual play of discursive, cultural, and legal codes that govern self-formation. Following Judith Butler’s Gender Trouble (1990) and Excitable Speech (1997), scholars have inquired into the racing, sexing, and gendering of political membership. A variety of political positions have emerged, from the resistance of solidarity to the mourning of lost possible selves, to a renewed and revamped advocacy. Not all critics have embraced these adaptations of Foucault. Sonia Kruks has argued that Foucault vacillates between a hyper-discursivity that over-emphasizes constraints on subjects, and an implicitly self-constituting subject, with no real ethics of politics to mediate between these two gures (2001).

Across these strands of scholarship, the early critics’ concerns about autonomy and agency have gradually been engaged, although not perhaps in a manner compelling to them. Following DP, Foucault’s interests gradually shifted towards ethics and subjectivity, and in a manner utterly shocking to his auditors at the Collège de France. Initially, American scholars took this work as evidence of a “move” towards liberalism and re ection on our human relation to limits. Such a claim isn’t entirely wrong; self-government does draw on practices that allow individuals to cultivate steadiness rather than concede to institutional norms. However, such self-governance is not motivated by a late recognition of the place for limits, rights, tolerance, etc. Butler’s more recent work (2004, 2005) has revisited her insistence on the reproductive power of the norm, to investigate those practices by which persons revise their relation to the norm, and lessen its grip. While Foucault could never endorse the muscular moral autonomy of Anglo-American philosophers, Butler and other scholars have sought to interpret the ethopoesis that would make human ethical self-cultivation something other than an instrumental orientation towards pre-existing norms (see Davidson 2001; Owen 1994; Tully 2008; Rajchman 1994; Luxon 2013). Foucault’s work has also contributed a key vocabulary around power, marginalization, subjectivity, and governance to the scholarship around intersectionality. Extending Foucault’s spatialization of power and judgment in DP, this eld has drawn on Foucauldian concepts of juridical and political subjectivity to explore the thorny challenges of those persons who live between multiple identity-formations. Crenshaw (1991) argues that the lack of clear legal status politically disables members of vulnerable groups such that their existence at the interstices of di erent legal categories profoundly disables them and renders them invisible. Others such as Hancock (2004) have parsed the dynamics that make vulnerability endemic to politics, and even a presence within those groups that advocate with and for the marginalized. Such scholarship recaptures the spirit of an earlier progressive politics and targets the exclusions publicized by Foucault, even as it doesn’t fully reckon with the epistemological contradictions of the two. One might argue that its success in advocacy draws from such elisions. After all, in the midst of a failed attempt at political intervention, Foucault said atly that, “People do revolt; that is a fact. And that is how subjectivity (not that of great men, but that of anyone) is brought into history, breathing life into it” (2000, 452). Returning to the speci c instance of the prison, Foucault’s work has inspired a burgeoning eld of work on punitive societies, incarceration, and felon disenfranchisement. Initially inspired by Foucault’s gloss on eighteenth-century American prisons in DP (Dumm 1987), this work has expanded in three directions. One strand has explored Foucault’s Nietzschean conviction that punishment reveals the values and concepts endemic to political order (McBride 2007; Dilts 2014). Others, drawing also on Bourdieu, has challenged the insistence on measuring crime and worth through an actuarial approach to policing and punishment (Wacquant 2009), and whether modern conceptions of order/disorder are all that stable (Harcourt 2011). Much as Foucault extended his analysis from the prison to other social institutions, such scholars have analyzed poverty governance and racialized paternalism to examine the disciplining of public policy (Procacci 1991), as well as the entanglement of race, incarceration, and citizenship (Soss, Fording, and Schram 2011). The result has been a powerful reformulation of American political development. Around the periphery of DP—along with the lectures Society Must Be Defended and Security, Territory and Population—are gures of the colonial. If DP counters the rise of liberalism and democracy with the unfreedom of daily life in politics and society, it leaves open the question of how these political logics interact with colonial administration. Scholars have only recently begun to experiment with genealogical critique or historical ontology for thinking about the contexts and practices constitutive of colonialism in the eighteenth and nineteenth centuries, and decolonization in the twentieth (Stoler 2013). Some, like Mitchell (1988), have emphasized the productive features of Foucauldian power, and its ability to spatialize hierarchy and render it visible in colonial contexts (see also Scott 1998). Others, such as Stoler (1995; see also Rifkin 2011), have turned to colonial power’s e ects on the body and recognized political subjectivities.

And yet others have drawn on Foucault’s historicism and critique of the Enlightenment, to argue that we understand the narrative of “modernity” as itself in ected by colonial experience (Scott 2004). To return to this essay’s opening, such scholarship pushes more insistently on the experience of marginalization and production: how should we understand colonial administrations and their variations across empire and territory? To what extent can the position of the colonial marginalized be stabilized and in what relation to power? What historical ontology might ground encounters between colonizer and colonized, and without negating their di erent histories, cultures, and self-understanding? Parrying the terms of governance is not self-evident. One of the legacies of sovereignty lies in the reluctance “to cut o the head of the sovereign” (Foucault 1978, 88–89)—by implication, the reluctance of persons both to divest from representations of sovereignty (and instead focus on apparatuses of power), and to recognize that an acephalous polity would be one constituted and governed by its inhabitants. But if change attests to the imperfect reproduction of discourse, and if power passes “by and through” individuals, then it becomes possible to intervene, resist, and act so as to redirect and revalorize the workings of power. These interventions inaugurate the challenge of claiming one’s own relation to norms, rather than adopting the instrumental aims of social institutions, and of making such self-constitution more broadly available. Foucault’s insistence on the practices, interactions, and relations of politics thus emphasizes, rather than eviscerates, political engagement.

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The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Lon Fuller, The Morality of Law  Frank Lovett https://doi.org/10.1093/oxfordhb/9780198717133.013.10 Published: 10 December 2015

Abstract This chapter reviews The Morality of Law, by Lon L. Fuller, one of the most important books in jurisprudence published in the twentieth century. Fuller o ers an account of the rule of law and its connection to morality that has in uenced not only legal philosophers, but also a wide range of political theorists and social scientists. This chapter provides some background that led to the publication of The Morality of Law, considering in particular Fuller’s response to Hart’s lecture on legal positivism, delivered in 1956 at the Harvard Law School. It also discusses the publication of The Morality of Law in 1964 and its description of eight “principles of legality”: generality, promulgation, no retroactive laws, clarity, no contradictions, no laws requiring the impossible, constancy of the law through time, and congruence between the o

cial action and declared rule.

Keywords: The Morality of Law, Lon L. Fuller, jurisprudence, H. L. A. Hart, The Concept of Law, legal theory, rule of law, morality, principles of legality, legal positivism Subject: Comparative Politics, Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

The Morality of Law by Lon L. Fuller numbers among the most important books in jurisprudence published in the twentieth century. Together with H. L. A. Hart’s The Concept of Law and Ronald Dworkin’s Taking Rights Seriously, it is often credited with reviving the eld of legal theory after the debate between realists and formalists had long ceased to be productive by mid-century. Also like the other two, it is one of the relatively few strictly jurisprudential works widely cited outside its eld, and especially among political theorists and philosophers. This is largely because it articulates an account of the rule of law and its value that many have found, and continue to nd, extremely attractive. In all fairness it must be said that The Morality of Law is no masterpiece of theoretical rigor. Though he was widely read and a formidable scholar in his own right, Fuller was trained as a lawyer, not as a philosopher. Characteristically, his discussions are often more analytically sharp than they are systematic. But this should not be seen as detracting from his achievement: The Morality of Law would not have been so successful had it not captured—however imperfectly—an important insight regarding the nature of law and

its connection to morality. Further, as we shall later see, the very ambiguity of the work may have helped as much as hindered its success. It will be the aim of this review to explain Fuller’s important insight, but rst it is necessary to provide some background.

The Debate with Hart In the fall of 1956, while a visiting professor from Oxford University, H. L. A. Hart delivered an important and in uential lecture, “Positivism and the Separation of Law and Morality,” at the Harvard Law School. Among the many faculty and students in attendance was Lon Fuller. A prominent member of the Harvard Law faculty for more than fteen years, Fuller was at this time well-known as a member of the process school of jurisprudence, a group of scholars who hoped to circumvent the stale debate between formalists and realists by reorienting discussion toward the operation of legal systems in practice—toward their distinctive purposes and procedures. In his lecture, Hart discussed Fuller’s work explicitly only brie y near the end, but the general tenor of his argument was rmly opposed to the legal process school. Since The Morality of Law grew out of the debate initiated in Hart’s lecture, it is worth brie y reviewing the main points of the latter. Hart’s aim in the lecture was to revive the tradition of legal positivism, which by the middle of the twentieth century had fallen into some disrepute. He began by observing that the classical positivists such as Bentham and Austin were actually committed to two distinct doctrines: on the one hand, the idea that our conception of law should be separated from our conception of morality; and on the other hand, the idea that the essential nature of law is that of command (speci cally, commands of a sovereign). From this initial observation, Hart proceeded as follows. First, he conceded that legal positivism’s critics were correct to regard the command theory of law as deeply awed; indeed, he restated the main objections to that theory in what has since become their canonical form (1958, 602–606). But he then went on to argue that the demise of the command theory leaves untouched the other central commitment of legal positivism—the importance of separating law and morality. This latter doctrine he proceeded to defend vigorously, speci cally raising the problem of whether we should count laws of the Nazi regime as laws in the relevant sense. According to the legal process school, laws are not found in the legal source materials alone, but rather in the process of their interpretation according to the broader moral and political aims the legal system is meant to serve. As Hart pointed out, however, this was nothing to the purpose given the repugnant moral and political aims of the Nazi regime. Far better, he argued, to resist giving moral credit to something merely because it is a law: only when law and morality are clearly distinguished can we face the issue of our ethical obligations to resist or obey particular legal regimes in a straightforward manner. “Surely if we have learned anything from the history of morals,” Hart said, “it is that the thing to do with a moral quandary is not to hide it” (619–620). Hart’s lecture was subsequently published in the Harvard Law Review, and the editors invited Fuller to prepare a response for the same issue. This he did, and his paper “Positivism and Fidelity to Law—A Reply to Professor Hart” outlined many of the arguments that would later appear in The Morality of Law. Glossing over many interesting aspects of their debate, Fuller’s response presses two main objections to the separation of law and morality advocated by Hart. The rst concerns what Fuller terms the “external” morality of law. Once we abandon the command theory of law, he argues, it should be apparent that legal order is a collective achievement which “requires not merely the respectful deference we show for ordinary legal enactments, but that willing convergence of e ort we give to moral principles” (1958, 642). In other words, successful legal orders necessarily have morally acceptable purposes and aims, for “the authority to make law must be supported by moral attitudes that accord to it the competency it claims” (1958, 645). In order to avoid drawing this conclusion, and thus having to abandon the separation of law and morality,

positivists must supply some alternative account of how legal order is possible, and so far (according to Fuller) they have been unable to do this. The second main objection concerns what Fuller terms the “internal” morality of law. Suppose we ignore the constraint that an e ective legal order must be responsive to external morality, and imagine some evil regime such as the Nazis bent on imposing an unjust legal order. There is an important sense in which the Nazi regime simply failed to do this, Fuller suggests: for example, they had recourse to laws validating purges after the fact, they kept important laws secret from the general population, they regarded the law as subordinate to political considerations in trials, and so forth. While these activities succeeded perhaps in terrorizing the population, they did not succeed in producing anything resembling a legal order—that is, a system of rules for the guidance of conduct. It follows, Fuller concludes, that even “considered merely as order,” the law must contain “its own implicit morality. This morality of order must be respected if we are to create anything that can be called law, even bad law” (1958, 645). For both these reasons, then, the separation of law and morality positivists advocate cannot be maintained. Nor should it be, Fuller adds. For the best way to prevent evil from corrupting law is not to insist on excluding morality from law altogether, but rather to ght back with good. In 1961, a few years after Hart’s lecture and Fuller’s response appeared in print, Hart published The Concept of Law. This work is unquestionably the most signi cant contribution to legal philosophy in the twentieth century, and it can be fairly described as setting the agenda and providing much of the framework for analytic legal theory ever since. Building on his famous Harvard lecture, Hart reiterated and expanded both his critique of the command theory of law, and also his defense of the separation of law and morality (Hart 1994, chs. 2–4 and 8–9 respectively). Arguably more consequential than either, however, he developed a sophisticated account of the possibility of legal order to replace the command theory. Without elaborating on the details, his basic idea was to conceive of a legal order as resting on an important conventional social rule he termed “the rule of recognition.” Such a rule might have the form “recognize the pronouncements of the queen-in-parliament as valid law,” for example. The adoption of a rule of this sort by legal o

cials

enables them to coordinate their various e orts and implement a legal system. Hart invested considerable e ort in analyzing the nature of social rules and what it means for people to follow them (Hart 1994, esp. chs. 5–7). Because, on his view, social rules are purely conventional, the result is a plausible account of legal systems that does not depend on their external morality. Though not explicitly addressed to the rst objection Fuller had raised, The Concept of Law e ectively answered it.

The Principles of Legality Two years after the publication of The Concept of Law, Fuller delivered the William L. Storrs Lectures at the Yale Law School which, among other things, again responded to Hart’s book. These lectures, substantially expanded, were published as The Morality of Law in 1964. While he was not entirely convinced by Hart’s new account of legal systems as having their basis in conventional social rules, for the most part Fuller leaves this aspect of his original critique behind. The central focus of The Morality of Law—and the main theme for which it has become famous and in uential—concerns the inner morality of law. In chapter two, Fuller tells the story of a well-meaning and reform-minded monarch named Rex (33–38; cf. Fuller 1958, 644–645). The legal system in place when Rex assumes the throne is archaic, ine

cient, and

corrupt. Accordingly, his rst act is to repeal the entire body of existing law and announce that henceforth he will personally resolve all disputes on a case-by-case basis. Unfortunately, this method soon proves intolerable: since there is no discernible pattern to his judgments, his subjects nd themselves in a continual state of confusion and uncertainty. Responding to their complaints, Rex drafts a formal legal code to guide his future decisions systematically, but initially keeps this new code secret from his subjects. When

this does nothing to mollify them, Rex agrees to publish the legal code incrementally together with each particular case judgment. Alas, his subjects must explain, knowing particular rules serves no purpose unless they can be known in advance, and thus they reiterate their demand that the legal code be published in its entirety forthwith. When Rex nally bows to these demands, his subjects are dismayed to discover successive iterations of the published code thoroughly confusing, riddled with contradiction, and unrealistically demanding. To make matters worse, the e ort to purge the code of these faults through a constant stream of supplements, amendments, and repeals leaves Rex’s subjects at their wits’ end to know what the law is at any given time. When a performable, consistent, and clear legal code is nally settled once and for all, things seem to be looking up—that is, until it becomes apparent that when called upon to adjudicate particular disputes, Rex apparently has no interest in governing his decisions by those o

cial

rules. With his despairing subjects now on the verge of revolt, the unhappy king Rex suddenly dies, and the throne passes to his successor. The lesson of Fuller’s colorful story is perfectly clear. It illustrates that “the attempt to create and maintain a system of legal rules may miscarry” in a variety of ways (38–39). Regardless of one’s substantive aims— notice that the story deliberately makes no reference to Rex’s speci c political and moral commitments—to meet with any degree of success in lawmaking, one must undertake the enterprise in a certain particular manner. Fuller characterizes this fact in terms of a set of success conditions or (as they are generally called in the literature) “principles of legality,” which can be listed as follows: 1. Generality 2. Promulgation 3. No retroactive laws 4. Clarity 5. No contradictions 6. No laws requiring the impossible 7. Constancy of the law through time 8. Congruence between the o

cial action and declared rule

Interestingly, these eight principles bear a striking resemblance to the traditional conception of the rule of law, and Fuller’s work is thus commonly read as an attempt to provide a deeper account of that ideal. A considerable portion of The Morality of Law (nearly one-quarter of the rst edition) is devoted to elaborating the principles, their complexities of detail, and their application to speci c legal problems (46–91). Here Fuller exhibits his lawyer’s sensibility at its best. Rather than rehearse the details of his discussion, we might instead note that, although the issues addressed by the principles are diverse, roughly speaking they answer to three distinct problems. First, several of the principles concern the necessary form any system of rules capable of governing conduct must take. There simply would be no system of rules, for example, if public o

cials adjudicated all

controversies on a case-by-case basis. Likewise, no system of rules could even potentially govern conduct unless those rules are normally forward-looking, mutually consistent, and realistically performable by well-meaning human beings of ordinary virtue. These formal concerns are addressed by the requirements that legislation be general (1), that there be no retrospective laws (3), that the legal system not include contradictions (5), and that laws not require the impossible (6). Second, the mere existence of rules capable of governing conduct is not su

cient to constitute a legal

system unless those rules are actually observed by the relevant parties. Fuller thus adds the requirement that

there must in practice be a congruence between the actions of public o

cials and the declared legal rules

(8). Finally, even if the relevant o

cial conduct is indeed governed by a system of rules, we would not be

inclined to describe that state of a airs as a legal system until it is common knowledge both what the rules are, and that they do indeed govern conduct e ectively and reliably. This sort of common knowledge requires that the system of rules governing conduct be published (2), that what is published be clearly understandable by those concerned (4), and that it not change so rapidly as to leave people in doubt as to its contents at any given time (7). Fuller insists that the principles of legality are aspirational, in the sense that they represent ideals we ought to strive toward, even if they cannot all be perfectly met in every possible instance. He cautions that there may be situations in which broader ethical or moral considerations con ict with the principles: the need for legal reform in periods of rapid social and economic change, for instance, may outweigh the value of legal stability. Indeed, the principles might sometimes con ict even with each other such that their joint perfect realization would be impossible. The e ort to spell out all the laws in language all citizens can perfectly understand might con ict with the e ort to give law the technical precision necessary to ensure that courts can apply them consistently, for instance (44–45). Fortunately, however, the principles will often be mutually reinforcing: success on some dimensions will render success on the others easier to achieve, as for example where maintaining clarity and publicity will tend to reduce the need to resort to corrective retroactive legislation (92). Only when all eight principles of legality are met to at least some reasonable degree can we speak of a genuine legal order. Failure in this regard “does not simply result in a bad system of law,” he says; “it results in something that is not properly called a legal system at all” (39). Having explained the eight principles, Fuller goes on to argue that they constitute a sort of “morality” in two di erent respects. On the one hand, it seems obvious that there are bene ts to being governed by prospective general rules that are clear, consistent, performable, and so forth, if for no other reason than that this allows us to formulate plans for our lives. Thus it follows that when some political regime—even one whose purposes and aims are, for better or worse, substantially at odds with our own—sets out to govern us through the creation of a legal order, to that extent at least we will be better o

than we might

otherwise have been. This is because the regime will nd itself bound to respect the law’s inner morality as a success condition for its own enterprise. As an instrument of social organization, we might say, wherever the law goes, at least some small measure of good always follows in train. Fuller connects this thought with the plausible aspects of the natural law tradition in jurisprudence, though stripped of any connection to dubious metaphysical or theological assumptions (96–106). On the other hand, among the various available instruments of social organization, the law is more suited to the realization of some broader political and moral purposes than others. If one’s aim is to establish a free market economic order, say, the law is a very e ective tool; by contrast, if one’s aim is to terrorize a population into submission, by contrast, the law is a much less e ective tool. Thus it is no surprise that the Nazi regime found itself often having to circumvent even its own laws. The law, in other words, is not perfectly neutral toward the substantive aims political regimes might choose to adopt: not only does it always deliver some good of its own, it also constrains in a salutary manner the broader purposes and aims regimes might pursue (153–162). In both respects, Fuller concludes, it is impossible to fully separate law and morality as positivists claim.

The Lawʼs Inner Morality While it did not carry the eld against legal positivism (for reasons discussed in the next section), Fuller’s argument has nevertheless proved extremely in uential. Not only among legal scholars, but also among political theorists and philosophers, and indeed among social scientists more generally, The Morality of Law is far and away the most-often cited authority on the rule of law, and it is frequently cited in other discussions as well. Interestingly, the in uence of Fuller’s book has not been hampered by the fact that its main argument is deeply ambiguous. As we have seen, Fuller maintains that his principles of legality constitute an inner morality of law. The ambiguity arises when we begin to wonder on what basis he purports to establish this claim. In other words, why do these eight principles speci cally, and not some others more or less, properly characterize the rule of law? At rst pass, it might seem that he intends to advance a conceptual claim about what we mean and understand by law. Here we might refer again to a passage cited earlier. Just after concluding the parable of king Rex and listing his principles for the rst time, Fuller says that a “total failure in any one of these eight directions does not simply result in a bad system of law; it results in something that is not properly called a legal system at all” (39, emphasis added). A few pages later he adds that “respect for constituted authority must not be confused with delity to law. Rex’s subjects … remained faithful to him as king” but they “were not faithful to his law, for he never made any” (41, emphasis added). These passages seem to suggest that Fuller intends the eight principles to represent conceptual criteria of law. That is, when the activities of some political regime contravene the criteria, the social ordering that results does not properly count as law on the correct meaning of that term. The di

culty with this reading is that Fuller provides nothing in the way of an argument supporting such a

claim. He does not, for example, undertake to show that our ordinary language use of the terms “law” and “legal system” conceptually entail his eight principles. Instead, he sometimes advances on their behalf what are better described as normative considerations of political legitimacy. There ought to exist, he argues, “a kind of reciprocity between government and the citizen” (39; cf. 61, 139). It is often the case that we do not share in the aims and purposes of our government; nevertheless, we are asked to observe the rules and obey authorities. On what grounds are we obligated to do so? Fuller’s principles of legality might provide at least part of an answer: “there can be no rational ground for asserting that a man can have a moral obligation to obey a legal rule that does not exist, or is kept secret from him, or that came into existence only after he had acted,” and so forth (39). For there to be reciprocity, of course, observing the principles alone must deliver some measure of good to the citizens, apart from whatever substantive purposes and aims the government intends to pursue. Fortunately, the goods delivered are not hard to nd. Apart from the earlier-mentioned advantage of being able to plan our lives on the basis of reasonably stable expectations, Fuller also highlights two further bene ts. First, in observing the principles of legality, the government opens its policies to public criticism and is thereby forced to articulate justi cations: when “a man is answerable only to his own conscience, he will answer more responsibly if he is compelled to articulate the principles on which he acts,” Fuller observes (159; cf. 51). Second, in observing the principles the government is also compelled to adopt a particular perspective or orientation toward human nature: governing through law … involves of necessity a commitment to the view that man is, or can become, a responsible agent, capable of understanding and following rules, and answerable for his defaults. Every departure from the principles of the law’s inner morality is an a ront to man’s dignity as a responsible agent. (162) In order to earn their legitimacy, governments must aspire to create legal orders that are public, reliable, and respectful of their citizens’ dignity. We may thus understand the eight principles of legality as those

speci c principles whose observance answers to the requirements of reciprocity. When some government fails to observe them, and the “bond of reciprocity is nally and completely ruptured,” Fuller concludes, “nothing is left on which to ground the citizen’s duty to observe the rules” (40). Indeed, at some extremity the citizens might legitimately contemplate outright revolution (41, 61–62). No doubt textual support exists for this normative reading of The Morality of Law, and therefore it is not surprising that it has found favor in a number of recent discussions (see, e.g., Murphy 2005; Luban 2010). The main obstacle to our accepting it is that, unfortunately, there seems to be even greater textual support for a third strand of argument which might be described as practical. This strand emerges as Fuller explores the eight principles in detail. Criticizing previous attempts to analyze generality, for instance, he observes that they confuse the issue of “what is essential for the e

cacy of a system of legal rules” with the issue of

what we call law. His concern, he says, is with the former, not the latter. Thus, “the requirement of generality rests on the truism that to subject human conduct to the control of rules, there must be rules” (49). As each principle is discussed and defended in turn, its speci c justi cation hinges not on the normative requirements of reciprocity, but rather on the pragmatic success conditions inherent to what he terms “the enterprise of subjecting human conduct to the governance of rules” (74, 91; cf. 53, 66). This strand of argument comes through even more emphatically at the opening of chapter three, where Fuller suggests an analogy between lawmaking and carpentry. In any purposeful activity, there will be certain instrumental considerations that constrain the form and shape our performance of that activity must assume if it is to be generally e

cacious. These constraints are “natural laws” in the straightforward sense

that the material properties of di erent sorts of lumber are constraints on e ective carpentry (96; cf. 155– 156). The instability of the text is evident when we press on any one of its three strands. Suppose we begin with the last strand, for example. On this approach, the principles of legality re ect practical success conditions for creating a legal system. If our aim is to subject human conduct to the governance of rules, we will usually not succeed in our aim issuing rules that cannot be performed, that are retroactive, and so forth. So far so good. But usually is not always. What if, in some particular instance, our aim seems better served by violating one of the principles of legality? In an example Fuller himself o ers in the revised edition of The Morality of Law, the government of the Soviet Union once sought to bring economic corruption under e ective legal control by subjecting some individuals to retroactive judgment under new, harsher statues requiring the death penalty (202). This clearly violates the principles of legality, but perhaps in a manner that instrumentally serves the aim of e ectively subjecting human conduct to the governance of rules in the long run. To this Fuller might respond by observing that, while the Soviet tactic was e ective, it was something other than lawmaking. This response, however, implies a conceptual claim about what counts as law, to which one might fairly respond: What do we care what we call it? What is really at stake? When pressed on this front Fuller seems to answer in normative terms. He suggests that the real objection to the Soviet tactic is not that it “was an ine ective measure for combating economic crime,” but rather “that it involved a compromise of principle, an impairment of the integrity of the law” (203). Perhaps so, but then we seem to be evaluating laws as good or bad rather than discussing the law’s necessary character as a purposeful human enterprise. As the positivist Joseph Raz writes, If the rule of law is the rule of good law then … the term lacks any useful function. We have no need to be converted to the rule of law just in order to discover that to believe in it is to believe that good should triumph. (Raz 1979, 211) It was precisely in order to attack legal positivism that Fuller rst introduced the idea that there are necessary built-in success conditions for creating legal systems, and so we return to the practical claim where we began.

The unavoidable conclusion is that the text is irreducibly ambiguous. To be sure, Fuller had an important intuition about the connection between law and morality, an intuition that on its face is both plausible and attractive. He did not, however, ultimately resolve that intuition into a single, coherent, analytically rigorous line of argument. But far from hindering the in uence of The Morality of Law, this ambiguity may partly explain its popularity, for it has enabled a wide diversity of readers to nd something to love in its pages. Just as the practical argument provides fruitful ground for those who want to explore the constraints law places on evil regimes (e.g., Dyzenhaus 2010), so too the text can be mined for normative arguments connecting the rule of law to human dignity (e.g., Luban 2010).

Fuller and Legal Positivism Before concluding our discussion, it is worth considering the extent to which The Morality of Law succeeds in presenting a challenge to legal positivism. By and large, the legal positivists themselves remain unconvinced. Recall that, according to Fuller, the principles of legality constitute a morality in two di erent respects. On the one hand, he argues that as an instrument of social organization, the law always delivers at least some small measure of good. This is because any political regime aiming to subject human conduct to the governance of rules, regardless of its substantive purposes, will necessarily nd itself bound to respect the law’s inner morality as a condition of success. On the other hand, he also argues that among the various possible instruments of social organization, the law is more suited to the realization of some substantive purposes than others: thus, not only does the law always deliver some good of its own, it also tends to channel political regimes toward more bene cent purposes and aims. Contrary to what is often supposed, some legal positivists are willing to accept the rst aspect of Fuller’s argument, at least to a point. On their view, admitting that the law always delivers at least some small measure of good does not impinge on the separation of law and morality in the relevant sense. Here it is helpful to clarify a distinction between what might be termed the existence conditions of law and the practical consequences of law. The existence conditions of law are the criteria according to which some mode of social organization actually constitutes a legal system, whereas the practical consequences of law are the e ects we expect to follow whenever a legal system happens to exist. To illustrate by parallel: it is an existence condition of having the u that one be infected by the in uenza virus, whereas it is a practical consequence of having the u that one will experience fever, fatigue, congestion, and so forth. According to Hart and some other positivists, we can agree that the law has good practical consequences—that is, that as one possible mode of social organization among others, the law always delivers at least a few positive e ects (see Hart 1958, 621–624, 1994, 157–161, 206–207). While there is some dispute as to whether Hart appreciated the full measure and signi cance of these positive e ects, we may leave this question aside (but see Waldron 2008). The point is that nothing need follow with respect to the existence conditions of law. When positivism insists on separating law and morality, it means to insist only that the existence conditions of law cannot include moral criteria. The legal positivists have uniformly rejected the second aspect of Fuller’s argument, however. It is a serious mistake, Hart and others argue, to believe that the principles of legality e ectively constrain the substantive purposes political regimes might adopt: they cannot do so precisely because they are merely instrumental success conditions of subjecting human conduct to the governance of rules. In his notorious review of The Morality of Law, Hart put the issue as follows: [T]he crucial objection to the designation of these principles of good legal craftsmanship as morality … is that it perpetrates a confusion between … the notions of purposive activity and

morality. Poisoning is no doubt a purposive activity, and re ections on its purpose may show that it has its internal principles. (“Avoid poisons however lethal if they cause the victim to vomit,” or “Avoid poisons however lethal if their shape, color, or size is likely to attract notice.”) But to call these principles of the poisoner’s art “the morality of poisoning” would simply blur the distinction between the notion of e

ciency for a purpose and those nal judgments about activities and

purposes with which morality in its various forms is concerned. (Hart 1965, 1286) The point here is obviously that as mere e

cacy principles, Fuller’s principles of legality say nothing about

the good or evil purposes to which the law might be directed. Joseph Raz later pressed the same objection. Granting that the principles of legality are “a necessary condition for the law to be serving directly any good purpose,” they also unfortunately enable “the law to serve bad purposes.” He draws a comparison with knives. “Being sharp is an inherent good-making characteristic of knives,” but this is perfectly consistent with the fact that “a sharp knife can be used to harm” (Raz 1979, 225). Sharp knives are much more e ective at slicing fruit than dull ones, but they are equally more e ective at slicing throats. We have no reason, according to the positivists, to suppose the law any di erent.

Conclusion In the revised edition of The Morality of Law, Fuller added a lengthy “Reply to Critics” as a fth chapter. His attempt to answer Hart’s critique in this reply, suitably elaborated, might provide the basis for an interesting reconciliation of the normative and the practical strands of argument as we nd them in the original text. In order to develop this interpretation, we must return for a moment to Fuller’s association with the legal process school in jurisprudence. The process school was interested in developing an account of the characteristic nature and form of law considered as a distinctive mode of social ordering. Of particular interest to Fuller was the contrast between two di erent methods for regulating human conduct which he termed “managerial direction” and “law.” This distinction is hinted at in various places in the original text, but is drawn more explicitly in the reply to critics (38, 163–167, and 207–208). These two methods correspond to two very di erent approaches to regulation: the rst represents a “one-way projection of authority” in which the expert manager applies directives to those persons in his charge, whereas the second represents a cooperative exercise in “self-directed action” in which the government and the citizens are mutual participants (209–210). In other words, to adopt law as our mode of social ordering is itself to make a normative choice to engage in a reciprocal rather than a unilateral sort of enterprise. The eight speci c principles of legality are indeed the practical success conditions for implementing our decision to engage in the reciprocal mode of regulation, but the bene cial consequences for human dignity and so forth that follow on observing those conditions explain why our decision was the right one. Whether this is exactly what Fuller intended to argue or not we cannot determine with any certainty: after publishing the revised edition of The Morality of Law in 1969, Fuller made no further explicit contributions to his debate with the positivists. What is certain, however, is how valuable his book has proved to so many in the years since. To begin with, it stands as the most authoritative and frequently cited contemporary statement of what the rule of law actually is. When John Rawls, for instance, introduces a discussion of the rule of law, he cites Fuller rst (Rawls 1971, 235). Not only political theorists and philosophers, but also scholars of development economics, comparative politics, and many others interested in the rule of law regularly turn to Fuller for a de nitive treatment of the concept. Beyond this, however, Fuller’s arguments for an inner morality of law have inspired a diverse range of legal theorists and political philosophers. Civic republicans such as Philip Pettit, for instance, have found the claim that the law always delivers some measure of good highly congenial to their own views: in

constraining political authorities to govern according to rules that are clear, consistent, stable, and so forth, the principles of legality help protect our freedom from arbitrary power (Pettit 1997, 174). At the same time, Fuller’s more controversial claim that the law tends to frustrate the very aims and purposes of evil regimes continues to nd support. The best example here is perhaps David Dyzenhaus’s work on South Africa, which seems to show that the law did not serve as a mere neutral instrument of the Apartheid regime, but rather as a positive hindrance to it (2010). The Morality of Law thus shows no signs of abating in its in uence any time soon.

References Dyzenhaus, David. 2010. Hard Cases in Wicked Legal Systems: Pathologies of Legality, 2nd edn. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Hart, H. L. A. 1958. “Positivism and the Separation of Law and Morals.” Harvard Law Review 71: 593–629. Google Scholar WorldCat Hart, H. L. A. 1965. “Review of Lon Fullerʼs The Morality of Law.” Harvard Law Review 78: 1281–1296.

Hart, H. L. A. 1994. The Concept of Law, 2nd edn. Oxford: Clarendon Press. Google Scholar Google Preview WorldCat COPAC Fuller, Lon L. 1958. “Positivism and Fidelity to Law—A Reply to Professor Hart.” Harvard Law Review 71: 630–672. Google Scholar WorldCat Fuller, Lon L. 1969. The Morality of the Law, revised edn. New Haven: Yale University Press. Google Scholar Google Preview WorldCat COPAC Luban, David. 2010. “The Rule of Law and Human Dignity: Reexamining Fullerʼs Cannons.” Hague Journal on the Rule of Law 2: 29–47. Google Scholar WorldCat Murphy, Colleen. 2005. “Lon Fuller and the Moral Value of the Rule of Law.” Law and Philosophy 24: 239–262. Google Scholar WorldCat Pettit, Philip. 1997. Republicanism: A Theory of Freedom and Government. Oxford: Clarendon Press. Google Scholar Google Preview WorldCat COPAC Rawls, John. 1971. A Theory of Justice. Cambridge: Belknap Press. Google Scholar Google Preview WorldCat COPAC Raz, Joseph. 1979. The Authority of Law: Essays on Law and Morality. Oxford: Clarendon Press. Google Scholar Google Preview WorldCat COPAC Waldron, Jeremy. 2008. “Positivism and Legality: Hartʼs Equivocal Response to Fuller.” New York University Law Review 83: 1135– 1169. Google Scholar WorldCat

Further Reading Bennett, Mark J. 2011. “Hart and Raz on the Non-Instrumental Moral Value of the Rule of Law: A Reconsideration.” Law and Philosophy 30: 603–635. Google Scholar WorldCat Fuller, Lon L. 1978. “The Forms and Limits of Adjudication.” Harvard Law Review 92: 353–409. Google Scholar WorldCat Summers, Robert S. 1984. Lon L. Fuller. Stanford: Stanford University Press. Google Scholar Google Preview WorldCat COPAC Waldron, Jeremy. 1994. “Why Law—E icacy, Freedom, or Fidelity?” Law and Philosophy 13: 259–284. Google Scholar WorldCat

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Hans-Georg Gadamer, Truth and Method  Joshua Foa Dienstag https://doi.org/10.1093/oxfordhb/9780198717133.013.20 Published: 07 March 2016

Abstract Hans-Georg Gadamer’s Truth and Method o ers a distinctive account of the human relationship to language and history. The book had a transformative e ect on many elds, including political theory. It o ers a persuasive hermeneutic theory of what the obstacles to and possibilities for textual interpretation actually are and thus forms an account of the proper practice of political theory that is superior to the rival claims of historicism, Straussianism, or post-modernism. Simultaneously, it o ers an account of the relationship of individuals to language-communities that recognizes their signi cance for cultures and persons without reifying their moral or political value. Gadamer’s account of language points toward openness and democracy rather than identity politics or nationalism.

Keywords: Gadamer, hermeneutics, language, ontology, prejudice, horizon, life-world, dialogue, interpretation, communitarianism Subject: Political Theory, Political Methodology, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Hans-Georg Gadamer was born in 1900 and lived until the age of 102. The son of a chemistry professor, he went to university in Marburg where he rst studied philosophy under Kantian professors and was also part of the circle around Stefan George. Later he became a student of Martin Heidegger but because he would not join the Nazi party he spent the 1930s in temporary academic positions. He was appointed a professor in Leipzig in 1939 and was chosen as rector of that university in 1946 by Russian occupation authorities. He resigned less than two years later and moved rst to Frankfurt and then to Heidelberg, where he remained for the rest of his career. When he issued Truth and Method (TM), in 1960, it was his rst substantial publication in almost thirty years. The book launched a revival of hermeneutics that spread from philosophy to many elds in the humanities and social sciences, as well as theology. Ultimately, Gadamer published an extraordinary variety of works on ancient philosophy, Hegel, Heidegger, and the poetry of Paul Celan. He also continued to elaborate his position on hermeneutics in a series of essays right through his hundredth 1

year.

Notwithstanding this large quantity of writing, there is little dispute that TM is Gadamer’s magnum opus and his most in uential book. The rst thing to understand about this work is that the two important words of the title are largely set in opposition to one another. In defending what he calls “philosophical hermeneutics,” Gadamer positions this approach against the reliance on “method” that he believes has wrongly dominated philosophy, history, and social science in the modern era. By “method” he has in mind the idea (derived from modern science and Kantian philosophy) that inquiry can proceed by means of an abstract set of rules that can be fully distinguished from the material that they study and which can be relied upon to generate truth from this material. Against this, he describes hermeneutics not as a better or alternative method but as a di erent perspective entirely on what it is to inquire and to arrive at a true understanding of the world: “The hermeneutics developed [in TM] is not, therefore, a methodology of the human sciences, but an attempt to understand what the human sciences truly are, beyond their methodological self-consciousness, and what connects them to the totality of our experience of the world” (xxiii). Truth, for Gadamer, is not properly the product of a method but rather of what he calls “a discipline of questioning” and, most famously, a “fusing of horizons” (491, 307). In this essay, I will explain his approach and assess Gadamer’s signi cance for the practice of political theory. Since the middle of the twentieth century, disputes about the nature of political theory and the methods one should use to study it have been continuous. There are a variety of parties to this quarrel (historicists, analytics, Straussians, post-moderns, etc.) but one of the things that separates them from one another is a dispute over the relationship of human beings to language and thus to historical texts. It will be my argument not only that Gadamer uniquely provides the best account of these relationships but also that the approach he sanctions is in fact the one practiced by many, perhaps most, political theorists today. We are all (or mostly) Gadamerians now, I claim, however unknowingly—and, for the most part, rightly so. While Gadamer has no theory of the state, his approach to texts provides a framework that political theory has followed and can continue to follow fruitfully. It also suggests an approach to questions of language and citizenship that is at the root of much modern democratic communitarianism, or at least communitarianism in its most plausible form.

Hermeneutics Against Method TM is structured dialectically and does not hurry the reader to its thesis. Like Hegel in his Phenomenology of Spirit (on which TM is partly modeled), Gadamer wants both to establish the correctness of his views and to present them as the logical culmination of a pattern of historical development. This is, to him, a necessary procedure since, in opposition to “methodical” social science, Gadamer argues that practices of inquiry cannot arise or be evaluated apart from the historical tradition of which they are a part. So he provides both a history of hermeneutics and a history of philosophy of language that starts with the ancient Greeks and continues through Thomism, German Romanticism, phenomenology, and Heidegger, to name just some of the highlights. While the critique of “method” puts the English-speaking reader in mind of Descartes and Bacon, for Gadamer the true focal point of modern “methodism” is Kant and the division of inquiry in his three Critiques into separate areas: epistemology, ethics, and aesthetics, each with their own distinct “conditions of possibility.”

“Being that can be understood is language” Gadamer’s complaint is not so much with the substance of Kant’s Critiques but with the very act of separating human inquiry into discrete realms with distinct procedures, such that truth is the exclusive province of the sciences and beauty the central function of art. Not only does this diminish art, in his view, by denying it any kind of truth-claim, more importantly, “in discrediting any kind of theoretical knowledge except that of natural science, it compelled the human sciences to rely on the methodology of the natural sciences in conceptualizing themselves” (41). While Gadamer acknowledges that pre-Kantian theories of human inquiry were inadequate, they at least had the virtue of viewing knowledge as a totality, a totality that re ects the unity of all human experience. Thus, he sets out to ask a question that is Kantian in form but Hegelian in spirit, viz. “How is [all] understanding possible?” meaning thereby to reunite the elds of inquiry that Kant distinguished, especially aesthetics and epistemology (xxx). Gadamer’s answer to this question begins with his claim that understanding is essentially a social and linguistic phenomenon, that it is something that happens primarily between people by means of language: “To understand means to come to an understanding with each other … Understanding is, primarily, agreement” (180). Rather than conceptualizing inquiry solely in terms of the single inquiring mind, Gadamer asks what makes it possible for anyone to ask a question about the world in the rst place. His answer is essentially that it is because we always already share with one another the medium of language: “Language is the universal medium in which understanding occurs” (389). Questions arise in dialogue with others about the world that we share. While the central role of language in communication and politics would be hard to dispute, Gadamer argues that earlier discussions of this fact almost always contain an unacknowledged Platonism whereby ideas or sensations are held to be rst encountered in a prelinguistic way and then ltered through language. In fact, he claims, this is completely contrary to our experience and introduces a mistake into our theories: “Language and thinking about things are so bound together that it is an abstraction to conceive of the system of truths as a pregiven system of possibilities of being for which the signifying subject selects corresponding signs…. Experience is not wordless to begin with, subsequently becoming an object of re ection by being named” (417). Language is not something that we could choose to subtract from experience—rather, it is an element of all experiences that is inseparable from them. Like Heidegger, Gadamer believes that we are fundamentally born into a community and a language that shapes us and that we do not choose. But for Heidegger “being” is something that still stands behind language and that language can reveal or hide. By contrast, for Gadamer (and we can think of his position as a self-conscious Aristotelianism in opposition to Heidegger’s Platonism), there is nothing “behind” language. Language is rather the face that the world shows us. Experience is a human phenomenon and, as such, always takes shape through the words we nd to express what happens. As we describe the world we are not applying a coat of paint on top of it but actually taking it into our consciousness by means of language, coming to full awareness of whatever distinctive qualities each external object possesses. Of course there is a physical world distinct from our thinking, speech, and writing, but our access to and knowledge of that world is conditioned by how it appears to us through language: “Pure seeing and pure hearing are dogmatic abstractions that arti cially reduce phenomena. Perception always includes meaning” (92). Kant claimed that we cannot perceive a physical world without the mental apparatus of time- and space-concepts. Gadamer replaces (or perhaps radicalizes) that claim with a parallel, hermeneutic claim that our experience of the world always takes place through language. Heidegger had derided all modern inquiry for forming a “picture” of the world, a copy that was inferior to the original and that served to block access to the source. Gadamer, by contrast, embraces the representative linguistic character of understanding, whether in science or in art, wanting only to

demonstrate that neither form has an inherent superiority: “The world that appears in the play of presentation does not stand like a copy next to the real world, but is that world in the heightened truth of its being” (137). This description could apply equally well to a poem or a scienti c paper. What these representations share, when successful, is a use of language that uncovers some element of the world and makes it an object of our evaluation for the rst time. When, for example, we read a poetic account of a place or a person that reveals something we might have missed in a more “direct” experience, we should not think of that account as something secondary to direct visual observation but rather as a path to a truer understanding of the object, even if it is mediated by language. Ultimately for Gadamer, the human use of language is not (or not in the main) about the revelation of selves but about creating a path of contact with the world—in all its complexity, alterity, and diversity—and allowing that world to become known to us: “Understanding is always understanding each other with respect to something…. the subject matter is not merely an arbitrary object of discussion … but rather is the path and goal of mutual understanding itself” (180, emphasis added). The world reaches us as language and no method can create a point of perfect objectivity outside of language that would relieve us of the burdens of interpretation. It is language that makes human experience possible and that experience, therefore, is always interpretive. But the task of interpretation is always to let the truth of the subject matter appear.

Horizon and Life-World That language is at once interior to our experiences and the product of a social environment has several important implications. First, it means that none of our experiences can be sharply marked o

from the rest

of the world or examined from some “outside.” While we can certainly adopt a skeptical or critical attitude toward our own experiences (or those of others), we are still, in doing so, acting from within a shared experiential horizon. Our standards of judgment cannot be derived in a way that is fully independent of the material we want to evaluate: “The ow of experience has the character of a universal horizon consciousness, and from it is the discrete experience given as an experience at all” (245). Although we can speak of “an experience” as if it were a discrete event, strictly speaking, all our experiences are connected. Gadamer’s vocabulary of “horizons” and “life-world,” which he uses to describe this situation, is derived from Husserl but his meaning is somewhat di erent from that philosopher’s. To Gadamer, our “horizon” is the hazy boundary of our understanding, the limit of experiences that we are prepared to acknowledge. This limit is constituted by the assumptions and preconceptions about the world that are embedded in our language and that represent the accumulated perspective of our culture. In short, it is what our prejudices will allow us to see and hear and make sense of. This limit, however, is not permanently xed but rather constantly evolving. Although we are at rst thrown into a particular life-world, as we accumulate experiences our perspective necessarily evolves, as it has evolved for all previous generations: “A horizon is not a rigid boundary but something that moves with one and invites one to advance further…. The concept of a life-world … is an essentially historical concept … [which] is always at the same time a communal world that involves being with other people” (245, 247). The concept of “prejudice” plays a complicated, central role in this process. We normally understand a prejudice as a limitation on our understanding and indeed Gadamer acknowledges that “It is the tyranny of hidden prejudices that makes us deaf” to many things (270). But on the same page, he also argues that “the recognition that all understanding inevitably involves some prejudice gives the hermeneutical problem its real thrust”. Just as Kant claimed we could have no experience at all without a priori categories of space and time, so Gadamer argues that our pre-existing mental categories, though they limit us, also provide the conceptual tools by means of which we initially understand the world, including the things that will ultimately challenge our prejudices. We might for example, grow up understanding marriage as something

that necessarily occurs between a man and a woman. However limiting that prejudice might be, we could not understand the meaning or the challenge posed by the idea of “gay marriage” at all if we had no preexisting concept of marriage whatsoever. Thus, unlike the a prioris of space and time (which Kant believed were universal and xed), Gadamerian prejudices are open to challenge and modi cation, even if they condition and make possible our initial coming to grips with the world: “It is impossible to make ourselves aware of a prejudice while it is constantly operating unnoticed, but only when it is, so to speak, provoked” (299). Yet this process of becoming aware of our prejudices can never result in a perfectly unprejudiced perspective. That, for Gadamer, would leave us with no conceptual apparatus with which to perceive. “The standpoint that is beyond any standpoint” is the methodological fantasy that some defenders of science pretend to o er us, but it “is a pure illusion” (376). Instead we can acknowledge that there is always something circular about our reasoning—from prejudices to experience and back again—while still believing that our grasp of truth grows in the process: “this circle is constantly expanding … and being integrated in ever larger contexts” (190). This is a lesson he derives from the early hermeneutists who described a process of reading whereby one moved from construing the sentence or the chapter, to revising one’s grasp of the whole text, and then back to the sentence or chapter, in a circular process of deepening knowledge. To Gadamer, this is not a “method” but simply a more disciplined version of the ordinary practice of reading. Our horizon is always limited, but capable of being expanded by an encounter with experience that causes us to question some prejudice. This can only happen because the object we encounter carries with it its own horizon, embedded in the language with which it is expressed to us. Thus the event of understanding for Gadamer is always a “fusion of horizons.” Our ability to perceive is enlarged by being brought into contact with an alien system of perception and reference that nonetheless speaks to us through the medium of language. Our life-world may be structured by prejudices, but because these are not a priori mental structures they can be reshaped by further experiences. In every eld, we arrive at truths not by any specialized method but by an interaction that has the structure of a conversation, something anyone can join.

Political Theory and Its Methods Though intended as a general account of human experience, Gadamer’s theory both relies on and applies with special force to the encounter with historical texts that is so central to the practice of political theory. The nature of this encounter has been the subject of a strident debate both within the eld of political theory and between the eld and its cognate disciplines of philosophy and intellectual history. Great disagreement has arisen about the status of these texts and what it means to understand them and to deploy them in contemporary circumstances. One group, following the arguments of Quentin Skinner and others, insists that understanding the meaning of historical texts requires recovering the intended e ects of their authors and recommends that, to do so, we locate the texts within the web of social relations within which they originally appeared (see Skinner 2002). Followers of Leo Strauss agree that the recovery of authorial intentions is the goal but reject the methods of intellectual history because they believe that this biases the interpreter against the potential transcendent content of the work (see Strauss 1988a/b). At the other end of the spectrum, post-modern theorists such as Derrida have emphasized how the language of a text acts as a barrier to any encounter with the author, so that we should understand interpretation solely as something that takes place in the present (see Derrida 1988). There are many other positions besides these but each is based on an idea of what is 2

hermeneutically possible and on an account of the relationship between humans, language, and history.

Few political theorists actually abide by the stringent prescriptions of these methodologies. Most follow the customary, seemingly haphazard, pattern of reading works of political theory in light of a canonical tradition and attempting to apply the meanings discovered thereby to contemporary political questions. It was just these habits that Skinner, Strauss, and others set out to criticize and correct in the 1950s and 1960s. But despite decades of demands for methodological sophistication and purity, a great deal of political theory continues as before, albeit with some embarrassment. Gadamer’s account, I contend, gives us a way to understand these common practices of understanding as something other than unsystematic speculation or inept history. Truth and Method repeatedly criticizes the attempt to isolate an original intent or meaning in old texts. Instead, Gadamer sanctions a process that brings an historical work into dialogue with contemporary conditions. This stance derives from his claims about the fundamental characteristics of the process of understanding. Understanding is not only linguistic but, more speci cally, derives from human dialogue, which has the form of a question-and-answer exchange: “A person who thinks must ask himself questions…. This is the reason why understanding is always more than merely recreating someone else’s meaning. Questioning opens up possibilities of meaning … To understand meaning is to understand it as the answer to a question” (375). In order to engage with a text at all, we must put a question to it, and that question, if it is a genuine one, can only derive from our contemporary horizon. That is, we must have a real interest in what the best answer to our question is. Even if we were to claim that our interest in a text is “purely historical,” there will be some reason why we have an interest in this text, as opposed to some other. Thus we cannot ever begin from within the text’s horizon but only from some interest of our own. And while that interest will surely bias our approach, prejudices, as we have seen, are for Gadamer a vehicle to understanding as well as a barrier. But whatever our interest, we cannot forget that an older text arrives from some other life-world than the one we currently inhabit. Even if we did forget, the text itself would remind us of this by appearing strange or di

cult to understand. An historical text carries with it the horizon within which it was formed, such that

Gadamer is willing to say “that a historical text is made the object of interpretation means that it puts a question to the interpreter” (369). Just as when we interact with a living person, reading a text is always an exchange of questions and answers, a dialogue. So it is a mistake to say that in trying to understand a text, we must isolate it in its own time period, or extinguish our own perspective in order to perceive what it is saying. Not only is this impossible, but even to the extent that it is possible, such a self-extinction actually limits our understanding. It jettisons the questions that we need in order to have any kind of perception at all: “To understand [an historic text] does not mean primarily to reason one’s way back into the past, but to have a present involvement in what is said. It is not really a relationship between persons, between the reader and the author (who is perhaps quite unknown), but about sharing in what the text shares with us” (391). The emphasis is always on the content of a text and its potential truth. As political theorists, we are not primarily interested in the theory of Hobbes or Locke because we have a biographical interest in their life, nor because we have an historical interest in their period, but because their writing can potentially educate us about politics in general and perhaps even about our own situation. Even if we had no knowledge of who the author of Leviathan was or of the events with which it was associated, we would still nd it a text of importance because it contains arguments and evidence about a subject in which we have an independent interest. This does not mean that evidence about an author’s context or intentions is of no use or value in interpretation. There is no way to know that in advance. It merely means that the recovery of intentions is not the point of the e ort to understand, nor is it even a necessary preliminary. Even when we have no such

information (as with truly ancient and anonymous texts), that does not mean that we cannot recover a useful meaning. “When we try to understand a text,” Gadamer writes, “we do not try to transpose ourselves into the author’s mind but, if one wants to use this terminology, we try to transpose ourselves into the perspective within which he has formed his views. But this simply means that we try to understand how what he is saying could be right” (292). Caring about the potential truth in the text does not mean that we must agree with whatever we read or that we seek out things to agree with. It means only that we seek to understand the internal logic of the position represented: “when we have discovered the other person’s standpoint and horizon, his ideas become intelligible without our necessarily having to agree with him” (303). Still, as in any genuine conversation, we don’t seek merely to defeat the arguments of the other but to get at the truth of the subject matter, whatever it is: “If we want to understand, we will try to make his arguments even stronger…. [The goal is] not a mysterious communion of souls, but sharing a common meaning” (292). That Gadamer’s approach is notably di erent from so many others’ can be seen from the fact that he insists that applying the historical texts of the past to contemporary situations is not only something that is permitted, but in fact required by the normal interpretive process: “understanding always involves something like applying the text to be understood to the interpreter’s present situation” (308). Far from being a secondary operation that takes place after something is “understood,” for Gadamer, application is an essential element of the process of understanding itself. In making this argument, Gadamer leans heavily on the example of legal hermeneutics—that is, on what judges must do in interpreting a law in the context of a legal proceeding. “A law,” after all, “does not exist in order to be understood historically, but to be concretized in its legal validity by being interpreted” (309). When we examine the meaning of a law in a legal context—and even if we engage in a complex historical analysis about its origins—we do so with the purpose of understanding how to apply the law to some contemporary situation. However we go about it, and whatever methods we use, that is the point of the exercise. A judge cannot be primarily motivated to learn the intentions of the enactors but in the justice that the law can do when it is in fact applied. The interpretation of law might appear to be a special case, but in fact, Gadamer argues, if we look at the origin of all the specialized elds of hermeneutics (biblical hermeneutics, art criticism, historical research, etc.) we will nd that they share this structure. “All reading involves application, so that a person reading a text is himself part of the meaning he apprehends” (340). It is only in the late-modern era, when historians under the sway of science wrongly persuaded themselves of a need for an objective “method,” that the idea of application started to seem out of place. In fact, the need for application is only another way to state the fact that we engage with texts in the rst place because we have a question for them, or they provoke a question in us. Thus, far from being a special case, “[l]egal hermeneutics serves to remind us what the real 3

procedure of the human sciences is” (327).

Gadamer’s approach to texts is thus very similar to what it is that political theorists largely do—even if his arguments are distinct within the world of meta-argument about the nature of the eld. While he is keen to make us sensitive to our own biases and prejudices, he does not suggest that it is possible or desirable to eliminate them. While he is sensitive to the di erence of the past, he does not suggest that the key to understanding it is to abandon our contemporary perspective. Indeed, an application to contemporary conditions is, for him, a central part of understanding. And while he insists that language is the fundamental medium of reason and understanding, he does not suggest that this cuts o

our contact with

authors of the past or con nes us to the biases of the present or makes all knowledge relative. Indeed, quite the opposite: “The hermeneutical experience is the corrective by means of which the thinking reason escapes the prison of language” (402).

In sum, having considered the methodological demands of both intellectual historians and philosophers, Gadamer recommends a practice of reading that looks remarkably like the practice of many political theorists today—an attempt to understand the past that starts from contemporary questions, journeys to historical texts in an attempt to gain perspective on existing conditions, and nds success when it can put the past perspective into a genuine dialogue with the present. In response to the modern methodologists of interpretation, Gadamer’s approach has been to explore the actual practices of interpretation in the various elds, locate their common techniques, and then reconstruct the philosophical basis of those techniques. In his many references to Aristotle, it is clear that he thinks of interpretation as a kind of phronesis, that is, a practical wisdom that is learned through experience and repetition and not by following a method or a protocol. While TM o ers a more fully speci ed account and defense of these practices, it does not purport to reform them or to nd them in need of reform. It is rather those who are so certain of what the best methods are that are in need of correction. Gadamer is sometimes considered a conservative and, from an intellectual perspective, this may be correct. He defends old practices against would-be reformers, though it should be noted that his defense of those practices is in many respects entirely new. Politically however, the implications of his views have not been conservative at all, though neither have they been radical.

Gadamer, Language, and Politics Before TM, a political theory that put language at the center of human identity was often assumed to point toward a politics of exclusion, identity, and/or nationalism. That certainly seemed to be the tendency of nineteenth-century Romanticism as well as Heidegger’s phenomenological approach. In the wake of Gadamer’s work, however, political theorists who became known as communitarians began to argue for the importance of language both in our everyday political practices and as a central element of identity formation even in a democratic and pluralistic society. Charles Taylor is perhaps the best-known proponent of this position but it can also be found in the arguments of Michael Walzer, Richard Rorty, Will Kymlicka, and many others. More important than any particular arguments in this eld is the broad turn in which the centrality of language has been made to serve an egalitarian and democratic rather than an anti-democratic perspective. Although this is not a direct focus of Gadamer’s arguments, it is clearly on his mind throughout TM. Di erent authors have contributed to this development in di erent ways. For Taylor, building on Gadamer’s account of the essential interpretability of human experience, it is the interpersonal quality of language that is most signi cant. He uses this quality to mount a severe criticism of “atomistic” liberalism and to develop, in its place, an Aristotelian-Hegelian theory that emphasizes interdependence and the capacity for mutual understanding both within and across cultures (Taylor 1985). For Walzer, the important point is to understand how political and social criticism is always embedded in a community of beliefs and practices. Democratic debate, he argued is weakened, rather than strengthened, by the (impossible) attempt to step fully outside a culture to evaluate it (Walzer 1987). Kymlicka maintains that equality and freedom of choice rely on cultures that are sustained by distinct languages and the contexts they create. Diversity and the dignity of citizenship, for him, require sustaining such settings (Kymlicka 1995). More radically, Rorty takes our reliance on language to indicate the ultimate “contingency” of our moral and political institutions. We should understand political values, he claims, as powerful, if ultimately transient, metaphors that can only be sustained by ongoing negotiations; thus language-dependence opens democracy to change, rather than xing it within permanent limits (Rorty 1989). While these theorists do not wholly agree with one another, they share the concern that much AngloAmerican moral and political theory is wrong-headed in its search for xed foundations that would

somehow escape the linguistic communities in which they arise. They suggest instead that we should understand democratic equality as arising from our mutual constitution as linguistic beings in which there are no nal restrictions to the individual or the communities of which she may be a part. In all of these examples, the centrality of language makes for a politics of openness and diversity, rather than xed identities or permanent boundaries. At the individual level, Gadamer’s emphasis on language is meant to evoke a sense of incompleteness. “Experience,” he writes, “is experience of human nitude” (357). That the central form of language is dialogue means that no human by herself can contain the entirety of the truth. If we seek knowledge we must engage in dialogue, and the more dialogue the better. In fact, Gadamer’s theory suggests that expansion of one’s horizon outside our initial language-group is superior to that within it. The further we reach outside our life-world, the more we will learn about our own prejudices. That we simultaneously learn about ourselves as we learn about the other is, to Gadamer, a con rmation of the Hegelian view that the self expands through knowledge by taking the content of its intellectual objects into its subjectivity by means of language (Hegel 1976). The sociality created by this account of reason and language is not one that grants any moral signi cance to language or ethnic groups per se. While every individual is born into such a group and takes his or her initial bearings from it, even within such a group, the cohesion comes from dialogue, not from identity. It is cemented by exchange and growth, not by some bundle of unchanging beliefs or values: “Without … openness to one another there is no genuine human bond. Belonging together always also means being able to listen to one another. When two people understand each other, this does not mean that one person ‘understands’ the other” (361). That is, there is not one central set of dogmas that is transmitted from one individual to another. Community exists only insofar as people use the language they share to meet as equals in exploring things found in common. To share a language with someone can mean that one shares an initial life-world and horizon of experience. But to Gadamer such a sharing is not (and cannot be) a xed object that one could preserve or hold onto, even if one wanted to. Horizons by their nature are constantly in motion and the attempt to x them in place is the most unnatural stance that one can take toward one’s own experiences. Language binds us into communities only by its use, that is, only by its employment in dialogue that ultimately will challenge our prejudices and expand our horizon. Not every conversation does this of course, but it is, for Gadamer, in the nature of language for it to do so. To seek xity for a language community is like trying to preserve a single style of art or a single wave of fashion—it is in the nature of these to grow and change through interaction. A language-community is therefore not a xed object that one could cherish or preserve in some pristine condition, but only a platform of opportunity. Without a language-community we would have no means to encounter others or the world. Such a community is not, for Gadamer an obstacle to freedom, but a precondition: “To be situated within a tradition does not limit the freedom of knowledge but makes it possible” (361). Intellectual freedom, for Gadamer, cannot mean to be without prejudice but to understand that one’s own horizon is not the world’s horizon. While it is important to understand the ontological status of language communities as a starting point for re ection, Gadamer’s theory points in the direction of openness towards other communities and individuals. It values growth and change, not stasis and identity. It is not surprising, then, that it has been championed by anthropologists and comparative political theorists as a model of inquiry (see Dallmayr 1996). If there is something troubling in Gadamer’s theory it is not a political conservatism but a tendency to diminish the individual in comparison to the larger historical currents of which he is a part. At times Gadamer seems to deny that our individual contributions amount to much. “In fact history does not belong

to us; we belong to it…. The focus of subjectivity is a distorting mirror. The self-awareness of the individual is only a ickering in the closed circuits of historical life” (277). While such sentiments may have their origin in a desire to distance himself from Heidegger’s more grandiose pronouncements, there is a danger that Gadamer’s respect for the wisdom contained in traditional texts threatens to dominate his openness to novelty and radical change. But this tendency is actually in con ict with the core tenets of his theory, which emphasizes that the source of all meaning is human activity, which is always individual.

Conclusion In this short essay, I have only been able to transmit a small portion of the depth and insight of TM and have had to leave to one side such important topics as Gadamer’s treatment of art and artistic experience as well as his incredible recapitulation of the hermeneutic tradition in the last three centuries. Nevertheless, I hope I have been able to indicate Gadamer’s central importance both to the continued practice of political theory as well as to our ethical perspective on citizenship, membership, and language. His defense of interpretation not as a merely historical or analytic practice but as a transhistorical operation of understanding and application is the best we have now and the best we are likely to have for some time.

References Dallmayr, Fred. 1996. Beyond Orientalism: Essays on Cross-Cultural Encounter. Albany: State University of New York Press. Google Scholar Google Preview WorldCat COPAC Derrida, Jacques. 1988. Limited Inc. Evanston: Northwestern University Press. Google Scholar Google Preview WorldCat COPAC Di Cesare, Donatella. 2013. Gadamer: A Philosophical Portrait. Bloomington: Indiana University Press. Google Scholar Google Preview WorldCat COPAC Dworkin, Ronald. 1986. Lawʼs Empire. Cambridge, MA: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Gadamer, Hans-Georg. 1976. Philosophical Hermeneutics. Berkeley: University of California Press. Google Scholar Google Preview WorldCat COPAC Gadamer, Hans-Georg. 1981. Reason in the Age of Science. Cambridge, MA: The MIT Press. Google Scholar Google Preview WorldCat COPAC Gadamer, Hans-Georg. 1994 [1960]. Truth and Method, 2nd, revised edn, New York: Continuum Publishing. Google Scholar Google Preview WorldCat COPAC Grondin, Jean. 2003. Hans-Georg Gadamer: A Biography. New Haven: Yale University Press. Google Scholar Google Preview WorldCat COPAC Hegel, G. W. F. 1976. Phenomenology of Spirit. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Klosko, George. 2011. The Oxford Handbook of the History of Political Philosophy. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Kymlicka, Will. 1995. Multicultural Citizenship. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Rorty, Richard. 1989. Contingency, Irony, and Solidarity. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Skinner, Quentin. 2002. Visions of Politics (Volume 1): Regarding Method. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Strauss, Leo. 1988a. What Is Political Philosophy? Chicago: University of Chicago Press. Google Scholar Google Preview WorldCat COPAC Strauss, Leo. 1988b. Persecution and the Art of Writing. Chicago: University of Chicago Press. Google Scholar Google Preview WorldCat COPAC Taylor, Charles, 1985. Philosophical Papers 1 & 2. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Walzer, Michael, 1987. Interpretation and Social Criticism. Cambridge: Harvard University Press. Google Scholar Google Preview WorldCat COPAC

Further Reading Dostal, Robert J., ed. 2002. The Cambridge Companion to Gadamer. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Krajewski, Bruce, ed. 2004. Gadamerʼs Repercussions. Berkeley: University of California Press. Google Scholar Google Preview WorldCat COPAC Malpas, Je , Ulrich Arnswald, and Jens Kertscher, eds. 2002. Gadamerʼs Century. Cambridge, MA: The MIT Press. Google Scholar Google Preview WorldCat COPAC Scheibler, Ingrid. 2000. Gadamer: Between Heidegger and Habermas. Lanham: Rowman & Littlefield Publishers. Google Scholar Google Preview WorldCat COPAC Warnke, Georgia. 1987. Gadamer: Hermeneutics, Tradition and Reason. Cambridge: Polity Press. Google Scholar Google Preview WorldCat COPAC Weinsheimer, Joel C. 1985. Gadamerʼs Hermeneutics: A Reading of Truth and Method. New Haven: Yale University Press. Google Scholar Google Preview WorldCat COPAC 1

A judicious short biography of Gadamerʼs life, including his complicated relations with Heidegger and his contacts with the Nazi and Communist regimes, can be found in Di Cesare (2013, chapter 1). For a fuller biography see Grondin (2003). For elaborations of Gadamerʼs hermeneutics beyond Truth and Method, see especially Gadamer (1976) and Gadamer (1981).

2

See Klosko 2011, chapters 1–5, for a more thorough survey of these questions.

3

Although I cannot explore it here, it is perhaps some confirmation of this that Gadamerʼs account of legal hermeneutics forms a central part of Ronald Dworkinʼs description of interpretation and his claims for the proper centrality of judicial decision-making in a constitutional democracy (Dworkin 1986, chs 2–3).

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Paul Gilroy, The Black Atlantic  Christopher J. Lebron https://doi.org/10.1093/oxfordhb/9780198717133.013.55 Published: 05 April 2017

Abstract Paul Gilroy’s The Black Atlantic: Modernity and Double Consciousness has, since its publication, been a foundational text for scholars working at the intersection of race, culture, and political thought. This chapter identi es three themes that structure Gilroy’s expansive argument and make it enduring. First, Gilroy o ers juxtaposing analyses of the role of roots and routes in the history of black transAtlantic culture. Second, it argues that Gilroy thinks that many scholars prize racial essentialism or authenticity over understanding the ways black culture has evolved over time in ways that have shaped and bene tted from modernity. Last, Gilroy seeks to reclaim a genuine appreciate of black culture as a major contribution to modernity as a means of resisting the problem of double-consciousness since this distracts from the appreciation and study of black culture to blacks acculturating themselves to social values that do not contribute to their social or political liberty.

Keywords: race, culture, slavery, modernity, double-consciousness, Gilroy Subject: Politics, Political Theory Series: Oxford Handbooks Collection: Oxford Handbooks Online

The trans-Atlantic slave trade has had signi cant and, to this day, under-appreciated consequences. Black Americans and persons of African descent globally continue to struggle with the historical residue of racial domination and economic marginalization. The slave trade has had a less obvious but crucial e ect on how we think about the historical construct we have come to know and name as “modernity.” While it is common for slavery to be discussed in the context of continued racial inequality or what critical race theorists argue is the persistence of white supremacy, slavery has had other e ects on our shared modern culture. In moving a vast number of Africans around the world, the original proponents of white supremacy and racial domination unwittingly gave blacks a unique and distinct opportunity to be co-authors of (Western) modernity. This under-appreciated historical caveat has often been understandably overshadowed by the narrative of global white supremacy. Even when this equally enduring e ect of the slave trade has been acknowledged, it is usually accompanied by deep disagreement about how blacks might continue to participate in the shaping of modernity. One possibility is that blacks’ unique opportunity could provide a means of transcending a troubled and tragic racial history. Another possibility is that modernity-

making could provide a more robust and secure ground for conceptualizing and embracing an authentic “blackness,” or as Gilroy stylizes the idea, Africenticity. Gilroy’s The Black Atlantic: Modernity and DoubleConsciousness (BA) represents a singular and foundational e ort in widening our horizons beyond these two possible ways of thinking about blacks’ role in modernity as well as helping us better understand why we seem to have almost exclusively limited our imaginations to just these two possible ways of framing the cultural aftermath of slavery. Gilroy’s classic text represents a theory of the social and cultural consequences of displacing and transplanting around the globe millions of Africans during a historical moment wherein the ideas of art, style, and culture were both malleable and embedded in a global array of political and economic practices, with slavery being an especially historical practice. BA is a work of rarely executed intellectual range in service of a central (though not singular) aim. Gilroy’s text makes the provocative but necessary case that while slavery was surely one of the most morally o ensive practices of European modernity, it remains that case that modernity itself is egalitarian. The human desire and drive toward democracy, advanced markets, greater cultural experimentalism, and humanism cannot and should not be considered the exclusive privilege of any one culture. Moreover, when we appreciate a refreshed conception of blacks’ relationship to modernity we are in fact working in service of expanding and extending the struggle for racial emancipation from both from a history of white supremacy and from a constrained view of blacks’ past cultural contributions. Doing so, Gilroy suggests, can help us put into a place a future signi ed by genuine freedom.

Roots and Routes The history of trans-Atlantic slavery is commonly discussed in terms of lives and money. The slave trade moved an immense number of black bodies appropriated for free labor across a vast expanse of ocean as markets demanded those bodies for labor to generate commercial pro t. A usual corollary of this way of thinking about the slave trade is that the trade was bound up with a commitment to domination of blacks as such. From this point of view, the trans-Atlantic slave trade was a particular practice, during a particular time, with particularly bad consequences for transplanted Africans. Paul Gilroy’s enduring intellectual contribution consists in compelling readers of BA to re-imagine the importance of this trade by insisting that the Atlantic Ocean was more than a maritime conduit separating the Western powers trading in African chattel. Rather, its central metaphorical and literal signi cance is that it was, and has remained, a middle passage for not only black bodies but black culture. Crucial to this reconceptualization is that the transmission of black culture was and remains part and parcel of the advent of what has traditionally been viewed as Western modernity. The notion of Western modernity typically makes global black culture at most a hand-maiden of the West’s quest for intellectual, artistic, and economic advancements. In Gilroy’s hands, theorization of the Atlantic importantly supports the claim that global black culture has been, is, and will remain a full partner in the humanist traditions that today are a pillar of our politics and social norms. BA represents a genealogy of modernity from a non-European or Anglo-American viewpoint. Gilroy pushes us to appreciate with greater vivacity that any claims to de ne modernity must keep in view the historical status of blacks as equal culture makers. Gilroy also poses a challenge to those who want to constrain blacks to a poorly conceived framework of racial authenticity by highlighting that to be a culture-maker in the modern sense necessarily involves negotiating our relationship with the past in order to broaden our future possibilities in sometimes unexpected ways. This is the modern dilemma. What is crucial about Gilroy’s text and his distinct viewpoint is his e ort to theorize how this dilemma is modulated by a global history of white supremacy. Gilroy directs both his admiration and his ire at academics and artists in productive ways. Gilroy is the intellectual’s intellectual; his breadth of learning is astounding and he puts it to use in not merely clearing ground but in seeking to reconstitute it. He writes: “Regardless of their a

liations to the right, left, or

centre, groups have fallen back on the idea of cultural nationalism, on the overintegrated conceptions of culture which present immutable, ethnic di erences as an absolute break in the histories and experiences of ‘black’ and ‘white’ people. Against this choice stands another, more di

cult option: the theorization of

creolisation, mettisage, mestizaje, and hybridity” (2). Here, Gilroy laments that those interested in making sense of the relationship between black culture and modernity often nd themselves having to choose between, on the one hand, conceptions of culture that threaten to ossify and falsely unify the diversity of black intellectual and artistic modes of expression, or, on the other hand, describing such a signi cant number of hybrid identities that identifying anything in common among them is unnecessarily di

cult.

The “Black Atlantic” is formulated by Gilroy as a heuristic—it is an idea that facilitates resisting the tendency to reduce black-ness to a monolithic notion that is only di erentiated by the categories of preand post-slavery history. In the place of that stultifying framework, Gilroy suggests there is an underlying commonality that can in fact help us make sense of black diversity in terms of identity and its cultural expressions. In this regard, the Black Atlantic signi es a mode and process of the dispersal of black-ness that has had lasting and dynamic consequences for the development of something that externally can be named “black culture” but that internally, among those who are or consider themselves a part of black culture, must endure a very complicated negotiation between the implications of a brutal, and unjust history and an ever-quickening and unsteady present in order to secure a future that is yet open to contingency. In pursuit of this aim, Gilroy puts in place an idée xe: the di erence between roots and routes. It is a distinction that underwrites his third way of theorizing modern black culture. And here the distinction is not oppositional but both playful and analytic. Gilroy’s dependence on homophones casually draws our attention to the easy substantive slide he perceives scholars making when discussing black culture, namely, that blacks’ roots at any given point in time have been set down as a result of a particular route to that place. This allows Gilroy to analytically make space for the importance and lasting implications of journeys. Consider the following in which Gilroy discusses two eighteenth-century black sailors: “It is particularly signi cant for the direction of my overall argument that both Wedderburn and his sometime associate Davidson had been sailors moving to and fro between nations, crossing borders in modern machines that were themselves micro-systems of linguistic and political hybridity” (12). Notice here that Gilroy invests the ship and its social circumstances with cultural and political signi cance. More than an instrument for getting from one place to another, trans-Atlantic ships were the initial site of what would become the iterative modern processes of adopting modes of communication, and negotiating power and cooperation. Thus, “In opposition to both of [the] nationalist or ethnically absolute approaches, I want to develop the suggestion that cultural historians could take the Atlantic as one single, complex unit of analysis in their discussions of the modern world and use it to produce an explicitly transnational and intercultural perspective” (15). Gilroy e ectively uses historical examples of the movement of black culture, especially music, across the Atlantic. But more distinctively, he conceives of black culture as a kind of experiential space that introduces new expressive possibilities in the lives of thinkers and artists who, on Gilroy’s readings, struggle to come to terms with the relationship between black history and the rise of the West. W. E. B. Du Bois is one of Gilroy’s prominent case studies: “Du Bois is … appealing and important from the point of view of this book because of his lack of roots and the proliferation of routes in his long nomadic life” (117). The term “nomadic” should be understood capaciously. Du Bois’s life was marked by a great intellectual journey that is most commonly associated with his idea of double-consciousness, but even here Du Bois’s routes come into play. As Gilroy notes, Du Bois was a man raised in the north who became an educator in the south. Along the way, he encountered American racism in all its manifestations while at times being drawn to communism, as many black intellectuals have been. For Du Bois, as it would be for Richard Wright and James Baldwin, the momentum of geographical movement, whether within the United States or between the United States and other countries, was a reminder of an unsettling problematic. American racism has such a distinct e ect on blacks’ sense of identity and place that one could physically travel, thus leave America, but

never existentially relocate—America’s history, with all its promises and problems, sets existential hooks in blacks seeking to expatriate. Thus, Gilroy concludes, “Dealing equally with the signi cance of roots and routes … should undermine the puri ed appeal of either Africentrism or the Eurocentrisms it struggles to answer. This book has been more concerned with the ows, exchanges, and in-between elements that call the very desire to be centred into question” (190).

Methodology and Pathology The idea of the Black Atlantic redirects our attention toward the implications of the dispersal of black culture and away from either essentializing black culture or conceding to a fractious account of black culture that is burdened by the desire to recognize all forms of ethnic and racial hybridity. The distinction between roots and routes allows us to appreciate the relationship between place, identity, and cultural output. But Gilroy draws our intellectual gaze toward another helpful distinction—the di erence between methodology and pathology. Here, I use pathology in its very strict sense, as a term denoting the process of diagnostic treatment to reveal the cause of an ailment. The idea of the Black Atlantic does not solely stake out ground for Gilroy to introduce a slate of stylized terms for his project but rather urges us to inquire as to why many scholars seem to have missed what he thinks has been in front of us all along when putting race and modernity side by side. For example, he writes: “An … area of political di

culty comes into view when the

voguish language of absolute cultural di erence associated with the ontological essentialist standpoint provides an embarrassing link between the practice of blacks who comprehend racial politics through it and the activities of their foresworn opponents—the ethnic absolutists of the racist right—who approach the complex dynamics of race, nationality, and ethnicity through a similar set of pseudo-precise, culturalist equations” (34). Here, Gilroy exposes what he perceives to be a common act of self-deception on the part of race theorists. This group tends to think of itself as authorized to make fairly strong claims about what counts as “black enough” (in a number of domains), thus what is and what is not authentically black. But Gilroy thinks that theoretical disposition does not represent a theoretically or empirically viable alternative to the socio-political conservative views of blacks. That view posits a certain amount of natural inferiority between blacks and whites. Gilroy thinks race theorists have merely been o ering a di erent variation on the same ideological theme of un-scienti c racial essentialism, thus allowing through the back door the very problematic assumptions about black capabilities that they claim to be debunking. This is a key contribution by Gilroy because it allows BA to do what all good theories should: to provide a resource for having a di erent conversation in a shared language rather than having the same conversation in competing and incommensurable dialects. But to theoretically advance the conversation Gilroy needs to couple methodology with pathology. His strategy here is less explicit than it might otherwise be but we can perceive his strategy by way of what he says of others’ work. For example, returning to Du Bois, Gilroy writes, “The worth of the diaspora concept is in its attempt to specify di erentiation and identity in a way which enables one to think about the issue of racial commonality outside of constricting binary frameworks —especially those that counterpose essentialism and pluralism. The Souls was the rst place where a diasporic, global perspective on the politics of racism and its overcoming interrupted the smooth ow of African-American exceptionalisms” (120). We should take Gilroy as positioning Du Bois as an exemplar. While here he approves of the term “diaspora” it would be short-sighted to think that this is what he admires most in this passage. Rather, what Gilroy admires is what Du Bois’s use of the term allows us to do, and that is to move beyond a theoretically stagnant conversation, to overcome the intellectual vice of valuing explanations that are easy to formulate and allowing our vigorous use of easy explanations to stand in for genuine analytically valuable inquiry. To the extent that this is correct, Gilroy’s introduction of “Black Atlantic” into our theoretical lexicon does more than substantively extend the predecessor notion of diaspora; it uses it as a methodological pivot by broadening our attention to re ect on the global dispersal of black culture and not only or primarily the movement of black bodies.

Gilroy’s desire to destabilize attempts to o er a de nitive or dominant conception of black authenticity is especially pronounced in BA. A compelling case for Gilroy concerns musical cultural production. For example, he recounts Rakim’s disavowal of 2 Live Crew’s sexually provocative performances and music based on the charge that the latter misrepresents the essence of hip-hop expressiveness. But Gilroy persuasively illustrates that this is a long-standing debate among blacks when he presents the case of the Fisk University Jubilee Singers. The Fisk Singers rst drew wide public attention in 1870 when they were commissioned to perform for European aristocrats. Their performances became very popular and inspired many similar acts. But the wide acclaim lavished on the Singers by white audiences alongside their commercial success made some educated black artists wary. Prominent among these critics, as Gilroy informs us, was the black novelist Zora Neal Hurston, author of the classic American novel, Their Eyes Were Watching God. Hurston excoriated the Fisk Singers and similar singing troupes for adhering to what she deemed a Glee Club style presentation and thus performing black spirituals in a manner unintended by their original authors (94). In similar fashion, Gilroy rehearses for our bene t the Bebop era-turned-fusion/rock trumpet innovator Miles Davis’s criticism of the younger but globally recognized and accomplished jazz and classical trumpeter, Wynton Marsalis. Marsalis has based nearly the entirety of his legacy on preserving, through education and institutional a

liation with the Lincoln Center, the rich and deep tradition of New

Orleans-style jazz. Here the poles of criticism seem reversed. Where Hurston criticized the Fisk Singers for betraying the music’s roots, Davis criticizes Marsalis for betraying his own skill as a musician and asserts that he should realize that jazz was and is dead. Davis’ role here is to make an argument for authenticity that is bound up in constant ux and innovation. Unlike Hurston, Davis sought to perpetually revalue artistic values in the name of being an authentic artist—he thought this was the true calling of a (black) artist. This inversion is instructive because Gilroy thinks both kinds of claims to authenticity are troubled and confused, since both claims locate what is essential to and about blackness in a certain interpretation of particular artistic traditions. At rst this may not appear especially alarming since it seems sensible that iterative processes of cultural formation born of artistic and humanistic expression might come to be seen as an emergent property of a demographic subgroup’s worldview and shared values. And here it is sometimes di

cult to distinguish whether Gilroy is o ering a normative argument, that he thinks there is a

way we ought to comport ourselves to questions of authenticity as grounded in some ethical principle, or a descriptive argument, that there is a way to comport ourselves to questions of authenticity that is more sensible because there is an angle on this set of problems we’ve simply been missing. If it is the former then it might seem Gilroy is merely putting forth his own quasi-ideological position by calling for a way of interpreting reality that supports a socially and/or politically preferred worldview. But consider the following statement: “The logic and categories of racial metaphysics are undisturbed but the relationship between the terms is inverted. Blacks become dominant by virtue of either biology or culture; whites are allocated a subordinate role. The desperate manner in which this inversion proceeds betrays it as merely another symptom of white supremacy’s continuing power.” Gilroy continues: “The idea of ready access to and command of tradition—sometimes ancient, always anti-modern—has become essential to the disciplinary mechanisms that today’s stern traditionalists seek to exercise over diverse processes of black cultural production” (191). This passage strongly suggests that even if Gilroy’s claims are normative they may not be so much ideological as cautionary, for his central concern seems to be the possibility or probability that (some) blacks’ claims to have special evaluative access to a notion of authenticity severely implicates them in the same kinds of practices of epistemic and ethical suppression that structurally resemble practices of white supremacy. Even though the gatekeeper of black authenticity aims to work on behalf of black freedom, the preemptive policing of what counts as truly black constrains the possibility for both self-creation as well as social and political contribution. When black scholars and artists take up this kind of position, their recommendations are no better than those made under the umbrella of white supremacy since that form of oppressive power similarly seeks to instruct blacks on what they can or cannot be, based on some presumptively true account

of what they in fact are and have been. Gilroy, as pathologist, thinks that what goes wrong with attempts to de ne black culture and statements of what counts as black culture is that these attempts are poorly supported by shoddy methodology that conveniently ignores the very thing it is meant to understand—that modernity is inherently de ned by a persistent tug of war between the stability of reasoned inquiry and the fact that reasoned inquiry opportunity for change and progress.

Culture and Acculturation There is a nal set of considerations important for appreciating BA having to do with what I perceive in the text as a tension between culture and acculturation. It bears noting that this pairing runs parallel to the pairing posed by the subtitle of Gilroy’s book: modernity and double-consciousness. On the one hand it is uncontroversial, I think, to associate modernity with the Enlightenment and to further characterize the Enlightenment as (at least) signifying a shift in worldviews that prized secular mastery over knowledge in an e ort to improve the human condition materially and morally. From this we get the development of capitalism and democracy and these each, in their own way, are meant to be susceptible to rational investigation as well as responsive to rational engagement. For capitalism this means the centrality of e

ciency and sensitivity to the laws of supply and demand for determining value; for democracy,

rationality is the deliberative instrument which we use in consenting to, assessing, and justifying the use of coercive power over the people, for the people. There is, of course, much more to be said about the Enlightenment and modernity. It should be apparent that as far-reaching as the categories of capitalism and democracy might be, there will usually be a wide range of socially relevant phenomena that remain out of view for theorists when conceptualizing modernity. Consider Gilroy’s observation: “… it is hardly surprising that if it is perceived to be relevant at all, the history of slavery is somehow assigned to blacks. It becomes our special property rather than a part of the ethical and intellectual heritage of the West as a whole” (49). To the extent that we tend to extol the perceived virtues of Western society as a gift of Enlightenment, this tends to marginalize the range of experiences and contributions that have been central to black life during and since slavery. Gilroy clearly thinks this is not only ethically troublesome but also analytically dubious: “The intellectual and cultural achievements of the black Atlantic population exist partly inside and not always against the grand narrative of Enlightenment and its operational principles” (48). The notion of the Black Atlantic, then, is meant to theorize black Atlantic culture as important for substantively broadening our current Enlightenment narrative. I want to suggest, then, that here the question of what constitutes a proper account of modernity depends on interrogating the content and role of black culture in that narrative, not to make it the property of blacks but to make it a feature of the West. Gilroy may be correct in pressing for a more capacious understanding of the relationship between modernity, culture, and the black Atlantic but there is the other part of the book’s subtitle with which he must contend—double-consciousness. This idea has been central in the philosophy, sociology, political theoretical, and psychology literatures, especially where race is concerned, since Du Bois coined the term in The Souls of Black Folk (1903). In that seminal work Du Bois describes a certain con ict black Americans must face: that of being black and of being a problem to white Americans on account of being black. On Du Bois’s view, this drives blacks to constantly evaluate their choices, character, behavior, and the wider world around them from their own perspective as well as from the perspective of white observers—this results in a two-ness, in double-consciousness. The theme remains vital for Gilroy because black acculturation into the West provided and continues to provide plentiful opportunities for the persistence of this dilemma, and black individuals have handled this dilemma using a variety of tactics. Here I’d like to shift from Gilroy’s re ections on Du Bois to those on Richard Wright. As with other black artists and intellectuals of interest to Gilroy (including Alain Locke), Wright’s life was marked by routes—routes in the development of a worldview that informed his thinking as well as the

places he went in the course of the development of his literature and non- ction. Notably, Wright spent a great deal of time in France. Wright, as Gilroy notes, was persistently criticized for failing to match later in his career the intensity and insightfulness of his best known work, Native Son (1940). This novel became famous for what many consider to be an un inching look into the way mid-twentieth-century ghetto life, marked by violence, poverty, and despair threatened to twist the humanity of its denizens into something barely recognizable as human or humane, as it did to its main protagonist, Bigger Thomas. But Native Son soon turned out to be a burden for Wright. Though with Native Son he had endeavored to write a novel that no white American could read comfortably, it became for blacks an un ltered statement of the rage many of them harbored but could not express against white supremacy in America. But, unexpectedly, it also became something of a fetishistic obsession for whites who seemed nonetheless to revel in Bigger Thomas’s alarmingly deviant behavior, which included rape and murder. This put Wright in a double-bind for he became pigeon-holed in a view of authentic black expression in two ways from two readerships, neither of which, Gilroy would hold, had a clear understanding of what Wright was up to. As Gilroy states: “The key point is that Wright connected the violence found in the private, domestic sphere to the ritual, public brutality that was a means of political administration in the South. This public terror did more than help create conditions in which private violence could thrive. It was shadowed by the domestic authoritarianism and violence which it also required if the racially coercive social order was to function smoothly” (175). On Gilroy’s reading, more than a rage novel, Wright sought to provide one point of entry into what we would recognize as the conditions for personal and collective psychoses that are the result of explicitly brutal domination. We should notice here that this makes Wright a model pathologist in the manner Gilroy seeks to emulate in BA. It is with the case of Richard Wright that we acquire a way of understanding how Du Bois’s notion of double-consciousness should be understood alongside the idea of modernity. The modern condition of democratic life is not a condition wherein democratic life has the moral integrity that is supposedly the hallmark of Enlightenment thinking and purpose. This insight has been central to the history of black thought wherein Western democracies are consistently criticized for their hypocritical and lopsided application of liberal principles of the right and good on behalf of whites, while claiming them to be universal and neutral. If that is so, many black thinkers have wondered, how is it that black oppression can exist so robustly in America? This remarkable inconsistency between principles and their application is an essential source for double-consciousness. What is poignant about Gilroy’s use of Wright is that the latter is trying to o er a pathological analysis of why this two-ness persists for blacks while, ironically, a doubleconsciousness is operating among Wright’s commentators that e ectively distorts a proper understanding of his artistic and political aims—“Black identity is not simply a social and political category to be used or abandoned according to the extent to which the rhetoric that supports and legitimizes it is persuasive or institutionally powerful. Whatever the radical constructionists might say, it is lived as a coherent (if not always stable) experiential sense of self” (102). Where both black and white readers had gone wrong is that they both assumed Wright’s presentation of Bigger Thomas as a stable identity thereby representing an attempt by Wright to o er an immutable and essential representation of blacks and their condition. Here, while white readers might simply be charged with gross fetishization of Thomas as the black brute they always imagined blacks to be, black readers crucially failed to see that in claiming Bigger Thomas as their representative they were in e ect accepting, with little quali cation, a view of themselves through the eyes of others. Here, blacks’ acculturation into American racist society interfered with what Gilroy wants us to understand as Wright’s life project—to place blacks’ experiences and expressive output as a partner to the modern tradition rather than as its racial token.

Breadth and Depth Attempting to gauge or review the impact of Gilroy’s work on the eld of political theory is a much more complicated process than it is with other contemporary classics, such as John Rawls’s A Theory of Justice (1999). This is the case for many reasons. Gilroy himself is not a political philosopher or theorist proper, and by this I mean only that he is not such by training or by institutional appointment; for better and worse, this also means that his work has been and is likely to be overlooked in many programs with a more orthodox view of “what counts” in the canon. In a very important sense this is a great virtue of his work, which ought to be construed as social and cultural theory in the widest sense. While Gilroy is in many respects the researcher’s researcher, he is in BA much less interested in destabilizing a particular eld or literature than he is in destabilizing an entire racial paradigm—a paradigm that, on his view, insists on a false dichotomy between racial authenticity and post-modern identity politics. In order to do so coherently and e ectively, Gilroy understands that the argument, its method, and its conversation partners cannot be boxed in by any one eld or discipline. This is a main reason reading BA can be both intimidating and intellectually exhilarating. It is a book that seamlessly moves between an insightful history of the Fisk University Jubilee Singers and a righting of the historical and interpretive record regarding Richard Wright’s corpus, which itself draws insight from the life and work of Alain Locke, all of which helps inform the aesthetics of racial terror and more. For these reasons Gilroy’s work has been taken up by a remarkably wide variety of scholars and has been embraced most rmly outside of political theory. BA has clearly informed work in diaspora studies as furthered by Africanists and African-Americanists, as well as literary scholars (not only black literary scholars). Gilroy’s work has also touched the work of anthropologists and historians. But one can also nd the term “the black Atlantic” informing scholarship as diverse as Chinese and Irish immigration studies as well as sexuality studies. It is a rare work that has such reach. But what about political theory? It is an interesting fact of Gilroy’s book that a citation search will show the fewest results for the eld of (political) philosophy/theory. And even when he is engaged by political theorists, Gilroy is not usually the center of discussion. The “black Atlantic” as a conceptual construct has tended to nd its way to work in political theory vicariously when theorists engage scholarship in diaspora studies, literature, or history where Gilroy’s presence tends to be clearly foregrounded and central, especially when race is concerned. Though I have generally been laudatory of BA there is at least one feature that might (partially) explain this—the book has the least to say explicitly about politics in its particulars, nor does Gilroy seem especially keen to theorize the racially pernicious e ects of policies. One might nd this odd because Gilroy’s cultural preoccupations seem to directly illuminate the interplay between institutional design and racial culture. Yet, this is not a damning critique given that Gilroy is clear in his ambition—to theoretically transcend race as constrained by the politics within national boundaries. Gilroy’s success on this count makes it easier to accept that politics and policies are outside the book’s theoretical scope. And this is very likely a main reason Gilroy has been engaged the least by political theorists—it can be hard to nd a home from the perspective of a discipline that, especially since the middle of the twentieth century, has developed a signi cant preoccupation with institutional design. In the tradition of the best theorists who seek to reach beyond the orthodox practices and expectations of disciplinary elds—such as, Michel Foucault (1995)—Gilroy often ignores the political trees in order to have us appreciate and reimagine the theoretical forest. This raises the question: why should we consider BA a contemporary classic in political theory? The formulation of the question presupposes a status that the work itself has not seemed to attain in political thought proper, especially when compared to other works that have been granted this distinction. There are at least two reasons a work ought to be considered a classic. The rst has to do not with its breadth of audience, but with its depth within a eld. A work has signi cant depth when anyone writing in the eld will likely at some point in his or her career be compelled to engage with that work. The second has to do with a

quality that is admittedly di

cult to articulate: the indispensability of a book because it was and remains

ahead of its time. BA was published in 1993. Though that is only a little more than two decades past, it is only in very recent times that political theorists have begun to appreciate the value of contemporary black musical forms like hip-hop as politically valuable statements, as evidenced in a recent collection of essays (Darby and Shelby 2005). Gilroy’s intervention into the debate regarding racial authenticity and the ways it shapes or constrains self-conception also anticipates the more current literature in the philosophy of identity of which Kwame Anthony Appiah’s The Ethics of Identity has formed the center (2005). While the issue of racial solidarity is an age-old one in black thought and political activism, here, again, solidarity did not become a signi cant theme in contemporary political theory until Tommie Shelby published what will surely become another contemporary classic, We Who Are Dark: The Philosophical Foundations of Black Solidarity (2005). Finally, while Charles Taylor is widely recognized for his role in inspiring the literature on multiculturalism and recognition with his important piece, “The Politics of Recognition” in 1994, Gilroy’s book provides a more capacious foundation for theorists who are concerned not only with whether certain cultural practices deserve state acknowledgment, but with the way those practices already underwrite our everyday politically relevant cultural expressions, language, and rituals. If I am correct that Gilroy’s book was and remains ahead of the curve, then it is likely that BA will not only be recognized in the future as a classic of its time, but as a classic for all time.

References Appiah, Kwame Anthony. 2005. The Ethics of Identity. Princeton: Princeton University Press. Google Scholar Google Preview WorldCat COPAC Baldwin, James. 1940. Native Son. New York: Harper. Google Scholar Google Preview WorldCat

COPAC

Darby, Derrick and Tommie Shelby, eds. 2005. Hip-Hop and Philosophy: Rhyme 2 Reason. Chicago: Open Court Press. Google Scholar Google Preview WorldCat COPAC Du Bois, W. E. B. 1903. The Souls of Black Folk. Chicago: McClurg & Co. Google Scholar Google Preview WorldCat COPAC Foucault, Michel. 1995. Discipline and Punish: The Birth of the Prison. New York: Vintage Books. Google Scholar Google Preview WorldCat COPAC Gilroy, Paul. 1993. The Black Atlantic: Modernity and Double Consciousness. Cambridge: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Rawls, John. 1999. A Theory of Justice, 2nd edn. Cambridge: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Shelby, Tommie. 2005. We Who Are Dark: The Philosophical Foundations of Black Solidarity. Cambridge: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Taylor, Charles. 1994. “The Politics of Recognition.” In Multiculturalism, edited by Amy Gutmann, 25–74. Princeton: Princeton University Press. Google Scholar Google Preview WorldCat COPAC

Further Reading Armitage, David. 2009. “Three Concepts of Atlantic History.” In The British Atlantic World 1500–1800, 2nd edn edited by David Armitage and Michael J. Braddick, 11–27. New York: Palgrave Macmillan. Google Scholar Google Preview WorldCat COPAC Carretta, Vincent and Philip Gould, eds. 2000. Genius and Bondage: Literature of the Early Black Atlantic. Lexington: University of Kentucky Press. Google Scholar Google Preview WorldCat COPAC Dayan, Joan. 1996. “Paul Gilroyʼs Slaves, Ships, and Routes: The Middle Passage as Metaphor.” Research in African Literatures 27(4): 7. Google Scholar WorldCat Dubois, Laurent and Julius S. Scott, eds. 2010. Origins of the Black Atlantic. New York: Routledge. Google Scholar Google Preview WorldCat COPAC Eckstein, Lars. 2006. Re-Membering the Black Atlantic: On the Poetics and Politics of Literary Memory. New York: Rodopi. Google Scholar Google Preview WorldCat COPAC Fogg-Davis, Hawley. 2003. “The Racial Retreat of Contemporary Political Theory.” Perspectives on Politics 3(1): 555. Google Scholar WorldCat Gates, Henry Louis. Jr. 2010. Tradition and the Black Atlantic Tradition. New York: Basic Civitas. Google Scholar Google Preview WorldCat COPAC Goyal, Yogita. 2010. Romance, Diaspora, and Black Atlantic Literature. New York: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Greusser, John C. 2005. Postcolonialism, African American Literary Studies and the Black Atlantic. Athens: University of Georgia Press. Google Scholar Google Preview WorldCat COPAC Lawrence, Bonita and Enakshi Dua. 2005. “Decolonizing Racism.” Social Justice 32(4): 120. Google Scholar WorldCat Ledent, Benedicte and Pilar Cuder-Dominguez, eds. 2012. New Perspectives on the Black Atlantic: Definitions, Readings, Practices, Dialogues. New York: Peter Lang. Google Scholar Google Preview WorldCat COPAC Levecq, Christine. 2008. Slavery and Sentiment: The Politics of Feeling in Black Atlantic Antislavery Writing, 1770–1850. Lebanon: University of New Hampshire Press. Google Scholar Google Preview WorldCat COPAC Matory, J. Lorand. 2005. Black Atlantic Religion: Tradition, Transnationalism, and Matriarchy in the Afro-Brazilian Candomble. Princeton: Princeton University Press. Google Scholar Google Preview WorldCat COPAC McNeil, Daniel. 2009. “Lennox Lewis and Black Atlantic Politics—The Hard Sell.” Journal of Sports and Social Issues 33(1): 25. Google Scholar WorldCat Mercer, Kobena. 2006. “Black Atlantic Abstraction: Aubrey Williams and Frank Bowling.” In Discrepant Abstraction, edited by Kobena Mercer, 182–205 Cambridge: MIT Press. Google Scholar Google Preview WorldCat COPAC

Nelson, William E. Jr. 2000. Black Atlantic Politics: Dilemmas of Political Empowerment in Boston and Liverpool. Albany: State University of New York Press. Google Scholar Google Preview WorldCat COPAC Oboe, Annalisa and Anna Scacchi, eds. 2008. Recharting the Black Atlantic: Modern Cultures, Local Communities, Global Connections. New York: Routledge. Google Scholar Google Preview WorldCat COPAC Sidbury, James. 2007. Becoming African in America: Race and Nation in the Early Black Atlantic. New York: Oxford University Press. Google Scholar Google Preview WorldCat COPAC

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy  Simone Chambers https://doi.org/10.1093/oxfordhb/9780198717133.013.3 Published: 10 August 2017

Abstract Jürgen Habermas’s Between Facts and Norms purports to o er a new way of understanding law and democracy in liberal orders. The scale and ambition of the book matches Hegel’s Philosophy of Right but the take-home message is neo-Kantian: our future depends on getting the right balance between the protection of individual autonomy and the promotion of collective solidarity in the democratic selforganization of our political communities. This chapter unpacks and demysti es the di

cult

arguments of this book and o ers a sympathetic interpretation of Habermas’s political philosophy, including its theory of legitimacy and its connection to his discourse ethics. The core claim assessed in this chapter is that the modern legal system cannot function properly without the support of radical democracy.

Keywords: Jürgen Habermas, democracy, law, legitimacy, discourse ethics Subject: Politics and Law, Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

1

Jürgen Habermas is a proli c writer, with over forty books in a career spanning more than sixty years. Two stand out as the most important articulations of his contribution to political philosophy: the two-volume Theory of Communicative Action (TCA) (1984, 1987), and Between Facts and Norms (BFN) (1996). They do not fully comprehend his political, moral, and social theory, as many central statements are scattered 2

throughout his published work. Nevertheless, TCA and BFN stand out as particularly signi cant. They are also closely connected. Indeed it is di

cult to see the full scope and grandeur of BFN without reading it as 3

the completion of the project articulated in TCA. BFN is a di

cult book, often misunderstood. For this reason I focus primarily on laying out its argument

and clarifying the normative message.

The Book BFN was rst published in German in 1992. The English translation appeared in 1996. Included in this translation is a 1994 postscript in response to some of the early reactions. This postscript contains a summary of the book’s arguments but it is very dense and not accessible without some prior knowledge. More interestingly, the postscript already contains a few “clari cations” of the earlier argument that might be thought of as revisions. Habermas is well-known for reading and answering objections and, more or less subtly, changing his position in response. The German title, Faktizität und Geltung is not perfectly rendered by Between Facts and Norms. On the one hand, the addition of “Between” is helpful, as I explain below. On the other hand, substituting “facts and norms” for “facticity and validity” is not as precise as the original German. This is particularly true for the second term, norms/validity. Although validity, like norm, can itself be a fact (e.g., as a historical contingent fact we happened to nd x valid), it nevertheless projects a stronger ideal of “unconditionality” (Habermas’s term for truth or rightness) than the term “norm.” The theme of reconciling strong truth and rightness claims with the empirical world of complexity and contingency runs throughout the book, and seems better captured in the German title. The facticity/validity motif is reproduced in so many ways and at so many di erent levels throughout the text that at times it borders on a trope. It re ects the most prominent rhetorical strategy of the book. All of Habermas’s arguments are presented as steering a middle course between two alternatives (hence the importance of “between” in the English title). One of the most common sentence constructions of the book is “on the one hand … on the other hand …”. This does not represent wishy-washiness. It creates the space where Habermas lays down his own position. The title of course o ers the most obvious example, but also important are the following pairs of contrasting terms and concepts: liberal/republican, rights/democracy, public/private autonomy, natural law theory/legal positivism, reason/will, participant/observer, 4

lifeworld/system, communicative/strategic, morality/ethical life. Although these contrasts always open up a middle way, it is not a uniform Hegelian dialectic at work, and the various contrasts often involve quite di erent sorts of arguments. Some are really heuristic and somewhat stylized springboards to articulate Habermas’s own position (liberal/republican) and others contain what appear to be deeper ontological claims about social reality (system/lifeworld). As a strategy for navigating the text, I recommend that the reader identify the binary in play. It is sometimes presented in the form of an exposition of other people’s arguments: Kant/Rousseau, Rawls/Luhmann, Dworkin/Michelman. Throughout his published work, Habermas uses other people’s work as a foil to develop his own argument. One might think that most of what Habermas writes is commentary on other writers’ texts. This would be a mistake. In the outline below I reconstruct the main steps in Habermas’s arguments, and for the most part leave aside the details of his discussion of other people’s work. Habermas is often very generous in claiming that he is building on others’ ideas. This is not entirely false, but it is more a stylistic modus operandi than a serious claim about in uence or intellectual debt.

The Argument What is a Discourse Theory of Law and Democracy? BFN is complex, di

cult, ambitious, and daunting. It purports to o er a new way of understanding law and

democracy in liberal orders. It takes a civilizational perspective as its starting point: Western modernity has left behind the possibility of justifying and understanding our political and legal order by reference to a higher external authority. This loss of foundations opens the door to a new sort of justi cation. We do not simply replace traditional foundations with equivalent modern ones, as if a principle of utility or Kant’s innate right could take on the justi catory function held by God or Nature in the premodern world. Pluralism and di erentiation have made the kind of justi cation that that seeks a deeply and widely shared 5

bottom line or buck-stopper unavailable to us. We are in a postmetaphysical world. One direction to go in this world is the direction of Rawls’s (1993) political liberalism. Rawls brackets metaphysics and seeks consensus at a political level. Habermas chooses a di erent route, one that takes him back to a theory of 6

communication and discourse.

Here is a much simpli ed version of the argument. The loss of rm and shared foundations forces us to start relying more and more on the procedural conditions of justi cation (107). The sorts of questions that become important are: What does it mean to justify something? When do we know we have succeeded in justifying something? What are ideal conditions under which to undertake justi cation? This story about how we meet the challenges of justifying a political order under conditions of modernity allows Habermas to connect questions of legitimacy and normativity to a non-normative theory of communication and discourse (Cooke 1997). In Habermas’s terminology, discourse is a form of communication that is concerned solely with justi cation. Therefore a discourse theory of law and democracy (the subtitle of the book) is a theory of law and democracy tied to the procedural conditions of justi cation that in turn are tied to universal claims about communication as such. The procedural conditions of justi cation involve freedoms to speak and argue, equal chances to sway interlocutors and generally conditions that ensure only rational persuasion is going on. We expect or hope something like these conditions prevail within scienti c discourse, and Habermas argues that the same should be true for any attempt to engage in rational justi cation. These conditions are of course norms; they are not introduced as moral norms, however, but as procedural rules for the linguistic and epistemic activity of justi cation as such. Habermas also sometimes describes his enterprise as a “discourse-theoretic” approach to law and democracy. “Discourse-theoretic” conveys the important point that discourse is not, in the rst instance, an empirical activity but a concept that informs or structures Habermas’s reconstruction and description of the central elements of liberal democracy. Although the descriptive adjectives “discourse” and “procedural” are not precisely interchangeable in BFN, they are almost so, and Habermas is just as likely to use the formulation “procedural paradigm of law” as “discourse theory of law.”

Law and Validity BFN begins with a panoramic reconstruction of the way modernity alters the conditions of social integration and action coordination. Modern societies are highly complex and characterized by pluralism and di erentiation. Modern law or the rule of law develops as functionally necessary for action coordination and 7

integration (26). When background shared understandings begin to erode, it is impossible for the modern subject to construct equivalent shared understandings at every turn. Positive, consistent, predictable, clear, and coercive law removes the burden of having to endlessly work things out, come to agreements, sort through coordination problems, or start from scratch in every new jurisdiction. We follow the law because it is the law. But as modern subjects we do not follow the law simply because it is the law. We think of ourselves as autonomous agents. Citizens must believe in the law’s legitimacy as well (38). Indeed, law functions as an external coordinator of action only with internal belief in its validity. So law stands between the fact of coercion and the norm of rightness; it requires both. We relate to the law as both strategic actors motivated by the threat of sanction and communicative actors motivated by good reasons. We need both of these attitudes for it all to work. To this initial reconstruction of the way facticity and validity function in modern law, Habermas adds a deeper layer. Sociologically, law functions through the external fact of its coercive power and the internal belief in its normative validity. From this Weberian point of view, then, belief in legitimacy is itself an empirical contingent fact. But Habermas insists that the factual or “believed in” validity presupposes an unconditional validity. The story of the social validity of law is embedded in a broader picture of communicative validity. As actors, we do not think (or act as if we thought) that the validity we ascribe to law (or norms in general) is merely a contingent preference or fact about us. As participants we act, argue, and communicate as if establishing the real validity of a norm were possible. We argue, we justify, we give reasons for the normative claims we support. This participant’s perspective when reconstructed in a theory of communication and discourse o ers up a criterion of validity. “The ideal moment of unconditionality is deeply ingrained in factual processes of communication, because validity claims are Janus faced: as claims, they overshoot every context; at the same time, they must be both raised and accepted here and now if they are to support an agreement e ective for coordination—for this there is no acontextual standpoint” (20– 21).

Co-originality Thesis How and why validity claims “overshoot every context” is the subject of the two-volume, 800-page TCA. Habermas never fully reiterates the argument in BFN. But the basic claim is that modern law cannot function without belief in its validity. So the next step is to see whether there is anything to this belief. Habermas divides this investigation or the reconstruction of the normative “self-understanding of these modern legal orders” (82) into two parts, corresponding to two senses of law. In the rst he speaks of law as a system of rights and asks what gives a system of rights its legitimacy? The second sense refers to making or enacting law, and here the question that concerns him is what gives popular sovereignty its legitimacy? In each case the source of legitimacy is found in the other. A system of rights is justi ed by appeal to popular sovereignty; popular sovereignty is a source of legitimacy only to the extent it operates within a system of rights. This is a preliminary articulation of Habermas’s co-originality thesis. But there are many details to ll in. Habermas believes that liberal democracy has been caught in a fruitless conceptual struggle between rights fundamentalists and deep popular sovereigntists (94, 99). Rights fundamentalists hold that rights are the ultimate trump card in liberal democracies and are neither justi ed by, nor subject to, the popular will of the people. The problem that rights fundamentalists raise is: if our consent does not justify rights, what does? Habermas feels that ultimately they will have to fall back on some form of natural law theory that could not be generally accepted today. By contrast, popular sovereignty fundamentalists, while not denying the

importance of rights, argue that the ultimate justi cation for political arrangements is the will and consent of the people. The problem here, is what limits the will of the people? Habermas seeks the middle course between these two options, appealing to the interdependence of individual and public autonomy. Individual autonomy corresponds to the liberal notion of individual freedom safeguarded, for the most part, through a system of rights. Public autonomy refers to notions of popular sovereignty. Kant’s contract and Rousseau’s general will are equally one-sided (103). “The system of rights can be reduced neither to a moral reading of human rights nor to an ethical reading of popular sovereignty, because the private autonomy of citizens must neither be set above, nor made subordinate to, their political autonomy” (104). The crucial middle term between rights and democracy are the conditions of valid lawmaking, which in turn is connected to the conditions of normative validity as such. Here Habermas introduces the discourse principle (D): “Just those action norms are valid to which all possible a ected persons could agree as participants in rational discourse” (107).

The Discourse Principle The transition from the tension between rights and democracy to D is di

cult, dense, and sketchy (103–

107), but the general idea is that to ensure the circle is virtuous, not vicious we need an independent standard of normative validity, which must be independent but not metaphysical. This independent standard of validity will give us both the pre-conditions that need to be in place to safeguard popular sovereignty (these conditions will be the system of rights) as well as a counterfactual ideal process through which to think about the exercise of popular sovereignty. At this point in the text Habermas does not o er a full defense of D. He claims that reconstructing the relationship between rights and democracy in “discourse-theoretic terms” (104) solves the problems plaguing postmetaphysical justi cations of our political order. The principle itself “merely expresses the meaning of post-conventional requirements of justi cation” (104). The technical derivation of D from a theory of communication is found in TCA. In BFN, the defense lies in the general plausibility, problem-solving potential, and normative appeal of the whole discourse theory of law and democracy. Nevertheless, readers not familiar with TCA might well think “where did that come from!” at this point in the text. In BFN Habermas introduces some important distinctions that clarify the role of D in relation to his earlier articulations. First, D is a general principle of impartial justi cation, not a moral principle. Habermas admits: “in my previous publications on discourse ethics, I have not su

ciently distinguished between the

discourse principle and the moral principle” (108). In BFN, moral discourse is one type of specialized discourse—or, more precisely, one type of argument that may be raised in the public sphere (565, n 3)— that is relevant to democratic politics only to the extent that a democratic public faces a moral question of justice. Most political questions are not moral questions. Also important are pragmatic arguments that deal with means/ends problems like the most e

cient way to reduce the de cit, and ethical arguments that

assess the goals, values, and goods to be pursued by a particular ethical community (108, 165). In addition to these discourses, Habermas adds the important category of “procedurally-regulated bargaining” because it is “often the case” that political controversies do not admit to a discursive solution (108, 165). Rational discourse in general requires conditions of equality, freedom, and fair play, but only moral discourse considers “all those a ected” in terms of humanity and seeks a rational consensus in a strong sense. But because moral discourse is interwoven with the other discourses and even sometimes within a bargaining situation, moral discourse simply refers to the need, when appropriate, to appeal to impartial reasons. Because the other types of discourse are tied to context speci c problems and issues, reasons are drawn from those contexts. The second important distinction is that D is not a political principle to be directly applied to the public political sphere: “An unmediated application of discourse ethics (or of an unclari ed concept of discourse)

to the democratic process leads to muddled analysis; these then o er skeptics pretexts for discrediting the project of a discourse theory of law and politics at its inception” (158). Habermas is clear that D and indeed the three types of discourse are introduced at a very high level of abstraction. They are counterfactual ideals of justi cation that are intended to help think through the question of what rights need to be in place in order to guarantee the most basic procedural requirements of validity. D does not directly translate into a normative theory of deliberative democracy in the sense that we should all be trying to engage in idealized Discourse. Nor can D be institutionalized in any straightforward way. To make the move to a more concrete level of analysis Habermas introduces the democratic principle: “only those statutes can claim legitimacy that can meet with the assent of all citizens in a discursive process of legislation that in turn has been legally constituted” (110). It will turn out, as I outline below, that this assent is a complex, highly disaggregated process that looks nothing like a face-to-face discourse.

A System of Rights D points to basic procedural conditions for the establishment of validity. If we think of this in terms of the validity of law we are led to the conclusion that citizens need to be in a basic relation of equality with one another to be able to collectively validate law: “the system (of rights) should contain precisely the basic rights that citizens must mutually grant one another if they want to legitimately regulate their life in common by means of positive law” (118). These basic rights divide into ve categories (122–123). The rst three refer to basic liberties of the individual, including such things as freedom of speech and religion, freedom of association, and due process. The fourth covers citizenship rights and guarantees “equal opportunity to participate in processes of opinion-and-will-formation” (123). The nal category encompasses rights to the social and environmental conditions that would be required to adequately exercise 1–4. Habermas appears to justify his system of rights as a necessary, if purely formal, condition of legitimate democracy. But if we can deduce rights as preconditions of democracy, doesn’t this make rights prior to democracy? Habermas is adamant that his is not a quasi-natural law or natural rights theory whereby we deduce rights in the abstract and compare rights legislation with the moral right. Indeed, one of the aims of BFN is to create distance between moral theory and legal theory. His system of rights is not a moral or ideal standard that we bring to the real world. He does not deduce any speci c rights, but only identi es the need for certain categories of rights. Speci c rights, like freedom of religion, need to be enacted and made into positive law in real political communities with real constitutions and enforcement (125). Each legal, political, and national context will vary, and so each system of positive rights will di er. Thus rights as legal instruments are justi ed as outcomes of discursive processes, not as prerequisites. The philosopher can reconstruct the general idea of a system of rights, but they are not really rights at all until they are enacted in the name of the people. Furthermore, the philosophical reconstruction is only possible as an adjunct to the historical and empirical process of bootstrapping: “‘the’ system of rights does not exist in transcendental purity. But two hundred years of European constitutional law have provided us with a su

cient number of models. These can instruct a generalized reconstruction of the intuitions that guide the

intersubjective practice of self-legislation in the medium of positive law” (129).

Popular Sovereignty BFN begins with the observation that the modern rule of law developed as a functional necessity in the modern world. This is presented as a fact. But the central claim of the book is that “the rule of law cannot be had or maintained without radical democracy” (xlii). The fact of the law needs the validity that democracy alone can furnish. This is what Habermas means when he says that legitimacy emerges from legality (83). In 8

a sense, legitimacy is a functional necessity for the modern rule of law.

Democracy is approached from two di erent angles in BFN. In the rst, Habermas reconstructs democratic legitimacy in discourse-theoretic terms such that we can see how self-legislation can generate validity and so stand as the second term in the co-originality thesis. But, like the discussion of a system of rights, this initial argument is abstract. In the second approach, Habermas is a social scientist looking at present-day democracies from the outside and o ering a redescription of them as deliberative democracies. The democratic principle is the heart of the rst approach: “only those statutes can claim legitimacy that can meet with the assent of all citizens in a discursive process of legislation that in turn has been legally constituted” (110). There is room for misunderstanding if the procedural nature of this principle is not kept rmly in mind. The focus on a discursive process of legislation means that the validity generating power of the exercise of popular sovereignty lies in opinion and will formation. Habermas is not saying we need to institute a discursive process of legislation in order to achieve true democratic legitimacy, but rather that the only way to make sense of liberal democratic claims to legitimacy is to understand them in discoursetheoretic terms, because only discourses of justi cation can generate validity in a postmetaphysical world. If we look at democracy this way, then our constitutions, rights, and freedoms, our equal opportunities to participate and speak, the fair regulation of the public sphere, and the accountability of our representatives are all to be understood in discourse-theoretic terms, that is, as a legally constituted discursive process of legislation. Although legitimate legislation is what people would assent to in a discourse, we have no independent access to the content of discursively formed opinion and will. Thus legitimacy is purely procedural in the sense that it is imbued in the procedural possibility to raise arguments, challenge reasons, and put forward claims: “The unity of a completely proceduralized reason then retreats into the discursive structure of public communication” (186). Positive law derives its legitimacy “from a procedure of presumptively rational opinion- and will-formation” (457). The procedural understanding of democratic legitimacy leads Habermas away from Rousseau and the general will. “Popular sovereignty is no longer embodied in a visible identi able gathering of autonomous citizens. It pulls back into the, as it were, ‘subjectless’ forms of communication circulating through forums and legislative bodies” (135–136). Habermas also calls this idea of popular sovereignty “anonymous” (136), lacking “overly concrete notions of a ‘people’ as an entity” (185), and as “communicatively uid sovereignty” (186).

Deliberative Politics Habermas’s concept of deliberative politics is a “two track” (304) model that focuses on the interplay between formal institutions of representative democracy and informal public opinion formation in civil society. Habermas characterizes the relationship between representative institutions and public opinion as one between core and periphery (330), or, borrowing language from Nancy Fraser, between strong and weak publics (306). Strong publics issue authoritative decisions; they rule. Weak publics, although home to a great deal of discourse and deliberation, do not issue authoritative decisions; they do not rule. Something qualitatively di erent happens in weak publics and in strong ones. In being freed from the burden of authoritative decision-making, weak publics can become “contexts of discovery” (307). The wild and anarchic nature of the weak public allows for new claims to emerge, hidden injustices to be unmasked, received truth to be questioned, and new forms of political participation to be tested. Creativity, innovativeness, and progressive energy require a medium of unrestricted communication. The anarchic nature of the informal sphere plays an important discursive and epistemic function by holding out the possibility of revision, correction, and change through criticism of and opposition to stands taken and 9

claims made by those who rule.

Public opinion formation generates communicative power that underpins the established “rulers,” that is, the system of representative democracy. Communicative power is generated by citizens, but it is not wielded

by them or indeed, really wielded at all. It is not the power of a willing subject, but of reasons circulating through the public sphere in more or less structured deliberations and decisions. If “unleashed” under the proper and healthy democratic conditions, communicative power gives content to legislative agendas, limits them, and stands as a permanent publicity test for them. “The public opinion which is worked up via democratic procedures into communicative power cannot itself ‘rule’ but can only channel the use of administrative power in speci c directions” (300). The informal and anarchic nature of the weak public has its risks, however. Although such participation is ultimately structured by constitutional rights and protections, these are not enough to guard against pathologies. The informal public sphere is thus “more vulnerable to the repressive and exclusionary e ect of unequally distributed social power, structural violence and systematically distorted communication than are the institutionalized public spheres of parliamentary bodies” (307–308). A gloomy diagnosis of the state of the modern public sphere is never far in the background of BFN, and it is in full force at the end of the book where Habermas asks how the two-track model fares in our complex world. Legislative action taken by parliaments can be steered by three di erent types of in uence or power. One is the power and logic of the administrative system itself. Here e

ciency, coordination, and utilitarian

calculation steer decisions. The second possible source is “social power,” money being the most important form of this power. Here strategic considerations concerning the optimal conditions for economic growth become decisive. Finally there is communicative power, which ideally considers public opinion, identi es and thematizes society-wide problems and issues, and then gets them onto the parliamentary agenda. Only communicative power can embody the model of legitimacy outlined in the book. The “discourse theory of democracy implies that binding decisions, to be legitimate, must be steered by communication ows that start at the periphery and pass through the sluices of democratic and constitutional procedures situated at the entrance to the parliamentary complex or the courts … To be sure, the normal business of politics, at least as it is routinely conducted in Western democracies, cannot satisfy such strong conditions” (356). Habermas is realistic and critical when it comes to contemporary politics. Most of the time the democratic system does not function as an optimal deliberative democracy. The signals sent from civil society and the public sphere are too “weak to initiate learning processes or redirect decision making in the political system in the short run” (373). Most of the time the public sphere is at rest and, in any case, “in ltrated by administrative power and social power and dominated by the mass media” (379). Occasionally, however, civil society is woken from its stupor by an issue, event, or cause. Under these special “circumstances civil society can acquire in uence in the public sphere, have an e ect on the parliamentary complex (and the courts) through its own public opinion, and compel the political system” (373). His paradigmatic case is the feminist social movement. The example is telling. Habermas’s center-periphery model of deliberative politics is a macro-level theory that operates signi cantly above particular policy decisions. Feminism as a social movement can of course be connected to speci c pieces of legislation or court decisions, but Habermas is pointing to broad sweeping in uence, changing values, meanings, priorities, and principles. Successful social movements change the terms, expectations, and norms within which we pursue political agendas. Although this view can be tied to issues like gay marriage, environmental degradation, and social equality, it does not o er a handy way to assess the democratic credentials of individual pieces of legislation. Habermas positions his political theory on a middle ground between liberalism and republicanism. Liberals assess democracy by reference to the aggregation and balance of private and group interests. The state’s job is to pursue a collective good understood as a fair compromise between competing interests. For Habermas republicanism is an essentially communitarian view wherein democracy is about the creation of a solidaristic whole that can express a collective interest. Therefore, the state’s job is to respond to,

implement, and sometimes embody the collective vision of the common good and to create conditions that nurture its growth. Habermas describes discourse theory as investing the democratic process with stronger normative connotations than does liberalism but weaker than republicanism (298). Neither individuals nor communities are the focus; instead the communicative interaction between citizens becomes the locus of democracy. “Deliberative politics acquires its legitimating force from the discursive structure of an opinion- and will-formation that can ful ll its socially integrative function only because citizens expect its results to have reasonable quality. Hence the discursive level of public debates constitutes the most important variable” (304). This o ers a clear normative framework for assessing democratic legitimacy.

Reception and Criticism 10

BFN has generated a very large body of commentary.

In political theory, Habermas is probably best known

as a founder of deliberative democratic theory, and BFN is often cited as a seminal text in this large and still growing eld. But there are two di erent paths of in uence to be traced here. The rst and by far the most signi cant is the in uence of Habermas’s conceptualization of the basic structure of free and equal discourse. While few deliberative democratic theorists embrace the full Habermasian philosophical edi ce that underpins and justi es this reconstruction of the presuppositions of argumentation, it is hard to exaggerate the in uence that the general picture of the conditions of deliberation and discourse have had on the eld of deliberative democracy. Those conditions include (i) no one can be excluded, (ii) equal opportunity to speak, (iii) no deception or manipulation, and (iv) no coercion or external pressure can be brought to bear. Some version of these rules are drawn on for almost all models of deliberation. A shorthand version of these rules is contained in the famous Habermasian phrase “the unforced force of the better argument” (1996, 306). This phrase appeals to the Kantian idea that reason operates in a di erent way than coercion and only in coordinating our action through reason can we coordinate our actions in a way that respects each person’s freedom and equality. In this phrase Habermas captures a central component lying deep in most theories of deliberative democracy: reason giving is both a means of arriving at better outcomes and a way to recognizing each participant as equal and free. The second strand of in uence can be seen in those theories of deliberative democracy that work within or borrow from Habermas’s speci c paradigm of law and democracy as it is laid out in BFN. This is a smaller group and includes theorists who are interested in developed macro-level theories of deliberative democracy rather than focusing on small face-to-face institutional developments (Benhabib 1996; Bohman 1996; Chambers 1996). The commentary and criticism of BFN can initially be divided between those who are unsympathetic and outside the paradigm, and those more sympathetic and within it. Here I take the paradigm to be very generally a neo-Kantian approach to political philosophy which prioritizes reason, reason-giving, justi cation, and autonomy. External critiques then fall under general umbrella of agonistic postmodernism (Honig 2001; Mou e 2000), realism (Geuss 2008), and communitarianism (Taylor 1999). Many of these criticisms are interesting; some construct a straw man; most engage at the level of the project and not at the level of the arguments. Another strand of commentary on the book and argument brings Habermas and Rawls together in conversation (Hedrick 2010; Finlayson and Freyenhagen 2011). BFN and Rawls’s Political Liberalism are the two most important articulations of what could be called justi catory liberalism. This liberalism replaces contract and consent with justi cation and reason-giving as the concepts through which to understand and structure freedom, equality, and autonomous agency. Both views are postmetaphysical and are deeply concerned with legitimacy under conditions of pluralism. A third strand of commentary and criticism engages speci c arguments in the text. It would be impossible to canvass all of these so I take up only three that raise issues about the normative import of the argument.

Procedure Versus Substance A number of critics have argued that, when we need to nally justify a political decision, reference to procedure alone is not enough (Gutmann and Thompson 2004; Peters 1994). In order to persuade everyone that justice has been done it is not enough to say that participants followed the rules to the letter; one must also be able to give substantive reasons for the justness of the outcome. Habermas would not deny that citizens appeal to and are motivated by substantive reasons. A discourse theory of law does not require that we all exchange our particular substantive and often comprehensive views for purely procedural ones. When he claims to reconstruct the participant’s point of view, he is trying to make sense of what validity and justi cation could possibly mean under conditions of pluralism. He is not reconstructing subjective attitudes or beliefs, although he would add that we do in fact appeal to procedural elements all the time in justifying and especially criticizing outcomes. Attacks on the role of money in American political life, for example, are attacks on the absence of the procedural preconditions of democratic opinion and will formation. The mistake here is to think that Habermas sees proceduralism as a rst-order belief for most modern citizens. Rather, he sees it as a presupposition of our democratic legitimacy. A second objection to proceduralism claims that it is a weak safeguard against democratic publics pursuing morally problematic outcomes. When majorities irt with racial discrimination, for example, Gutmann and Thompson think it important that we be able to say that this is substantively wrong, not simply wrong on procedural grounds (2004, 105). When confronted with the possibility of extremely bad outcomes, Habermas’s answer is to fall back on preconditions. Outcomes are legitimate to the extent that the process is fair, but some outcomes, such as racial discrimination, would undermine the fairness of the process and therefore undermine the legitimacy of outcomes. Habermas’s talk of presuppositions, however, raises another set of problems. The co-originality of rights and democracy introduces a circularity to Habermas’s justi catory project that some have thought to be incoherent.

Co-originality and the Problem of Circularity Habermas wants to solve the bad democratic outcomes problem with a strong conception of rights as preconditions to legitimate democratic outcomes; but those rights are themselves justi ed as outcomes of democratic will formation. Can we make sense of a procedural legal theory when the legitimacy of enacting fundamental law depends on a prior establishment of fundamental law? Frank Michelman has been particularly persistent in this line of criticism (1997). He suggests that Habermas’s model of validity requires individuals already constituted as free and equal by fundamental laws to decide what content is required of the fundamental laws that is to constitute them. Habermas’s answer to this challenge is to downplay founding moments and embed the co-originality thesis in history. Constitutional moments punctuate an essentially ongoing process of bootstrapping. To freezeframe this process at any one moment will o er a picture that fails to see the full interdependence of democracy and constitutions. The bootstrapping is to be understood both in formal terms of legality and in cultural terms of ethos. Habermas freely admits that his theory presupposes already-constituted individuals: “deliberative politics … stands in an internal relation to the contexts of a rationalized lifeworld that meets it halfway” (252). What this means is that liberal democracy’s institutions and culture develop at the same time. Deliberative democracy re ects an internal and already-existing relationship between a liberal democratic culture and liberal democratic institutions.

Social Justice There is a second version of the circularity problem that points to a normative tradeo

between democracy

and justice. Are citizens likely to enact laws enhancing the conditions of deliberative democracy if those very conditions are not already in place? Take economic inequality. Habermas acknowledges that social inequality is a serious barrier to the ideal that all members of the political community be able to participate equally in the generation of communicative power, and that something like a social minimum is a necessary feature of the system of rights. But Habermas says very little more than this. William Scheuerman nds this problematic and remarks that his “concern” is that BFN “has nothing adequately systematic in character to say about social asymmetries of power, let alone how we might go about counteracting them” (1999, 161). Scheuerman thinks Habermas has failed to follow through on the radical potential of deliberative democracy, the potential to spell out the ways in which the capitalist system, globalization, and consumerism undermine authentic democratic participation. Habermas has gestured toward these problems in general terms, but his view of the role and function of philosophy vis a vis inclusive social and political activism makes it impossible for him to include a thick theory of social justice in BFN. He has always claimed that the philosopher has no privileged access to the outcomes of practical reason and discourse; the philosopher can reconstruct the procedures of practical reason and democratic opinion and will formation but real people with real interests and claims have to work together to solve their collective problems. When Habermas himself enters public debate he does so as a participant not a philosopher. It is as a participant and citizen not as a philosopher and author of BFN that he advocates for social justice, the extension of the welfare state, human rights, democratization, humane immigration policy, and much more. Habermas’s extensive philosophical career has been paralleled by an equally energetic political career as critic and advocate in the public sphere (Müller-Doohm 2014). He is both a philosopher of democracy as well as an ardent practitioner.

Conclusion BFN is a monumental book that represents the pinnacle of Habermas’s political philosophy. It matches Hegel’s Philosophy of Right in scale and ambition. The take-home message, however, is neo-Kantian: our future depends on getting the right balance between protecting individual autonomy and promoting collective solidarity in the democratic self-organization of our political communities. The communicative power of citizens stands at the center of democracy and democracy stands at the center of modernity. Three moves in the book revolutionize modern political philosophy, continue to shape and in uence contemporary debate, and guarantee Habermas a central place in the “canon.” The rst is Habermas’s mission to put the Enlightenment and the claims of reason on a new footing by developing a postmetaphysical justi cation of rights and democracy that eschews foundationalism. This move fuels and informs the ongoing debate about whether there is anything to salvage from modernity or should we push on and embrace post-modern skepticism. Second, Habermas’s reconstruction of core features of the liberal democratic constitutional order bypasses any strong claims about nations and even a people. This move opens the door to extending the analysis in trans-national, global, and cosmopolitan directions (Habermas 2012). This is the research agenda that has been preoccupying Habermas post-BFN because the constitutionalization of international law is the continuation (and perfection) of the process begun with the birth of the modern state. Finally, Habermas moves the focus of democratic theory from elections and the franchise to the public sphere and communication between citizens. This move leaves behind the problematic monadic individualism at the heart of the one-person, one-vote doctrine and replaces it with an intersubjective vision in which freedom and equality are maintained through communication, discourse, and social learning through time. Elections and voting are still functionally necessary in mass democracies but the locus of legitimacy moves from an externally fair balancing between competing interests to the possibility of justifying the exercise of power and enactment of law to each and every citizen.

References Baxter, Hugh. 2011. Habermas: A Discourse Theory of Law and Democracy. Stanford: Stanford University Press. Google Scholar Google Preview WorldCat COPAC Baynes, Kenneth. 2016. Habermas. London: Routledge. Google Scholar Google Preview WorldCat COPAC Benhabib, Seyla. 1996. “Towards a Deliberative Model of Democratic Legitimacy.” In Democracy and Di erence: Contesting the Boundaries of the Political, edited by Seyla Benhabib, 67–94. Princeton: Princeton University Press. Google Scholar Google Preview WorldCat COPAC Bohman, James. (1996). Public Deliberation: Pluralism, Complexity and Democracy. Cambridge: MIT Press. Google Scholar Google Preview WorldCat COPAC Bohman, James and William Rheg. 2011. “Jürgen Habermas.” In The Stanford Encyclopedia of Philosophy, edited by Edward N. Zalta, http://plato.stanford.edu/entries/habermas/. Google Scholar Google Preview WorldCat COPAC Brunkhorst, Hauke, Regina Kreide, and Cristina Lafont. 2009. Habermas Handbuch. Stuttgart: J. B. Metzler Verlag. Google Scholar Google Preview WorldCat COPAC Chambers, Simone. 1996. Reasonable Democracy: Jürgen Habermas and the Politics of Discourse. Ithaca: Cornell University Press. Google Scholar Google Preview WorldCat COPAC Cohen, Joshua. 1999. “Reflections on Habermas on Democracy.” Ratio Juris 12(4) (December): 385–416. WorldCat Cooke, Maeve. 1997. Language and Reason: A Study of Habermasʼs Pragmatics. Cambridge: MIT Press. Google Scholar Google Preview WorldCat COPAC Eriksen, Erik O. and Jarle Weigård. 2003. Understanding Habermas: Communicative Action and Deliberative Democracy. London: Continuum. Google Scholar Google Preview WorldCat COPAC Finlayson, James Gordon and Fabian Freyenhagen. 2011. Habermas and Rawls: Disputing the Political. New York: Routledge. Google Preview WorldCat COPAC Google Scholar Forst, Rainer. 2012. The Right to Justification: Elements of a Constructivist Theory of Justice, trans. Je rey Flynn. New York: Columbia University Press. Google Scholar Google Preview WorldCat COPAC Geuss, Raymond. 2008. Philosophy and Real Politics. Princeton: Princeton University Press. Google Scholar Google Preview WorldCat COPAC Gutmann, Amy and Dennis Thompson. 2004. Why Deliberative Democracy. Princeton: Princeton University Press. Google Scholar Google Preview WorldCat COPAC Habermas, Jürgen. 1984. The Theory of Communicative Action: Vol 1 Reason and the Rationalization of Society, trans. Thomas McCarthy. Boston: Beacon Press. Google Scholar Google Preview WorldCat COPAC Habermas, Jürgen. 1987. The Theory of Communicative Action. Vol 2, Lifeworld and System: A Critique of Functionalist Reason,

trans. Thomas McCarthy. Boston: Beacon Press. Google Scholar Google Preview WorldCat

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Habermas, Jürgen. 1996. Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg. Cambridge: MIT Press. Google Scholar Google Preview WorldCat COPAC Habermas, Jürgen. 2008. Between Naturalism and Religion, trans. Ciaran Cronin. Cambridge: Polity Press. Google Scholar Google Preview WorldCat COPAC Habermas, Jürgen. 2012. The Crisis of the European Union. A Response, trans. Ciaron Cronin. Cambridge: Polity Press. Google Scholar Google Preview WorldCat COPAC Heath, Joseph. 2001. Communicative Action and Rational Choice. Cambridge: MIT Press. Google Scholar Google Preview WorldCat COPAC Hedrick, Todd. 2010. Rawls and Habermas: Reason, Pluralism and the Claims of Political Philosophy. Stanford: Stanford University Press. Google Scholar Google Preview WorldCat COPAC Honig, Bonnie. 2001. “Dead Rights, Live Futures: A Reply to Habermasʼ ʻConstitutional Democracyʼ.” Political Theory 29(6): 792– 805. Google Scholar WorldCat Honneth, Axel and Hans Joas. 1991. Communicative Action. Cambridge: Polity Press. Google Scholar Google Preview WorldCat COPAC Michelman, Frank. 1997. “How Can the People Ever Make the Laws? A Critique of Deliberative Democracy.” In Deliberative Democracy: Essays on Reason and Politics, edited by James Bohman and William Rheg, 145–172. Cambridge: MIT Press. Google Scholar Google Preview WorldCat COPAC Mou e, Chantal. 2000. The Democratic Paradox. New York: Verso. Google Scholar Google Preview WorldCat COPAC Müller-Doohm, Stefan. 2014. Habermas: A Biography. Cambridge: Polity Press. Google Scholar Google Preview WorldCat COPAC Peters, Bernhard. 1994. “On Reconstructive Legal and Political Theory.” Philosophy and Social Criticism 20(4): 101–134. Google Scholar WorldCat Rawls, John. 1993. Political Liberalism. New York: Columbia University Press. Google Scholar Google Preview WorldCat COPAC Rosenfeld, Michel and Andrew Arato. 1998. Habermas on Law and Democracy: Critical Exchanges. Berkeley: University of California Press. Google Scholar Google Preview WorldCat COPAC Scheuerman, William E. 1999. “Between Radicalism and Resignation: Democratic Theory in Habermasʼs Between Facts and Norms.” In Habermas: A Critical Reader, edited by Peter Dews, 153–177. Oxford: Blackwell. Google Scholar Google Preview WorldCat COPAC Taylor, Charles. 1999. “Comment on Jürgen Habermasʼs ʻFrom Kant to Hegel and Back Againʼ.” European Journal of Philosophy 2: 152–157. Google Scholar WorldCat

Notes 1

I count only German publications (Brunkhorst, Kreide, and Lafont, 2009).

2

For good general introductions to Habermasʼs work see Baynes (2016), Eriksen and Weigård (2003), and Bohman and Rheg (2011).

3

For work that focuses on TCA see Honneth and Joas (1991) and Heath (2001).

4

This rhetorical strategy underlies a deeper shi in Habermasʼs view. TCA was also full of dichotomies but there Habermas tended to pick a side: communicative versus strategic action, lifeworld versus system. But in BFN it is clear that he is now looking at the space between communicative and strategic action as well as lifeworld and system. This means that these categories in turn are not so hermetically sealed.

5

It is important to remember that Habermas does not say that modern citizens have all given up on religion or strong metaphysical claims at a subjective level. He says that we (for the most part) have given up on the idea that convergence on one higher metaphysical truth is going to furnish stable and legitimate foundations to political institutions. The discourse principle is not advanced as an alternative first principle and it is not clear if citizens even have to explicitly embrace it for it to perform its function.

6

He does not o er a full justification of this theory in BFN which is why a prior knowledge of TCA is very helpful. The system/lifeworld distinction is also presupposed in BFN but not fully defended.

7

For discussions of Habermas that focus on law see Baxter (2011) and Rosenfeld and Arato (1998).

8

For scepticism about this functionalist argument see Forst (2012) and Cohen (1999).

9

It is here that Habermas subsequently envisions a potentially important role for religious discourse, for example (2008, 114–147). Although BFN makes room for these ideas about religion and the public sphere, he does not discuss them there.

10

A comprehensive list of this literature is not possible but a good place to start would be the website Habermas Forum that keeps a very up-to-date bibliography: http://www.habermasforum.dk/.

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

H. L. A. Hart, The Concept of Law  Matthew H. Kramer https://doi.org/10.1093/oxfordhb/9780198717133.013.33 Published: 07 March 2016

Abstract H. L. A. Hartʼs The Concept of Law is, of course, primarily a work of legal philosophy. It is indeed the most in uential work of legal philosophy in the English language (and perhaps in any language) published during the twentieth century. However, the immense importance of the book for philosophers of law should not prevent readers from discerning its importance for political and moral philosophers as well. Hartʼs insights into the nature of law and sovereignty are themselves of great signi cance for political philosophy, and the second half of The Concept of Law contains ruminations on justice and on the relationships between law and morality that deserve attention from anyone who aspires to think clearly about the problems of political philosophy.

Keywords: legal philosophy, legal positivism, H. L. A. Hart, John Austin, sovereignty, justice, political obligation, commands, power-conferring laws, John Finnis Subject: Politics and Law, Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

H. L. A. Hart’s The Concept of Law (CL) is, of course, primarily a work of legal philosophy. It is indeed the most in uential work of legal philosophy in the English language (and perhaps in any language) published during the twentieth century. However, the immense importance of the book for philosophers of law should not prevent readers from discerning its importance for political and moral philosophers as well. Hart’s insights into the nature of law and sovereignty are themselves of great signi cance for political philosophy, and the second half of CL contains ruminations on justice and on the relationships between law and morality that deserve attention from anyone who aspires to think clearly about the problems of political philosophy. In a short compass, this chapter will seek to underscore the import of Hart’s classic text for theorists who grapple with those problems.

The General Character of The Concept of Law Hart revivi ed the tradition of legal positivism that had stagnated in the English-speaking world after the seminal contributions of Jeremy Bentham and John Austin more than a century earlier. In some of his other writings Hart followed Bentham and Austin to a certain degree in his adherence to utilitarian lines of 1

thought, though his allegiance to utilitarianism was considerably warier than theirs. In CL, however, his engagement with Austin was chie y in the domain of legal philosophy. Having carefully recounted Austin’s model of legal norms as an array of sanction-backed commands issued by a sovereign, Hart assailed that model with a volley of objections. Underlying each of his otherwise diverse criticisms was his complaint that Austin’s model systematically obscures the normativity of law. That is, by taking all laws to be orders backed by threats, Austin obfuscated the ways in which the workings of legal systems prescribe how people —both citizens and o o

cials—ought to conduct themselves. Whereas some authoritative utterances by

cials are properly analyzable as imperatives, many other such utterances are instead properly analyzable

as prescriptions that explicitly or implicitly invoke reasons for compliance with their terms. Though the reasons need not be moral reasons, they imbue law with their normativity (which need not be moral normativity). After sustainedly impugning Austin’s account of law, Hart presented his own account. He argued that the foundation of any system of legal governance consists not in the command-dispensing will of a sovereign, but instead in a Rule of Recognition. The Rule of Recognition comprises the ultimate standards for identifying the norms that belong to a system of governance as its laws. By reference to those ultimate standards, the o

cials in such a system ascertain the existence and contents of the legal norms that

regulate everyone’s conduct. Although the phrase “Rule of Recognition” might be taken to suggest a single criterion that can be encapsulated in a pithy formulation, it in fact designates a complex assemblage of standards that both obligate and empower o Through those acts, the o

cials to engage in authoritative acts of law-ascertainment.

cials—in the adjudicative, executive, and legislative branches of government—

collectively establish what the law of their jurisdiction is. At any given time, the complex content of the Rule of Recognition in this or that jurisdiction has been determined by the past endeavors of law-ascertainment which the o

cials there have collectively

undertaken. Although those endeavors may have incorporated some moral principles into the law (as criteria for legal validity, or as substantive legal norms that directly regulate the conduct of ordinary people), their having done so is a contingent matter. Thus, despite the major di erences between Hart’s model of law and Austin’s, both lie on the positivist side of the division between legal positivism and natural-law theorizing. In other words, Hart maintained that law and morality are separable (albeit typically linked in numerous contingent ways). He sought to rebut natural-law theorists’ attempts to vindicate their claims about signi cant necessary connections between law and morality. Still, one of the most famous portions of CL has struck some readers of the book as a retreat from the positivist insistence on the separability of law and morality. That same portion of the text implicitly raises a matter—the matter of political obligation—that is one of the central issues addressed by political philosophers. Thus, my exploration of CL as a work of political philosophy can best begin by focusing on Hart’s discussion of “the minimum content of natural law” (193–200).

Legal Prohibitions and the Human Condition In the penultimate chapter of CL, Hart mulled over the indispensability of some basic legal prohibitions in any viable human society. Drawing on ideas propounded by some of the great political thinkers of the past such as Thomas Hobbes, John Locke, and David Hume, Hart observed that certain elementary facts of the human condition combine to render the existence of law necessary for the durability of any community that is larger than a few families. If a society on even a moderate scale is to stand any chance of lasting, it must be held together in part by a scheme of legal governance that enforces some general restrictions on people’s conduct. The ve familiar features of human beings and their environments which Hart highlighted are as follows: (1) the vulnerability of each human being to harms that might be in icted by others; (2) the approximate equality of the large majority of human adults, in that the physical and mental disparities among them are generally not overwhelming; (3) the mixture of sel shness and solicitous benevolence in the make-up of virtually every human being; (4) the moderate scarcity of most resources, and the fact that many resources have to be subjected to considerable labor before they can satisfy human wants directly; and (5) the limitedness of each person’s understanding and strength of will, which leads some people to favor their short-term interests at the expense of their long-term interests. Given these characteristics of human beings and the world in which they live, the sustainability of every credibly possible community beyond a tiny size is dependent on the sway of a system of legal governance. Moreover, among the mandates imposed by any such system there must be certain fundamental prohibitions. As Hart observed, legal norms forbidding murder, assault, arson, serious fraud, and other grave misdeeds are unforgoable in setting the terms for durable human interaction. If such norms were absent or wholly unenforced, then—given the facts of the human condition which Hart invoked—the security that distinguishes civilization from the frenzy of chaotic anarchy would ipso facto be absent. Every viable scheme of governance must encompass those basic proscriptions, if it is to encompass anything at all. Yet, since the substance of those proscriptions is at one with the substance of key moral precepts, Hart’s elementary facts of the human condition necessitate a convergence between the demands of law and the demands of morality. The area of that inevitable convergence is what Hart labeled as the “minimum content of natural law.” As Hart’s label indicates, his re ections on human nature bear importantly on the debates between legal positivists and natural-law theorists over the separability of law and morality. After all, if the system of governance in every viable society must include legal mandates that coincide in content with some key principles of morality, then there is a signi cant necessary connection between legal requirements and moral requirements. Even more important for the present essay is that Hart’s re ections on human nature bear far-reachingly on the matter of political obligation that has preoccupied many political philosophers. That is, in combination with certain other premises that will be speci ed shortly, Hart’s re ections might appear to imply that everyone in any society is morally obligated to comply with legal mandates simply by dint of their status as legal mandates. This chapter will begin its examination of Hart’s argument, in relation to these issues of legal and political philosophy, by pondering some quali cations that should be attached to the argument straightaway.

Four Qualifications The rst such quali cation was broached by Hart himself. After adumbrating the basic legal prohibitions that are necessary for the durability of any society, and after noting their a

nities with some of the

interdictions that are central to morality, he remarked: “The protections and bene ts provided by the system of mutual forbearances which underlies both law and morals may, in di erent societies, be extended to very di erent ranges of persons” (200). A community can persist as such even if some people who reside within it are denied the basic protections that are enjoyed by others who belong to relatively privileged groups. “[I]t is plain that neither the law nor the accepted morality of societies need extend their minimal protections and bene ts to all within their scope, and often they have not done so. In slave-owning societies the sense that the slaves are human beings, not mere objects to be used, may be lost by the dominant group.” As Hart elaborated: “These painful facts of human history are enough to show that, though a society to be viable must o er some of its members a system of mutual forbearances, it need not, unfortunately, o er them to all” (200). People excluded from the protective ambit of the elementary legal prohibitions may very likely be worse o

than they would be in a situation of lawlessness. As far as they are

concerned, the coercive mechanisms of legal governance are marshaled to “subdue and maintain, in a position of permanent inferiority, a subject group whose size, relatively to the master group, may be large or small, depending on the means of coercion, solidarity, and discipline available to the latter, and the helplessness or inability to organize of the former. For those thus oppressed there may be nothing in the system to command their loyalty but only things to fear. They are its victims, not its bene ciaries” (201). In regard to the plight of such people, who are less secure within the prevailing system of law than they would be in the absence of any such system, a well-known observation by Locke is pertinent. Replying to the proponents of absolute monarchy such as Robert Filmer, who decried all challenges to the legitimacy of any monarch’s brutal oppression, Locke declared: “As if when Men quitting the State of Nature entered into Society, they agreed that all of them but one, should be under the restraint of Laws, but that he should still retain all the Liberty of the State of Nature, increased with Power, and made licentious by Impunity. This is to think that Men are so foolish that they take care to avoid what Mischiefs may be done them by Pole-Cats, or Foxes, but are content, nay think it Safety, to be devoured by Lions” (Locke 1988, §93, emphases in original). When thinking about the jurisprudential implications of the role of law in providing basic security and facilitating the coordination of people’s activities, one plainly should take account of Hart’s point about the credible possibility of societies in which some people are deliberately excluded from the protective reach of prohibitions on very serious misconduct. In any society of that kind, those elementary prohibitions do not coincide in content with any genuine principles of morality. After all, no such principle forbids the perpetration of very serious misconduct against white people only (or against non-slaves only); any true principle of morality that forbids such misconduct against white people also prohibits it against other people. Thus, given that the legal proscriptions of very serious misconduct in some actual or credibly possible societies di er from the correct principles of morality on exactly this point, there are no signi cant necessary connections between the substance of law and the substance of morality. Hart’s ruminations on the human condition do not signal any such connections, despite initial appearances to the contrary. Three additional quali cations should be added. First, even in societies where elementary legal prohibitions do coincide in content with genuine principles of morality at an abstract level, they can markedly diverge at more concrete levels. So long as the legal mandates that forbid serious misdeeds in any particular jurisdiction have brought about su

ciently secure conditions to avert a descent into chaos, they can keep a

society intact while failing to shield people from numerous harmful modes of conduct that are morally impermissible. Merely from the fact that legal norms bestow protection on individuals su

ciently to

prevent a community from disintegrating, we cannot infer that they provide the degree of protection that is

minimally required by correct principles of morality. Even in a viable society where everyone enjoys the same level of security as everyone else, that level can fall far short of what it morally ought to be. Second, the provision of security through well-enforced legal mandates that proscribe serious misconduct is consistent with heavy-handed oppression. Indeed, the engendering of the security can itself be a source of such oppression, as people are protected from one another through the imposition of extremely harsh penalties for minor (as well as major) breaches of laws against theft, vandalism, assault, and the like. Or perhaps the security enjoyed by each person against mistreatment at the hands of others is accompanied by sti ingly severe restrictions on the permissibility of any actions that might threaten the dominance of the prevailing regime. In such circumstances, each citizen can live in safety vis-à-vis other citizens and vis-àvis the regnant government—so long as he or she never utters any open criticisms of the government, never signs any petitions or engages in any protests, never uses a photocopier, and so forth. In short, even in a society where everyone is equally protected by fundamental legal curbs, those curbs can be situated in an overall matrix of laws that is su ocatingly harsh and restrictive. Third, the fundamental legal prohibitions themselves can be introduced and maintained by o

cials for

purely prudential reasons. So long as citizens are submissive and productive, they will usually be far more serviceable for the exploitative purposes of evil o

cials when alive than when dead. Hence, o

cials devoted

solely to their own power-hungry ends will have ample reasons for establishing legal prohibitions that protect ordinary citizens from one another. Similarly, in order to foster incentives for compliance with their wicked behests, the o

cials will have strong reasons for extending to each compliant person a much greater

degree of security against the o

cials’ own violence than is extended to any recalcitrant person. In sum, the

inclusion of elementary protections (for all or most citizens) among a society’s legal mandates does not perforce bespeak any nonprudential concern on the part of the society’s legal-governmental o o

cials. Those

cials might be motivated purely by the sorts of prudential considerations that impel a heartless owner of

livestock to attend to the security of the animals in his herd.

Hart and the Problem of Political Obligation Of great importance for political as well as legal philosophy is Hart’s contemplation of the role of law in furnishing the security and coordination that are essential for a society’s durability. One of the most salient concerns of political philosophers is to pin down the conditions under which people are morally obligated to 2

comply with the legal requirements that apply to them. Particularly prominent is the question whether the inhabitants of any society are always morally obligated to comply with the applicable legal requirements. Hart’s reasoning about the human condition lends itself to being developed into a line of argument that has been advanced by some philosophers who seek to establish that—at least in liberal-democratic societies— there is always a moral obligation to obey the law. Although a full investigation of that line of argument is far beyond the scope of the present essay, a brief account here of the premises and conclusion will help to underscore the importance of CL for political philosophers. The rst premise in the argument comes directly from Hart’s discussion: (1) Without a system of law to give e ect to certain legal prohibitions on serious misconduct, no community of any substantial size can endure for more than the briefest period. A second premise articulates a proposition that would be accepted by most non-anarchists, though speci c understandings of the proposition would of course vary: (2) When substantial numbers of people live in proximity to one another over extended periods of time, an organized community with a system of law to give e ect to prohibitions on serious misconduct is

necessary for the securing of individual freedom and public order and social coordination. The necessity invoked in premise 2 is of course not logical necessity. As a sheer matter of logic, an organized community with a system of law is not necessary for the occurrence of the e ects speci ed in that premise. However, bare logical possibilities are of little or no weight in political philosophy. What matter instead are credible possibilities. The presence of an organized community with a system of law is necessary for the occurrence of the e ects speci ed in premise 2, in that there is no credible possibility of the occurrence of those e ects—when large numbers of people are living in proximity over extended periods of time— without the existence of such a community. A third premise is also grounded in Hart’s work, though less in CL than in a famous passage of an article Hart had published several years earlier (1955, 185–186). There he maintained that each person who enjoys the bene ts of some state of a airs is morally obligated to bear a commensurate share of the burdens of sustaining that state of a airs. More speci cally, each person who bene ts from the adherence of others to some array of mutual forbearances is in turn morally obligated to abide by those forbearances insofar as they apply to him or her. As Hart wrote: “[W]hen a number of persons conduct any joint enterprise according to rules and thus restrict their liberty, those who have submitted to these restrictions when required have a right to a similar submission from those who have bene ted by their submission … [T]he moral obligation to obey the rules in such circumstances is due to the cooperating members of the society, and they have the correlative moral right to obedience” (1955, 185, emphasis in original). Accordingly, a third premise in the argument about the obligation to obey the law can be formulated as follows: (3) If someone bene ts from the fact that others in his or her community abide by the mandates of the prevailing system of law with its protections against the perpetration of serious misconduct, then he or she in turn is morally obligated to abide by those mandates insofar as they are applicable. A fourth premise is closely related to the second and third: (4) Everyone stands to bene t when others in his or her community help to sustain the prevailing system of legal governance by complying with its mandates, since such compliance upholds a necessary condition for the securing of individual freedom and public order and social coordination. From these premises a proponent of this line of argument will then draw the following conclusion: (5) Everyone in a community is morally obligated to comply with the legal mandates imposed by the prevailing system of governance, provided that all or most other people in the community likewise comply. Now, as delineated here, the argument is enthymematic. It relies on the premise that, in any jurisdiction, there is no reasonably available and superior alternative to the prevailing system of governance. Even in relation to societies where that premise is true, however, the soundness of the argument depends on how some of the formulations in its premises and conclusion are to be construed. Although an assessment of the 3

argument’s soundness is beyond the present chapter’s scope, a couple of brief remarks will serve to accentuate the connections between CL and political philosophy. First, much will depend on whether the moral obligation to comply with legal mandates—a

rmed in the

argument’s conclusion—is to be understood as comprehensively applicable and universally borne within each jurisdiction. In other words, to gauge the soundness of the argument, we would need to know whether that obligation is supposed to be incumbent on every sane adult and whether it is supposed to comprehend every legal mandate on every occasion to which any such mandate applies. Both in the eyes of political philosophers and in the eyes of legal philosophers, the obligation will of course be especially noteworthy if it is indeed universally borne and comprehensively applicable. (Its special signi cance for legal philosophy

would derive from its amounting to a major necessary connection between law and morality—which is why Hart (1987, 40–42) and most other legal positivists have denied that there is any comprehensively applicable and universally borne moral obligation to obey the law.) However, that noteworthiness is matched by the di

culty of establishing that any such obligation exists; at least on this point, the

ambitiousness of the argument is inversely related to the probability of its soundness. Second, the argument’s plausibility will also hinge on whether its reach is meant to be restricted or unrestricted. That is, we have to know whether its conclusion is propounded as a claim about every system of legal governance or instead solely about liberal-democratic systems. Unless the conclusion (along with the premises) is construed in the latter fashion, the argument will lack any plausibility. In that respect, the argument built on Hart’s discussion of the human condition is markedly di erent from the general theorizing in CL. Throughout the book, Hart sought to expound the nature of legal institutions in abstraction from the numerous variations among jurisdictions. As he emphasized in subsequent debates with Lon Fuller and Ronald Dworkin—among others—he aimed to distill fundamental features of law as a general phenomenon, instead of concentrating only on features of liberal-democratic law. Hence, when theorists build on his discussion of the human condition in their endeavors to underwrite an obligation to obey the law, their e orts are somewhat at variance with the tenor of his jurisprudential project.

Hart on Justice Hart was a distinguished participant in twentieth-century debates over justice, albeit his most in uential contributions to those debates appeared in essays published after CL. Writing in response to the theories of justice put forward by Dworkin, John Rawls, and Robert Nozick—among others—Hart (1983, Part IV) helped to elucidate the values of justice and liberty and the relationships between those values. Similarly, in Law, Liberty, and Morality, published shortly after CL, Hart (1963) contributed perceptively to some kindred debates in political philosophy as he upheld the civil-libertarian legacy of John Stuart Mill. Though the remarks on justice in CL are somewhat less innovative and profound, they should not go unnoticed here. In the eighth chapter of CL, Hart drew some important distinctions in his exposition of the concept of justice. Perhaps most familiar is that between distributive justice and corrective justice. Hart took “just” and “fair” to be virtually synonymous, and he contended that the value of fairness is at stake in two main types of contexts: namely, contexts in which some bene ts or burdens are to be apportioned among individuals or groups, and contexts in which individuals or groups are called upon to remedy some of the injurious e ects of their conduct on other people (158–159). Justice pertains to allotments of goods and detriments, and to compensatory measures or other remedial measures. Although this way of di erentiating between types of justice is very common, it is not entirely unproblematic. For example, Finnis (1980, 196) has criticized Hart for presuming that distributive justice is germanely contrasted with corrective justice. Instead, Finnis maintains, the germane contrast is with the more capacious category of commutative justice—which includes corrective justice but also extends more broadly. Commutative justice is transactional and relational justice. Whereas distributive justice lays down standards for the assignment of appropriate shares of bene ts and burdens relating to common resources and enterprises, commutative justice pertains to what is due from people by dint of their engaging in certain transactions or standing in certain relationships to one another (insofar as what is due from them is not itself determined by the standards of distributive justice). Another pregnant distinction drawn by Hart in his comments on justice is the contrast between the substance of the law and its administration (160–166). Whereas the substantive justice of any system of law pertains to the general rights and liberties and powers and immunities with which people are endowed under the terms of the regnant legal standards, the procedural justice of the system pertains to the ways in

which those general legal positions are given e ect. Within a system of law, procedural justice consists in applying legal norms in accordance with their terms to any number of situations; the relevant likenesses or dissimilarities among those situations are to be identi ed by reference to the norms themselves. This distinction between substance and procedure is orthogonal to the distinction between distributive justice and commutative justice. Both in relation to matters of distribution and in relation to matters of commutation, questions on either side of the substance/procedure dichotomy can arise. Cutting across the divide between substantive justice and procedural justice is an element of distributive justice that Hart highlighted (166–167). He contended that, whenever legislators or administrators have to reach a public policy decision where the interests of some citizens will be furthered at the expense of the interests of other citizens, the people apt to be a ected should be given opportunities to present arguments in favor of their competing perspectives. “[A] choice, made without prior consideration of the interests of all sections of the community would be open to criticism as merely partisan and unjust. It would, however, be rescued from this imputation if the claims of all had been impartially considered before legislation [or administrative regulation], even though in the result the claims of one section were subordinated to those of others” (167, emphasis in original). Hart declared that the realization of distributive justice through the apportionment of fair opportunities-to-be-heard is essential for the moral legitimacy of enactments that involve signi cant trade-o s: “[J]ustice in this sense is at least a necessary condition to be satis ed by any legislative [or administrative] choice which purports to be for the common good. We have here a further aspect of distributive justice, di ering from those simple forms which we have discussed. For here what is justly ‘distributed’ is not some speci c bene t among a class of claimants to it, but impartial attention to and consideration of competing claims to di erent bene ts” (167).

Hart on Sovereignty In chapter four of CL, Hart completed his three-chapter confrontation with Austin’s model of law. In that fourth chapter, Hart trained his scrutiny on Austin’s conception of sovereignty; his critique merits attention from anyone who enquires into the nature of the state. According to Austin, legal governance proceeds through the top-down imposition of legal requirements by a sovereign whose commands are habitually obeyed by citizens and who in turn habitually obeys no one. Hart objected to Austin’s reliance on the notion of habitual obedience, and likewise impugned his idea of a monolithic structure of sovereignty. When criticizing Austin’s general obfuscation of the normativity of law, Hart speci cally maintained that the compliance of ordinary citizens with legal mandates is often not appositely understood as a mere matter of habit (not even as a habit that is deeply entrenched through longstandingness and the prospect of sanctions). Hart distinguished between norm-guided behavior and merely habitual behavior, and a

rmed

that the compliance of citizens with the duties incumbent on them under systems of legal governance is frequently norm-guided rather than merely habitual. Moreover, even in an extreme situation where all or most citizens merely obey the mandates of a repressive system of governance instead of accepting those mandates as norms that ought to be supported, the conduct of the system’s o

cials in their endeavors of

law-administration will be norm-guided. Thus, one reason for condemning Austin’s theory as inadequate is that it does not capture the ways in which citizens often react to the legal requirements imposed by the institutions which govern them. It does not capture the attitude—what Hart called the “critical re ective attitude”—that is frequently adopted by citizens in response to those requirements. That is, although Austin’s picture of habitual obedience correctly suggests that most citizens tend to comply with the mandates issued by the system of governance that presides over their society, it obscures the tendency of citizens to censure any deviations from those mandates by others and to invoke the mandates in justi cation of their disapprobation. It likewise obscures their tendency to accept that criticisms of their own deviations from the mandates are legitimate. (Of course, the strength of these behavioral dispositions

is a contingent and scalar matter. However, at least in societies governed by liberal-democratic regimes, the existence of such dispositions at various levels is apparent. At any rate, Hart’s point was not that Austin had underestimated the frequency or intensity of people’s inclinations to exhibit the critical re ective attitude toward legal mandates, but rather that the emphasis on habitual obedience disregards those inclinations completely.) Even more important for political philosophers is Hart’s riposte to the Austinian conception of sovereignty. According to that conception—reminiscent of Hobbes’s in many respects—the sway of every sovereign is legally unlimited. Underlying the doctrine of limitless sovereign power is the idea that any legal restrictions would be at odds with the very nature of the sovereign as a sovereign. Given that the Austinian sovereign is not obligated to obey anyone, and given that legal restrictions on the sovereign’s sway would involve the sovereign’s being bound to obey the person or organization who had imposed the restrictions, there cannot be any such curbs. Now, as Hart pointed out (70, 289), one of the sundry shortcomings in the Austinian account is that legal limitations on sovereignty are typically set not through the imposition of duties but instead through the withholding of powers. In other words, the supreme legislator in any jurisdiction—whether a single monarch or a body of people—will typically be unable to introduce valid enactments concerning certain issues. The legislator will probably not be under any legal duties to refrain from e orts to introduce valid enactments on those issues, but any such e orts will be unavailing if the adjudicative and administrative o

cials accurately gauge the extent of the legislator’s powers when they are called upon to recognize the

putative enactments. Thus, for example, the First Amendment to the American Constitution withholds from the U.S. Congress the power to enact valid laws that curtail certain freedoms. That amendment produces its e ects not by imposing legal duties but by imposing legal disabilities. My mention of the First Amendment signals an even more far-reaching problem for Austin’s thesis that sovereignty is legally unlimited. As Hart observed (66–78), and as Austin himself was aware, there can be systems of governance in which the powers of the supreme legislators are constitutionally limited. The American system of governance is one instance; there are many other instances in the contemporary Western world. Austin sought to extend his conception of sovereignty to accommodate such systems of governance (and, indeed, any systems of governance based on elections) by re-identifying the site of sovereign control. He contended that, contrary to initial appearances, the supreme elected o

cials—for

example, the U.S. Congress and the U.S. President—are not vested with sovereignty in such a system. Instead, sovereign control resides in the electorate. Among the numerous di

culties engendered by this re-identi cation of the locus of sovereignty is that it

calls into question Austin’s claim that the relationship between sovereign and citizens is one of command and obedience. If the members of the electorate are themselves the sovereign, then (in relation to them) the foregoing characterization of the sovereign/citizen relationship appears clearly inapposite. To be sure, there is an evident way of surmounting this di

culty. We can distinguish between the members of the electorate

as a sovereign collectivity and the members of the electorate as individual citizens, and we can a

rm that

the commands of the former are obeyed by each of the latter. Yet, although such a reply is unexceptionable in itself, it is unavailable to a defender of Austin’s position. After all, as Hart argued trenchantly in an earlier chapter of CL (27–42), a theory that characterizes legal governance as a relationship of commands and obedience does not leave any place for power-conferring laws in contrast with duty-imposing laws. Instead of forbidding any modes of conduct, power-conferring laws endow people with normative abilities to achieve certain results—such as the formation of contracts, the bequeathing of property, the enactment of valid statutes, or the pronouncement of binding administrative decisions—by following certain procedures. Such laws are thus not properly classi ed as commands, and conformity to their procedures is not properly classi ed as obedience. Now, what is so

problematic for Austin and his defenders is that the laws under which individual citizens compose a collectivity (the electorate) with sovereign control over the institutions of government are powerconferring laws. Hence, when Austin fell back upon the notion of the electorate as a sovereign collectivity, he was presupposing the existence of laws of the very type which his theory systematically overlooks (75– 78, 290). With his insistence on the legally unlimited sway of the sovereign in each jurisdiction, he was led malgré lui to rely on a category of legal norms which his theory of sovereign governance altogether omits. Once that inconsistency is exposed, and once the crucial role of power-conferring norms in the establishment of a legal sovereign is recognized, we can further recognize that the doctrine of legally unlimited sovereignty is an untenable dogma. Power-conferring norms constitutive of sovereignty are not an all-or-nothing matter; they can confer supreme authority in a jurisdiction without conferring allinclusive authority.

A Brief Conclusion CL is principally a work of legal philosophy. Nonetheless, as we have seen, the book addresses a number of matters that are squarely of concern to political philosophers: the problem of political obligation, the nature of justice, the scope of sovereignty, among other matters. My explorations of the relevant discussions in CL have had to be sketchy and selective. Still, enough has been said to indicate that Hart’s classic work is a major contribution to the philosophy of government as well as to the philosophy of law. Its subtle insights do not always resolve de nitively the controversies to which they pertain, but they help to elevate the level of argumentation in those controversies.

References Finnis, J. 1980. Natural Law and Natural Rights. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Hart, H. L. A 1955. “Are there Any Natural Rights?” Philosophical Review 64: 175–191. Google Scholar WorldCat Hart, H. L. A 1963. Law, Liberty, and Morality. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Hart, H. L. A 1983. Essays in Jurisprudence and Philosophy. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Hart, H. L. A 1987. “Comment.” In Issues in Contemporary Legal Philosophy, edited by R. Gavison, 35–42. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Hart, H. L. A 1994. The Concept of Law. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Horton, J. 1992. Political Obligation. London: Macmillan. Google Scholar Google Preview WorldCat COPAC Knowles, D. 2010. Political Obligation. New York: Routledge. Google Scholar Google Preview WorldCat COPAC Kramer, M. 1999. In Defense of Legal Positivism. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Locke, J. 1988. Two Treatises of Government. Edited by P. Laslett. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC 1

Hartʼs combination of liberalism and utilitarianism was far closer to that of John Stuart Mill, as is evident especially in Hart 1963.

2

For two valuable introductions to this topic, see Horton 1992 and Knowles 2010.

3

For a full assessment, with many relevant citations, see Kramer 1999, ch. 9.

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Bonnie Honig, Political Theory and the Displacement of Politics  Nicholas Tampio https://doi.org/10.1093/oxfordhb/9780198717133.013.39 Published: 05 October 2016

Abstract In the 1980s and 1990s, a central debate in academic political theory was between liberals and communitarians, Kantians and Hegelians, Rawls and his critics. Bonnie Honig’s Political Theory and the Displacement of Politics (1993) disrupted this debate and argued that surface disagreements conceal an underlying consensus that the purpose of political theory is to answer, once and for all, the fundamental political questions. Drawing upon and transforming the work of Hannah Arendt and Friedrich Nietzsche, Honig argues that democracy requires attentiveness to the remainders of politics and a proclivity to contestation. To show the continuing relevance of Honig’s conception of agonistic democracy, I criticize Cass Sunstein’s account of the regulatory state for its displacement of politics, focusing on how his advocacy of fuel economy regulations occludes the political question of rethinking public transportation.

Keywords: Agonism, Bonnie Honig, Cass Sunstein, democracy, Friedrich Nietzsche, Hannah Arendt, John Rawls, Michael Sandel, the political Subject: Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Like Bob Dylan plugging in his electric guitar at the Newport Folk Festival, Bonnie Honig’s Political Theory and the Displacement of Politics (1993; hereafter PTDP) brought a jolt of energy to political theory. In the 1980s and 1990s, many political theorists framed the major debate as between the liberal Rawls and his communitarian critics, including Michael Sandel (Mulhall 1992; Walzer 1990). Liberals and communitarians disagreed on how to conceptualize the embedded quality of human nature and whether public policy should bene t primarily individuals or communities. Still, liberals and communitarians tended to read the same canonical authors—including Kant and Hegel—and share the aspiration to speak directly to elected o

cials

and judges. For a time, Anglo-American political philosophy aspired to formulate indisputable principles that responsible political agents would have to implement. Honig disrupted this debate and argued that both groups share a commitment to ending political contestation. Honig’s work has made political theory a more

risky and exciting endeavor, where theorists must negotiate order and chaos, Apollo and Dionysus, a virtue politics of building order and a virtù politics of problematizing any established framework. Honig wrote the rst draft of PTDP as a dissertation at Johns Hopkins University where she studied with William E. Connolly and Richard E. Flathman (Watson and Honig 2013). With Connolly (1991), Honig transmogri es Nietzsche’s ideal of aristocratic competition into a democratic politics that nurtures agonistic respect among individuals and groups. With Flathman (1989), Honig cherishes willful individualism and advances a chastened view of politics as a necessary, if often unpleasant, activity to combat the normalizing tendencies of modern social life. PTDP toggles between Connolly’s and Flathman’s more and less, respectively, appraisals of politics as intrinsically rewarding. Calling PTDP a paradigm of the “Hopkins school,” however, merely contextualizes the book’s originality and importance. Honig is a brilliant reader of political theory texts, shining light on passages in Rawls’s A Theory of Justice (1971) and Sandel’s Liberalism and the Limits of Justice (1982) that reveal the theoretical blind spots of the two most prominent gures in the liberal–communitarian debate. And her readings of Friedrich Nietzsche’s “Homer’s Contest” (2007) and Hannah Arendt’s The Human Condition (1958/1998) lay the foundation for an agonistic conception of democracy that refuses to grant any authority the right to settle foundational political questions, say, about the correct distribution of society’s wealth, appropriate gender roles, or national identity. In subsequent years, Honig has continued to esh out her vision of agonistic politics, and, in a recent survey, Honig was ranked among the top ve political theorists doing work that will be in uential for the next twenty years (Moore 2010). “Few theorists have done more in recent years to explore and develop our understanding of the political con icts and struggles that lie at the heart of democratic politics than Bonnie Honig” (Humphrey, Owen, and Hoover 2014). This essay begins by describing Honig’s critique of liberals and communitarians for trying to shut down political debate by force or deceit. The next section explains how Honig presents a positive vision by democratizing Nietzsche’s notion of the Overman and by widening the topics covered by Arendt’s notion of the political. The subsequent section shows how Honig envisions politics as a constant negotiation between virtue and virtù, a balancing act of stabilizing and destabilizing political arrangements. In the last section, I illustrate the power of Honig’s framework by emulating the style of PTDP to criticize Cass Sunstein’s account of the regulatory state as a means to cool down democratic passions.

The Liberal–Communitarian Antipathy toward Politics The epigraph to chapter one of PTDP is from Nietzsche: “[Virtù] rouses enmity toward order, toward the lies that are concealed in every order, institution, actuality—it is the worst of vices if one judges it by its harmful e ect upon others” (1). In her critical moments, Honig embodies a virtù perspective that expresses enmity toward order for its tendencies to cover over theoretical inconsistencies and practical injustices. Honig has two main strategies to demonstrate how virtue political theorists displace politics. First, she scrutinizes textual passages where a virtue theorist confronts the problem that people may not embrace a politics that ostensibly expresses human nature. In these instances, virtue theorists must rely on force or coercion that their theory cannot adequately justify. The second strategy is to illustrate the real-world consequences of forcing people to conform to a virtue politics that does not concede its own contestability. In PTDP, Honig primarily relies on textual deconstruction, showing how Kant, Rawls, and Sandel try to settle a political question, fail, conceal this failure, and the harmful consequences of this concealment. Honig begins with Kant because his philosophy undergirds much of the liberal–communitarian debate. Kant believes that all human beings deserve liberal respect for merely being (imperfectly) rational beings, but that there is a higher kind of respect, teleological respect, which is due to human beings that respect the moral law. Like the prominent Kant scholar Christine Korsgaard (2009), Honig thinks that Kant maintains a

“constitutional model” of the soul where reason should strive to dominate the animalistic instincts. Unlike Korsgaard, Honig roots for the willful part of human nature to ght back against reason’s commands: “From the perspective of virtù … the self’s resistance to the requirements of moral virtue and subjectivity is cause not for mourning but for celebration. There is vitality in a self that exceeds all orderings” (39). Furthermore, Honig notes that Kant himself does not follow his strictures about pure practical reason governing human animality. His examples introduce a heteronomous element into supposedly autonomous moral thinking, and his stipulations about the right state and international order suggest that moral autonomy is “a fragile condition, enormously dependent on external care, intersubjective community practices, juridical support, and stable phenomenal conditions” (38). Honig’s goal is not to destroy 1

Kantianism as much as to temper its claims to have placed practical philosophy on stable ground.

Honig’s next target is Rawls, arguably the most prominent gure in contemporary Anglo-American political theory (Moore 2010). In A Theory of Justice, Rawls aspires to nd an Archimedean point that will enable a rational and reasonable resolution to the questions of how to order the basic structure of society. Rawls wants politics and political theory “to isolate the right vantage point, to establish the right setting, to facilitate the identi cation of these right resolutions, to dissolve the remainders of politics rather than to engage them” (127). Rawls wishes the original position to express human nature, to disclose principles of justice that will resolve all constitutional di

culties once people step, as it were, into the real world. In the

original position, according to Rawls, people recognize that nobody deserves their good or bad fortune. Nobody is responsible for the material conditions into which they were born, so it is fair for society to look at wealth as a collective resource that we may distribute on reasonable and rational principles. At the same time, in Part III of A Theory of Justice Rawls discusses “irresponsible rogues and idiosyncratic mis ts” and declares, “their nature is their misfortune” (149). Rawls, it appears, does not want to jeopardize the foundations of his theory of justice just because some people do not t within its conception of a wellordered society. Honig speaks up on behalf of these mis ts: “Is nothing forgone in the [Rawlsian] uni cation of a life? What about promiscuity, spontaneity, experimentation, the will to live in the present” (151)? For Honig, Rawls is largely responsible for establishing the precedent in Anglo-American philosophy of articulating, once and for all, the basic principles of justice that policymakers and judges must administer. By listening to the people injured by these kinds of systems, Honig contends, we may be in a better position “to diminish the violence and resentment that invariably hurt political arrangements” (159). In Liberalism and the Limits of Justice, Honig explains, Sandel speaks up for embedded selves, people who embody the norms of a community and cannot fathom, say, bracketing their Christian or Muslim identity to think about abstract notions of right or justice. According to Sandel, Rawls commits a kind of violence by asking, say, citizens of faith to disavow their religious commitments when entering the original position behind the veil of ignorance. On the one hand, Sandel recognizes that some people belong to communities that do not t within Rawls’s conception of a democratic culture. On the other, Sandel resists acknowledging that people are pulled by competing tensions within communities, say, by the orthodox Jew resisting her community’s gender norms. “Sandel replicates the Rawlsian move: he domesticates his intrasubjective conception of the self by way of a practice of self-interpretation that is strikingly similar to Rawlsian practices of self-ordering of which Sandel is highly critical” (163). Sandel’s conception of friendship enables him to stipulate the conditions under which the individual will achieve internal harmony in ways analogous to the Rawlsian subject in the original position. Much like the Hegelian critique of Kant, Sandel wants to reconcile the dualisms within Rawls’s theory between the individual and the community. The problem is that this e ort of reconciliation harms willful subjects who resist community norms just as surely as they rebel against philosophers who demand reasonableness. Honig advocates for the “remainders of politics”—the rogues and mis ts who are neither reasonable liberals nor well-adjusted community members and who turn to politics as a way to challenge normalizing

pressures. In the next section, we consider how Arendt draws upon Nietzsche and Arendt to build a virtù conception of politics.

The Resources for an Agonistic Framework In PTDP, Honig identi es two aristocratic predecessors whom she draws from to contest virtue politics, but whom she leaves behind when she articulates a democratic agonistic politics. The rst is Nietzsche. In Thus Spoke Zarathustra, Nietzsche speaks of the Overman as a brave, artistic, life-a

rming individual who

transcends the herd and its tendency to meanness, small-mindedness, and conformity. Like Gilles Deleuze, Michel Foucault, and William E. Connolly before, Honig thinks that the idea of the Overman has interest only if we (re-)conceptualize it to signal “the resistant and unmasterable” side of human nature (65). The other element that Arendt takes from Nietzsche is his celebration of the agon, or contest, in his essay “Homer’s Contest” (2007). “The agon’s contests challenge actors to test themselves, to discover their talents and develop their strengths” (70). Nietzsche himself did not think that it was possible to recreate the ancient agon in modern politics, infused as it is with the mob’s existential rage, or ressentiment, against claims to superiority. In her radicalization and democratization of Nietzsche’s philosophy, Honig thinks that politics may be a site where many people contest the herd-like tendency in human a airs. Honig’s next predecessor is Arendt, author of The Human Condition (1998) and a theorist famous for commending the vita activa, a life committed to doing great deeds and saying great words about matters of common concern. “Arendt theorizes politics as an always un nished business, committed simultaneously and perpetually to the settlement and unsettlement of identities, both personal and institutional.” Arendt’s is “a virtù theory of politics, an activist, democratic politics of contest, resistance, and amendment” (77). Honig, like Arendt, thinks that politics is important and, often enough, a site of exhilarating possibilities to fashion a new and better world. At the same time, Honig thinks that Arendt’s distinction between the political and the social, the public and the private, in its own way, displaces many important political conversations about, say, economic justice or gender roles (118). Honig argues that Arendt overlooks how politics infuses everyday life, including about matters as “mundane” as racial pro ling or pay equity. Again, Honig is only willing to go so far with her aristocratic forerunners before asserting that we need to gure out ways to make ongoing popular contestation a facet of modern life. One aspect of Honig’s legacy is her introduction of new voices into the mainstream conversation of AngloAmerican political theory. Rawls and his communitarian critics share a philosophical canon composed primarily of virtue theorists such as Kant and Hegel committed to laying down the law, as it were, once and for all. By bringing Nietzsche, Arendt, and Derrida into the conversation, Honig is, in Deleuze’s terms (1994), an individual full of “ill will” who prompts political theory to start anew on di erent presumptions, including that in a recalcitrant universe nobody has the right or the power to end political contestation. As a graduate mentor at Harvard, Northwestern, and now Brown University, book review editor of Political Theory (2000–03), and prominent member of the political science profession, Honig has created space for political theorists to diversify the canon to incorporate thinkers as diverse as Benedict de Spinoza, Maurice Merleau-Ponty, Martin Heidegger, Jean-Luc Nancy, Étienne Balibar, Gayatri Chakravorty Spivak, Luce Iragaray, and more (Watson and Honig 2013, 110). A second aspect of Honig’s legacy is her in uence on political realism, a movement that disputes the notion that a priori principles should guide the rough-and-tumble world of politics. In his oft-cited article on “Realism in Political Theory,” William A. Galston (2010, 387) quotes PTDP and extrapolates its meaning thus: “Tranquility is eeting at best; con ict and instability are perennial possibilities. The yearning for a world beyond politics is as best diversionary, at worst destructive.” According to Galston, PTDP is an antidote to political moralism, a family of doctrines that holds that politics is applied morality or that

philosophers ought to discover or construct constitutional principles. Unlike, say, deliberative democrats such as Jürgen Habermas who invite us to imagine that we can transcend politics and attain universally shared ideals in an original speech situation, Galston explains, Honig aligns with Chantal Mou e, Bernard Williams, and others in recognizing that human nature and the circumstances of politics suggest that contest over the role or direction of government is interminable. “Honig acknowledges that ‘[t]he perpetuity of con ict is not easy to celebrate’, and she does not do so. It is rather to say that politics is always and everywhere a tension between the drive for and goods of stabilization and consensus, on the one hand, and the drive for and goods of destabilization and con ict” (Galston 2010, 396). For Galston and other political realists, Honig is important both for her critique of “high liberalism” and its quest to escape from politics and her recognition that political morality is not a science with apodictic principles. In turn, however, Honig worries that certain political realists can become satis ed with a modus vivendi politics that prioritizes stability over justice. For her part, Honig favors an “agonistic realism” that aspires to a better future and that cultivates a ghting spirit for justice and equality (Honig and Stears 2011).

Politics as Negotiating Virtue and Virtù Honig’s heart in PTDP is clearly with the virtù theorists who challenge common sense, expose the cruelties underneath ostensibly pure moralities and political theories, celebrate the possibility of new ideas and practices entering the political arena, and so forth. One pleasure of reading PTDP is its irreverent tone toward theorists and philosophers who write as if they are Supreme Court justices laying down the law. In the conclusion to PTDP, however, Honig makes the crucial admission that politics requires virtue and virtù, order and just the right amount of chaos. “Politics consists of practices of settlement and unsettlement, of disruption and administration, of extraordinary events or foundings and mundane maintenances” (205). Political actors and theorists must daily decide whether to build or destroy, consolidate or disrupt, settle or unsettle. To paraphrase Michael Oakeshott (1996, 121–128), Honig is a “trimmer” who thinks that the times call for sailing toward open seas rather than land, for challenging authority and seeking new political possibilities rather than consolidating established intellectual traditions and political norms. PTDP appeared in an era when much of academic political theory was orienting itself by the work of John Rawls (Moore 2010). In PTDP, Honig focuses her critical attention on Rawls’s A Theory of Justice. Rawls himself, however, tried to fold into his subsequent work a greater appreciation of political contestation— though not, according to Honig (1993, 195–199) enough to change the fundamental tenor of his political philosophy. PTDP is one of the most interesting texts of the liberal–communitarian debate, but it is a mistake to say that the book is only relevant in that context. Honig calls upon political theorists to challenge any philosopher, book, or school of thought that claims to settle the big political questions once and for all and silence the remainders of politics who su er in the new political arrangement. In our political moment, I contend, we witness many self-proclaimed experts claiming to solve political problems with big data, behavioral economics, and evidence-based policies. Technocratic liberals tend not to cite Kant or Hegel or engage in conversations with their philosophical adversaries, preferring to work with political and economic elites in New York City, Silicon Valley, and Washington, D.C. The Obama administration has encouraged this approach to governance, with the U.S. Digital Service composed of technological savants transforming federal agencies with the motto “JFDI (that is, just fucking do it)” (Gertner 2015). One person who bridges the academic and policy worlds and speaks for the new technocratic liberal paradigm, however, is President Obama’s friend and colleague at the University of Chicago: Cass Sunstein. In the next section, I draw inspiration from Honig to challenge

Sunstein’s vision of the regulatory state more or less shutting down the agon for many of society’s most vexed dilemmas.

Cass Sunstein and the Apolitical Regulatory State Earth needs a virtual country: #Rationalia, with a one-line Constitution: All policy shall be based on the weight of evidence. Neil deGrasse Tyson (2016) We live in an era that expresses a deep distrust for the political, that is, public contestation over the values that should govern our common way of life. From one side, the threat comes from ultra-nationalist conservative movements that o er simplistic reasons for a country’s decline—including, often enough, the presence of immigrants and people of di erent religions or ethnicities. From the other side, liberal technocrats assert that they will govern by facts and evidence and thereby avoid the disputes over values that so often consume political life. In their own way, both camps displace politics as conceptualized by Arendt and Honig. In this section, I update the agonistic critique of political rationalism by contesting the antipolitical vision of Cass Sunstein, one of the most prominent scholars in the American legal academy. From 2009 to 2012, Sunstein was America’s so-called “regulatory czar” as administrator of the White House O

ce of Information and Regulatory A airs (OIRA). In Simpler: The Future of Government (2013),

Sunstein justi es the role of OIRA as approving or rejecting any regulatory rule proposed by a federal agency such as the Department of Transportation, the Department of Treasury, or the Environmental Protection Agency. In Simpler, Cass Sunstein addresses the problem that most people do not think clearly about their own lives or that of the polity. Sunstein makes this point using terms from Daniel Kahneman’s Thinking, Fast and Slow. System 1 is the cognitive system that makes automatic, or instantaneous, decisions, to good e ect, when we jump out of the way of a moving car, or bad, when we decide that we dislike a political candidate because of the pitch of her voice. System 2 is the more deliberative and re ective cognitive system that should forge and implement public policy. That does not happen enough, including because of what Russell Hardin calls the “crippled epistemology of extremism,” the fact that members of a crowd often reinforce each other’s worst System 1 cognitive tendencies (2013, 149). Given the sometimes “crippled epistemology” of the electorate, Sunstein argues that civil servants in federal agencies should be empowered to forge regulations that enable them to complete their mission of protecting and increasing the general welfare. “In my own experience,” Sunstein explains, “agencies are highly professional, and they work hard to get the analysis right. Those who do the analysis are civil servants, not political appointees” (2013, 180). One reason to empower civil servants is that they must make decisions based on facts and sound arguments. When President Reagan created OIRA in 1980, he entrusted it to only permit federal regulations whose bene ts exceeded its costs. In the aftermath, many Democrats accused OIRA of acting as a barrier to progressive legislation about health, environmental, or labor regulations. Sunstein commends President Obama for his executive order to reinforce the executive branch’s commitment to OIRA and its emphasis on evidence-based regulatory oversight. According to the executive order, “each agency is directed to use the best available techniques to quantify anticipated present and future bene ts and costs as accurately as possible” and “each agency shall ensure the objectivity of any scienti c and technological information and processes used to support the agency’s regulatory actions” (2013, 218, 219). Sunstein praises the executive branch’s commitment to run its agencies using social science techniques such as behavioral economics and cognitive psychology.

Sunstein enjoins technocrats to transform society in profound ways through the use of choice architecture and nudges. Choice architecture is “the design of the social environment in a way that in uences people’s choices—for example, by a ecting ease or accessibility, by providing information, or by making certain features of the situation salient and clear or instead invisible” (2013, 37). Nudges are “approaches that in uence decisions while preserving freedom of choice” (2013, 38). Sunstein calls his political philosophy libertarian paternalism. It is paternalistic because it aims to create choice architectures that create good outcomes for most citizens—to live longer, to be healthy, to save money, etc. To the charge that he is overriding citizens’ autonomy, Sunstein says that a good choice architect will merely nudge people to do things that they would choose to do if they had su

cient time, knowledge, and expertise to study the issue

in depth. Sunstein calls his view libertarian because he wants the regulatory state to give maximum choices to citizens, including opting out of regulations if possible. Sunstein thinks that history will show that many political debates were merely technical problems that have a solution. “My own experience in government was that in tough cases, the real issues usually involved the facts, not values, and certainly not which interest groups to favor. When people in government are discussing a rule, a certain task is to ascertain those facts.” Once they do and convey that information to the interested parties, “they are far less likely to disagree” (2013, 149). Above, we saw that Honig recommends two strategies to problematize any attempt to displace the political: reveal how the author struggles with the question of gaining compliance with a politics that ostensibly expresses human nature, and disclose the real-world problems with trying to shut down the agon. Here, I employ these strategies to show that Sunstein’s technocratic vision both relies on coercion more than it admits and that its supposed objectivity can lead to shortsighted policies. Consider Sunstein’s approval, as OIRA administrator, of rules to increase the fuel economy of cars and trucks. Sunstein uses this case as a paradigm of how the regulatory state can arrive at wise outcomes in ways that produce results that gain the assent of all parties (2013, 81–89). The law requires automobile manufacturers to place stickers on new vehicles identifying their fuel economy. There are multiple ways to convey misleading information. Just listing miles per gallon (MPG) does not convey how there are greater cost savings by moving, say, from 20 to 25 MPG than from 40 to 45. Assigning the car a fuel e

ciency grade

of A, B, or C may signal that the government is rating the car as a whole rather than just its fuel e

ciency.

After consulting with experts and reading public comments, the regulators designed a label that nudges consumers to buy more fuel-e

cient cars and automobile manufacturers to target these consumers. The

bene ts to the new label include less pollution, more money in the pockets of consumers, greater energy security, and more time for drivers who have to refuel less frequently (2013, 72). The rst thing to note is that the procedure to make the label did not follow a calm calculation of costs and bene ts. The automobile industry contested the letter grade system and said that it represented a heavyhanded approach by the government. “Undoubtedly their self-interest was at work. They feared that a low letter grade could reduce sales” (2013, 87). Sunstein explains that “we were ultimately convinced that the industry critics had some good points” (2013, 88), and yet he never identi es what those good points are in addition to reduced sales, a point that he dismisses as self-interested. In Simpler, Sunstein also neglects to mention that his role as OIRA administrator coincided with the federal government’s $80 billion bailout of the U.S. automobile industry. In other words, the federal government had a nancial interest in ensuring that the U.S. automobile industry was not harmed by fuel economy regulations. As is turns out, the case of labeling cars for fuel e

ciency is saturated with politics.

Furthermore, Sunstein never considers the possibility that a transportation system built around public highways and private cars—rather than, say, public expenditures for urban transit and railroads—may be a major contributor to the problem of climate change and air pollution. In May 2016, New York issued a public warning that the air quality index (AQI) had surpassed 100 and that people should curtail automobile travel

and, instead, use public transportation where available. This advice, while sensible given the ground-level ozone levels, confronts the problem that Robert Moses—the architect of the highway system around New York City and, through his disciples, around the country—built a transportation system predicated on cars owned by the upper- and middle-classes rather than buses used primarily by the poor (Caro 1975). American policymakers in subsequent decades have been disinclined to build an a ordable and e

cient

public transportation system that is the norm in much of the developed world. Sunstein seems uninterested in reopening the debate about public transportation in our country. According to the president of Clean Air Watch in an op-ed written before Sunstein’s con rmation hearing as OIRA administrator, Sunstein thinks that “it ‘might be better’ to help future generations deal with global warming by ‘including approaches that make posterity richer and better able to adapt’ than by ‘reducing emissions’” (O’Donnell 2009). In other words, like many of the University of Chicago economists that Sunstein cites favorably in Simpler, he is wary of expensive federal regulations to address global warming. Perhaps more important for the focus of this essay, Sunstein evinces annoyance when anybody challenges him or one of his OIRA rulings. Whenever a member of his sta

asks about how a particular interest group

would respond to one of his decisions, he replies: “That’s sewer talk. Get your mind out of the gutter” (5). Sunstein is not one to admit that his judgment is fallible or that his decisions are contestable. Reading Sunstein’s work through the lenses of Honig’s PTDP, however, gives us the disposition, tools, and reasons to challenge Sunstein’s virtue theory of politics. Honig invites us to be angry whenever anybody claims to have settled the big questions and to claim that we can now replace politics with administration. She teaches us to look at blind spots within a political theory, including strange silences and evasions about what has to happen for the theory to work in the real world. And she presses us to ask about the costs of a theorist trying to bracket questions that should perhaps be reconsidered.

Conclusion: Honig as Virago In PTDP, Honig confronts the accusation that her celebration of virtù—from the Latin vir, “man”—may be problematic because of its masculinist connotations. She replies that her conceptual persona is the virago —“a ‘turbulent woman,’ a ‘whirlwind,’ a ‘woman of masculine strength or spirit’ … who is both human and a force of nature” (16). This image helps us visualize Honig’s role in contemporary political theory. Many political theorists are drawn to the vocation because they want to address real-world problems and become overcon dent in their prescriptions. According to Honig, there is a place for virtue theorists, and in fact it is hard to envision a political theory that does not have traces of a virtue politics that seeks to harmonize ideas and structures, people and practices. In her book, Honig focuses on the virtue theorists at the forefront of the liberal–communitarian debate, but as the previous section shows, her framework may also help us confront liberal technocrats who seek to minimize contentious political debate. As a virago, however, Honig is not interested in building theoretical edi ces that settle political questions. She is a risk taker, a provocateur, a transgressor of intellectual and political boundaries. Political theorists virtually always take certain presuppositions for granted, and Honig challenges us to unearth and problematize those presuppositions. Much like a rock and roll song that energizes a rebellious spirit, Honig’s PTDP motivates theorists to leave behind their established categories and frameworks and “let in a 2

bit of free and windy chaos” into their political thinking.

References Arendt, Hannah. 1958/1998. The Human Condition. Chicago: University of Chicago Press. Google Scholar Google Preview WorldCat COPAC Bennett, Jane. 2001. The Enchantment of Modern Life: Attachments, Crossings, and Ethics. Princeton: Princeton University Press. Google Scholar Google Preview WorldCat COPAC Caro, Robert A. 1975. The Power Broker: Robert Moses and the Fall of New York. New York: Vintage Books. Google Scholar Google Preview WorldCat COPAC Coles, Romand. 1997. Rethinking Generosity: Critical Theory and the Politics of Caritas. Ithaca, NY: Cornell University Press. Google Scholar Google Preview WorldCat COPAC Connolly, William E. 1991. Identity/Di erence: Democratic Negotiations of Political Paradox. Ithaca, NY: Cornell University Press. Google Scholar Google Preview WorldCat COPAC Connolly, William E. 1999. Why I Am Not a Secularist. Minneapolis, MN: University of Minnesota Press. Google Scholar Google Preview WorldCat COPAC Deleuze, Gilles. 1994. Di erence and Repetition. New York: Columbia University Press. Google Scholar Google Preview WorldCat COPAC Deleuze, Gilles and Félix Guattari. 1994. What is Philosophy?, trans. Graham Burchell and Hugh Tomlinson. New York: Columbia University Press. Google Scholar Google Preview WorldCat COPAC Flathman, Richard E. 1989. Toward a Liberalism. Ithaca, NY: Cornell University Press. Google Scholar Google Preview WorldCat COPAC Galston, William A. 2010. “Realism in Political Theory.” European Journal of Political Theory 9(4): 385–411. Google Scholar WorldCat Gertner, Jon. 2015. “Obama and His Geeks.” Fast Company 197: 56–91. Google Scholar WorldCat Honig, Bonnie. 1993. Political Theory and the Displacement of Politics. Ithaca, NY: Cornell University Press. Google Scholar Google Preview WorldCat COPAC Honig, Bonnie and Marc Stears. 2011. “The New Realism: From Modus Vivendi to Justice.” In Political Philosophy Versus History? Contextualism and Real Politics in Contemporary Political Thought, edited by Jonathan Floyd and Marc Stears, 177–205. New York: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Humphrey, Mathew, David Owen, and Joe Hoover. 2014. “Humanism from an Agonistic Perspective: Themes from the Work of Bonnie Honig.” Contemporary Political Theory 13(2): 168–170. Google Scholar WorldCat Korsgaard, Christine M. 2009. Self-Constitution: Agency, Identity, and Integrity. New York: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Mulhall, Stephen and Adam Swi , eds. 1992. Liberals and Communitarians. Cambridge, MA: Blackwell. Google Scholar Google Preview WorldCat COPAC

Moore, Matthew J. 2010. “Political Theory Today: Results of a National Survey.” PS: Political Science & Politics 43(2): 265–272. Google Scholar WorldCat Nietzsche, Friedrich. 2007. “Homerʼs Contest.” In On the Genealogy of Morality, trans. Carol Diethe, edited by Keith Ansell-Pearson . Revised Student edn., 174–181. New York: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Oakeshott, Michael. 1996. The Politics of Faith and the Politics of Scepticism, edited by Timothy Fuller. New Haven, CN: Yale University Press. Google Scholar Google Preview WorldCat COPAC OʼDonnell, Frank. 2009. “How Anti-Regulation is Obamaʼs New Regulatory Czar?” Think Progress, January 10. Google Scholar WorldCat Rawls, John. 1971. A Theory of Justice. Cambridge, MA: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Sandel, Michael J. 1982. Liberalism and the Limits of Justice. New York: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Saurette, Paul. 2005. The Kantian Imperative: Humiliation, Common Sense, Politics. Toronto: University of Toronto Press. Google Scholar Google Preview WorldCat COPAC Sunstein, Cass R. 2013. Simpler: The Future of Government. New York: Simon & Schuster. Google Scholar Google Preview WorldCat COPAC Tampio, Nicholas. 2012. Kantian Courage: Advancing the Enlightenment in Contemporary Political Theory. New York: Fordham University Press. Google Scholar Google Preview WorldCat COPAC Tyson, Neil deGrasse. 2016. “Earth needs a virtual country: #Rationalia, with a one-line Constitution: All policy shall be based on the weight of evidence.” 7:12 am. June 29. Tweet. Walzer, Michael. 1990. “The Communitarian Critique of Liberalism.” Political Theory 18(1): 6–23. Google Scholar WorldCat Watson, Janell and Bonnie Honig. 2013. “Feminism as Agonistic Sorority: An Interview with Bonnie Honig.” Minnesota Review (81): 102–125. Google Scholar WorldCat

Notes 1

The Hopkins school has a complex relationship with Kant and the Kantian tradition. On the one hand, the school thinks that Kantian moral philosophy o en enough “smells of cruelty” (in Nietzscheʼs famous phrase). On the other, the school looks for resources within his philosophy—such as his reflections on the sublime, the Enlightenment, and a ect—for ways to challenge the dominant Kantian tradition. In addition to PTDP, see Bennett 2001, Coles 1997, Connolly 1999, Saurette 2005, and Tampio 2012.

2

The quote is from Deleuze and Guattari (1994, 203).

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Axel Honneth, The Struggle for Recognition  D. Cli on Mark https://doi.org/10.1093/oxfordhb/9780198717133.013.2 Published: 07 April 2016

Abstract Axel Honneth’s The Struggle for Recognition develops an empirically anchored theory of social con ict based on Hegel’s theory of recognition. In this book, he argues for an intersubjective view of identity and a moral interpretation of social con ict. According to Honneth, social struggles may be normatively evaluated by the extent to which they provide the preconditions for self-realization in the form of three distinct types of recognition: love, respect, and social esteem. Honneth’s normative ideal aims to occupy a middle ground between overly abstract Kantian theories and potentially parochial communitarian theories. Although the book has been subject to a variety of criticisms, it provides the most systematic and ambitious social theory of recognition available today.

Keywords: Axel Honneth, Hegel, recognition, identity, critical theory, social theory Subject: Comparative Politics, Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Axel Honneth’s stated aim in The Struggle for Recognition (hereafter SR) is to develop “the foundations for a social theory with normative content” (1). That is, he aims to explain the sources of social con ict, and to provide a normative standard by which particular struggles can be evaluated. This relatively generic theoretical goal captures neither the vast scope nor the particular character of Honneth’s undertaking. To ful ll the book’s stated aim, Honneth develops a theory of recognition inspired by Hegel, including an intersubjective theory of the self, an interpretation of the ethical horizon of modernity, and a theory of historical progress. The endeavor is made no less di

cult by the stringent methodological standard that Honneth sets for

himself. As a central member of the “third-generation” of the critical theory tradition originating in the work of Horkheimer and Adorno, Honneth believes that the sources of normative theory must be found immanently within social reality. SR is the result of a deep re ection on the history of critical theory, and represents Honneth’s attempt to make good on its original promise by assimilating the insights of previous theorists, and avoiding the theoretical pitfalls into which authors from Hobbes to Habermas have stumbled. The enormous ambition of the project means that SR has the character of a sketch of a future research

program, which Honneth has continued to elaborate in the decades since the book’s publication, rather than a completed theory. This chapter will begin by explaining the theoretical challenges that Honneth attempts to meet before providing an account of how he attempts to meet them.

The Critique of Atomism If there is a single defect in social and political theory that SR sets out to correct, it is reliance on an atomistic philosophical anthropology. The rst theoretical move of the book, therefore, is to set out Hegel’s critique of early modern natural rights theories, which exemplify the dangers of adopting an individualistic starting point for social theory. Thomas Hobbes most powerfully expresses one branch of the natural right tradition, which Hegel calls “empirical” natural right. For Hobbes, the starting point of social theory is a hypothesized state of nature in which self-interested individuals guided by instrumental reason seek to secure their self-preservation. Without the security provided by an overarching political authority, individuals begin to see one another as potential threats, generating incentives for pre-emptive attacks. Con ict, on this view, stems from the con icting interests of individuals, and morality is imposed to contain these con icts, which put the lives of all at risk. For Hegel, as for Honneth, the idea of the atomistic self-interested individual is a misleading philosophical ction. In the rst place, humans in fact are fundamentally intersubjective beings, formed in and through their relationships with others. There are no asocial self-interested human beings; there is no primordial state of nature governed only by strategic considerations. Human beings are always already social, and their social interactions, according to Hegel, are always already ethical. By starting from the standpoint of the individual separate from his or her social context, atomistic theories necessarily miss the constitutive role played by ethical social relations in forming individuals, and falsely interpret the motives for con ict as strategic rather than moral. According to Hegel, the second, “abstract,” branch of the natural right tradition, exempli ed by Kant and Fichte, makes essentially the same mistake. Kant and Fichte do not imagine the individual as essentially self-interested, but instead as rationally autonomous. Whereas for Hobbes the ethical act is a command of prudence, the Kantian tradition conceives it as a command of pure practical reason purged of all empirical in uence. Morality is then imposed as an act of will on the unruly empirical world of human desire. In both cases, social theory is derived from an atomistic anthropology that conceals the intersubjective nature of human life. Honneth argues that instead “every philosophical theory of society must proceed not from the acts of isolated subjects but rather from the framework of ethical bonds, within which subjects always already move” (15). Social theory must begin immanently from the normative assumptions implicit in social reality. Despite its foray into early modern political theory, SR is not primarily a work of intellectual history, nor are Kant and Hobbes its primary critical targets. However, Honneth believes that Hegel’s critique is worth restating because the errors of pre-Hegelian natural rights teachings have come to dominate political and social theory. Authors working in the Kantian tradition, such as Rawls, continue to derive normative theories abstractly from hypothetical models and, in doing so, lose their foothold in empirical reality. Modern sociology and historiography, by contrast, have relied on an implicitly Hobbesian anthropology, interpreting social con ict as the result of clashing group interests stemming from material inequalities (161). This results in the complementary problem that the pre-theoretical normative resources immanent in social reality are eclipsed. If actual social struggles are understood exclusively in terms of the pursuit of interest or power, then they cannot provide the ground for normative critique. As in Hobbes, what is meant to be moral appears instead as strategic.

Critical Theory If the critique of atomism illustrates Honneth’s broad theoretical orientation, situating his work in the tradition of critical theory provides a more precise idea of his aims in SR. His previous book, The Critique of Power: Re ective Stages in a Critical Social Theory, traces the development of critical theory from the work of Horkheimer and Adorno, to its later developments in Foucault and Habermas. According to Honneth, his predecessors have not yet established a satisfactory connection between immanence and transcendence. For example, Horkheimer and Adorno were right to begin from an analysis of social reality but, according to Honneth, their interpretation was one-dimensional. By conceptualizing human action in terms of instrumental reason and the drive to dominate nature, they obscured the ethical and moral dimensions of human action. Although they began with an immanent analysis of social conditions, the logic of instrumental reason cut o

their access to the normative resources necessary for critique.

Foucault and Habermas, argues Honneth, represent the next step in the progress of Critical Theory. Honneth credits Foucault, for example, with disclosing the social as a sphere of intersubjective struggle, but argues that works such as Discipline and Punish lapse into “systems-theoretic” thinking. Because Foucault’s explanation of social domination excludes all normative agreements and moral incentives, it too forecloses the possibility of critique (Honneth 1993, xvii). For Honneth, it is Habermas’s theory of communicative action that points the way forward for critical theory. Habermas’s approach is promising because communicative action represents a source of intersubjective claims that can serve as a (non-atomistic) standard for the critique of power. Although Honneth will follow Habermas’s intersubjective turn, he argues that his predecessor’s approach is defective in two main ways. The rst is that the idea of communicative action oriented to understanding is too narrowly cognitive, and does not do justice to the complex ways in which modern freedom is actualized in society. In place of Habermas’s philosophy of language, Honneth o ers a much broader theory of recognition including linguistic and non-linguistic, rational and a ective forms of communicative action, which together provide the normative conditions of self-realization. The second is that Habermas separates the “lifeworld” in which normative action is possible, from the “system,” which is governed by a purely strategic logic of integration. In doing so, argues Honneth, he forgoes the possibility of grounding a critique of aspects of social life which are categorized as part of the “system.” As is indicated by the subtitle of this earlier book, Honneth views the history of critical theory as a re exive process whereby successive authors re ect upon and improve the initial idea established by Horkheimer. SR represents Honneth’s attempt to answer the problems he raised in The Critique of Power. His goal, then, is to nd within the logic of social practices some moral ideas, which can serve as a normative standard that transcends the context in which they are discovered, and in doing so, he must avoid the trap of reducing social action to a strategic logic. In his words, he aims “to integrate the social-theoretical insights of Foucault’s historical work within the framework of a theory of communicative action” in a way that relies “on a concept of morally motivated struggle” (Honneth 1995a, 1).

Axes of Recognition In order to meet the theoretical challenges set out in his earlier work, SR provides a “systematic renewal” of Hegel’s early theory of recognition as outlined in his Jena-period writings. From Hegel, Honneth adopts the basic structure of his theory, including: the conception of the human subject as constituted through its relations of recognition with others, and the idea that the ethical development of society is driven forward through a historical struggle for recognition. Yet Honneth argues that Hegel’s own theory relies on speculative metaphysical assumptions that are no longer tenable, and therefore must be reconstructed on an empirical basis. This leads Honneth to draw heavily on the social psychology of G. H. Mead, psychoanalytic theory, and modern historiography, among other sources, to substantiate his theoretical claims. At the core of Honneth’s overall endeavor is a theory of recognition which provides the basis for both his interpretation of social con ict and the normative standard for evaluating these con icts. Recognition is important, according to Honneth, because the formation of ethical personhood depends on it. Humans do not become ethical subjects by some monological process of internal development; they become so by engaging in interactions with others and learning to see themselves through the perspectives that others have taken on them (173). Honneth analyzes the process of recognition and identity development into three distinct axes: “the extent of one’s positive relation-to-self increases with each new form of recognition that individuals are able to apply to themselves as subjects. In this way, the prospect of basic self-con dence is inherent in the experience of love; the prospect of self-respect, in the experience of legal recognition; and nally the prospect of self-esteem, in the experience of [esteem].” (173). These three relations-to-self, according to Honneth, constitute what he variously calls “self-realization” or “undistorted identity development.” To become an autonomous ethical agent in the modern world, one must enjoy self-con dence, self-respect, and self-esteem, each of which requires, for its development, a distinct kind of recognition (love, legal recognition, social esteem). These axes of recognition are each typically realized in di erent types of institutionalized social relationships (or “patterns of social interaction”), whether in loving primary relationships, legal relations, or a social state of solidarity. Each axis is governed by a widely shared norm which is linked to its meaning. For example, legal recognition is governed by the principle of legal equality which respects individuals in virtue of their (equal) capacity for moral autonomy. Conversely, each axis also has a characteristic form of disrespect or misrecognition. This occurs when the shared norms governing recognition are violated in a particular case. Such denials of recognition not only result in shame and anger, but also hold the potential to in ict psychic damage by undermining the positive relations-to-self which recognition underpins. Misrecognition “represents an injustice not simply because it harms subjects or restricts their freedom to act, but because it injures them with regard to the positive understanding of themselves that they have acquired intersubjectively” (131). Thus each type of recognition is linked to a shared norm, a positive relation to self, and speci c patterns of social interaction in which it is claimed and granted.

Love and Self-confidence Drawing on the object-relations theories of Winnicott and Benjamin, Honneth establishes love as the rst axis of recognition (98–107). Love is an attitude of care and concern directed at an individual’s concrete needs and desires. This kind of recognition allows the individual to gain a basic con dence in his or her own needs and desires, and their expression. According to Honneth, the experience of love is “both conceptually and genetically prior to every other form of reciprocal recognition” (107). It is conceptually prior, because it is a condition of any further positive relations-to-self, genetically because the paradigm of the loving relationship is that between mother (primary carer) and child. Although loving relationships continue throughout life, they are especially important in early childhood, and necessary in the process by which the child begins to distinguish itself from the surrounding environment. Through the experience of continued care and concern from others, the child develops basic con dence in its own needs and trust in the world. Love relationships thus mediate the core dependence of needy individuals on others with the recognition of their own independence. Honneth underscores the fundamental importance of self-con dence in his descriptions of the terrible e ects of its loss. Just as love supports the development of self-con dence, some types of disrespect undermine it. According to Honneth, forms of physical abuse that take control of the body of the victim, such as torture and rape, can “damage one’s basic con dence (learned through love) that one can autonomously coordinate one’s own body” (133). Loss of basic self-con dence can destroy trust in oneself and in the world, and can adversely a ect all dealings with other subjects, causing damage that lasts long after the abusive episode.

Legal Recognition and Self-respect Legal relations provide Honneth’s second axis of recognition, which enables individuals to develop selfrespect. The de ning feature of modern legal systems, according to Honneth, is that they are legitimated by the idea of rational agreement between autonomous individuals: “a legal order can be considered to be valid … only to the extent to which it can appeal, in principle, to the free approval of all the individuals it includes” (114). This form of legitimation implies two characteristics of the subjects of law. First, subjection to law implies the capacity for rational agreement on the part of the subject, and therefore his or her moral autonomy; second, it implies equality. Moral autonomy is understood as the universal and de ning feature of human persons, which, importantly, all persons possess equally. Therefore, modern legal systems (at least o

cially) must treat all subjects equally, admitting no exceptions or privileges (115). Every person, in

virtue of their autonomy, must be treated as a “full- edged” member of the political community. For Honneth, the most important legal expressions of human autonomy are civil, political, and social rights. Individual rights are aimed speci cally at preserving the capacity for moral autonomy, for example by protecting individuals from threats to their physical integrity and their property, and by providing the necessary preconditions for the exercise of autonomy. Possessing rights enables individuals to make socially valid claims, and by asserting his or her rights, an individual can demonstrate to himself or herself that he or she is “universally recognized as a morally responsible person” (120). It is only when they are treated as morally responsible and equal members of the community that individuals can “come to conceive of themselves as persons who can deliberate about their own desires” (177). Self-respect, for Honneth, is just this sense of one’s own autonomy and equality. Conversely, the denial of legal respect can injure self-respect. Honneth refers to such cases as the civil rights struggles in the United States in the 1950s and ’60s, arguing that the experiences of oppressed groups shows that the denial of legal recognition “necessarily leads to a crippling feeling of social shame, from which one can be liberated only through active protest and resistance” (121). Legal underprivileging,

according to Honneth, can undermine individuals’ sense of moral responsibility, and “typically brings with it a loss of self-respect, of the ability to relate to oneself as a legally equal interaction partner with all fellow humans” (134).

Esteem and Self-esteem On Honneth’s account, self-realization requires recognition as equal persons and particular individuals. It is social esteem, the third axis, that recognizes the personal capacities and achievements that distinguish individuals from one another, and allows them to see their own capacities and achievements as valuable. While decisions about what kinds of traits are most estimable may remain controversial, Honneth believes that societies share a set of common goals in light of which members of a community can recognize one another’s capacities and achievements as valuable. The experience of being esteemed by others allows the individual to see their own accomplishments in a positive light, and produces “a felt con dence that one’s achievements or abilities will be recognized as ‘valuable’ by other members of society” (128). Esteem, argues Honneth, is the social condition of self-esteem. Misrecognition in this sphere, called “denigration,” occurs when the shared horizon of values constitutes “individual forms of life and manners of belief as inferior or de cient.” This “robs the subjects in question of every opportunity to attribute social value to their own abilities” (134).

The Moral Grammar of Social Conflict Honneth’s theory of recognition is a theory about how human agents are constituted intersubjectively, but it is also an interpretation of the moral horizon within which they are constituted. Ethical subjects are constituted through social interactions, and those interactions are governed by three widely shared norms, which provide the basis for Honneth’s interpretation of social con ict. According to him, the impetus for social struggle comes from the experience of disrespect, that is, from the sense that the norms of recognition are being applied unfairly in one’s own case. Disrespect may provoke feelings of shame and anger, and if individuals see that this experience is typical of a broader group, they may engage in collective struggle over the proper interpretation and application of the shared norms. Therefore, pace Hobbes, social con ict has its origins in disappointed ethical expectations, not clashing interests; the grammar of social con ict is moral, not utilitarian. Within modern sociology, under the in uence of Weber, “the internal connection that often holds between the emergence of social movements and the moral experience of disrespect has, to a large extent, been theoretically severed at the start. The motives for rebellion, protest, and resistance have generally been transformed into categories of ‘interest’, and these interests are supposed to emerge from the objective inequalities in the distribution of material opportunities without ever being linked, in any way, to the everyday web of moral feelings” (161). Similarly, “under the in uence of utilitarian currents of thought, historical research on political movements was, for a long time, so wedded to the standard model of the collective pursuit of interests that the moral grammar of social struggles had to remain hidden from it” (166). One of the main aims of SR is to reveal this hidden grammar. Although the moral dimension of social con ict has been mostly ignored, Honneth nds some initial empirical support for his hypothesis in the work of historians such as E. P. Thompson (1963) and Barrington Moore (1966). Thompson’s scholarship demonstrated that the resistance of the English working classes to capitalist industrialization stemmed not so much from an experience of deprivation as from the violation of workers’ moral expectations. Similarly, Barrington Moore used the idea of an implicit social contract to explain protest and resistance. He found that those who formed militant working class groups in Germany

between 1848 and 1920 “were primarily those that felt their previously recognized self-understanding to be massively threatened by socio-political changes” (167). The maneuver of re-interpreting as struggles for recognition movements traditionally understood as a matter of class or group interests is one of Honneth’s characteristic moves, and another key aim of the book.

Moral Progress: The History of Recognition Honneth believes that his tripartite model of recognition is valid across many di erent societies, but he does not regard it as an anthropology good for all times and places. He therefore provides a two-stage history of recognition. The rst stage explains the emergence of the three axes of modern recognition, and the second their progressive arc. Within Honneth’s historical framework, societies are considered premodern insofar as they are governed by traditional moralities that embed ethical beliefs, social status, and recognition within a metaphysically anchored worldview. Such societies were organized into a naturalized hierarchy of groups based on birth and function. A central di erence between premodern and modern recognition is that, in earlier societies, legal recognition and social esteem were fused into a single axis of recognition based on group status. Thus, for example, members of the nobility were granted legal privileges and high social esteem based on the position held collectively by their social group. Just as recognition was group-based, so was identity. Individuals thought of themselves primarily as members of their group, and valued themselves accordingly. Honneth designates the level of social standing associated with membership in a group as “honour.” Because society was organized into a hierarchy, relations of recognition di ered within social groups and between groups. Within a social group, there existed a state of social solidarity in which individuals could esteem each other mutually, whereas relations between groups were characterized by asymmetrical recognition (124). Honneth marks the shift to modernity with the replacement of traditional ethical beliefs by postconventional morality. Modernity detaches moral norms from any metaphysical cosmic order and bases them instead on inner-worldly notions of the autonomous will. In terms of recognition, this leads to the separation of legal recognition and esteem into two separate spheres. Legal recognition, as we have seen, is newly established upon the idea of moral autonomy, social esteem upon individual achievement. Historically, the disintegration of the old value-hierarchy allowed and was pushed forward by the bourgeoisie’s attack on traditional notions of honor, and its attempt to establish new value-principles to govern social esteem. Once the three principles of modern recognition are established, they each contain the potential for moral development. That is, while they begin as abstract and imperfectly applied, they may, driven by historical struggles for recognition, become more e ectively realized. They become elaborated in greater detail, and are applied more e ectively to greater numbers of people. Honneth discerns two paths of progress along the axis of legal recognition: generalization (legal equality is extended to more members of society) and de-formalization (legal recognition becomes more precisely articulated and adapted to circumstance). Drawing on the work of T. H. Marshall, Honneth argues that the history of individual rights illustrates both of these processes. The widening of political su rage, for example, represents gains in generalization, while development of new kinds of rights-claims represent de-formalization. Honneth interprets civil, political, and social rights as all following from the original idea of full- edged membership in a community of morally autonomous persons: [I]n order to be involved as morally responsible persons, individuals need not only legal protection from interference in their sphere of liberty, but also the legally assured opportunity for

participation in the public process of will-formation, an opportunity they can only take advantage of, however, if they also have a certain social standard of living (117). These three categories of rights did not emerge all at once: roughly speaking, civil rights were established in the eighteenth century, political rights in the nineteenth, and social rights only in the twentieth. Honneth interprets the historical expansion of rights as the gradual unfolding of the idea of moral autonomy in evergreater practical detail. It is a process of “de-formalization” because it adapts formal versions of rights to the particular lived circumstances in which the rights are to be exercised. Civil rights were meant to protect the moral autonomy of each individual, but it eventually became clear that this could only be achieved if every subject had a way to represent their interests politically. In the late nineteenth century, many societies decided that civil and political rights would be “a merely formal concession to the mass of the population as long as the possibility for actively taking advantage of them was not guaranteed by a certain social standard of living and degree of economic security” (117). Social rights are thus an adaptation of rights to the concrete circumstances surrounding the exercise of autonomy. Honneth quotes Marshall: “the urge forward … is an urge towards a fuller measure of equality, an enrichment of the stu

of which the status is made and

an increase in the number of those on whom the status is bestowed” (118). Progress in terms of legal recognition in turn represents progress in terms of self-realization, both by making self-respect available to more people and by deepening what self-respect implies. Processes of individualization and equalization mark progress in the sphere of esteem. Individualization represents a move away from the group-based esteem of the premodern era toward a society in which esteem is referred back to individual achievement. Progress in individualization proceeds negatively through the gradual elimination of denigration. Denigration exists where the achievements or capacities of a certain group or type of self-realization is systematically devalued. The group-identity overshadows individual contribution for members of denigrated groups. As group prejudice is eliminated, members of an erstwhile denigrated group become capable of winning esteem for their individual capacities. The second vector of progress in esteem—equalization—is the result of the evolution of the shared value standards within a community. According to Honneth’s narrative, the rst successful attack on the premodern principle of group honor came from the bourgeoisie, who established the principle of individual achievement. Individualization of esteem, argues Honneth, dramatically expanded the kinds of contributions and capacities that could be recognized as valuable. However, this process of valuepluralization did not occur all at once. Even when the idea of individual achievement had become widely accepted, Honneth observes that the shared cultural value-hierarchy continued to value the achievements of certain groups more than others. For example, after the bourgeoisie successfully entered into competition for social esteem with the nobility, the economic activity of the male bourgeois became the model for individual achievement. Comparatively, other forms of self-realization were devalued. Over time, however, various struggles for recognition have succeeded in winning esteem for a greater variety of kinds of self-realization. According to Honneth, historical working class struggles can often be understood as collective attempts to win social esteem for their contribution to social goals. Pluralization of esteem increases solidarity, which Honneth says depends on “the extent to which every member of a society is in a position to esteem himself or herself” (128). Solidarity implies a shared set of abstract goals and values “that allow the abilities and traits of the other to appear signi cant for shared praxis,” but it also requires that the cultural system of value is su

ciently complex and detailed to include

the multifarious capacities and achievements of all members of society. Pluralization leads to equalization because, by bringing to light the value of di erent kinds of achievement, it provides more people with the opportunity to win esteem. When the cultural value system is articulated in enough detail, and all forms of collective denigration have been eliminated from society, Honneth argues that “for the rst time, the

horizon within which individual competition for social esteem can then acquire a form free from pain, that is, a form not marred by experiences of disrespect”(130). In SR, love is uniquely immune to historical development: “Because it does not admit of the potential for normative development, the integration of love into the intersubjective network of a post-traditional form of ethical life does not change its fundamental character” (176). However, in his later work, Honneth revises this view, adducing at least two historical improvements to this form of recognition. The rst is that childhood has become an “institutionally marked o

… phase of the life process requiring special

protection.” Second, “the relations between the sexes were gradually liberated from economic and social pressures and thus opened up to the feeling of mutual a ection” (Fraser and Honneth 2003, 139). Both the bourgeois love-marriage and the institutionalization of relations between parent and child have provided a new form to recognition as loving care in light of individual needs and desires.

A Formal Conception of the Good The aim of SR is not only to explain the social struggle, but also to nd a normative standard to evaluate particular struggles. To this end, Honneth extrapolates a “hypothetical end-state” from his interpretation of the history of recognition in which all three spheres of recognition have reached their highest level of development, and therefore provide the conditions for self-realization to all members of society (171, 175). Following Mead and Hegel, he depicts “a society in which the universalistic achievements of equality and individualism would be so embedded in patterns of interaction that all subjects would be recognized as both autonomous and individuated, equal and particular persons” (171). Honneth’s ideal society is one in which love, rights, and solidarity are developed in their highest forms, ensuring that all members have the chance to develop self-con dence, self-respect, and self-esteem. Individual struggles can be evaluated, according to Honneth, by whether they help to bring about the conditions for universal self-realization. Honneth calls this normative standard a “formal conception of ethical life,” which represents his attempt to steer a methodological middle course between Kantian abstraction and communitarian parochialism The reference to “ethical life” or sittlichkeit signals Honneth’s Hegelian approach as distinct from more abstract Kantian theories. Accordingly, Honneth’s ideal is derived from an empirically grounded notion of the human good as self-realization, and an account of the patterns of social relations that can support it. Because Kantian theories exclude all conceptions of the good in favor of conceptions of “the right” derived from human autonomy, they can neither give an account of the purpose of morality nor the full range of social conditions for self-realization. According to Honneth, this is even true of Rawls. Rawls acknowledges that some forms of respect or recognition are necessary for individuals to form and pursue their own idea of the good, and therefore includes the social bases of self-respect among the primary good. Despite this step in the right direction, Honneth maintains that Rawls is unable to give a full account of the social preconditions for self-realization as long as he insists on excluding any reference to the shared values of the community from his theory of justice (Honneth 1995b, 241). Honneth’s thicker account of the human good as self-realization is meant to supply this defect, as well as providing a link to the motivations of actual social struggles. Although Honneth aims to provide a more substantive account of self-realization than Kantianism, he is keen to avoid the charge that his theory represents “merely the deposits of concrete interpretations of the good life” (173). He believes he can avoid communitarian parochialism by making his conception of ethical life formal rather than substantive. That is, he forms his conception of ethical life only of “the structural elements … which … can be normatively extracted from the plurality of all particular forms of life” (172). His account of solidarity exempli es the attempt to tread this middle path: the formal conception of the good demands that a society share a system of substantive values to underpin solidarity, but cannot specify what

those values should be: “For [the content of shared values] … is no longer a matter for theory but rather for the future of social struggles” (179). Honneth aims to establish a normative standard that is “ethical” enough to remain anchored in social reality, but abstract enough to transcend the speci c social conditions in which is found in order to provide a standpoint for social critique.

Recognition A er “The Struggle for Recognition” Charles Taylor’s “The Politics of Recognition,” published in the same year as SR, provides an instructive contrast to Honneth’s position. Like Honneth, Taylor draws inspiration from Hegel, arguing that recognition is both a human need and a motivation for political struggle. He diverges from Honneth, however, by orienting his theory of recognition within contemporary debates on multiculturalism in North America, identifying the struggle for recognition with cultural identity politics. Honneth is deeply critical of this move, denying that cultural recognition has become normative in modern society. In a characteristic maneuver, Honneth subsumes purportedly cultural struggles within his three axes of recognition. Demands for cultural recognition, in his view, are best understood as demands that the norm of legal equality be adapted to the particular circumstances of a group. Honneth’s theoretical target is much broader than the cultural politics of the 1980s and ’90s. He regards the idea of recognition not as addressing a new form of political movement (identity politics), but rather as a theoretical innovation that provides insight into all social struggles. As we’ve seen, this ambitious project encompasses a theory of recognition, an interpretation of the normative assumptions of modern societies, a teleological theory of history, and a notion of the good life as self-realization, all of which call for empirical support. The aim in all of this is to derive a critical standard centered on a transcendent ideal of the good life from the actual experience of those who have and who may engage in social struggle. Such open constructive projects, of course, leave many openings for critics, who might seize upon any of its many facets. Many critics, for example, have contested Honneth’s interpretation of the axes of recognition. Some have disputed whether his principle of love really captures the kind of recognition that occurs in intimate relations (Young 2007), while some have criticized his conception of esteem (Pensky 2011). Owen (2007) argues that the axes of recognition are not as distinct from one another as Honneth makes out, and still others that there are fewer or more than three signi cant axes of recognition. If the open-ended nature of Honneth’s theory provides a variety of openings for criticism, it also allows a great deal of exibility in responding to them. Honneth often refers to his work in SR as a “sketch” or “proposal” rather than a completed theory, and it is partly through considering and responding to these kinds of objections that he has lled in the sketch. Since Honneth believes that normative theory must be based in social reality, such disputes can often be settled with reference to empirical considerations in the social sciences and psychology. In many cases, such as his view of love and esteem, he has revised his position to meet objections, while still maintaining the overall structure of the theory. Another critical position, exempli ed in Honneth’s debate with Nancy Fraser, questions whether the concept of recognition is capable of capturing all of the relevant kinds of injustice that we might want a critical theory to address. Fraser argues that redistributive injustices are distinct, and often operate independently of recognition-based injustice (Fraser and Honneth 2003). She therefore advocates a “bifocal” theory of justice which considers both recognition and redistribution. Honneth, in response, has remained insistent that demands for redistribution should be understood as con icts over the proper interpretation of either legal equality or social esteem. That is, demands for recognition are either a demand that a group’s social contribution be fairly valued and remunerated, or a demand for a minimum of

economic resources as a social right. Only the link to the norms of recognition can explain why those who experience economic injustice experience outrage and shame in addition to deprivation (Fraser and Honneth 2003, 126). It is recognition that provides the moral content to struggles for redistribution. Other critiques have cut closer to the core of Honneth’s critical theory, disputing whether it is possible at all to derive a transcendent normative standard immanently from social reality. Zurn (2000), for example, denies that the ideal of individual self-realization that underpins the theory of recognition can provide the kind of normative standard that Honneth is after. According to Zurn, the fact that a normative ideal has been derived from existing social practices does nothing to justify that ideal to those who do not already share it. Even if the structures of identity development that Honneth appeals to are universal, he has not yet shown that they should be universal, and therefore cannot establish self-realization as the proper telos of society. In other words, even if Honneth’s immanent analysis of social reality is right, it cannot ground a transcendent normative standard. Authors such as McNay (2008) have argued that recognition is not only unable to provide an adequate social ideal, but that it perpetuates injustice. This argument allows that human subjects are formed by their relations of recognition, but argues that these relations may themselves by marked by power and domination. Thus, the “feelings of injustice” of those whose identities have been shaped by domination cannot serve as an adequate normative resource. As Honneth himself puts it: “the pride that ‘Uncle Tom’ feels as a reaction to the repeated praise of his submissive virtues makes him into a compliant servant in a slave-owning society. The emotional appeals to the ‘good’ mother and housewife made by churches, parliaments, or the mass media over the centuries caused women to remain trapped within a self-image that most e ectively accommodated the gender-speci c division of labor” (Honneth 2007, 325–326). In cases such as these, recognition “must be regarded as being false or unjusti ed because they do not have the function of promoting personal autonomy, but rather of engendering attitudes that conform to practices of domination” (Honneth 2007, 325). Honneth acknowledges the possibility that some forms of recognition may be ideological in this sense, and 1

has become more sensitive to the relations between power and recognition in the years since SR.

Nonetheless, he believes that it is possible in some cases to distinguish between ideological and liberatory forms of recognition. While Honneth has generally been quite open to arguments over the particulars of how the theory of recognition should be formulated and applied, he has insisted on the overall aim of deriving a normative social theory from existing practices of recognition, despite the challenges this poses. In addition to his meta-ethical reasons for doing this, the requirement of immanence is linked to the liberatory ambitions of critical theory. Part of the purpose of critique, according to Honneth, is to help motivate actual social struggle by providing an account of injustice. If theory is to motivate, it must appeal to the moral experiences and principles that individuals actually have rather than those derived independently from philosophical re ection. It is no use trying to explain and motivate social struggle by means of principles that the strugglers do not already possess (Honneth 2007, 366). Since SR’s publication in 1992, the concept of recognition has moved from the margins to the center of political theoretical discussion. This is due in part to Honneth’s in uence in revealing the normative, recognition-based dimensions of social con ict, but also because issues of dignity, respect, and identity have remained a prominent part of the political landscape. As social struggles have formulated their explicit goals less in terms of redistribution or class con ict, the importance of recognition has become more di

cult to ignore. Even outside of the Hegelian tradition in which Honneth operates, recognition and

respect have become central normative concepts. Yet despite the wide acknowledgement of recognition as a fruitful way of re ecting on normative and empirical issues, SR, and its elaboration in Honneth’s subsequent works, have remained the most ambitious and systematic attempts to theorize this aspect of

ethical life, and therefore demand the attention of anyone attempting to understand and evaluate social con ict today.

References Fraser, Nancy and Axel Honneth. 2003. Redistribution or Recognition?: A Political–Philosophical Exchange. London: Verso. Google Scholar Google Preview WorldCat COPAC Honneth, Axel. 1993. The Critique of Power: Reflective Stages in a Critical Social Theory, trans. Kenneth Baynes. Cambridge: MIT Press. Google Scholar Google Preview WorldCat COPAC Honneth, Axel. 1995a. The Struggle for Recognition: The Moral Grammar of Social Conflicts. Cambridge: Polity Press. Google Scholar Google Preview WorldCat COPAC Honneth, Axel. 1995b. “The Limits of Liberalism.” In The Fragmented World of the Social, edited by Charles W. Wright, 231–246. Albany: State University of New York Press. Google Scholar Google Preview WorldCat COPAC Honneth, Axel. 2007. “Recognition as Ideology.” In Recognition and Power, edited by David Owen and Bert Van den Brink, 323– 347. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC McNay, Lois. 2008. Against Recognition. Cambridge: Polity. Google Scholar Google Preview WorldCat COPAC Moore, Barrington. 1966. Social Origins of Dictatorship and Democracy. Boston: Beacon Press. Google Scholar Google Preview WorldCat COPAC Owen, David. 2007. “Self-Government and ʻDemocracy as Reflexive Co-Operationʼ: Reflections on Honnethʼs Social and Political Ideal.”Iin Recognition and Power, edited by Owen and Van den Brink, 290–322. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Owen, David and Bert Van den Brink, eds. 2007. Recognition and Power. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Pensky, Max. 2011. “Social Solidarity and Intersubjective Recognition: On Axel Honnethʼs Struggle for Recognition.” In Axel Honneth: Critical Essays, edited by Danielle Petherbridge, 125–154. London: Brill. Google Scholar Google Preview WorldCat COPAC Taylor, Charles. 1992. “The Politics of Recognition.” In Multiculturalism: Examining the Politics of Recognition, edited by Amy Gutmann, 25–73. Princeton: Princeton University Press. Google Scholar Google Preview WorldCat COPAC Thompson, E. P. 1963. The Making of the English Working Class. New York: Vintage. Google Scholar Google Preview WorldCat COPAC Young, Iris. 2007. “Recognition of Loveʼs Labor: Considering Axel Honnethʼs Feminism.” In Recognition and Power, edited by Owen and Van den Brink, 189–214. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Zurn, Christopher. 2000. “Anthropology and Normativity.” Philosophy and Social Criticism 26(1): 115–124. Google Scholar WorldCat

1

See in particular the essays in Owen and Van den Brink, eds. 2007.

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Will Kymlicka, Multicultural Citizenship  Je Spinner-Halev https://doi.org/10.1093/oxfordhb/9780198717133.013.36 Published: 07 April 2016

Abstract By nding a way to incorporate people’s cultural attachment in a liberal framework, Will Kymlicka’s Multicultural Citizenship changed the way liberal political theorists look at identity. Kymlicka argued that culture, and in particular language, could not be a private matter as liberals assumed, since every state must pick one o

cial language (or a small number of them). Yet o

cial languages were unfair to

those who spoke a di erent language; additionally Kymlicka argued that individual self-respect was an important liberal value, and was tied to a secure cultural context. Critics argued that culture was hard to de ne, and cultural attachments were much more malleable than Kymlicka suggested. While these criticisms did undermine the power of some of Kymlicka’s arguments, one of Kymlicka’s lasting contributions is the now widely accepted idea that certain kinds of identities cannot be assumed to be a private matter.

Keywords: Kymlicka, multiculturalism, toleration, liberalism, minorities, nationalism, community, pluralism, culture Subject: Politics, Political Theory Series: Oxford Handbooks Collection: Oxford Handbooks Online

Will Kymlicka’s book Liberalism, Community and Culture (hereafter LCC) argued that minority cultures deserve to have certain kinds of rights to help them survive. Just as this book came out in 1989, the Berlin Wall fell and East European countries rushed to embrace national identity, with some also embracing liberalism. The common idea that liberalism could simply dismiss cultural or national identity as an anachronism was no longer tenable. Kymlicka argued that cultural membership was so important because it was tied to people’s self-respect, which had an important place in Rawlsian liberalism. Kymlicka’s book was more than merely timely, since it spawned a large and important liberature within contemporary political theory, centering around the role of national and ethnic groups and identities, which had been up until then mostly ignored. Liberal theory was also ready for an argument about community, culture, and identity. The revival of liberal theory in the early 1970s led by Rawls (1999) and Nozick (1974) focused on the individual. Rawls’s argument

asks us to imagine what principles of justice we would choose behind a “veil of ignorance,” where we don’t speak a particular language, or live in a particular state, or belong to a particular community. In the original version of the argument, the principles of justice applied everywhere in the same way. Similarly, Robert Nozick’s libertarian argument is universally applicable, with its focus on the individual and her property rights. Communitarians such as Michael Sandel and Michael Walzer responded in the 1980s, arguing that liberal theory’s disembodied individuals bore little resemblance to how people viewed themselves, as embedded in particular communities. But liberals responded that liberalism allows people to live among various communities and asked the communitarians which community mattered the most, which identities had political claims, and which did not, and in what ways they wanted to elevate the community over the individual. The communitarians did not provide much of answer. But Kymlicka did, and from within liberal theory, seeking to amend it, not tear it down. Kymlicka aspired to combine the liberal focus on the individual with the human need to live within communities. LCC spawned an important and large literature, centering around a complicated question: what is the role of the group in liberal political theory? Kymlicka’s book was quickly followed by several others, and many articles, on similar subjects, some presenting alternative theories, many criticizing Kymlicka’s argument on various 1

grounds. In response to many of these criticisms, Kymlicka re ned his argument, and in 1995 published Multicultural Citizenship (hereafter MC), now considered his most important discussion of collective rights— or what Kymlicka calls “group-di erentiated” rights. I will focus on MC in this chapter, though I will brie y discuss its relationship to LCC.

Fairness and Polyethnic Rights Kymlicka’s objection to many liberal theories is that they assume that ethno-cultural identity can be, like religion, a private matter. Many liberals argue that the state should respond to religious and cultural a

liation with “benign neglect” (3). Just as the state usually ignores whether its citizens are Catholic,

Protestant, or Hindu, it should be uninterested if they are Italian-American, Sikh Canadian, or French Algerian. But this impulse ignores the ways in which states must support some ethno-cultural groups; fairness, Kymlicka argued, demands that it supports minority groups as well. This fairness argument is both powerful and easy to see: every state in the world supports a limited number of o

cial languages. Kymlicka notes that a state can avoid having an o

cial religion, but “the state cannot

help but give at least partial establishment to a culture when it decides which language is to be used in public schooling, or in the provision of state services” (111). While, say, France could accommodate some members who do not speak French, it could not give equal footing to all languages. If someone only speaks Breton, her opportunities in France will be severely limited in a way relative to a French speaker. In other words, public space is never linguistically neutral. Some people will nd that public space is more inviting to them than to others. Equality, then, cannot mean ignoring all groups in the same way. Since majority ethno-cultural groups receive state support, equality means ensuring that minority ethno-cultural groups do as well. Yet Kymlicka’s fairness argument needs more explanation and defense. Dozens of di erent languages are spoken in the major metropolitan areas of the United States and Canada. Should they all receive state support? If so, what kind? Furthermore, cultures are ever-changing, particularly in the modern world. Identities are always changing as well; if over time many Italian-Americans feel more American than Italian, what is wrong with that? To answer these questions, Kymlicka divides ethno-cultural groups into two kinds, polyethnic groups and national minorities. The former are ethnic or immigrant groups, usually not territorially concentrated. Members of polyethnic groups typically want to integrate into the larger community, though not at the

price of complete assimilation. By contrast, national minorities are usually longstanding territorially concentrated groups, and often seek separation of some kind. What they want, and on Kymlicka’s argument what they often deserve, is state assistance in maintaining their own, separate institutions. They have a right, Kymlicka argues, to what he calls their “societal culture.” Since Kymlicka divides groups in this way, it is worth tracing each argument separately. What unites them on Kymlicka’s argument is that they both have group-based rights, rights that enable them to retain some cultural distinctiveness—though as we will see the grounds for these are rather shaky, and the matter of cultural distinction is unclear as well.

Polyethnic Groups Polyethnic groups want to integrate, but not at the price of complete assimilation. Sikhs may want to become Canadian Mounties, but without giving up their turbans, for example (31). Members of these groups may want nancial support for their associations, magazines, and parades. Kymlicka argues that since members of these minorities mostly want to integrate, the state should look upon these sorts of requests as reasonable. Kymlicka notes that granting these requests does not give any rights to the group as a collective (hence the term “group-di erentiated” right rather than group rights). A Sikh can choose to wear his turban as a Mountie if he chooses, but the right to wear the turban does not mean he must do so. The choice remains his; here we see how group-di erentiated rights are compatible with individual rights. And while giving money to an ethnic association is, in a way, giving money to a collective, this does not give the ethnic group any power over its members. Kymlicka argues that complete assimilation as a price of membership in a state is too steep a price to pay. Critics might say that exceptions to time-honored traditions like the dress of the Mounties work to undermine the unity of the polity. Kymlicka responds that when Sikhs join the Mounties, they do so in order to become Canadian, to integrate into the polity. Furthermore, illiberal cultural practices by polyethnic groups, such as so-called “honor killings,” cannot be defended on cultural grounds on Kymlicka’s 2

argument. Polyethnic groups have to adhere to all the rules of the liberal state; when they ask for exemptions, they must do so in a way that is compatible with liberal rights. A more challenging criticism is that Kymlicka’s argument gives us little guidance as to which groups should be accommodated. He speaks of “polyethnic rights” (27), but what exactly these rights are and who should get them are vague. If forty or fty groups ask the Toronto city government for funding for their ethnic association, should it fund them all? What if two factions arise within a group, and each wants their own association? Kymlicka’s argument about language illustrates the di

culty of determining when and how

groups should be accommodated. He argues that the host community’s linguistic expectations of new immigrants are often misguided. In the United States and Canada, “current policy has operated on the assumption that the ideal is to make immigrants and their children as close as possible to unilingual nativespeakers of English” (97). He maintains that support for immigrant languages is a polyethnic right, though not at the expense of learning English; the two do not con ict, since bilingualism is easy enough. Yet a few pages earlier, Kymlicka announces that immigrants’ language cannot survive in their new state, except on the margins. This is because the languages that will survive in industrialized countries are those that are used publicly. Other languages, including those of immigrants, will survive only among a small elite, or in ritualized form, “not as a living and developing language underlying a ourishing culture” (78). Indeed, Kymlicka is emphatic that immigrant languages should not be sustained in the same way as the languages of national minorities. Yet taking Kymlicka’s two arguments together means that the state should support dozens of languages that are bound to die o

or become marginalized. This is hardly a strong defense of

linguistic rights; it is perhaps noteworthy that Kymlicka never exactly de nes the linguistic rights of immigrant communities, which remain vague. How useful, however, are vague rights to a language that is bound to become marginalized at best in one’s new country?

The polyethnic rights Kymlicka discusses with the most precision are in fact given to religious groups (Song 2007, 65): exemptions from motorcycle helmet laws for Sikhs, from Sunday closing laws for Muslim and Jews, from military dress codes that preclude yarmulkes for Orthodox Jews, from rules prohibiting headscarves for French Muslim schoolgirls (31, 114–115). Are religious groups the same as polyethnic groups? Kymlicka never says, though in this he is joined by many scholars who discuss multiculturalism and elide the distinction between religion and ethnicity. When Kymlicka de nes the groups he discusses, he says he will focus on national groups or ethnic groups, the latter being “immigrants who have left their national community to enter another society” (19). Without explanation, Kymlicka later expands polyethnic groups to mean “ethnic groups and religious minorities” (31). Perhaps de nitions are not so important; but if the clearest cases of polyethnic rights concern religious freedom, what is gained by talking about polyethnic rights? Why not use the traditional liberal language of toleration and religious liberty? Yet Kymlicka’s argument about polyethnic groups remains important, because it makes us realize that ethno-cultural and religious identity should not—indeed, cannot—always be privatized. Even if we should be suspicious of the idea that polyethnic groups have rights, Kymlicka’s argument asks us to recognize how culturally dominant norms and practices favor some over others, and that there will be cases when the majority should be more accepting of others’ cultural and religious practices. An immigrant in court, for example, should have access to a lawyer that he or she can speak with, and the courtroom proceedings should be translated. If there are one or two large immigrant communities in one place, one can imagine that the school system might want to hire people with linguistic skills to speak to immigrant parents to discuss their children’s progress; the police should perhaps hire people who speak the languages. These examples move beyond religious toleration. While they may not always rise to the level of rights—though understanding the charges in a court of law may in fact be a right—they do show that a policy of cultural or linguistic neutrality will disadvantage some groups. Yet the mere fact of this disadvantage may not necessarily be reason for intervention, the case for which may depend on costs—assistance to dozens of linguistic groups might be prohibitively expensive or logistically impossible (Carens 2000). Still, Kymlicka’s argument should prompt policymakers to ask whether assistance should be given to immigrant communities, instead of simply ignoring the newcomers.

Societal Culture Kymlicka’s second—and more controversial—argument concerns what he calls a “societal culture,” which he largely equates to a “national minority.” Kymlicka argues that liberalism prizes individual autonomy: free people have and make meaningful choices. People, however, don’t make choices within a vacuum. They must be situated within a culture to do so. Cultures give meaning to our options and to the practices around us. To have an understanding of a particular practice means “understanding the meanings attached to it by our culture” (83). But culture is amorphous, and Kymlicka quickly formalizes what he means by it: it is through a “rich and secure cultural structure that people can become aware, in a vivid way, of the options available to them, and intelligently examine their value” (83; see also LCC, 165–166). Societal cultures must be relatively large, historically settled groups, with a variety of institutions. Kymlicka draws on Ernest Gellner’s well-known argument linking modernization with the nation-state, explaining that “modernization involves the di usion throughout a society of a common culture, including a standardized language, embodied in a common economic, political and educational institutions” (76). Kymlicka argues, however, that modern states can contain more than one societal culture. On Kymlicka’s argument, many claims for state support for a culture are only valid if that culture is also a societal culture. National minorities or majorities provide this context of choice, but religious or immigrant

groups do not. Societal cultures have social, political, and economic institutions, and so they can give people a variety of options from which to choose. Societal cultures are large enough that one can lead a fully modern life within them. Within a societal culture and its language one can go to school, attend a university, and get one of many possible jobs. While Kymlicka does not give a precise population necessary to sustain a societal culture, it seems likely to be at least one million, probably more. Jeremy Waldron responds that while we need to understand our choices in a context, “we do not need any single context to structure all our choices. To put it crudely, we need culture, but we do not need cultural integrity” (Waldron 1991, 786). People often live betwixt and between cultures. Furthermore, cultures—and societal cultures—are often blends and amalgams. Does the New York cab driver who emigrated from Nigeria share the same culture with the cattle farmer from Montana? Is the context of choice for the white Southern Baptist the same as that for the New York Jew or the California Latino? Kymlicka’s response is that all these people are part of the same “diverse culture which characterizes the Anglophone society of the United States” (85). Yet this seems like a dodge, since all societal cultures are diverse in some way. Part of Waldron’s point is that cultures are not bounded entities, but overlap and intermingle in all kinds of ways; and we don’t want policies that wrongly assume that cultures are bounded entities. Furthermore, group identity is often hard to pin down. It does seem to make sense to think of ItalianAmericans and the Quebecois di erently, but as Brian Barry points out, many groups do not t easily in Kymlicka’s classi cation scheme (Barry 2001, 309). Kymlicka uses language as the marker of national identity, but the Scots and the Welsh speak English yet have separate national identities from the English. Similarly, in the United States Kymlicka distinguishes among Hispanic immigrants and Cuban immigrants (polyethnic), and Puerto Ricans and Chicanos (national minorities). Similarly, Chandran Kukathas argues that some groups arise or shift because of political context. In Malaysia, for example, Malays emerged as a distinct group only after colonialists created speci c territories out of loose clusters of villages; the identity further solidi ed when Chinese immigrants arrived (Kukathas 1992, 111). Kymlicka’s argument is meant in part to defend indigenous peoples. If indigenous peoples do not have the right to control their membership, for example, then members of the majority may move to live among them, then outvote them. Yet here we see Kymlicka’s argument take an odd and confusing turn. On Kymlicka’s own terms, indigenous peoples, with memberships in the thousands or tens of thousands, and only occasionally in the hundreds of thousands, rarely have a stable societal culture. They don’t have universities or a multitude of economic institutions that conduct business in their native languages. An indigenous person who spoke only her or his native tongue would have few choices indeed. Kymlicka recognizes this, and says assimilation sometimes is a prudent course for indigenous peoples. But he says that ultimately the choice must be up to them “to decide if and when the societal culture is too thin to warrant maintaining” (100). Kymlicka says if this were not the case, then majorities would have a perverse incentive to undermine national minorities, then claim that their communities are too small to maintain. Furthermore, Kymlicka says that weakened and oppressed cultures can become vibrant again if given the requisite preconditions (100). While the perverse incentives argument has some power, it is hard to make sense of the second argument. What societal cultures need to thrive are members—and a lot of them. This is the point of Gellner’s argument, which Kymlicka invokes. If a state has dozens or more of small indigenous peoples within it, what kind of support is owed to them? As Carens asks, should the state pay for all their school materials in their native languages, a very expensive proposition (Carens 2000, 60)? Given that these indigenous peoples are bound to remain small for the foreseeable future, is the right to support inde nite? Moreover, if someone chose to live only within an indigenous community, surely the context of their choices would be quite narrow, undermining the very reason for supporting their societal culture.

There are thousands of ethnic and linguistic groups in the world, most of which are long-settled. Do they all have a right to their societal culture? In Papua-New Guinea, a population of around 3.9 million speak an estimated 832 languages, belonging to between forty and fty distinct linguistic families, making the 3

average number of speakers around 4,500. If Papua-New Guinea were to modernize, hundreds of languages would be lost. The process of modernization that creates societal cultures is one of tremendous assimilation. While many indigenous peoples were decimated under oppressive conditions, societal cultures are created by a combination of assimilation and homogenization. Even if the colonial powers had acted less oppressively toward indigenous peoples, the creation of societal cultures would have meant the loss of 4

many of these smaller cultural groups—which is exactly what happened in Europe.

Modernization means tremendous assimilation, which means that the number of people who have changed culture in the last two centuries is quite large. Yet many of these people were able to make choices, even as the process of modernization was a harsh one. As society rapidly changed, many people were marginalized: people who held jobs that no longer existed because of mechanization, older people who felt at loss in a fast-changing world. It may be that society should help those at loss and adrift, but it is hardly clear that their rights were violated. Kymlicka’s argument about rights in LCC was situated squarely within the idea of self-respect. According to Rawls, primary goods are the basic goods that all people want, such as money, so they can pursue their plans and projects whatever they might be. Rawls argues that the social basis of self-respect is such a primary good, because if a group is systematically denigrated by society, then it will be harder for its members to pursue their plans and projects. Kymlicka contended, rather sweepingly, that without a secure cultural structure “children and adolescents lack adequate role models, which leads to despondency and escapism” (LCC, 166). A secure cultural context is necessary for self-respect according to Kymlicka, but the evidence he provides for this is weak. In LCC, he points to one article that examines one aboriginal group and nds that the problem of self-respect is tied to Inuit men but not women to back up the sweeping claim that all people need a secure cultural structure for their self-respect (LCC, 166). In MC, Kymlicka simply approvingly cites the arguments of other theorists that tie self-respect to national identity (90). But when one traces these arguments about the basis of self-respect, one nds that these theorists simply cite one 5

another. Then Kymlicka very brie y cites a number of other possible arguments for why cultural membership is important: it adds further meaning to our actions because we are part of a continuous creative e ort; mutual intelligibility comes from a shared national identity which promotes solidarity and trust; there is harm when parents cannot pass their culture on to their children and grandchildren; national identity allows us to transcend our own mortality (90). This seems more like a grab bag than an argument; Kymlicka does conclude this brief discussion with one citation to one empirical book (Laponce 1987), saying that “I suspect that the causes of this attachment [to one’s culture] lies deep in the human condition, tied up with the way humans as cultural creatures need to make sense of their world” (90). One might wonder whether we should develop new rights based on a suspicion. Still, that many people are attached to their culture seems surely to be true. Yet cultures change, and as immigrants show, people also change their societal culture. What both the process of modernization and the large of number of immigrants in Western democracies show is that people change cultural structures all the time, that cultural contexts are often in ux, and that cultural diversity has been radically reduced as the world has modernized. One can surmise that the di

culty of cultural change di ers depending on context. Younger

people can probably adapt more readily more than older people; knowing the language of one’s new country helps the process of cultural adaptation; the transition from a traditional society to the developed world will almost always be harder than one from one developed country to another. The di

culty of cultural change,

then, undoubtedly admits of wide variation, and is dependent on many circumstances. One apparent irony of the move toward protecting cultures or societal cultures is that the developed world undoubtedly has less cultural diversity than it has in the past several centuries. Yet it is plausible that the

great pull of homogenization of modernization has led some to hold onto the cultural practices that distinguish them from others. Quebecois nationalism arose as Quebecois society modernized, and became more like Anglophone Canada. But this process may in fact have made a Quebecois nationalism focused on language even more poignant: if French were lost, then the distinctiveness of Quebecois identity might very well be lost, since the other di erences between Quebecois cultural practices and those of the dominant majority had become so small. Perhaps as long the Quebecois respect the rights of others, the cost of passing some laws to ensure the survival of French is relatively low, since Quebec is large enough to sustain a societal culture; apart from insisting that newcomers learn French, Quebec can be quite accommodating of cultural diversity if it wishes to be so (Carens 2000, ch. 5). This argument is more of a utility calculus, however, than one couched in the stronger liberal language of rights. This argument also invites another question about societal cultures: what if the culture in question does not respect the rights of its members? Kymlicka tries to deal with this, though in a way that seems to satisfy no one, distinguishing “internal restrictions” from “external protections” (35–44). Internal restrictions are a minority group’s policies that restrict the liberty or rights of some of its members; some indigenous tribes, for example, restrict certain o

ce holders to those who subscribe to the tribe’s traditional religion, while

others base membership on patrilineal descent. Of course, many tribes do not restrict the rights of any of their members, but some do, or want to do so. Kymlicka says the primary focus of his argument is on external protections, which are meant to “protect [the group’s] distinct existence and identity by limiting the impact of the decisions of the larger culture” (36). This, again, is the worry that the distinct identities of smaller groups will fade because of the majority’s “built-in” advantages—so the Quebecois worried, with reason, that the use of French would slowly fade without laws to help sustain it, given the widespread use of English in Canada and in Montreal. While Kymlicka makes external protections appear easy for liberals to accept, some of them may restrict liberty. As Jacob Levy notes, if there is a protection that makes it hard or impossible for a non-indigenous person to buy land from an indigenous person in order to prevent majority population in ows, then the liberty of the indigenous owner is also limited (Levy 2000, 117). There may be good reason for this external protection, but any liberal argument must justify the correlative restriction on landowners. Kymlicka’s argument about national minorities’ internal restrictions is even more problematic. He focuses on the importance of individual choice, and so internal restrictions made in the name of a liberal right to societal culture are surely a problem. Kymlicka does argue that minority groups that impose internal restrictions are wrong to do so, but he denies that this means that liberal states have the right to impose their will on these minorities (164). The question of imposition, Kymlicka argues, is concerned with the issue of who should ensure that liberal principles are followed. Liberal states generally do not impose liberal rights on non-liberal states; liberals may decry the lack of rights in Saudi Arabia, but few suggest that liberal states try to enforce liberal rights there (165). Kymlicka argues that just as liberal states respect sovereignty, so too they should respect the (partial) autonomy of national minorities (167), though liberal states can o er incentives for these groups to liberalize (168). Critics have argued that this formula will often leave women lacking protection, since they are the most likely to be deprived of rights (Okin 2002; Shachar 2001; Song 2007). Liberal states cannot readily o er protection to women in Saudi Arabia, but if they can help ensure that women’s rights are protected within their own borders, shouldn’t they do so? Kukathas argues that if Kymlicka isn’t willing to demand respect for individual liberty in minority communities, it is hard to see “what work Kymlicka’s principles, emphasizing the importance of autonomy, are doing here” (Kukathas 2003, 185). That liberals should not try to enforce liberal rights when they can easily do so sounds too much like Robert Frost’s supposed crack that “a liberal is someone who cannot take his own side in an argument.”

Perhaps more important, Kymlicka’s grounding of the rights of national minorities in the value of individual choice seems to have gotten lost in this argument. One could grant that national minorities should be given external protections, just as long as they respect the rights of their members, as Song has argued (2007), but this is not Kymlicka’s argument. Elsewhere, Kymlicka provides a di erent argument for external protections in the case of indigenous peoples. Discussing one court case (Martinez v. Santa Clara 436 U.S. 49 (1978)), Kymlicka defends the U.S. Supreme Court’s decision that it did not have legal authority over the tribe’s patrilineal membership rules. This court, the “court of the conquerors,” Kymlicka notes, has “historically legitimated the dispossession of Indian lands and the forcible resettlement of Indian peoples” (Kymlicka 1999, 118). The moral authority of the United States to tell Native Americans how to run their own a airs is rather weak, given their historical relationship, and the often cruel way it has treated them. Whether or not this argument from ongoing oppression is persuasive, it is not based on the need to protect societal culture or context of choice or individual autonomy; it is not based in Kymlicka’s supposedly 6

guiding liberalism. Kymlicka does note that historical agreements and treaties that give some minority groups certain rights and protections need to be taken into account. Yet he also contends that circumstances may have changed enough that these agreements need to be altered or discarded. He concludes that historical agreements may have a role, but that they will be secondary to a robust theory of minority protection (ch. 6).

Conclusion While Kymlicka’s argument that group-di erentiated rights can be based in individual choice proved controversial, it spawned a large and important literature. One set of responses argued that the quest for group-di erentiated rights was simply misguided (Barry 2001; Kukathas 1992; 1997; 1998; 2003; Okin 1998; 2004; Waldron 1991; Vincent 2002). These arguments, some mentioned above, tended to make two kinds of related arguments. The rst was that the attempt to classify people as having membership in one central group was a mistake; groups are constantly shifting and changing. Second, people are often members of multiple groups, with the intensity of their allegiances changing over time. Given how individuals and groups shift and change over time, these arguments suggest, a political theory that has a central role for group membership risks positing the group over the individual, which very well may threaten individual rights. Yet a second response tried to rework a liberal argument for group rights (Carens 2000; Levy 2000; Patten 2014; Raz 1994; Spinner 1994; Levey 1997). The in uence of Kymlicka on this important literature is hard to overestimate: if the idea that liberalism must accommodate the idea that people are culture bound beings seems obvious, that is because of Kymlicka’s work. This second response found the particulars of Kymlicka’s argument lacking, though some arguments were based on the importance of recognition (Taylor 1992). A related response accepted the idea that liberalism must account for cultural groups but argued that Kymlicka paid insu

cient attention to ensuring that individual rights were in fact protected (Deveaux

2006; Song 2007; Shachar 2001). More provocatively, others responded to Kymlicka by arguing that the quest to base group rights on individual rights was quixotic. On this argument, cultures are worthy of respect not because they enable some other good to ourish, like individual autonomy, but because cultures are valuable in and of themselves. Indeed, some cultural groups are illiberal, and they want protection precisely so they can limit the choice of their members (Deveaux 2000; Parekh 1994; Tomasi 1995). This is true, for example, of ultraorthodox Jews (Margalit and Halbertal 1994; Deveaux 2006, 135). While ultra-orthodox Jews are not societal cultures as Kymlicka de nes the term, they have more features of societal cultures than do many indigenous peoples (Levey 1997, 218). The challenge to Kymlicka is that while he argues for the importance of a context of choice, many groups argue for the protections they have or want on the very di erent grounds that they

want to preserve their identity. Parekh argues that Kymlicka fails to recognize many groups on their own terms: “he does not respect them in their authentic otherness. While defending them he also subtly subverts their inner balance and identity and transforms them into something they are not” (Parekh 2000, 108). Yet Kymlicka would simply say that a group that restricts the choices of its members so much, and is so deeply 7

patriarchal, does not deserve any protections from the liberal state. The liberal promise of autonomy does not mean that every possible choice should be available to members of liberal states. While these arguments found considerable fault with Kymlicka’s liberal assumptions, they were all reacting to Kymlicka, showing yet again his in uence. Yet the majority of responses accepted Kymlicka’s liberal premises, and accepted the idea that political communities and national groups are intertwined. Indeed, perhaps Kymlicka’s most lasting in uence is on the discussion of what he called societal cultures, while his arguments about polyethnic groups has seemed less in uential over time. Kymlicka’s argument that public space is never neutral, and the way he tied selfrespect to one’s national group struck a chord with many. Arguments about national majorities and minorities are still with us in several ways. After Kymlicka’s arguments appeared, a large literature on the liberal basis for national identity and national rights emerged (Buchanan 1997; Caney 1997; Canovan 1996; Charney 2003; Gans 2003; MacCormick 1996; 1999; Margalit and Raz 1990; Miller 1995; Moore 2001; Nielsen 1998; 1999; Tamir 1993). The nationalism literature in turn has spawned a literature on territorial rights (Stilz 2011; Meisels 2009; Moore 2015; Nine 2012; Kolers 2009) and while Kymlicka does not often play a central role in these arguments, there is little question that it was his arguments on societal cultures that led political theorists to address the issue of territorial claims. While the occasional theorist looked at groups before Kymlicka, it was Kymlicka’s work that made cultural and national groups groups a central category for political theory today, making him one of the most in uential contemporary theorists.

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These include (Tamir 1993; Spinner 1994; Parekh 1994; Taylor 1992; Young 1990). Important articles in the five years a er LCC was published include (Waldron 1991; Margalit and Raz 1990; Kukathas 1992; Margalit and Halbertal 1994; Danley 1991; Raz 1994; Tomasi 1995; Tamir 1993; Miller 1995; Tully 1995). Many more books and articles appeared a er 1995.

2

Discussions of honor killings can be found in (Renteln 2005; Song 2007, ch. 4).

3

http://www.ethnologue.com/country/PG/default/%2A%2A%2AEDITION%2A%2A%2A. Accessed on July 16, 2014

4

One of the best descriptions and explanations of this assimilation is by Weber (1976).

5

Kai Nielson also appeals to the self-respect argument in his argument for cultural nationalism, citing David Miller and Kymlicka for support. Simon Caney argues that national self-determination is an important part of peopleʼs well-being. Well-being appears to encompass self-respect, since part of what is good about being part of a nation is that people take pride “in the achievements of their nation and wish to see their nation flourish.” To support his argument, Caney cites Kymlicka, Nielson, Tamir, Margalit, Raz, and Miller (Nielson 1999, 120; Caney 1997, 361).

6

Arguments that focus on the importance of oppression include (Song 2007) and (Spinner-Halev 2012).

7

Several discussions of the issue of “minorities within minorities” can be found in (Eisenberg and Spinner-Halev 2005).

.

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Steven Lukes, Power: A Radical View  P. E. Digeser https://doi.org/10.1093/oxfordhb/9780198717133.013.44 Published: 10 December 2015

Abstract This chapter reviews Steven Lukes’ 1974 book Power: A Radical View (PRV). It begins by addressing the debate that erupted in the 1950s and 1960s between those who believed that power was concentrated in the hands of a few and those who argued that power was distributed “pluralistically.” It then considers a set of deeper philosophical/theoretical debates that supported Lukes’ own position, citing Antonio Gramsci’s claim that hegemony could be secured through ideology in which the ideas of the ruling class became the ruling ideas. It also examines Lukes’ approach to conceptual analysis and his distinction between the concept and conception of power, focusing speci cally on his view that binding together power, agency, and responsibility was dependent on an understanding of responsibility. Finally, the chapter assesses the impact of PRV on debates over concepts such as authority, interests, and domination, and on issues surrounding agency, intentionality, responsibility, and structure.

Keywords: Steven Lukes, Power: A Radical View, political philosophy, power, ruling class, agency, responsibility, authority, domination, intentionality Subject: Political Theory, Political Institutions, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

It is di

cult to think of a book that has had a greater per page in uence on contemporary political

philosophy than Steven Lukes’ Power: A Radical View (PRV). Published in 1974 in Macmillan’s Studies in Sociology Series, the book comes in at a sleek sixty-four pages. Whether one agrees or disagrees with his analysis of power, the book is a model of clarity and economy, synthesizing the then-current debate over power and moving it forward in important ways. At the time of its publication, PRV was part of a conversation among political scientists, political theorists, and sociologists over the meaning of power and how to study it. Within that conversation, Lukes argued for the superiority of a radical conception of power or what he also called the “three-dimensional” view. In setting out and defending his position, Lukes clari ed the terms, assumptions, and stakes of the debate. This essay begins with the political question that drove those arguments over power at the time. It then

looks at a set of deeper philosophical/theoretical debates that supported Lukes’ own position. The third section considers Lukes’ approach to conceptual analysis and his distinction between the concept and conception of power. The fourth section explores how the then-current methodological issues framed and limited his discussion. Finally, the essay concludes by exploring the impact of PRV on these arguments and issues.

The Political Problem In the 1950s and 1960s, a debate in American political science had emerged between those who believed that American political and social institutions were dominated by a group of elites (e.g., Mills 1956; Hunter 1953) and those who rejected that proposition (e.g., Dahl 1961; Polsby 1963). From the former point of view, power was understood to be in the hands of a few and from the latter perspective, power was distributed “pluralistically” (Lukes 2005, 5). For those who saw a ruling elite controlling the government, the military, and corporate America, the decisions and actions (as well as the non-decisions and inactions) of that elite had enormous consequences for the capacity of ordinary Americans to control fundamental aspects of their lives. In contrast, for the pluralists, power was dispersed: di erent individuals and groups prevailed in di erent decision-making bodies on di erent issues. This debate over the true character of American politics was driven, in part, by a set of empirical studies. Pluralists such as Robert Dahl and Nelson Polsby operationalized a notion of power and sought to discern who had power over what decisions. Dahl’s (1961) study of decision-making in Hartford, Connecticut is a particularly important example of the pluralist perspective in what became known as the “community power” debate. At stake was not merely an account of American democracy, but what democracy, equality, pluralism, interest, and decision-making mean as well as how to understand and study power. Very brie y, for the pluralists, what we can know about power depends on whether its operation can be empirically veri ed (or falsi ed). If power’s operation cannot be observed, then we cannot say it is being exercised. As Dahl de ned it, power was the ability of A to get B to do something that he would not otherwise do. To con rm that power was being exercised it was essential to be able to observe con ict between the As and the Bs. Without con ict, there is no indication of power and without power, there is no evidence that one party is dominating another. For those who were less sanguine about American pluralism (such as Lukes), the highly charged political question of whether the American people were free was complicated by the possibility that focusing on the political behavior of decision-makers and ordinary citizens would not and, perhaps could not, uncover the true character of American politics. They were dissatis ed with the behavioralist assumptions of the pluralists because they believed that those assumptions unduly restricted what counted as evidence for the exercise of power. For Lukes, if the absence of con ict and exhibition of acquiescence did not necessarily mean the absence of power, then aspects of elite domination might simply not appear on the pluralists’ radar.

Theoretical Context At the time he was writing PRV, Lukes notes that Antonio Gramsci’s idea of hegemony was a particularly useful way to understand a situation that combined popular acquiescence with elite domination (2005, 7). Following Marx, Gramsci argued that hegemony could be secured through ideology in which the ideas of the ruling class became the ruling ideas. Consent may be obtained, but only because the elite sense of what was natural and acceptable had been unknowingly adopted by those who were being dominated. A kind of mysti cation or false consciousness led people astray from their true interests, dampening the prospects for revolution in the most highly developed capitalist states. The central theoretical problem that drove much of Lukes’ book is the same as Gramsci’s: how is willing compliance of the many secured despite the fact that power is held in the hands of a few? In PRV, however, Lukes forgoes the idea of hegemony and focuses on the word domination. Adopting the evidence-based perspective of political science, Lukes’ challenge was to nd the smoking gun of domination. The problem was complicated by the possibility that the domination of elites could take the form of shaping and determining the wants of the powerless such that they “willingly” acted against their “real” interests. Moreover, it was possible that this shaping could take place without either the powerful or the powerless being aware of its happening. The epistemological question of how do we know that power is being exercised is one that dominated the pluralist approach and framed Lukes’ discussion. The epistemological problem structured Lukes’ approach in part because he and the pluralists shared a concept of power (as opposed to a conception of power) that rested on a counterfactual. Both parties believed that power was as an “exercise concept” in which one side gets the other to do what it otherwise would not do. For the pluralists, the actual, observable presence of a con ict between A and B (i.e., B speaking out or acting against A) signals to the observer that B’s doing what A wants is not what B would have done in A’s absence. Lukes notes, “For such con ict provides the relevant counterfactual, so to speak” (41). In contrast, the absence of a con ict signaled that the relevant counterfactual did not apply. Instead of power the pluralists would talk about in uence or persuasion or willing compliance. For Lukes, the absence of a con ict and the presence of willing compliance does not end the discussion of whether a counterfactual argument could be made. A con ict may still exist, but it need not be overt or even observable. But what would serve as the relevant counterfactual if we don’t observe con ict between the As and the Bs? For Lukes the relevant counterfactual could be provided if it could be shown that the actions and policies of A violated the “real interests” of B. In other words, if B understood her real interests then she would not willingly comply. Without a notion of real, objective, or true interests, it may be impossible to identify the exercise of power in a situation of general acquiescence or distinguish a genuine from a fabricated consensus. What is a real interest? How can it be identi ed? For Lukes, a real interest is not de ned in terms of alienation and exploitation (as it was for Marxists), but in terms of what people would choose to do if they were able to do so without being dominated. Drawing on William Connolly’s “ rst approximation” of de ning a real interest, Lukes argued that it relates to what people “would want and prefer, were they to able to make the choice” (34). In PRV, the notion of a real interest is very much connected to a robust idea of individual autonomy that he does not elucidate in PRV, but does elsewhere (1974b). The identi cation of real interests raised methodological concerns that are discussed in this chapter. Lukes’ idea of real interests was one of the two features of his theory that drew a lot of criticism. The other feature was his account of the relationships between intentionality, agency, structure, and power. The question here was whether power needs to be exercised intentionally in order for it to be an exercise of power (51). Because of their focus on overt con icts and because of their ideological proclivities to accept some sort of liberal individualism, the pluralists claimed that power must have an intentional element to it.

Power on this account is very much an act of an agent or agents. Lukes’ view is more nuanced. He argued that it was possible to exercise power unintentionally or unconsciously as long as the knowledge of the e ects of that exercise could have been available to the power-holder. This expands the arena of concern from what decision-makers actually did to what they could have done. For example, if A’s ignorance is the result of a remediable “failure to nd out,” then A’s actions count as an exercise of power. Lukes writes, “Where, however, he could not have found out—because, say, certain factual or technical knowledge was simply not available—then talk of an exercise of power appears to lose all its point” (51). Lukes o ered a conception of power that severed the connection between the exercise of power and intentionality, but believed it was essential to retain the connection with agential responsibility. One could say (although Lukes does not), following Wittgenstein, that we do not understand a concept unless we can understand its point. In other words, its meaning is going to be found in how it is used. What is the point of the concept of power? Lukes writes, “The point … of locating power is to x responsibility for consequences held to ow from the action, or inaction, of certain speci able agents” (56). That the exerciser could have acted di erently or could have known the consequences of their actions is important in order to hold them responsible and demand change. In PRV, Lukes fully understood that binding together power, agency, and responsibility was dependent on an understanding of responsibility that was itself a contested concept. He also knew that this perspective had certain implications for understanding the relationship of social structures to the exercise of power. Lukes asks, “can social causation be characterized as an exercise of power, or, more precisely, how and where is the line to be drawn between structural determination, on the one hand, and an exercise of power, on the other?” (52). At the time he was writing PRV, the debate between structural determinism and voluntarism was very much an ongoing concern within Marxist theory. This makes an appearance in his discussion of the dispute between Nicos Poulantzas and Ralph Miliband. In Lukes’ view, structures clearly interact with individuals, but individuals either alone or together have a relative autonomy and could have acted otherwise. If, Lukes argues, structure determined all, “there would be no place for power” (55). To stipulate that structural e ects are an exercise of power is to lose hold of the point of the concept—namely the ability to assign responsibility and potentially change things.

The Concept and a Conception of Power The rst thing to note in considering Lukes’ view of power is that he sees his own analysis as “ineradicably evaluative” and “essentially contested” (9). He does not believe that he could settle the word’s meaning once and for all. Di erent conceptions of power rest on di erent values and theoretical commitments. From Lukes’ perspective this is, in fact, no defect. The competitors are not wrong about power; they merely o er di erent conceptual maps of it. So, on Lukes’ account, the problem with the pluralists is not that they are not discussing power; the relevant parties to the debate do share the same concept. Rather the problem with their view is its one-dimensionality. Similarly Bachrach and Baratz (who were early critics of the pluralists) are not mistaken in using the word power, they are merely o ering a two-dimensional view of it. And Lukes’ own position? It is a three-dimensional view. The trope of dimensions plays a couple of roles in Lukes’ analysis. Not only does it allow him to talk about di erent viewpoints (think of Edwin Abbot’s nineteenth-century novel, Flatland: A Romance of Many Dimensions) without saying some are wrong, it also allows him to say that some conceptions of power are better than others. With more dimensions one achieves a richer view of the world. Hence, one conception of power is not as good as the next: a three-dimensional view provides more information than a twodimensional view which is in turn better than a one-dimensional view. His three-dimensional conception of power, he argues, “allows one to give a deeper and more satisfying analysis of power relations than either of

the other two” (10). What does Lukes mean by saying that we can see more with a three-dimensional view of the concept? At the very least, we can see everything that the other dimensions can see plus more. To understand that “more,” we can consider something he says about Bachrach and Baratz’s seconddimensional view of power. From their perspective, power can be exercised not only by getting B to do something she does not want to do, but also by preventing B from doing what she wants to do. If A can push matters o

the agenda, such that they never even become live political issues, then she can also exercise

power without con ict ever becoming overt. In what Lukes calls a “quaint observation,” Barach and Baratz note that if one encounters a situation of universal acquiescence, it will be impossible “to determine whether the consensus is genuine or instead has been enforced through nondecision-making” (quoted, 19– 20). Their two-dimensional view is blind to that possibility, just as the one-dimensional view with its behavioral focus is blind to forms of con ict that are not overt. It is with Lukes’ three-dimensional view that con icts, both manifest and latent, and acquiescence, both genuine and contrived can be fully seen. Despite its contestable character, Lukes believed that his radical view could reveal aspects of our world that the other dimensional understandings could not. Each of these dimensions of power presents a di erent conception of power that “arises out of and operates within a particular moral and political perspective,” (26). Nevertheless, as I have mentioned, beneath these competing conceptions lies a shared concept of power serving as a “common core”: power is a matter of A getting B to do something that B would not otherwise do. As we shall see, Lukes himself rejected this understanding in the second edition of the book. In the rst edition, however, Lukes argued that power, as it has been traditionally understood and studied, entailed a relationship in which con ict (manifest, covert, or latent) was key. It is “power over” others that matters most in understanding the concept (as opposed to “power to”). This perspective led Lukes to criticize views that argued that power was a capacity, facility, or ability. Such understandings, as found in the work of Talcott Parson or Hannah Arendt, had the e ect of eroding (what Lukes saw as) a central motivation for studying power, namely trying to understand how you get the compliance of people by “overcoming or averting their opposition” (31). The real theoretical meat in “power over” was to be found in its conceptual proximity to the idea of domination. In contrast, Parsons’ and Arendt’s ideas of “power to” could, in Lukes’ view, be easily accommodated by the idea of in uence. Their alternative concepts of power were not really part of Lukes’ conceptual pluralism, as they merely deployed “revisionary persuasive rede nitions” (30) that muddied the waters and occluded our vision. At least in the rst edition of PRV, it was clear that however expansive the contestability of power may be, it did not include contesting the concept itself. With his concept of power in mind and with the understanding that all conceptions of power are conditioned by wider and deeper values and theoretical commitments, Lukes o ers his three-dimensional conception of power. What is new in the third dimension is the idea that power can shape and determine the desires and wants of the less powerful in such a manner that they violate the less powerful’s real interests and in such a way that neither the powerful nor the powerless are aware of what is happening. Power is not necessarily about overt con icts, it may be about shaping preferences in such a manner as to avoid such con ict (23). And this is to be understood as power, as opposed to in uence or acculturation or mere persuasion, precisely because the shaping of those preferences violates the real interests of the individuals concerned and is done by actors who could have acted di erently. The absence of a grievance and the presence of agreement and acquiescence do not mean that power has not been exercised. Nevertheless, even in this third dimension, there must still be found con ict, albeit latent or potential.

Methodological Issues Understanding the force of Lukes’ position requires going beyond its political context and conceptual analysis. The goal of PRV not only included an account of his radical conception of power, but also a defense of the view that this conception could address the prevailing empiricist paradigm within political science. One of the motifs of the pluralist paradigm of power was that alternative conceptions of power could not be empirically tested. In the heyday of behaviorialism, Lukes saw it as necessary in defending his conception of power to argue that it was possible to operationalize it. The third dimension of power told us something about the world that even the pluralists should be able to see. The most di

cult hurdle for Lukes to jump in defending his approach was in nding evidence for the

counterfactual (i.e., that B would have done otherwise) in circumstances of general acquiescence. How can we say that the Bs would have acted otherwise when, for all intents and purposes, they appear quite content? Making good on the idea that people have real interests that can depart from their subjective interests is key to this claim. Lukes argued that while it is not easy to show that the real interests of B are being violated, it is still possible to do so. The empirical case that Lukes relied upon to illustrate his point was Mathew Crenson’s The Un-Politics of Air Pollution: A Study of Non-Decisionmaking in the Cities (1971). Although initially understood by Crenson as a case study for the two-dimensional view of power, Lukes argued that it (unintentionally) pointed beyond that view to reveal the operation of a three-dimensional conception of power (Lukes makes a similar comment about Dahl’s analysis pointing beyond itself.) In Crenson’s central case study, polluting companies such as US Steel were able to prevent ordinary citizens of Gary Indiana from acting on their real interests not to be poisoned by the company’s emissions. They would have acted otherwise and forced the company to regulate more closely the pollution levels if US Steel had not prevented or suppressed the articulation of their real preferences. The counterfactual is further supported by evidence that in di erent conditions where the non-decision is absent, citizens were able to formulate and act on their preferences to regulate air pollution. But would they have acted di erently in Gary? Drawing on Gramsci and examples from the 1968 Czech rebellion and the caste system, Lukes argued that there is evidence that once the apparatus of power “is relaxed,” then people do indeed act di erently.

PRVʼs Impact We can think about the impact of PRV in terms of the four areas that organize this essay. First, let us turn to the initial political question of elitism and the methodological issues within which the text was situated. The question of who rules is, of course, an important one and can be (should be) asked of any political regime at any time. The analysis presented in the rst edition of PRV, however, was framed by an ongoing methodological debate over behaviorialism. Not surprisingly, pluralists didn’t surrender after the publication of PRV. In subsequent empirical discussions of power, however, Lukes’ position was periodically cited (Dowding et al. 1995; Lindblom 1982; Manley 1983; Polsby 1980; Stone 1988); in Gaventa (1980), Lukes’ perspective was directly incorporated into the empirical study of power. With the emergence of other approaches to political science, the easing of behaviorialism’s dominance, and the securing of political philosophy’s legitimacy, the framing of PRV made aspects of Lukes’ analysis that were tied to that frame less compelling. This is particularly true for Lukes’ account of the concept of power, which will be discussed later. Still, there are two important impulses that drove Lukes’ response to behaviorialism that are of continuing importance. The rst is his sensitivity to the diverse meanings of power; a sensitivity that pluralists and others tended to obscure through stipulation or de nition. Using W. B. Gallie (1955–56), Lukes claimed that while there is a single concept of power, it is a concept over which there are endless disputes. This opens the

analysis of power in important ways. Could the conceptual analysis be opened further? In the second edition of PRV, Lukes alludes to other approaches to conceptual diversity (2005, 61–62). This raises the question of why Gallie’s approach should be adopted in the case of power. Why not instead see power as, for example, a family resemblance concept in which it is impossible to provide the necessary and su

cient conditions for

the term? Answering this question may help to defend the particular understanding of the concept that Lukes currently adopts. A second impulse in his response to behaviorialism that remains important is the degree to which idea of domination must be connected to the plausibility of certain counterfactuals and empirical claims. Lukes’ view, if not empiricist, certainly remained empirical. For if it proves impossible to di erentiate genuine from false consent, resignation from quiescence, or best (or true or basic or central) interests and capabilities from inferior (or false or non-basic or peripheral) interests and capabilities, then the threedimensional view of domination will not get much traction. One need not be a behavioralist or an empiricist (in the strict sense) in order to be empirical and recognize the importance of evidence to Lukes’ discussion of power. Ian Shapiro (2006) goes so far as to suggest that the interesting questions in Lukes’ position are not theoretical, but empirical. Of course, the deeper, more di

cult political issue that Lukes’ project sought to address involved the

apparent willing acquiescence of a population to their own domination in a situation in which both the oppressed and the oppressor know not what they do. For Lukes this project remains relevant in the face of developments such as Reaganism, Thatcherism, and global neoliberalism (2005, 10). Nevertheless, it is important to note that at least initially the conditions for the applicability of the third dimension of power were quite stringent: the As unintentionally and unknowingly exercising power and the Bs willingly accepting their situation and believing that they are not being harmed. Once the powerful acknowledge that their policies are harming some (but, say, believe the harm to be justi ed, or not severe, or necessary for future improvements), then the analysis must move from the third dimension back to a more standard analysis of power. Similarly, if the powerless come to believe that they are being harmed, but are either resigned to their situation or in some way willing to accept it (e.g., they see the alternatives as too costly), then the third dimension may also not be in play. In other words, even though Lukes believes the political problem addressed by the third dimension remains alive, how often are the third dimension’s conditions ever actually met? James Scott’s view (1985) that power is always met with resistance, however fugitive it may be, suggests that the conditions for the third dimension rarely, or perhaps never, apply. In the second edition of PRV, Lukes responded to this possibility, in part, by arguing that Scott attens out the human responses to powerlessness and that Scott’s approach cannot disprove that the third dimension of power is “often and widely at work” (2005, 130). But is it? Answering this question is somewhat complicated by a change Lukes makes in the second edition. One dissatisfaction that he had with PRV’s account of power is its assumption that individuals had unitary interests. In the revised edition, he now sees individuals as capable of having multiple interests. This has a number of consequences for his reformulated position. For one thing, he argues that a “real interest” can sometimes be understood as one’s best interest. For the issue at hand, however, it also means that the powerless could consent to power and still “resent the mode of its exercise” (2005, 150). The di

culty with

this latter possibility is that if B really does resent the mode of power’s exercise, then it would seem that there is some recognition on B’s part that it is in fact being exercised, moving B out of the category of “willing participant.” In short, the modi cation calls into question the applicability of the third dimension. At the conceptual level, PRV widely shaped the debate over power (see, e.g., Ball 1988; Barry 1988; Beland 2010; Clegg 1989; Guzzini 2005; Isaac 1987; Morriss 2002, 2006; Oppenheim 1981; Read 1991; Scott 2001; Wattenberg 1992; West 1987; Wrong 1979). But it also had consequences for debates over concepts such as authority (Allen 2009; Flathman 1980), interests (Hay 2011; Heyward 2007), and domination (Allan 1998; Scott 1990; Tilly 1991). Clearly one of the great contributions of PRV to many of these discussions is that it

provided a nomenclature for discussing di erent conceptions of power and for how other concepts, values, and judgments a ect the meaning of the term. To some degree the impact of PRV’s conceptual analysis was a ected by its initial framing in the debate with the pluralists. In addition to assuming that the interests of individuals were unitary, that initial framing construed power as exclusively an exercise concept, focused on the notion of “power over,” and equated it with domination. In the second edition, Lukes continues to defend the idea that power has a third dimension and he still believes that there exists a “single, comprehensive, extremely general or generic concept of power” (2005, 69). The concept of power, however, is not an exercise concept focused on the idea of “power over.” Drawing on the work of Anthony Kenny (1975), Lukes now sees power as “a dispositional concept, identifying an ability or capacity which may or may not be exercised” (2005, 109). It has two distinct variants, “power to” and “power over,” and the latter is a “subspecies of the former” (Lukes 2005, 69). Domination now looks more like a particular conception of power that sits alongside the idea that power can also be understood as productive. What becomes clearer in the revised edition is the degree to which the earlier work is not a generalized theory of power, but rather a speci c conception of “power over” that entails domination. More speci cally, PRV is about a speci c kind of domination that occurs when those with power shape the desires and wants of others in such a manner that they no longer serve their real interests. In light of the deeper theoretical debates that situate PRV, perhaps its most signi cant contribution is connected to issues surrounding agency, intentionality, responsibility, and structure. Lukes’ threedimensional analysis carves out an understanding of power that lies between inter-agential perspectives of power and non-agential perspectives of power. This meant that Lukes’ position was always vulnerable to attack from two sides. From the non-agential side of things, the explosion of work done on and in uenced by Michel Foucault kindled a variation of the earlier debate that Lukes had with Poulantzas (Digeser 1992; Hayward 2000; Hayward and Lukes 2008; Philp 1983). In response, Lukes has argued that, at best, Foucault could stipulate that the phenomenon he was talking about was power, but at the price of disconnecting power from domination. As in PRV, Lukes argues that we cannot hold individuals and institutions politically accountable for their actions and inactions unless they are in some sense responsible for those actions and inactions, that is, unless we can say that they could have done otherwise. These concerns are nicely formulated in a debate between Lukes and Clarissa Hayward (2008). And yet, the third dimension of power does resemble non-agential positions insofar as power is detachable from its intentional or conscious exercise. In her exchange with Lukes, Hayward argues that because the harms caused by the uncoordinated actions of multiple actors pursuing their interests (e.g., zoning laws, white ight, mortgage policies) are structural and remedial, the language of power gives us a way to talk about “responsibility to analyze, to evaluate, and act to change those constraints” (Hayward and Lukes 2008, 17). In contrast, for Lukes, the uncoordinated action of multiple actors is not power precisely because the e ects are uncoordinated. But this may be too weak. Lukes would seem to have to argue that those actions of multiple actors could not have been coordinated or remedied at the time in order for those actors to evade responsibility. In any case, Lukes writes, “The natural way to distinguish between power and structure is to say that we attribute power to agents when it is in their power to act or not to act…. If they are so structurally constrained or determined that they are unable to act otherwise than they do, then they are powerless to do so, and so they are powerless, not powerful. They simply enact or transmit the dictates of the structures that uniquely constrain them” (Hayward and Lukes 2008, 12). And yet, by holding onto the importance of agency and responsibility, the third dimension of power resembles inter-agential positions insofar as power presumes the possibility of autonomous action. The rub, from an agency-centered perspective on power, is that Lukes makes this move by jettisoning the notion of intentionality. In response, Flathman (1980, 140) argued that this move implied that the third dimension of power was much like the idea of negligence. In other words, the powerful “had not taken the trouble, had

not exercised the due care, to acquire…” the relevant information about the consequence of their actions and inactions. If the powerful could have known better or should have acted di erently, then they are responsible. If this is correct, then Lukes’ view is subject to a number of objections. First, we frequently make a distinction between the sorts of responsibility attributed to negligent and intentional action. In comparison to intentional actions, negligent actions tend to have a diminished notion of responsibility attached to them. Second, and more troubling, is that we ordinarily do not see negligent actors exercising power. There is a great deal of di erence between a roofer throwing shingles o

the roof without thinking

about whether someone is walking underneath (negligence) and a roofer threatening passersby with a shingle on the head if they walk nearby. The rst is an absence of due care, the second may be an attempted exercise of power. From Flathman’s perspective, the reason why we make that distinction is deeply connected to the role of intentionality. Finally, even if intentionality is a necessary condition for the exercise of power (in contrast to Lukes), that does not mean we are unable to identify the unintentional harm that can be done to individuals and groups or the harm that results from a given set of cultural norms and practices. Structures, norms, practices, and unintentional actions can truly be harmful, but without intentionality, they cannot be properly described as exercises of power. That Lukes is caught in the middle of a debate is due not only to the third dimension’s account of the powerful, but also due to its account of the powerless. As we saw, beneath Lukes’ third dimension of power lies an idea of responsibility that can encompass what the powerful could have done in any given situation, regardless of their level of awareness. Does the same standard of responsibility apply to the powerless? If they could have resisted (even though they were unaware that resistance was possible) are they also responsible for their own domination? Alternatively, if this logic doesn’t apply to the dominated (that is to say, whether they could have acted di erently is irrelevant to attributions of responsibility), perhaps it is because they could not have done otherwise. This response seems too strong, because it drains all agency from the oppressed. Perhaps it is in order to avoid this possibility that Lukes argues that the ip side of increased liability for the powerful is a diminution of standing for the powerless to consent to or accept (in any true sense of those terms) a state of a airs that violates their real interests. In unpacking this problem, it is important to note that in the second edition Lukes backs away from the freighted ideas of real or true interests and false consciousness in favor of best or central interests or Martha Nussbaum’s understanding of adaptive preferences (Lukes 2005, 137), emphasizing that it is through democratic participation that these interests can be discerned (2005, 146). Even with these modi cations, Lukes holds onto the idea that they provide a standard by which to judge a set of social conditions as harmful even if those who are being dominated may willingly abide by them. However construed, the idea of objective interests will always be controversial for those who believe that the individual is the best judge of his or her interests as well as for those who see interests as constructed. In addition, it should be noted that it is possible to believe that individuals can be harmed by structures, uncoordinated actions of others, or norms of behavior without their knowledge and still not see those harms as the e ect of power. Dispute over these matters remains very much alive. From the beginning, the concept of power has been central to the study of political philosophy. PRV may not have o ered a comprehensive theory of power or a satisfying account of the concept of power, but it did o er an important conception of power as domination. It is an account that is self-consciously aware of how any idea of power is inextricably linked to other contestable and contested values and ideas. It is profoundly sensitive to the manner in which human beings can be deeply harmed by thoughtless actions, norms, and policies of which they may be only dimly aware. And it is fully alive to the diversity of ways in which the concept is employed and the purposes to which it is put.

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The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Alasdair MacIntyre, After Virtue: An Study in Moral Theory  John R. Wallach https://doi.org/10.1093/oxfordhb/9780198717133.013.52 Published: 11 February 2016

Abstract This essay discusses the contribution of Alasdair MacIntyre’s After Virtue (1981) to a generation of moral theory. Pitched as a critique of liberal individualism (e.g., Rawls), modernity (e.g., amoral bureaucracies), and the antagonism toward the history of moral theory evinced by analytical philosophers, MacIntyre’s book urges a return toward moral traditions embedded in local communities as the best route to avoid what he regards as the soullessness of modernity and the abyss of Nietzschean philosophy. But his failure to re ect on the political valence of traditions in general or the Aristotelian and Thomist ones he values, seriously compromises his complaints about modernity and his suggestions for ways out.

Keywords: moral theory, liberal individualism, modernity, traditions, Aristotle, Thomism, Nietzsche, MacIntyre Subject: Politics and Law, Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

The ideational content of “virtue” (Latin, virtus) has varied signi cantly over time. But for those ploughing in elds cultivated long ago by ancient Greeks it arguably has roots in the Attic Greek word arete: skill, particularly holistic; excellence, often moral. Apart from Philippa Foot’s in uential essays on virtue in the 1970s, however, its transliterations have not been objects of concern for modern political theorists—mostly because it was either privatized in the wake of the Reformation or subordinated to Kantian dictates of practical reason. This changed dramatically in 1981, with the publication of Alasdair MacIntyre’s ambitious book, After Virtue: A Study in Moral Theory (hereafter, AV). Pitched as a critique of rights-oriented liberalism, Kantianism, and individualism, as well as the ahistorical dimensions of analytical philosophy, phenomenology, and existentialism, MacIntyre’s book became the launching pad for attempts to displace analytical philosophy from the high ground of moral and political philosophy, calling those vocations back to concern with the substance of moral life. It became the keystone for the subsequent decade of “communitarian” critics of liberalism in political theory and philosophy (e.g., William Galston, Michael Sandel, Jean Elshtain, and Je rey Stout); for a revival of Aristotelianism; and, perhaps most importantly, as an academic work that connected to events outside the academy. (Indeed, more than thirty years after its

publication, AV may be on the shelf of one’s local Barnes & Noble.) MacIntyre’s work spoke to the inability of liberal politics, political theory, and moral philosophy to address the ethical logjams, disillusion, and malaise (as Jimmy Carter, via Christopher Lasch, put it) a ecting American political culture. In the 1980s and 1990s, this problem only became perceptibly worse with critiques of rationalism and moralism launched by deconstructive literary theories, post-modernists, and cultural critics of the Western world’s hegemonic power. Although MacIntyre had worked as a philosophically minded historian of ethics and philosophical analyst of the social sciences, he speci es at the outset of his book that it is not a work of political theory and does not 1

take sides in debates among liberals, conservatives, and Marxists. MacIntyre had always been a very political writer himself, one who once harbored Marxist sympathies. But these had vanished by the early 1980s, such that, in addition to the book’s in uence on the relatively arcane debates of academics and despite its avowedly apolitical character, MacIntyre’s work contributed to the renascence of conservative political thought in the era of Margaret Thatcher and Ronald Reagan by promoting a uniquely moral compass for politics. He urged his readers to abandon the state as a vehicle of practical change and choose Aristotle (without the nasty bits) over Nietzsche, Rawls, and Marx as the theoretical chief for thinking about cultural traditions and political goodness. He also mentioned Aquinas in the rst edition, giving obeisance to his Scottish Catholic roots, but he never unduly pressed the religious dimension of his thought and certainly not as a political tool. He sincerely believed that the arguments of AV were suitable for Protestants and Jews—though any attempt to reach to the Eastern, non-Abrahamic religions probably extends beyond 2

its grasp.

AV began with a stunning picture of extant moral experience and discourse: one of utter incoherence, in which our moral language had lost its context for social meaning and use. It was as if the ruling classes within the academy and outside it had lost their way upstream and lacked a paddle. One can readily appreciate this attitude, given how intellectually sterile but socially combative were the intense political controversies of the day about abortion rights, welfare, education, and the use of military force. The debate about abortion had become a serious matter of public concern (both as a genuine concern of evangelicals and Catholics and a vote-gainer for Republicans) in the wake of the U.S. Supreme Court’s 1973 decision in Roe v. Wade. Need it be said, the decision hardly settled the issue; instead, it invigorated a new era of the invocation of moral language in politics by religious and political groups. Is abortion a hard matter for individual choice the permissibility of which is demanded by the equal rights of women? Or, is it technologically sanctioned murder to which our political authorities simply look the other way because a society beset by moral nihilism now con dently displays unlimited bounds of ethical toleration? What are the theoretical resources of the Western tradition to address this issue in a cooperative way? Have they become eviscerated by developments in science, the authority of reason, and the tolerant prose of liberal political ethics—all of which seem to have history on their side? Much as Hannah Arendt and Sheldon Wolin had tried to reinvigorate “the political” in the wake of its desecration by Hitler and Stalin, and managerial corporatism, MacIntyre tried to reinvigorate “the moral” by relating it to history and intellectual 3

traditions.

MacIntyre’s most immediate targets in political theory, however, were works by Harvard philosophers who occupied opposite ends of the liberal political spectrum: John Rawls (1971) and Robert Nozick (1974). Their di erent discussions of rights-based liberalism had captured the imagination of political theorists in the 1970s, even though Rawls (in particular) was mostly trying to split the di erence between two highly abstract and moral (not political) perspectives, viz. Kantian formalism and utilitarian consequentialism. MacIntyre thought that any rights-based perspective was not very helpful because it didn’t ask or address the right questions. If one began a social or political theory with assumptions about what counted as a right (pace Kant) or a good (pace Bentham) and the interior of rights or the substantive nature of the good was

precisely what rights or one’s conception of the good prevented one from questioning, how could practices of rights or pursuits of goods rooted in di erent motivations and conceptions, sustain critical evaluation? The typical answer o ered by liberals and utilitarians has been to up the level of abstraction to the point where some reasonable agreement was acceptable—for example, belief in the capacity of human beings as basically moral and rational or as desirous of happiness. But that point is so far removed from the actual quandaries of moral life that deontological (Kantian) and utilitarian perspectives are useless in helping us determine how we ought to live. They allow too much of social reality in the back door before we begin to theorize. And one doesn’t need to view these phenomena in the form of a bellum homines contra homines (pace Hobbes or Marx) or a determinate role in relation to the family, state, or civil society to agree with MacIntyre that liberalism only succeeds as a political framework if the con icts it seeks to moderate have been presumptively resolved before they enter its peripheral vision. This conceptual dead-end could easily lead one to adopt a “realist” perspective that dispensed with moral categories as more than subjective justi cations for actions by oneself or others. However, MacIntyre did not do this. Instead, he analyzed, rst, types of human practice in modernity that should be susceptible to “moral” guidance and identi ed them as the “characters” of our age: the “aesthete,” the “therapist,” the “manager,” and the “bureaucratic expert.” (Note the absence of class, gender, or race from these categories.) Determining that they, like modern liberal theorists, only function by abjuring moral commitments, MacIntyre turns away from the modern world to nd workable moral conceptions and traditions—principally to ancient Greece (and primarily to ancient Athens) and medieval Europe. This was a radical, controversial, and in uential move, for he argued for the need to go behind the Enlightenment—for him a “failed” moral project. One might wonder about the moral traditions of human liberty and equality that emerged in the wake of liberal revolutions of the late eighteenth and early nineteenth centuries. For MacIntyre, it is not as if they entirely lack value; rather, they have lost a moral basis of justi cation because the historical and ethical savings accounts that had made them solvent had run dry. In order to move forward, we had to move backward. In order to make progress in moral (and ultimately political) theory, we had to turn to traditions and practices of the virtues. In order to have such traditions and practices carry moral value for us, such histories and traditions could not be reduced (pace Nietzsche) to mere stories of historicism or realism. For many, MacIntyre’s historical turn as a critique of modernity was confused; for others, it enabled one to escape arid or aimless debates of Anglo-American and Continental philosophy and work with critical perspectives or counter-factuals actually generated by historical human beings (rather than hypothetical brains in a vat). Ipso facto, this would at least elevate and animate ethical and political 4

judgment. But let us turn now to the book’s substantive arguments before returning to their reception and use. The key that unlocks MacIntyre’s interpretive door is his view that the West’s predicament stems from “emotivism.” MacIntyre de nes emotivism as the worldview in which (1) moral choices are driven by emotions and intuitive choices, and (2) available conceptions of reason have roots in social reality. It began to gain traction in the late eighteenth century and achieved a dominant position in moral philosophy during the rst three-fourths of the twentieth century. For MacIntyre, it is the cause of incommensurable moral disagreements and an antagonistic, alienated relationship between the self and the world or the individual and society—with the “advanced societies” standing in for society and materially secure and satis ed 5

persons who are not minorities (but probably are men) standing in for individuals. There is no moral agreement or ethically supported political projects because individuals only can only express wants, preferences, or ungrounded principles, not persuasive reasons, when socially determining what is to be thought about what is to be done. So what then caused emotivism? For MacIntyre, the answer is initially unbelievable, viz., “episodes in the history of philosophy.” But by that he means something more subtle if equally sweeping, namely “key episodes in … social history… displaced morality … [such that] only in the light of that history [of philosophy

can] we … understand how the idiosyncrasies of everyday contemporary moral discourse come to be and thus how the emotivist self was able to nd a means of expression” (35). This re ects his history of moral philosophy that in turn re ects socio-historical developments. MacIntyre’s history is marked by decline but oddly not by con ict; to be sure, con ict exists, but there is no discordance between his understanding of developments in the history of moral philosophy and social history. Whatever credence he once gave to Marx’s portrait of social and political ideas as refracted signs of ideological con ict between classes has 6

disappeared from his view of history. But he does regard moral perspectives as successes or failures, and he 7

boldly judges what he calls “the Enlightenment project” a “failure.”

Previous critiques of Enlightenment rationalism (sources of which stem from the mid-seventeenth to midnineteenth centuries) came from German Romanticism, from Marx’s critique of the Enlightenment’s disguise of the dawn of capitalist ideologies via its formalization of human rights and human equality, and from Nietzsche’s critique of its moralism, namely its presumptive ability to identify human reason and human good without regard to human history or psychological motivations; a critique taken up and distorted by Fascists and Nazis in the 1920s and 1930s. But those critiques of the Enlightenment obviously are not MacIntyre’s; nor does MacIntyre share postwar philosophical views that connected the Enlightenment to totalitarianism (and will not be discussed here). MacIntyre’s critique identi es the Enlightenment project’s moral insu

ciency as a legitimizing perspective for Western societies. The sources

of failure were individuals not known for their logical de ciencies—namely, David Hume, Denis Diderot, Adam Smith, Immanuel Kant, and Soren Kierkegaard (among others). Their failures derived from either not rationally grounding their moral perspectives (e.g., Hume’s moral sympathy or Smith’s moral sentiments) or not socially or morally grounding their rational perspectives (e.g., Kant’s categorical imperative)— obviously in terms of MacIntyre’s criteria of success. The result was the absence of any coherent basis for justifying a moral perspective for the fundamental decisions that concern human beings on their paths of life. Most importantly, their failures were not really failures of logic but due to their being “the inheritors of a very speci c and particular scheme of moral beliefs, a scheme whose internal incoherence ensured the failure of the common philosophical project from the outset” (49). MacIntyre has adapted his previously articulated critique of correspondence theories of truth (variations of which were shared by many) via his own notion of philosophical and moral coherence to the entire history of Western moral philosophy. The linchpin is his view that in order to provide rational justi cation for morality one needs a teleological conception of human nature—which anti-Aristotelian Enlightenment philosophers rejected. One may wonder why they were so foolish as to deny the inherent meaning associated with various material objects or social roles, such as a watch or farmer. To recall, Enlightenment philosophers abhorred the pretensions of the English, French, and German aristocracies—which did presuppose the inherent value of their social roles and the political order they controlled. But this historical context does not appear in MacIntyre’s book; instead, he returns to the proofs o ered by Aristotelian moral philosophy (sans the metaphysical biology which degraded women, slaves, and non-Greeks) that linked social practice and moral purpose. As a result, MacIntyre nds no moral or practical achievements from the Enlightenment—just failures. Kant’s daring rational autonomy is simply the embryo of Durkheimian anomie; liberty, equality, and fraternity lead to Robespierre’s Reign of Terror. The Enlightenment’s incoherent moral schemes become embodied in social and political disasters, a back-handed tribute to the independent power of ideas to abandon the well-being of the individuals who subsequently adhere to them, without the previous support of social hierarchies, stripping them down to morally naked selves swimming aimlessly in the waters of emotivist culture churned by the dogmas of rights and utility. We are left to be guided by the amoral (previously mentioned) characters of the aesthete, the manager, the therapist, and the bureaucratic expert. The problem with these characters, according to MacIntyre, is just as inherent to their practice as the incoherence of the moral schemes whose failure made them sociologically possible. That is, they presuppose the adequacy of the ends they serve; they only judge the adequacy of various means to subjective

and socially preordained ends, and they justify their skill in attaining those ends as matters of “expertise” based on scienti c analysis of “facts.” MacIntyre surely has revealed the ideology which supports these characters, but he has portrayed these individuals as apolitical, not serving a purpose beyond themselves, their profession, their organization, or their perceptive styles. Yet these types emerged because of de ciencies in the practices of those they replaced: the hauteur of aristocratic taste; mercantilist ine

ciency

and corruption; social–sexual hypocrisy and the subordination of women; organizational cronyism. Of course, it is not as if these phenomena disappeared with the appearance of the characters that MacIntyre bemoans, but it is hard to believe that these characters would gain their prominence if they did not provide some bene t. Ironically, MacIntyre fails to apply his belief in the merits of contextualist understanding to his own arguments. As a result, his book moves forward by moving backward, in order to show that one should not subordinate consideration of virtues to rights but the other way around. As a result, after explaining the failure of the Enlightenment project and its deleterious consequences (and o ering a sound but ancillary critique of natural-scienti c explanatory criteria for the social sciences), he turns to a history of virtue and the virtues, from Homer to medieval Europe, preceded and concluded with a stark choice for the reader—between Aristotle and Nietzsche, strange bedfellows, neither of whom at the propositional level that MacIntyre rejects would accept rationalism or liberalism. Insofar as Nietzsche’s critique was a critique of the Enlightenment project, however, and the Enlightenment project was a failed critique of Aristotelianism, then, he argued, we have good reason to turn to Aristotle (and, he later emphasized in the prologue to the third edition, Aquinas) to overcome the moral disarray generated by the moral relativism and incoherence left in the wake of the Enlightenment project. MacIntyre’s choice of Aristotle over Nietzsche is, by this stage of the book, not surprising. But his intellectual generation of it warrants attention—in terms of its form and content. The headwaters for both are a chapter on the virtues in heroic societies, principally the Homeric world from which Nietzsche took his models of pre-Socratic human greatness, and in terms of which Aristotle avowed the superiority of his own theory of practical and moral reason. MacIntyre’s interest in the Homeric poems stems from what he takes to be a direct t between individuals and their roles—the opposite of the abyss between them identi ed by liberalism and existentialism—and a valuation that accords with the socially sanctioned hierarchy of roles (from Agamemnon to Thersites). To MacIntyre, “morality and social structure are in fact one and the same in Heroic society” (116; cf. 171–172). Human movements resemble those in the game of chess (ironically recasting the signi cance of rules as signposts of social meaning), such that the heroic epics consist of determining who is the best chess player (118). But MacIntyre claims that this narrative mode of moralizing needs supplementation by a more discursive mode, so he moves on to discuss “the virtues at Athens,” where moral incoherence (according to MacIntyre) also rears its head—here between its Homeric inheritance and the demands of rational, political community (pace A.W.H. Adkins, a Kantian!). So then why Athens? For MacIntyre, “we lack, as they [Athenians] did not, any public, generally shared communal mode either for representing political con ict or for putting our politics to the philosophical question” (130). In the age of the National Security Agency, social media, and Citizens United, MacIntyre’s observation still rings true. But the truth is not as telling as he assumes it to be. For the ancient Greeks, the closest antecedent of the English virtue was arete, the best de nition of which is practical and moral excellence, with the context of meaning for excellence being success according to sanctioned cultural criteria. Given that all of Athenian literature could be said to be disquisitions on (or contests about) the meaning of arete, it was hardly a “coherent” concept, especially among the tragedians. So MacIntyre turns to Aristotle to bring order out of the Athenians’ moral chaos. Aristotle is the telos toward which Greek history was tending. Insofar as he provides a teleological account of natural (including human and political) behavior, his theory provides the necessary framework for the evaluation and resolution of the moral and practical con icts of life—through his integration of nature and the polis, ethics and politics, reason and virtue, theory and practice. Aristotle and his followers might agree, but would anyone else? Does the Aristotelian synthesis e ect all gains and no

losses? MacIntyre acknowledges that Aristotle slipped up by naturalizing slavery, but he fails to consider if that mistake may have been symptomatic. This problem of content is not salvaged by the interpretive form of MacIntyre’s argument. Exactly how are we to translate Aristotle’s world into ours? And how do we rid Aristotle’s theory of its nasty bits and potential to fortify Spanish conquerors, American slave-holders, gender-subordination, and conventionally natural hierarchies? “Medieval Aspects and Occasions” is the chapter that provides the missing link between Aristotle and modernity, as well as the prologue to MacIntyre’s return from moral history to philosophy and a naturalistic account of the virtues that he uses to help us understand the useful meaning of Aristotle today. It is an odd collection of observations about how various iterations of Christianity translate the iteration of virtues. By the end of the chapter, MacIntyre confronts the question of whether there is a conception of virtue that encompasses the di erent conceptions identi ed and de ned by Homer, Aristotle, the New Testament, and, later, Jane Austen and Benjamin Franklin. How his history of moral traditions makes possible transcending the historical, literary, and philosophical di erences that inform these di erent moral outlooks is, yet again, a problematic issue to which MacIntyre does not o er a critically sustained solution. Far into his narrative, MacIntyre nally articulates a generic de nition of virtue, as follows: “… an acquired human quality the possession and exercise of which tends to enable us to achieve those goods which are internal to practices and the lack of which e ectively prevents us from achieving any such goods” (178, emphasis in original). The weight of morality has shifted from the meaning of virtue to the meaning of what counts as a practice (de ned as excellence and obedience in human relationships to rules as well as the achievement of goods—(175–178)). It is through participating in practices that one becomes virtuous (181). MacIntyre states that we understand the meaning of practices through narrative orders and moral traditions, which in turn identify the virtues by which we understand which goods to achieve (174, 183). This de nition of practices and virtues allows MacIntyre to jettison Aristotle’s metaphysical biology. But MacIntyre insists that his account of the virtues remains Aristotelian in three ways: (1) the conjunction of moral and intellectual virtues; (2) an account of pleasure built around the excellence of relationships and human ends, not utility; and (3) a linkage of evaluation and explanation, thereby denying the isolation of “facts” and “values.” Ultimately, for MacIntyre, all partake of a uni ed telos for a good human life (185– 189). Why that unity must occur, how it is determined, and who determines a satisfactory telos within a narrative whole remains to be seen. We know that the philosophies of liberalism and existentialism associated with overly bureaucratized private and public organizations do not help. But for answers to these questions, we must turn to MacIntyre’s accounts of a uni ed human life embodied in the virtues, traditions, and good social practices. MacIntyre di erentiates his concept of a tradition from its Burkean, conservative cast. And he accepts without quali cation the value of con ict about a tradition, within a tradition. His criterion for a tradition is that it is sustained by the virtues, which are sustained by traditions in society and narrative unities for the self. In short, the argument is circular and somewhat disingenuous, as he excludes not only Burkean traditions that valorize the virtues of inherited hierarchy and religion, but also political traditions and virtues sensitive to (what they regard as) unjust distributions of power and authority. The familiar criticism of Marxism for not having a cogent theory for the progressive exercise of political power leads MacIntyre to dismiss it entirely. Oddly, what uni es MacIntyre’s socio-moral perspective is the unwillingness to address a principal de ciency of Marxist theory, namely how to sustain its critical project politically without deforming it. Instead, MacIntyre makes an important e ort to draw attention to the moral shallowness of the late-twentieth century liberalisms of Rawls and Nozick. In one of his book’s most famous maxims, MacIntyre declares, “… modern politics cannot be a matter of genuine moral consensus. And it is not. Modern politics is civil war carried on by other means … Modern systematic politics, whether liberal, conservative, radical or socialist, simply has to be rejected from a standpoint that owes genuine allegiance

to the tradition of the virtues; for modern politics itself expresses in its institutional forms a systematic rejection of that tradition” (236–237, emphasis added). In its place, MacIntyre encourages the formation of local communities and institutions generated by local citizens, which live on the margins of a political order’s collective life. (How the Catholic Church ts in here is not a subject that MacIntyre considers.) Examples include contributing to cultural, educational, and religious associations. Limits on executive pay, conditions of life in the workplace, or the ethics of di erential taxation do not cross his radar. Liberals rejected the traditions of the virtues at the level of rst principles of justice because they fear that allowing them such pride of place would replicate wars of religion and inhibit moral toleration. By contrast, MacIntyre’s attempt to reinvigorate the moral dimension of social theory regards the actions of the modern state (beyond respecting the rule of law and alleviating su ering) as illegitimate. Having abandoned political analysis, MacIntyre’s theory mimes the features of liberalism that fail to address the ethical and practical sources of political con ict. We are to embrace a sanitized Aristotle, while hoping for the emergence during “the new dark ages [in which we are ruled by] barbarians … [of] another—doubtless very di erent—St Benedict” (245). In the third edition of the book, he also emphasizes the exemplary virtue of Leon Trotsky. Amid the churning engines of economic and political power, in an era in which the only extant “permanent revolution” is not Trotsky’s but rather seems to consist of e orts to convert evermore of us into perpetual consumers, MacIntyre’s intellectual plea for a return to the virtues that does not address the immorality of those engines sounds more like a whistle in the wind than an outcry for radical change. MacIntyre’s book belongs to a group of books published around the same time that identi ed the substantive emptiness of much philosophical analysis and political theory. I have in mind Richard Rorty’s (1979) penetrating criticisms of the architecture and ambitions of analytical philosophy, which promoted in their stead the kind of literary narratives of which MacIntyre would approve; and Charles Taylor’s (1979) and Michael Sandel’s (1982) critiques of liberalism and Rawls’ theory of justice for not (arguing in a vein MacIntyre might endorse) placing Hegel or Aristotle at the head of the class. Michael Walzer wrote a kindred critique of Rawls (1983). Liberalism had its champions in Great Britain, importantly inspired by Isaiah Berlin, and the United States, led by Rawls. Both gained support from the ascendance of ahistorical analytical philosophy and its roost on the relatively abundant Western economies of the postwar era. (Be sure not to ask African-Americans or women about their conditions during this time.) But their intellectual limits inevitably would be identi ed, and MacIntyre found a principal gap by drawing attention to the role of the virtues in the history of moral philosophy (at the cusp of the upsurge of inequality within Western societies). Together, these very di erent books, in scope and character, led to what came to be called a debate between liberals and communitarians. In moral philosophy, attention turned (albeit not entirely) from debates between deontology (i.e., Kant) and utilitarianism (i.e., Bentham) to “virtue ethics” and discussions of human capacity (i.e., updated, Aristotelian versions of the human good). “Virtue ethics” became a cottage industry for philosophy, and the importance of virtue for politics enthralled more politically minded intellectuals, from secular, liberal feminists such as Martha Nussbaum to religiously 8

sympathetic, conservative, pundits, from William Bennett in the 1980s to the present.

Critical articles about these debates began to emerge in abundance during the mid-1980s and in books during the 1990s. Meanwhile, a political redirection of them appeared in the public realm as “the culture wars” that focused on the ability of intellectual identities to inform the diversity of nations and societies. These developments were not a direct product of MacIntyre’s book, but they evidenced an important relationship to it. For angst had begun to grip American society as colleges and universities admitted more ethnically and socially diverse students, and their professors provided arguments that identi ed the relative absence of women and minorities in the accepted stories of American history and contemporary culture. Some academics counterposed the abstract idea of multiculturalism to Americanism, but the kind of attention to the virtues and historical traditions called for by MacIntyre was absent from these more baldly

articulated disputes. Liberals had no ideological steam, as they endorsed a political pluralism that lacked any coherence or egalitarian thread. As a result, attending to MacIntyre’s virtues became a concern of political critics from both the right and left, but not in the manner that MacIntyre imagined—illustrating both links and disconnections between academic arguments like his own and Western political trends. Interestingly, neither set of critics, nor MacIntyre himself, were able to address the impact of the end of the Cold War and the consequent upsurge in the power of global capitalism along with the extensive international migrations of persons and cultures. MacIntyre’s important elaborations of AV did not expand 9

its practical, political reach. But while its direct theoretical argument for a new moral perspective did not gain hold, the anti-political and anti-modern features of his moral discourse found common ground with another academic source of political conservatism, namely the work of Leo Strauss. For like MacIntyre, a generation earlier Strauss had found sustenance in the ancients (primarily Aristotle and Plato, idiosyncratically read) and medievals (the Jewish philosopher Maimonides, rather than Aquinas). Both sought control of politics through morality, and both believed that morality had objective sources, even if they meandered their way through various moral traditions. Both produced critiques of liberalism and positivist social science, and both promoted attention to the virtues. Neither paid much attention to the impact of capitalism on political ethics. The disconnections between MacIntyre’s arguments and the academy increased in the dominant trends of academic criticism in the 1990s, when deconstructionism, postmodernism, and poststructuralism generated critiques of liberal rationalism much more extreme than those o ered by the communitarians of the 1980s, insofar as their targets included the virtues of Western society and the value of historical 10

narratives.

MacIntyre’s interest in the socio-moral dimension of the virtues was regarded, in practice, as a

cudgel of conservatives. As a result, any discussion of virtue by academics on the left was regarded with suspicion. And, indeed, it began to be very hard to imagine how a single tradition of the virtues, uni ed by a historical narrative yet respectful of diversity, could reign in the increasingly globalized national cultures of the twenty- rst century. Meanwhile, other monotheistic religious traditions became signi cantly shaped by their most conservative and virulent adherents—often at the expense of women, if not their own religious heritages. MacIntyre’s focus on character and the virtues did nd a foothold, however, in the Burkean conservatism of David Brooks, who has used his two columns per week in The New York Times over the past fteen years to note the lack of character and virtue in the politics of American society (but not the economics of corporate boardrooms). AV certainly struck a chord in drawing our attention to worlds we had lost. In this, MacIntyre found common ground with democratic theorists who found sustenance in the public realm of Athenian democracy, critiques of neoliberal capitalism and its evisceration of codes of conduct motivated by anything other than the cold calculations of the pro teer’s bottom line, and Anglo-American republican critics of liberalism, particularly Quentin Skinner and Philip Pettit, who turned to Machiavelli and Rome to invigorate a notion of 11

political liberty that, contra Isaiah Berlin, bolstered the ethics of citizenship.

Unlike MacIntyre, however,

these critics of modernity embraced neither Aristotle nor pre-existing intellectual traditions or ideas of community per se. Instead, they, like MacIntyre, were desperately unhappy with the political direction of Western societies and the intellectual or political resources of liberalism to address them. They would only become unhappier as the impact of technology and capitalism on intellectual discourse diminished and attened the signi cance of historical inquiry for political understanding, not to mention isolating real individuals and communities from each other even as they become virtually (not virtuously) connected. Moreover, it is not as if anyone has found the theoretical or practical path to unrepressive political community. Ultimately, AV’s most important contribution could be said to be its insistent revival of premodern views of human life as correctives for modernity, of historical understanding for philosophical and moral understanding. This raised to the forefront the question of the relationship between history and political

theory—a subject that others certainly addressed, though not with the power of MacIntyre’s work, and one that continues to preoccupy anyone whose life has been shaped by historical books and seeks to connect with those for whom books seem increasingly anachronistic. Perhaps most telling is the emergence within moral philosophy of “virtue ethics” which directly countered the previously dominant school of analytical ethics, whose historical perspective was typically limited to what had been written since 1960. While AV did not succeed in correcting the course being set by more dominant discourses in the academy and the wider world, it certainly contributed to widening contemporary perspectives on what might be relevant to our moral lives. If its impact on intellectual life was sharply limited, this cannot be blamed on what the book accomplished. Instead, it stemmed from what it needed to exclude in order to hang together: a clear-eyed connection that linked his interpretation of the virtues and moral traditions to the practical structures of power and politics that importantly constituted them. To do so would have blurred the boundaries of his neat employment of the history of philosophy in moral terms as a counterpoint to its exclusion from liberal rationalism and analytical philosophy. But not to have done so may well have meant that, unintentionally, AV fostered many of the developments in modernity which its explicit arguments condemned.

References Bennett, William J. 1996. The Book of Virtues: A Treasury of Great Moral Stories. New York: Simon & Schuster. Google Scholar Google Preview WorldCat COPAC Foucault, Michel. 1977. Discipline and Punish: The Birth of the Prison. New York: Random House LLC. Google Scholar Google Preview WorldCat COPAC Foucault, Michel. 1978–86. The History of Sexuality. New York: Random House LLC. Google Scholar Google Preview WorldCat COPAC MacIntyre, Alasdair. 1981 [1984 (includes Response to Critics), 2007 (includes a retrospective Prologue)]. A er Virtue. Notre Dame: University of Notre Dame Press. Google Scholar Google Preview WorldCat COPAC MacIntyre, Alasdair. 1988. Whose Justice? Which Rationality? Notre Dame: University of Notre Dame Press. Google Scholar Google Preview WorldCat COPAC MacIntyre, Alasdair. 1990. Three Rival Versions of Moral Inquiry: Encyclopedia, Genealogy, and Tradition. Notre Dame: University of Notre Dame Press. Google Scholar Google Preview WorldCat COPAC MacIntyre, Alasdair. 1999 Dependent Rational Animals: Why Human Beings Need the Virtues. Peru, IL: Open Court. Google Scholar Google Preview WorldCat COPAC Nozick, Robert. 1974. Anarchy, State, and Utopia, New York: Basic Books. Google Scholar Google Preview WorldCat COPAC Nussbaum, Martha. 2013. Creating Capabilities: The Human Development Approach. Cambridge, MA: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Pettit, Philip. 1997. Republicanism: A Theory of Freedom and Government. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Rawls, John. 1971. A Theory of Justice, Cambridge: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Rorty, Richard. 1979. Philosophy and the Mirror of the Nature. Princeton: Princeton University Press. Google Scholar Google Preview WorldCat COPAC Sandel, Michael. 1982. Liberalism and the Limits of Justice. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Sandel, Michael. 2013. What Money Canʼt Buy: The Moral Limits of Markets. New York: Simon & Schuster. Google Scholar Google Preview WorldCat COPAC Skinner, Quentin. 1997. Liberty Before Liberalism. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Taylor, Charles. 1979. Hegel and Modern Society. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Tessitore, Aristide. 2002. “MacIntyre and Aristotle on the Foundation of Virtue.” In Aristotle and Modern Politics: The Persistence of Political Philosophy. Notre Dame: University of Notre Dame Press.

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Walzer, Michael. 1983. Spheres of Justice. A Defense of Pluralism and Equality. New York: Basic Books. Google Scholar Google Preview WorldCat COPAC 1

That said, his sternest critics—including myself—identified its political lacunae. Interestingly, his 1984 “Response to Critics,” published in the bookʼs second (and subsequent) editions, he only responds to philosophical (not political) critics.

2

In the Prologue to the third edition of AV, MacIntyre associates his theory more directly with Thomism.

3

One of MacIntyreʼs most vigorous and influential supporters was the philosopher Richard Rorty, a man of the liberal Le , whose Philosophy and the Mirror of the Nature (1979) had given a hammer blow to analytical philosophers who thought their logics of language entailed understanding of the world.

4

For a direct instance of this, see Tessitore (2002), 133–161. The irony is not lost on Tessitore, who removes it via his devotion to Straussian political philosophy. The irony was partially blunted by MacIntyreʼs Thomist interpretation of Aristotle and the continuation of Thomism in the ethics of the Catholic Church (which MacIntyre more or less has endorsed).

5

It is important to recall that MacIntyreʼs book was published at the very beginning of the 1980s, before deconstruction and postmodernism washed upon Anglo-American shores; financial capitalism had begun to dominate Wall Street and the City; multicultural life had displaced the WASP as the baseline characteristic of Anglo-American ethnic identities (even if not in positions of economic and political power); and growing economic inequality had systematically shrunk the middle class of developed liberal–capitalist democracies.

6

MacIntyre reads Marxʼs Ideologiekritik as another sign of the incoherent Enlightenment project (MacIntyre 1981, 103–104).

7

Ironically, while advocates of the Enlightenment sought to have their emancipatory ideas realized in society, MacIntyre, in a similar vein, judges the value of ideas in terms of whether or not they can be “embodied.”

8

See Nussbaum (2013); cf. Sandel (2013); Bennett (1996).

9

See MacIntyre (1988); MacIntyre (1990); MacIntyre (1999).

10

Many arguments in these schools of thought drew on the work of Michel Foucault. But while Foucault, like them, found fault with liberal rationalism and modern sovereignty as governmentality, Foucault continually drew attention to the value of historical inquiry and the past—albeit in his own distinctive mode. See, for example, Foucault (1975, English translation, 1977) and Foucault (1978; English translations, 1978–86).

11

See Skinner (1997) and Pettit (1997).

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

C. B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke  Hugh Breakey https://doi.org/10.1093/oxfordhb/9780198717133.013.42 Published: 05 October 2016

Abstract C. B. Macpherson’s 1962 The Political Theory of Possessive Individualism: Hobbes to Locke challenged the canonical interpretation of seventeenth-century English political theorists by exploring their allegiance to “possessive individualism,” the idea that man’s normative essence consists in his selfownership. After surveying the work’s impact, this chapter analyzes Macpherson’s concept of possessive individualism and considers the inter-relations amongst its economic, ontological, and psychological postulates. The chapter argues that—while Macpherson’s exegesis erred in trying to graft the concept onto early modern political theorists like John Locke—his core idea remains signi cant today. Possessive individualism accurately describes an in uential normative perspective increasingly pervading and facilitated by contemporary global capitalism, as exempli ed in the global nancial crisis of 2007–09.

Keywords: C. B. Macpherson, possessive individualism, John Lockẹ, capitalism, self-ownership Subject: Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

In 1962, a radical new work on seventeenth-century political philosophy blazed into the world of political theory. Drawing upon prior resources, but packaged into a systematic tour de force, C. B. Macpherson’s The Political Theory of Possessive Individualism: Hobbes to Locke (PI) challenged the reigning interpretation of the major English political theorists of the early modern period. The work strove to expose the unrecognized role of powerful capitalist assumptions lurking within theorists hitherto seen as engaged with quite di erent questions and principles—and in some cases lauded as forefathers of democracy and equal rights. The answering reviews came thick and fast, noting in equal measure the radical nature of the work’s signature claims, and the author’s undeniable intelligence and scholarship. The critiques were sharp, as defenders of the traditional views mustered their resources to combat this challenge. But even the harshest commentators mitigated their criticisms with awareness of the penetration of Macpherson’s vision.

Lamenting the tedious business of defending traditional interpretations against brilliant, novel ones, Isaiah Berlin (1964) hinted darkly at the work’s “overingenious” nature, even as he acknowledged the cogency of revolutionary parts of Macpherson’s argument.

Substance What then were the signature claims fomenting this tumult of accusation and applause? Macpherson’s seminal work introduced the idea of “possessive individualism”: that man’s normative essence consists of holding property in himself, capable of fully alienating his labor, and of owing no further duties to his community—rendering society no more than an aggregate of market interactions (263–264). With sophistication, erudition, and ingenuity, Macpherson argued possessive individualism constituted a central assumption of seventeenth-century political theorists—and thereby cautioned the modern reader against returning to such theorists in the hope of defending contemporary liberal democracies (1). For lurking beneath the ostensibly democratic principles of several of the key early moderns were brutal possessive individualist assumptions. Macpherson began with Hobbes’s forbidding theory of humanity, arguing that the Englishman drew his famously grim picture of humanity in the state of nature from the behavior of civilized market man. Indeed, Macpherson argued the market model was a lynchpin assumption required by Hobbes’ theory. Macpherson next attacked the Levellers’ reputation as trail-blazing democrats, pouncing upon their unwillingness to extend the democratic franchise to England’s lowest classes, and arguing that they saw servants and other wage laborers as having forfeited their rights by alienating their property in labor. But if Macpherson’s reading revolutionized the underlying postulates of Hobbes and the Levellers, the book’s nal interpretation would challenge every part of traditional scholarship on Locke. No longer a brave forefather of toleration, democracy, and constitutionalism, Macpherson’s Locke defends in nite appropriation of property, unremitting class division, and a political system protecting the interests of the capitalists while leaving property-less laborers “in but not of civil society” (227). Given Locke’s unquestioned standing as a totem of the liberal tradition, in many respects Macpherson’s radical interpretation of Locke proved the jewel in the book’s crown. Macpherson accomplished these radical re-interpretations through close reading of several pivotal passages in the theorists’ works. But he also was able to interpret these doctrines as ideological re ections of the reigning economic system by attributing unvoiced assumptions to their writers. While Marx’s name remains largely absent from the work, Macpherson’s method breathed oxygen into the economic analysis of political ideologies, and reinvigorated prior Marxian accusations of Locke’s role as capitalist ideologue.

Impact Surveying the impact of Macpherson’s seminal work, James Tully (1993, 20) remarked that if the role of a work of political theory is to provoke critical research, then PI stands as one of the most successful hypotheses in recent memory. It is hard to reject this appraisal. Macpherson’s path-breaking work stimulated renewed interest in Locke, Hobbes, and the workings of consent theories. His analysis of Locke’s arguments on property demonstrated the sweeping distributive implications hinging on the initial restrictions on property acquisition (the controversial “Lockean” proviso that one must leave “enough and as good” for others). This insight triggered renewed attention on what a Lockean theory, combining selfownership with a robust proviso, would look like—helping issue in the now-popular political stance of left libertarianism. Meanwhile, the idea of possessive individualism was picked up by historians interested in capturing the rising bourgeois sentiments of the seventeenth century, and in exploring the impact of these sentiments on the law and thinking of the time (e.g., Rose 1993). And the theory set the groundwork for a return to studying the precarious normative relationship between liberalism, capitalism, and democracy— not least in Macpherson’s own lifelong theorizing, where he aimed to reclaim liberalism’s best elements from its worst. But if PI enjoyed unparalleled in uence in stimulating further research, the work’s signature claims themselves—those radical interpretations of the early moderns, especially of Hobbes and Locke— ultimately attracted a critical mass of withering refutations. Almost every dimension of Macpherson’s interpretations was systematically dismantled. Critics charged that Macpherson misconstrued the age and its priorities, mistook the driving concerns of the theorists, misrepresented their key arguments, and ruthlessly ignored countervailing evidence. Let’s review this in the context of Macpherson’s prize example of Locke. From the rst, critics argued that Macpherson misconstrued the nature, language, and political priorities of the time. Seventeenth-century actors didn’t read “property” or “consent” in the ways Macpherson’s argument required, and their views of the laboring poor were more nuanced and con icting than Macpherson alleged (Viner 1963). Indeed, Lockean scholarship since Macpherson has taken a “religious turn,” propelled by theorists like John Dunn (1969) and Jeremy Waldron (2002), and increasingly stressed the theological (rather than the economic) dimension of Locke’s thought. More broadly, scholars recalibrated around Locke’s traditional concerns with political authoritarianism and arbitrary power, further displacing the capitalist interpretation. The charge of selective reading was a persistent admonition. To take but one instance, it proved di

cult to

square any of Macpherson’s signature claims with the First Treatise (FT)’s “principle of charity.” Macpherson’s contemporary defenders complain that appeal to this principle “wrenches” Locke’s statement out of its proper context (Andrew 2012, 152). But it is hard to see how the context could be any 1

more apt. In these sections, Locke accepts arguendo a claim of his opponent, Robert Filmer, and considers what the political rami cations would be if God had granted Adam a property right in all the world. Locke questions whether the possession even of the whole earth would, “give any one a sovereign arbitrary authority over the persons of men” (FT, 41). Now on Macpherson’s interpretation, Locke drew sweeping political consequences from one discrete class of people holding a property right in the entire country— ultimately concluding that the property-less laboring class should not be granted a stake in government (231). Of course, Macpherson admits Locke never actually stated this, as the view was based on an implicit shared assumption. So this leaves Locke’s argument in the First Treatise as the only explicit window into Locke’s thoughts on how comprehensive ownership impacts upon political authority. In the event, Locke argues in the strongest terms that an owner could not justi ably parlay their land ownership into political power—going so far as to castigate the historical attempts by monarchs to do exactly this, and darkly predicting that they would tie their population to “hard service” (FT, 41). In other words, Locke lambasts sovereigns for believing that their property rights could ever justify forcing the population to choose

between starvation or hard labor for subsistence—exactly the choice Macpherson’s Locke has the capitalists o er the property-less laborers. One struggles to imagine a more relevant context, or a more de nitive repudiation of this key interpretive claim. Finally, some scholars (this author among them) argue that Macpherson simply misread some of Locke’s pivotal arguments. To take just one instance, the pièce de résistance of Macpherson’s argument comprises Locke’s words in Second Treatise 36, where Macpherson has him “explicitly” using consent-to-money to dissolve the natural law limitations on property acquisition. That is, Macpherson holds that Locke thought that when people agreed to the use of money, they necessarily consented to the removal of their prior entitlements to be left “enough and as good” productive land. Macpherson employs no sneaky subterfuge in crafting his argument. He faithfully recounts Locke’s key statements. But Macpherson’s subsequent recapitulation of the salient sentence drops away the crucial clause “without straitening anybody” (Breakey 2014, 68). This tiny omission dramatically alters the logical structure of Locke’s argument: instead of saying that the introduction of money means the natural law rule would still hold without straitening anybody, Macpherson’s Locke says money’s introduction means that the natural law rule would not hold at all. The consequences of this semantic mistake riddle almost every part of Macpherson’s subsequent story of Locke (e.g., 211, 214, 231). Ultimately, after the cumulative e ect of fty years of unrelenting critique, it is hard to locate even one of Macpherson’s signature claims about Locke that currently enjoys widespread acceptance—or even the support of a vocal minority—amongst Locke scholars today. If all this criticism of Macpherson’s interpretations is on the mark—and I shall not be saying anything against it here—we might wonder how Macpherson could have gone so wrong. One answer surely lies in the exegetical dangers involved with his method of imputing hidden assumptions. True, Macpherson laid out important conditions constraining when he would attribute such assumptions, requiring that the idea: (a) was common at the time; (b) lls a gap in the thinker’s argument; and (c) was mentioned by the thinker elsewhere in other contexts (5–8). But the subjectivity of all three conditions compounded with the fact that Macpherson did not aim to attribute internally consistent positions to the thinkers, but only positions consistent within what Macpherson saw as the limits of their “vision” (7). Since this also proved a matter of interpretation, the method e ectively countenanced resolving perceived inconsistencies by introducing new ones—a strategy bound to court controversy. One other setback befell Macpherson’s cause. The fall of the Berlin Wall in 1989 fractured the feasibility of the major large-scale alternative to the market relations Macpherson castigated. To be sure, Macpherson himself harbored reservations about the prospects for a socialist utopia. But the depth of his critique of capitalism made it hard to see how the categorical rejection of all market and wage relations could prove workable. As Neal (2012) argues, even if Macpherson was right about the inherent oppressiveness of possessive individualism, the apparent collapse of a viable socialist alternative might force upon us the question of which form of capitalism might be the least worst—and so most justi ed—economic–political arrangement. Macpherson’s work might help us in that task (I will go on to suggest one way this is so), but his divisive all-or-nothing approach to the market does not make his assistance straightforward.

Judgment What then are we left with from PI if its core substance has been so comprehensively critiqued that modern scholars can mention it only to dismiss it as discredited? Can the work serve any present purpose except as a standing warning of the exegetical dangers of imputing “hidden assumptions,” and an exemplar of how far “economic” analyses of moralities can e ace the true concerns of political theorists?

Macpherson’s thesis that possessive individualism was a “central assumption” of the seventeenth century (xiv) was always going to be a tough sell, given that even on his own account not a single major theorist actually held the full position. Locke’s natural law commitments rendered him too con icted, the Levellers proved too naïve, and Hobbes missed class con ict entirely (265–270). But the cumulative result of Macpherson’s failed interpretations threatens to render possessive individualism not only an ill- tting Frankenstein’s monster, but one sewn together from the torn-o

limbs of straw-men.

Ultimately, possessive individualism proved a misleadingly extreme way—economically, socially, politically, and ontologically—of expressing the more mundane truths that English society and political thought were becoming more market-orientated, that individualism and reason were gaining sway over the prevailing absolutism, and that notions of property (in oneself and in general) were eclipsing other traditional, religious, and authoritarian normative concepts.

Reassessment Despite all this, Macpherson’s ideas on possessive individualism still hold relevance for political theory. To see this, we need to re-examine the original idea. For in all the commentary on Macpherson, and even in the eponymous work itself, the idea has not received a close conceptual analysis, distilling its major elements, and exploring the inter-relations (supports, tensions, and contingencies) amongst them. If we are to move forward in appraising the idea’s worth, we must rst conceive it clearly.

Possessive Individualism: A Conceptual Analysis Let’s begin with Macpherson’s central idea of possessive individualism: The self-ownership postulate: People hold property in themselves and their capacities in (something resembling) the full liberal ownership sense. This self-ownership implies they bear no positive duties to others, and they wield almost unfettered discretion over their own labours. (221, 263– 264) Resting upon an absolutist conception of property, this postulate asserts people’s property relations with themselves, rather than merely with things. We can note two additional sub-postulates: The self-conception sub-postulate: People see self-ownership as an essential part of their fundamental normative makeup. They understand themselves primarily as self-owners, and see their society as comprised of market-interactions. (264, 275) This rst sub-postulate adds a social-psychological claim about the ways people conceive themselves. Unlimited appropriation sub-postulate: Self-owners can acquire without restriction. They do not acquire duties to others through appropriating unowned property. (232–233) This second sub-postulate dissolves any “enough and as good” proviso, and so rules out acquiring (left libertarian) welfarist duties as a condition of appropriating new resources. While these rst postulates exhaust Macpherson’s explicit exposition of possessive individualism, Macpherson appeals to a further postulate so consistently that it bears inclusion as part of the standard 2

de nition.

Maximizing Postulate: Humans are rational utility-maximizers, in nitely desiring commodities. Man is not by nature an exerter or developer of his potential, but rather a consumer of subjective utilities, acquiring capital for its own sake. This postulate takes the in nitely desirous Hobbesian man, welds it with Locke’s unrestrained appropriator, and anticipates the subjective utilitarianism of Bentham. Taken together, I’ll speak of the conjunction of the self-ownership and maximizing postulates as Standard Possessive Individualism. In some respects, these postulates package together neatly, calling to mind a thin “negative” liberty rather than an enriched “positive” liberty. That is, the boundaries of self-ownership protect a person doing whatever (non-harming) activities they desire, and so protect the pursuit of subjective and even greedy desires. The theoretical market construct of homo economicus e ectively holds both characteristics: “market man” aims to maximize his subjective utility—but only within market constraints. Homo economicus owns himself, his labors, and his property, and respects others’ similar properties. While the postulates can therefore join together intuitively, it bears mention that the di erent postulates nevertheless deal with disparate issues, making claims about political and economic systems, about the philosophical justi cations that allegedly undergird those systems, and about the psychology of the humans who inhabit them. While Macpherson rarely distinguished clearly between these di erent claims, viewing possessive individualism very much as a package deal, he did develop arguments explicitly linking the selfownership and the maximizing postulates. Macpherson argued that utility-maximizers holding capital in a class-divided society will endorse and comply with a sovereign that enforces market rules (97–98, 216–217, 231). Yet philosophical tensions riddle these postulates. Even the individual postulates can seem con icted and ambiguous. As Rosenblum complains of the maximizing postulate: “in nite desirer is not synonymous with in nite consumer, and neither translates necessarily into in nite appropriator to a speci c form of property” (1993, 98). The tensions multiply when we join the self-ownership postulate with the maximizing postulate. True, some theorists have attempted something resembling Macpherson’s procession from subjective utility-maximizers to market-like polities. But even in the clearest example of this, David Gauthier’s (1987)  Morals by Agreement, Gauthier stressed the move was only rational under certain empirical conditions, that it must include a Lockean proviso, and that it ultimately required the rational agents employ a wholesale character shift to become “constrained maximizers.” Putting Gauthier’s argument into our terms, maximizers only endorse self-ownership (the rst postulate) by stopping being maximizers (the second postulate). This result hints at the deeper tension: those who assert self-ownership as humanity’s essential characteristic need to justify this with normative claims about humanity’s moral essence—an endeavor quite opposite to appealing to subjective preference-maximizers. The two ontologies clash: witness natural rights libertarian Robert Nozick’s (1974, 42–45) attempt to demolish subjective preference-ful llment through his ingenious “experience machine” argument, while the subjectivist utilitarian Bentham (2002/1816, 330) famously railed against natural and imprescriptible rights as “nonsense on stilts.” Given these philosophical tensions, but acknowledging Macpherson’s insight that the postulates nevertheless tend to lump together, we might analogize the two postulates to a binary star that various market-oriented worldviews tend to orbit, waxing closer to one or other without necessarily cleaving directly to both. While Standard Possessive Individualism captures the core of possessive individualism, Macpherson includes two further elaborations:

Subsistence-laboring postulate: At least some, and possibly all, wage-labourers in a capitalist economy will be forced to labour just for subsistence. The reigning capitalists endorse this result. (54) Class-division postulate: Class division sets in between capitalists and wage-labourers (55). These political arrangements can hardly be justi ed to the poor wage-labouring class, but those classes do not deserve a stake in government (198, 248–250). Government is not only by the propertied. It is only for the propertied. As a political/economic prediction, Macpherson holds that the previous postulates lead to these two later ones. His story goes that utility-maximizers owning their own labor and able to appropriate without limit (as per Standard Possessive Individualism) eventually acquire all the available land, leaving the property3

less with only their labor to sell. Provided the capitalists band together along their class interest, they will be able to purchase labor at subsistence rates. They thereby disenfranchise the weaker class and control the over-arching “democratic” process. Not all possessive individualist theorists acknowledge this inevitability. Macpherson claims it as a weakness of Hobbes and the Levellers that, unlike Locke, they failed to see these implications (265–266). I will call these postulates Ultimate Possessive Individualism —“ultimate” in the sense that they eventually follow from the earlier postulates’ instantiation, and also in the sense that they are morally extreme. Even strident defenders of the free market balk at endorsing Ultimate Possessive Individualism. Compare these positions with the broad understanding of Locke and the natural law tradition of this period that Macpherson sought to overturn, but which has ultimately eclipsed his own interpretation. Contrasting with the self-ownership, maximizing, and class-division postulates we may (allowing for various smaller controversies) formulate three postulates, which together I’ll term Mild Individualism. Property-in-self postulate: People hold some (non-absolute) form of property in themselves and their capacities. Centrally a political rather than economic notion, this property works as a barrier against arbitrary coercion (Breakey 2011). Allowing wage-labour and a regulated, taxed market, property-in-self respects self-governance by preventing others’ arbitrary intrusions—but does not rule out welfarist duties. Active humanity postulate: Humans are conceived in an active and positive sense. Rather than maximizing consumers, they ful l the core human activities, in particular governing their lives. In Locke this activity centrally incorporated productive labour. Consent postulate: Political authority is not natural, but constructed through some form of (perhaps implicit) consent, meaning the authority must be justi able to all those bound by it. In principle this requires universal su rage (though the early moderns only applied it to men), but in practice exceptions might be made. This comparison opens up a number of questions: What would Macpherson say about Mild Individualism and its relation to Possessive Individualism? And what did Macpherson aim to accomplish by supplanting seventeenth-century Mild Individualism with Possessive Individualism? While acknowledging its positive elements, Macpherson would have appraised Mild Individualism as naïve and confused. We can see this when he re ects on the less possessive elements of the Levellers (154–157), and in his later work when he categorizes recent political theorists (1985, 90–96). There, Macpherson faults thinkers like Rawls and Berlin for not recognizing the insidious social and economic realities of wage labor and free markets. Yet Macpherson praises these thinkers as “developmental individualists” for at least defending a vision of humans as exerters and developers of their capacities. As portrayed above, the Mild Individualism of the early moderns contains both these negative and positive features.

Macpherson criticized positions like Mild Individualism in four distinct ways. These comprise: A moral criticism that Mild Individualism’s use of wage labor alienates people from their labor, allowing one person to help themselves to the powers of another (56–59). A metaphysical criticism that the ontological assumptions of Possessive Individualism, especially the maximizing postulate, infect Mild Individualism (see, e.g., Macpherson 1985, 96). An economic criticism that market inevitabilities, the concentration of capital, and its corrosive impact on the democratic processes, will eventually collapse Mild Individualist polities into Ultimate Possessive Individualist regimes. And nally a social-psychological criticism that the Mild Individualist society will lead to market participants conceiving themselves in Possessive Individualist terms, with its divisive unsustainability, and its pinched view of human ful llment. With these criticisms in mind, consider what Macpherson aimed to accomplish by transforming the early liberals into Possessive Individualists. If his historical interpretations had succeeded, Macpherson would have been on rmer ground for levelling all four types of criticisms. For it would have turned out: that key forefathers of the liberal tradition were morally comfortable with Ultimate Possessive Individualism; that the philosophical fundaments that had seemed to justify Mild Individualism in fact harbored the Possessive Individualist ontology; and that the forefathers were unblushingly aware that the market relations they endorsed had already led to Ultimate Possessive Individualism—and a constituency endorsing this brutal result. “Mild” individualism would have been exposed as a contradiction in terms, the rst step onto a slope greased with treacherous moral, ontological, economic, and social implications. Where then does the failure of Macpherson’s interpretations leave his four criticisms? The moral criticism comprises a version of Marxian alienation, and readers will have their own views on whether Mild Individualism’s wage labor necessarily amounts to a serious political wrong. As for the philosophical criticism, a persistent complaint against Macpherson’s work was his over-eagerness to impute ontologies on the basis of political prescriptions (Rosenblum 1993). Macpherson assumed that any systems with market sympathies had to have a possessive individualist ontology and vision of human nature (Macpherson 1985, 96). But ontologies do not correspond neatly to political prescriptions. In terms available to political theory since Rawls’ later work, we could now say that market arrangements (like various other political structures of liberal democracies) can enjoy an overlapping consensus from a variety of diverse philosophical and religious standpoints (Rawls 2005). Turning to the third, economic criticism, Macpherson’s predictions look questionable: many contemporary welfare-liberal regimes maintain substantial government support for the unemployed and for minimum wage laborers, and have done so for decades on end. But what of the nal criticism—the social-psychological prediction? I submit that this prediction warrants further exploration.

Possessive Individualism: Past, Present, Future Given what I have said so far, we might surmise that the idea of Possessive Individualism, riddled with internal inconsistencies, conceptual tensions, and dubious predictions, could be safely purged, not only from the history of seventeenth-century political thought, but from political theory more generally.

Not so fast. For if Macpherson over-reached in extending the idea to seventeenth-century political theorists—and probably even to eighteenth-century gures such as Bentham (Rosenblum 1993)—the fact remains that possessive individualists did eventually appear. Re ecting on the development of the natural law tradition in America, with the increasing signi cance placed on self-love and the belief that each person best preserves God’s creation when they look to their own life, liberty, and pursuit of happiness, historian Knud Haakonssen (1996, 331) granted that: “Possessive individualism did come about, though a couple of centuries too late to t the scholarly bill.” Equally, if we trace the history of property rights, we nd that it is around this period during the nineteenth century when capitalist development starts ruthlessly trumping environmental, community, and personal uses that had hitherto enjoyed long-standing recognition (Meyer 2009). As we proceed into the later nineteenth century, we witness the rise of an even more aggressive individualism, a more absolute libertarianism, and the chilling association of laissez-faire economics with newfound ideas of competitive struggle and natural selection. Possessive Individualism remains with us to this day. True, even bearing in mind the excesses of neoconservatism and neo-liberalism, we must resist falling into Macpherson’s trap of imputing hidden assumptions to foist implausible ontologies on unsuspecting normative philosophies. The foregoing conceptual analysis provides us with the tools to specify how far philosophers depart from Macpherson’s paradigm. For example, Robert Nozick presents the most in uential twentieth-century defense of the selfownership postulate—but it is questionable whether he accepts the self-conception sub-postulate, and in acknowledging even a weakened Lockean proviso, he rejects the unlimited appropriation sub-postulate (Nozick 1974, 178–182). As a result, he does not endorse either of the Ultimate Possessive Individualist Postulates, and we have already seen that he explicitly argues against the maximizing postulate’s subjectivism. But if strict conceptual tensions mean unalloyed possessive individualism only rarely appears in normative philosophy, we can hardly dispute its presence in empirical studies of economics (such as in theories extolling full market e

ciency) and government (such as in public choice theory). Moreover, these

disciplines impact upon policy recommendations and debates. For instance, when in 2007 the Stern Report demanded immediate action on climate change, leading economists faulted its premises on moral grounds. Martin Weitzman accused the Report of relying on “a priori philosopher-king ethical judgments” rather than extrapolating the moral worth of future human wellbeing from the discount rate revealed in the money market (Broome 2012, 106). One can hardly imagine a clearer declaration that market values should usurp traditional ethical principles. Even starker is Possessive Individualism’s presence in actual market behavior. Possessive individualists riddle almost every part of twenty- rst-century capitalism—from planned obsolescence to patent trolls; from regulatory capture to the corporate tendrils extricating themselves through every crack in the democratic process; from “greenwashing” and the di

culty in confronting environmental issues to the

widespread use of globalization to dodge taxation and regulation alike. Not only do such actions occur, a sense of aggressive self-righteousness accompanies them: when we all live in a material world, greed is good. Perhaps nowhere does the specter of the possessive individualist loom larger than in the global nancial crisis of 2007–09, where investment bankers sold opaque derivatives, exploited predatory lending practices, took massive institutional risks for short term gain, dodged existing regulations and lobbied aggressively against future constraints, and lived up their seven- gure bonuses as ordinary workers lost their jobs and home-owners lost their savings (Curtis 2008). “A free market was never meant to be a free license to take whatever you can get, however you can get it,” Barack Obama (2008) scolded in his maiden Wall Street speech. “Too often we’ve excused and even embraced an ethic of greed, corner cutting, insider

dealing …” Putting Obama’s concern in our terms, Mild Individualism was never supposed to collapse into Possessive Individualism. But collapse it did—and the Obama government itself failed to hold back the tide, bailing out corporations “too big to fail,” even as it struggled to regulate them. These instances strongly suggest actors holding a possessive individualist ethos. The Greycourt White Paper observed that the root cause of the global nancial crisis “was the gradual but ultimately complete collapse of ethical behaviour across the nancial industry” (Curtis 2008). True enough: the merchant bankers behaved as if they felt Friedman’s (1970) doctrine of a company’s single social responsibility (being to increase its shareholders’ pro ts) set down one responsibility too many. Yet even so, none of the many moral failings the White Paper enumerated involved the use of arbitrary violence and forced servitude. The major players all respected formal self-ownership. But their merciless pursuit of wealth at all costs, dodging and subverting democratic controls even as they immiserated entire classes of their compatriots, imply their pro t-maximizing spirit follows Macpherson’s logic all the way to Ultimate Possessive Individualism. But how have we arrived at this unwelcome result, given that we have seen Possessive Individualism has so few respectable philosophical forebears? We might resist thinking one could pick up the idea purely through participation in the market. After all, market exchanges can epitomize the best of morality—win–win interactions characterized by explicit, rational, and voluntary consent on both sides, with each participant not only explicitly endorsing the interaction, but positively bene ting because of it. Pursued systematically, such interactions encourage participants to productive work, rid them of irrational (and costly) prejudices, and draw their attention to meeting others’ concerns. Many market exchanges may well approximate this ideal. And if participants take such happy dyadic interactions as the launching pad for crafting their conception of normative human nature, their perspective might well resemble something inspiring like Kant’s kingdom of ends. At worst, we might imagine, the market interaction could evoke the uncharitable and sel sh—but principled, honest, and genuinely productive—Atlases striding through Ayn Rand’s novels. But contemporary market exchanges too often betray another, more sinister aspect, characterized by caveat emptor, made between actors of very di erent power, pregnant with deliberately hidden risks and harms, papered over with slick advertising, laced with ne-print, feeding and feeding o

people’s addictions,

neuroses, frailties, and short-termism, heedless of whether the agreement subverts political and legal processes, and scornful of harms to third parties and future generations. I submit that if participants draw their ontology and picture of normative human nature from that type of market interaction, taking it as their point of departure, then their moral worldview may well constitute Possessive Individualism. Earlier, I echoed prior arguments that Macpherson over-reached by claiming that Possessive Individualist assumptions infect all market sympathizers. But perhaps we should conceive the link between markets, ontologies, and Possessive Individualism in a di erent way. Suppose we ask the empirical, socialpsychological question: Taking the dyadic capitalist exchange as the point of departure, what type of metaphysical view, what theory of normative human nature, and what motivational structure does market interaction tend to inspire in its participants? The instances presented above of Possessive Individualism’s increasing presence suggest that Macpherson put his nger upon a worldview that raw modern capitalism does tend to encourage—and one that his readers recognized for this reason. If this line of thought is on the right track, then even Macpherson’s awed interpretations of seventeenthcentury thinkers still matter today. People fashion their understandings of morality and human nature out of the available materials—out of pre-existing principles like rights and utility. As the participant at capitalism’s coalface casts about for a viable worldview, the political precept of property-in-the-person metastasizes into the economic assumption of full liberal self-ownership; sentimentalist utilitarianism’s concern for insecurity mutates into unconstrained maximizing consumerism; and contract theories of

democratic political authority collapse into actual-consent barriers to welfarist taxation. Macpherson’s leftist-inspired distortions of the early liberals illuminate how these gures provide ingredients for the contemporary extreme right’s imaginings—an unholy alliance previously noted by Lockean scholar A. John Simmons (1992, 61). This thought cautions us against too thoroughgoing an embrace of the political prescriptions of the early liberals. True, with the failure of Macpherson’s deprecations on Locke, he is left as a theorist trying to 4

faithfully work out how to instantiate a “beautiful set of natural rights.” But the very fact that Possessive Individualism proved so far from the imagining of the early liberals means that today we face a threat to 5

human ourishing that our forebears failed to anticipate. While the early moderns certainly recognized the dangers of greed and covetousness, they failed to conceive a market so omnipresent, globalized, and beyond governmental control that it—rather than any religious sectarianism, internecine con ict, or authoritarian tyrant—could amount to a central impediment to widespread human ourishing. Locke’s separation of church and state, bicameral democratic government, and separation of powers have all proved prescient institutional bulwarks against religious con ict and authoritarian abuses. But none of these institutions were designed to repel the threats posed by extreme capitalism as a system-wide phenomenon. From our current perspective, Locke’s weakness was not (as Macpherson alleged) that he crafted political institutions to entrench possessive individualist depredations, but rather that he didn’t craft his political institutions to defend against such depredations. Summing up, I have argued that Macpherson insightfully captured the central tenets of an increasingly prevalent worldview. He erred in trying to foist the idea on major normative political theorists, who were bound to be alarmed by the philosophical tensions plaguing the idea. He erred again in trying to graft the idea onto seventeenth-century normative political theorists, who had far more pressing threats looming over their political horizons. But the idea of Possessive Individualism itself, and the way it could mutate out of elements of these early political theories, remains an insight that warrants political theorists’ attention.

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Notes 1

Locke (2003/1689), First Treatise, §41–§43. Future references to this work cited in-text as, e.g., (FT, 41–43).

2

See PI, 2, 54, 235–236, and also Macpherson 1985: 92–96.

3

This is a weakness if individual capitalists have reason (as they o en will) to defect from the collectively rational practices of their class.

4

Macpherson (1973), 228. See similarly PI, 230.

5

This is a specific instance of a general point made by Sampford (1994), 25–26.

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Jane Mansbridge, Beyond Adversary Democracy  Eric Beerbohm https://doi.org/10.1093/oxfordhb/9780198717133.013.46 Published: 19 December 2022

Pages C46.P1–C46.N9

Abstract Rules of order can perform two kinds of work in a democratic setting: they can be regulative, taking con icts among groups for granted, or they can be constitutive, making possible the formation of new ways of relating to each other as equals. Jane Mansbridge’s now classic Beyond Adversary Democracy is a vivid possibility proof for the latter kind of democratic theory. Its mix of participant observation and case studies showed how the rules of order can make a group that is marked by its equal standing. In doing so, Mansbridge’s work anticipated two core literatures in political theory. It pointed to the deliberative turn in democratic theory and the relational turn in debates about distributive equality. At the same time, it modeled a way of doing political theory that integrates analytic and ethnographic approaches.

Keywords: deliberative democracy, adversary democracy, relational equality, rules of order, town meetings, democratic theory, distributive justice Subject: Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Every once in a while we practice democracy face-to-face. We sit across from each other. The gavel strikes. If there’s any hope of deciding something, we face an immediate choice. What rules of order should structure our meeting? Putting the question this way invites an old regress problem. What rules of order should govern the choice of those very rules of order? There is no obvious way out of this loop. Ordinary political reality usually blocks this regress. The town meeting and legislative session convene with a controlling rulebook in hand. Over time the language of formal rules, wooden as they are, comes to sound natural. “Seconding a motion” and “points of order” serve as responsorial psalms of in-person democracy. The majesty of Jane Mansbridge’s Beyond Adversary Democracy has its roots in its attention to the humdrum. The work focuses on “only the smallest units” of political life (289). Yet by dwelling on the rituals and architecture of deliberation, Mansbridge manages to speak to, and make progress on, the largest problems in democratic theory. What emerges is a deeply uncynical work, which takes seriously the ne-grained practices that empower and constrain talk. No work in political theory had treated face-to-face democracy

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in a systematic way, but we know well that the rules that structure decision-making can be momentous.

Yet democratic theorists face criticism that they pay “little attention to the actual operation of voting rules” (Buchanan and Tullock 1962, 131). This charge, lodged over fty years ago, still has force. Parliamentary 2

rules tend to be shunned as being too pedestrian for philosophical work on deliberation. This marks out Mansbridge’s book from the very work on deliberative practices that it ushered in. In this chapter, I suggest two ways in which Mansbridge’s work was far ahead of its time. First, it paved the way for the “deliberative turn” in democratic theory by identifying a foil. For adversary democracy, democratic politics just is egoism pursued by collective means. Citizens organize around their interests, exing power over other groups. These displays of power are subject to rulebooks, like the handbooks of talk of Je erson and Robert. Mansbridge rejects this model of democratic politics. She shows us how the way a group makes decisions together can make the group. On this core insight, rules of talk can play a constitutive role. Who we are will turn on how we talk our way to a decision. There is nothing romantic about how faceto-face deliberation constitutes a collection of citizens. Indeed, it can make us feel “humiliated, frightened, and even more powerless than before” (71). If later work in deliberative democracy invited the charge of 3

being dewy-eyed, there is no hint of that here.

Second, Beyond was prescient in distinguishing between distributive and social equality. The brand of equality that Mansbridge identi es in her eldwork isn’t the bare equality of resources or decision-making power. Under conditions of shared interests, decision-making rules can distribute power unequally while treating people as equals. This thought now grounds an important turn in egalitarianism, the implications of which are still being worked out. Both of these insights are a function of Beyond’s methodology. It wasn’t just a model of empirically-grounded democratic theory; it broke ground in conducting eldwork in unfamiliar places. On display is an “ethnographic sensibility” that attempts to understand how ordinary citizens attempt to use ideals (Herzog and Zacka 2019). This was, and with few exceptions still is, deeply unfamiliar territory for philosophers of democracy. What this eldwork revealed was collective decision-making in the esh. Mansbridge’s interviews, participant observation, and even quasi-experiments showed us what is was like to be a citizen in more intimate modes of democracy. Seen together, these innovations are mutually supporting: the attention to the rules of talk helps us see the unequal standing of talkers, and this epiphany derives from a fusion of participant observation and theory-building. Democratic theory still has much to learn from the remarkably mixed methods in play in Mansbridge’s classic work.

Two Rules of Order: Roberts vs. Mansbridge Suppose we nd ourselves in a deliberative state of nature, in which no discussion or decision rule is preset. We must choose. Two rules of order are on the table. There are Robert’s all-too-familiar Rules, which o er simple majoritarian voting with limited protections for minority voters (Robert 2020). Or we can accept Mansbridge’s Rules of Order. Here anyone can decisively object to a proposal. No formal votes are taken. Each of these rules of order is sponsored by an ideal of democracy. The distinction between adversary and unitary forms of democracy is a central fault line in Mansbridge’s work. Adversary democracy assumes that citizens narrowly pursue their individual self-interest, much like economic actors in markets. The idea of a common good is a category mistake. Unitary democracy leaves open the possibility of common interests, pursued by citizens who relate to each other in a way that bears some analogy with friendship. Once we recognize a political society as having shared interests, we will look for rules of order and talk that acknowledge that we, as citizens, are pursuing ends greater than ourselves. Neither of these ideals is fully co-possible; each is necessary. The context will be momentous in deciding which is the best t. Mansbridge’s two case studies provide contrastive contexts: “Selby,” her name for a rural Vermont hamlet with an annual town meeting; and “Helpline,” an urban crisis center which practices a form of workplace democracy. Are rules of order mere “trappings,” as some of Selby’s town hall participants protest, or something more solemn? Formal rules can check tempers and encourage people to stay at the table. But their very coolness can also interfere with a participant’s sense of being “at home” (66). This tension can seem intractable. Are rules of order keepers of the peace or sources of alienation? Mansbridge answers that they are both, frustrating readers who expected her to give some neat way out of this deadlock. How can we reconcile these polar opposite views? If the problem of political theory is how to “articulate the entire complex of unitary values with those of adversary democracy” (288–289), are we left with a eld with dismal hopes for progress? I want to introduce a familiar distinction into an unfamiliar setting. Rules of order perform two kinds of work for a deliberating group. They can be regulative, guiding an independently existing activity. Or they can be constitutive, making possible new forms of activity. Are rules of order more like road signs, constraining the activity, or the rules of cricket, which create a new activity? The only plausible answer starts with the obvious: it depends. We have to look at the content of the rules, and the principles underwriting them, to say anything interesting. I will argue that rules of order can make the group. This insight, I want to argue, helps explain and unify Mansbridge’s work. It informs her method—the use of participant observation—and her 4

conclusions about the irreducible rivalry between unitary and adversarial forms of democracy.

Whether rules of order constitute or regulate a group is signi cant in two ways. First, it sheds light on democratic practice. Groups don’t constitute themselves organically. Innocent-sounding decisions about how to discuss and decide can transform a group’s character. Second, the distinction between regulative and constitutive rule of order throws light on the clashing values behind adversary and unitary democracy. How much do we value deciding fairly, or deciding together? If we can’t live without either, how can rules of order acknowledge this tension built in our ideal of democracy? We began with a regress problem. Our group lacked any settled way to organize itself. How can we select rules to regulate the selection of rules? We could deploy a hand and “two nger” rule for follow-ups, or maybe we should adopt something more formal, like Robert’s Rules. In this unregulated state, it’s not as if our group is wholly incapable of functioning. Without agreed-upon deliberative rules, we can still engage in the back-and-forth of reasons exchange. The discussion may be unruly, sounding like Hobbes’s rambunctious picture of the legislature, where lawmakers quite literally vote with their feet, bellowing out their preferences. Interruptions should be expected.

Participating in a deliberative practice without shared rules is possible. We are still, after all, meeting and discussing. For an analogy, think of tra

c rules. In the early days of the automobile, Henry Ford was still

capable of driving his prototype car. Rules of the road weren’t needed to make the activity of driving 5

possible; they were needed to make the activity reasonable. Once rules of the road are in place, you don’t need to grasp them to drive. You need to grasp them to coordinate this activity with other drivers, bicyclists, and pedestrians. The safety of the activity, not its bare logical possibility, demands regulation. Regulative rules constrain a pre-existing activity (Searle 1969). Therefore, they can be loosened without changing the principal activity. Rules of order can seem to play this kind of role, regulating the activity of deliberation. That’s how many residents of Selby understood Robert’s rules. In the annual town meeting, they understood o

cial rules as analogous to the rules of the road:

The moderator’s main job, people feel, is to keep the peace. He should quash the rst sign of anger or quickly expel the perpetrator. Roberts’ Rules of Order, the gavel, the constable—all the trappings of formal procedure—should save the townspeople from the explosions that can build up face to face. (66) If this is right, formal rules regulate deliberation, but they don’t themselves constitute the activity of political deliberation. Robert’s Rules go so far as to o er detailed guidance on word choice. If a motion isn’t seconded by another participant, it fails. But the handbook urges participants to avoid resorting to the phrase “dies for lack of a second” (Robert 2020, 35). Language like that can raise the temperature of a meeting, and should be discouraged. But it doesn’t follow that a participant who insists upon using this phrase has left the deliberative activity. They’ve violated a regulative rule within the activity. Still, they are operating within the basic framework. Instances of rule-breaking, or at least, rule-relaxing were part of political life in Selby. In a striking scene (57), Mansbridge records a series of votes and re-votes that initially look like vote cycling. The majority of the participants votes against the Planning Commission, by a vote of 37-32. There is an immediate demand for a recount. This is attacked as dilatory. That charge is overridden by the parliamentarian, and the motion for a re-vote eventually succeeds. On the second ballot, the Planning Commission prevails. Some worry that this switch was the product of double voting, so another re-vote is conducted. On this nal ballot the outcome ips again, with a vote of 37-35, this time against the Commission. We are left to wonder what drove these changes. These ip- ops may be evidence of something illicit. Did the number of participants change in between votes, or can we be sure double counting was happening, with some participants of Selby voting “early and often”? Or we may be tempted to read o

the ip- ops with a “high theory” explanation, like Arrovian

cycling. But Mansbridge points us toward an explanation that is less dramatic—whether ethically or theoretically. They might be the result of small changes in opinion or in who was present at the meeting at di erent times. She admits that she cannot explain how these three di erent voting pro les arose: “I had been too caught up in the drama to keep an eye on the door” (57). The number of participants in the three successive votes grew incrementally from 69 to 70 and then 72, but the outcome could not be explained by the accretion of adherents to the eventual winning side. In the second vote, someone’s vote might have been double-counted, but the nal vote was “by the voter checklist,” meaning that each person coming up to cast a vote was checked o

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on a list of registered voters and could not vote again.

Other kinds of rules constitute an activity. This is easy to see in games like chess and cricket. Their respective rules make these activities “playable,” but this analysis also bears on deliberative practices. That, I think, is what is morally distinctive about what I’ve called “Mansbridge’s Rules of Order.” They don’t merely regulate a pre-existing practice; they constitute the group in an essential way. They put the members in a distinctive relationship with each other. Start with their form. We begin with a consensual

process, a form of decision-making where, “one or more members of the assembly sum up prevailing sentiment, and if no objections are voiced, this becomes agreed on policy” (32). Mansbridge’s Rules of Order aren’t reducible to a bare unanimity rule, where regular voting punctuates the meeting. They induce agreement without hand-raising or balloting, and their deliberate lack of structure can be exhausting. Consider the 1860 Republican Convention, where a Committee of Twelve was organized to select an alternative to William Seward. It adopted a consensus discussion rule. This led to twelve straight hours of deliberation. A wearied participant objected to the method: “The time had been consumed in talking” (Goodwin 2005, 240). For Helpline, the urban crisis center, Robert’s Rules have no place. The o consensualism. No o

cial mode of decision-making is

cial vote is taken, but every member is given the power to stop the group from acting

(186). Each participant can therefore see herself as pivotal in the collective decision. Forty-one employees came to view themselves as part of a group that had distinctive interests of its own. By committing themselves to having an equal, and necessary, say, participants were creating and sustaining a kind of collective agent. Helpline, as an organization capable of acting, was uni ed by what Mansbridge calls a “quasi-objective” conception of interests (343). The formal rules that Helpline employee abided by weren’t like tra

c signs that regulated a pre-existing activity. Their adopted rules of talk and decision-making

marked out Helpline as a functioning participatory democracy. The consensualist rules, I think, quite literally made the group. Contrast this with the rules of order of Selby. There, Robert’s Rules played a di erent role. They ordered the annual town meeting. They didn’t create a group agent with interests of its own, for there simply wasn’t enough overlapping interest to make this constitutive act possible. Majoritarian procedures generally kept the peace. This isn’t to say that, under highly divergent interests, Robert’s Rules of Order fail to produce authentically collective decisions. We can say: the town of “Selby” decided something, but we must mean very di erent things when we attribute a decision to a majoritarian body like Selby and a consensualist body like Helpline. How a decision-making body determines the rules of talking and deciding leaves an indelible mark on the products of deliberation. Our democratic values, for Mansbridge, rest on an insoluble tension. We can’t achieve a nal resolution between unitary and adversary democracy. The problem for democratic theorists is how we can, in a rough and ready way, do justice to both of these rivalrous ideals. Beyond manages to discover two modes by which groups, in practice, blend these two rules of order. Within Robert’s Rules, elements of consensualism can creep in. And within Mansbridge’s Rules, there is space for quasi-majoritarian devices. Let us consider what we can call rst- and second-order consensus in turn.

First-Order Consensus In the opening case, our group had no agreed-to rules of order. We needed a way out of this regress, and seemed to face a binary choice. But perhaps this way of putting the problem was overly dramatic. In faceto-face decisions, the line between majority and unanimity rule is much less stark. Deliberating bodies nd ways to change the rules of proceedings mid-course, depending on the needs of the participants (76). There is no decision procedure for switching. Sometimes, relaxing Roberts’ Rules “helps quiet other fears … Lapses from parliamentary rules can make the townspeople feel more at home.” It’s tempting to read this idea metaphorically. We are primed by Hegel, who made much of being at home in the social world. But the comparison may be more straightforwardly about home life. In those contexts, applying principles of distributive justice can seem wooden and out of place (Sandel 1998, 33–34). The chilliness of Robert’s Rules 7

is a feature under conditions of divergent interests, but it can be a bug in other settings. Even in Selby, where Robert’s Rules reigned and interests regularly collided, decision-making often veered in a consensualist direction:

In face-to-face organizations, the actual practice of formal rule often looks more like consensus. Fears of con ict and the desire for harmony generate informal pressures to achieve unanimity. To the extent that a group operates emotionally like a friendship, the serious discomfort of any member with a decision makes the others reluctant to press forward with that decision. (164) In Mansbridge’s observations, Robert’s Rules were never o

cially suspended in Selby. That parliamentary

move would have required a two-thirds vote. The town moderator relaxed the rules in subtler ways. Hardly the “passive mouthpiece” imagined by Emerson, the moderator, exquisitely named Homer Allen, regularly called individuals out of order (47). Robert’s Rules were written, in part, to guard against the caprice of the moderator or chairperson, but no rules of order can be written in a way that prevents their selective use. If Homer’s role was to serve as a tra

c cop, he wasn’t honoring the fundamentals of Robert’s Rules. This led

some participants to take comfort in silence. A minority of residents came to see themselves as lacking the insider skills demanded by parliamentary procedure, and keenly aware when others seemed to be “gaming” the rules. For instance, Robert’s Rules give priority to a motion that refers a matter to a committee over a motion to amend a main motion. There is nothing obvious about this kind of priority rule. It is something that must be learned by rote to engage in parliamentary debate successfully. An advantage of Mansbridge’s Rules, it appears, is that their simplicity makes them much more di

cult to game. If every participant

knows that they hold an e ective veto on the group, the usual strategies of vote manipulation aren’t available. Members perceive their e

cacy any time the group acts, for each has the power to halt that

action. They engage in a special kind of “buy in.”

Second-Order Consensus “Can you live with this decision?” This is a common refrain of a majority to a dissenter—a way of getting at the strength and character of a dissenting group’s opposition to a proposal. There are disagreements, and there are disagreements that threaten the constitutive structure of a group. Within majoritarian systems, the minority block of voters is on display. In crafting his Rules, Robert was acutely aware of the responsibilities of the loyal opposition: Where there is radical di erence of opinion in an organization, one side must yield. The great lesson for democracies to learn is for the majority to give the minority a full, free opportunity to present their side of the case, and then for the minority, having failed to win a majority to their views, gracefully to submit and to recognize the action as that of the entire organization, and cheerfully to assist in carrying it out, until they can secure its repeal. (Robert 2020, 50) In Selby, Mansbridge observes di erent levels of grace and cheerfulness on the part of dissenting citizens. Some of them walk away, feeling steamrolled by a majority system: “The trouble with majority rule is that it’s so easy just to make the decision, and nobody understands” (253). Others are tempted to remain silent to avoid the anxiety that accompanies this powerless position: “If he thinks he is in the minority, a still greater emotional pressure is necessary to bring him to his feet, and when he gets there, he usually explodes” (62). In a consensual system, the pressure not to speak may be even greater (Mendleberg 2002, 179). To guard against the risk of silencing, Mansbridge observes forms of dissent that fall short of blocking the group’s action. The participant who disagrees with a decision may concede that they can “live with it.” This brings us to what Mansbridge calls “second-order consensus,” a way of managing dissent without occluding it. We can agree to act together even when we disagree on the merits of a particular decision. Our persistent desire to remain a collective body is perfectly capable of surviving a local disagreement. Secondorder consensus, then, introduces elements of majoritarianism into the consensual model. Minorities have

available two kinds of dissent. Extra-strength dissent is nothing short of a veto; it can immobilize a group. But second-order consensus carries with it a weaker form of dissent. It invites a kind of voting within a system that o

cially has no voting. Mansbridge observes how consensus can work alongside this weaker

form of majority rule: Consensus as practiced at Helpline and I would guess consensus in every organization with a formal unanimity rule—di ered from majority rule in degree rather than in kind [emphasis added]. Every decision-making rule, including majority rule, assumes that the losers can in some way “live with” a decision. The losers always have the option of leaving the polity, if only, in the most extreme, by suicide. To stay in the polity is, therefore, to make a statement of the weakest sort that one can literally “live with” a decision. Beyond this, the successful use of majority rule also requires some large-scale agreement on the rules of the game. (164) Second-order consensus guards against arti cially induced consensus. It incorporates a majoritarian dimension into the rules of order without adopting an all-out parliamentary system of majority rule.

The Standing of Talkers: Distributive vs. Social Equality Rules of order give participants a say. Some participants in Selby’s town meeting put considerable stock in this value: “If I got any say, it’d be the rst time I ever had a say!” (60). But crucial to Mansbridge’s project is the value of having an equal say. It’s not enough to dwell on how we talk our way to collective decisions. It gravely matters how we stand in relation to each other when we follow rules of order, whether majoritarian or consensualist. Beyond invests as much into the latter as the former. Its open-ended interviews with town meeting participants—and non-participants—sheds light on what would later be called the “currency” of equality. What kind of equality are participants seeking out? An equality of say? A rough equality of outcome? Or something else altogether? I want to stress two surprising moral explanations that come out of Mansbridge’s eldwork, both of which turn on a distinction between what I will call distributive and social equality. First, despite inequalities in decision-making power, social equality remained a possibility. And second, formal equality of decision-making power can obscure deep social inequalities. A simple exercise revealed the rst observation. Mansbridge met one-on-one with each member of Helpline to have them spatially represent inequalities in their collective. She gave them pieces of paper with the names of every member of the organization (183–184). Their task—put in deceptively simple instructions— was to place the names in a diagram of concentric circles. The central circle stood for the most powerful members of the organization. More distant circles included the increasingly less powerful members. The result was a map of the inequalities of decision-making power. Mansbridge’s method was designed to elicit open-ended answers. She had adapted the method from a leadership exercise that had members of an organization serially rank the power of the members, from most to least powerful. Mansbridge found this exercise misleadingly rigid. To remedy this, she created a spatial device that avoided forcing participants to map a rigid hierarchy. Her method allowed each member to read as much inequality into the organization as they perceived, but no more. The results of this activity were striking. Many participants who valued equality were not troubled by the bare unequal distribution of power. They trusted each other to act in a way consistent with their shared commitments. This rendered the perceived inequality harmless. What emerged was a protean theory of permissible inequality of group decision-making. In a consensual process, unequal power of members can be accepted if and only if members could reasonably expect each other to act in a way best for the organization as a whole. The starting assumption here was that there is a genuine shared interest among the

group’s members. This created the conditions for a kind of social equality, a relational good, despite clear inequalities in the distribution of power. In other circumstances, Mansbridge identi es social inequalities underneath layers of distributive equality. She does this by “geo-locating” town meeting participants. How are they arranging themselves? How often are they speaking? The patterns of inequality that she notices overturn the Emerson’s picture of the Concord town meeting, where “every individual [has] his fair weight in the government, without any disorder from numbers … Here the rich gave counsel, but the poor also, and moreover, the just and the unjust” (Emerson 1904, 47). Far from uncovering the “great secret of political science,” Emerson may have read “fair weight” o

the formal equality of parliamentary rule. But this conclusion is liable to miss forms

of inequality that aren’t reducible to equality of the vote. Consider something as basic as attendance at Selby’s meeting, which was disproportionately weighted to the village center. Or inequalities that tracked age, gender, length of residency (the old- and newcomers), education, and class. Open-ended interviews also reveal inequalities in striking places. The highly formal rules of Selby’s town meeting appear to foster an environment where some residents feel chronically alienated. The rapid back and forth of insiders’ rules leads some to feel put down—with the result that attacks on positions are perceived as ad hominem. Jamie Pedley, a farmer, worries about misspeaking at the annual town meeting and the repercussions: Now, I guess when you basically put down a person, now myself, I feel inferior, in ways, to other people. I mean, at times I’ll tell anybody no, it doesn’t bother me, when it does, and I won’t let anybody know that it bothers me. And in the end, I’m damn glad I didn’t. Well you got—oh, let’s see, forty percent of the people on this road that don’t show up for town meeting a lot of them feel that way. (60) Beyond attends to metrics of equality far richer than equality of power. What threads together its concern for self-respect, status, and subordination is a strongly relational focus. Mansbridge recognizes the diversity of ways we can be under the power of others, even when we hold as much formal power as anyone else in a polity. This anticipates a form of relational egalitarianism at the core of debates about equality today (Anderson 1999). Perhaps because of her own participant observation, Mansbridge rejects a view of equality as a fundamentally distributive value. She isn’t searching for a currency—say decisional power—that needs to be equalized. When she maps the relationships among residents of Selby or the employees of Helpline, she is asking: what kind of way of distributing power is consistent with viewing the village or the organization as consistent with the ideal of standing as equals? This shift of attention is potentially momentous. It allows her to notice inequalities under the surface of narrower conceptions of democratic theory and distributive justice. The equality that Mansbridge stresses is a social and political value. The inequalities in standing among the residents of Selby and employees of Helpline can’t be captured by a simple distributive measurement. By seeing equality as a moral ideal governing the relations of these democratic participants, Mansbridge anticipated the problems with an excessively distributive view, one that now looks “arbitrary, pointless, 8

fetishistic.” T.M. Scanlon worries that the idea of distributive equality evokes the image of a child who protests to her parents that her sibling is receiving an undue bene t. For him, we are left with a “parental” conception of the state—where citizens are in the position to shout “That’s not fair!” (Scanlon 2003, 215– 217). Adversarial democrats make two assumptions about equality that Mansbridge challenges. First, they insist that equal decision-making power is necessary to secure the interests of participants. But this assumption didn’t hold in her study of consensual decision-making. The mode of equality she observed among the employees of Helpline was of equal status, and it ourished despite clear inequalities in organizational

power. In her analysis, Helpline participants were able sustain egalitarian relationships even with a “pecking order” in their organization. There were, of course, genuine threats to status equality in a consensus-based community. We saw earlier how the practice of second-order consensus made it more di

cult to silence dissenters, who face great pressure to conform. This is seen most perversely in the

Abilene Paradox, where each member of a group comes to support a policy that she believes will serve her co-participants, when in fact no one actually supports the policy, and it serves no participant’s interests 9

well (Harvey 1988, 107–110).

The second mistaken assumption is that distributing power equally is su cient to ensure that participants have an equal say. Having equally weighted votes doesn’t guarantee equal status. Consider the familiar risks of manipulation under Robert’s Rules. Those few individuals in Selby who understood the rituals of motionmaking and vote-taking may have had no more formal power over their fellow citizens. And yet they had available means of manipulating the process that was not widely held among participants. Their ability to engage in strategic voting made the system look more like a plural voting system. And even if those trained in parliamentary procedure never engaged in strategic voting, this epistemic asymmetric may itself constitute a violation of equal status, since the possibility of domination by the rules experts remains a known hazard of densely-written rules of order.

Conclusion: Toward a More Grounded Democratic Theory The rules that make possible group decision-making have never been fashionable. Until Beyond, democratic theory had given rules of order the silent treatment. Yet a group’s rules of order can be a driver of unequal status. Under Robert’s Rules, the iterated process of proposing, discussing, amending, and voting can hide inequalities under the guise of one vote, one person. Under the much more economical norm of consensus, there is no less a danger of fostering inequalities. Pressures to conform to the group, and the threat of being the lone dissenter loom large. Neither set of rules tend to be followed in an orthodox way, and that may well be a redeeming quality of the actual practice of deliberation—as opposed to the one that we imagined from the armchair. I have argued that Mansbridge anticipated two of the most important moves in contemporary political theory—the deliberative turn in democratic theory and the relational turn in egalitarianism. Both of these literatures would do well to appreciate their shared roots. Political talk is a category that stretches far beyond reason-giving. When regulated by rules of order, it invites strategies and tactics that deliberative theory has tended to frown upon—I think prematurely so. Recent calls for deliberative theorists to take self-interest and negotiation seriously—along with its less-than-ideal methods—are a natural conclusion of approach (Mansbridge and Warren 2016). By beginning with ground-level deliberation, Mansbridge was working squarely in “non-ideal” theory long before it was even a category recognized by mainstream political philosophy. The same advice holds for theories of relational equality. This approach would bene t from the kind of eldwork—at least the presence of the theorist in the muck of politics—that Beyond pioneered. What would it be like, in actual practice, for us to each have an equal say? Egalitarians have come to see the value of equality as a more political ideal than distributional approaches previously allowed. The constructive agenda of relational views is still in its early stages. And here, close attention to minute political practice would be welcome. Think of Mansbridge’s sensitivity to micro-inequalities—those little slights that some citizens felt when they were under the thumb of an aggressive parliamentarian or a bullying city council member. These undramatic instances of unequal standing are easy to overlook when one isn’t observing them rsthand. Mansbridge’s point of view is always from “here,” among fellow citizens attempting to follow and develop rules to live together in some civil way. Never does she take a view from nowhere.

There is nothing accidental about Beyond’s combination of mixed methods and surprising ndings. Wading knee-deep into the actual practice of deliberation alters the character of the argument. The greatest compliment that Rousseau ever received was that he was the “Newton of the moral universe.” For Kant, this meant that he had understood the moral complexity of our nature in a paradigm-shifting way. So, too, Mansbridge saw our democratic universe in a dramatically new way. Beyond upends some of our most basic assumptions about how we make decisions together, and what this tells us about who we are, as individuals and as deliberating groups.

References Anderson, Elizabeth. 1999. “What is the Point of Equality?” Ethics 99(2)287:337. Google Scholar WorldCat Buchanan, James M. and Gordon Tullock. 1962. The Calculus of Consent: Logical Foundations of Constitutional Democracy. Indianapolis: Liberty Fund, Inc. Google Scholar Google Preview WorldCat COPAC Emerson, Ralph W. 1904. Miscellaneous Collected Works. Boston: Houghton, Mi lin and Company. Google Scholar Google Preview WorldCat COPAC Goodwin, Doris K. 2005. Team of Rivals: The Political Genius of Abraham Lincoln. New York: Simon & Schuster. Google Scholar Google Preview WorldCat COPAC Harvey, Jerry. 1988. The Abilene Paradox. Lexington: Lexington Books. Google Scholar Google Preview WorldCat COPAC Herzog, Lisa and Bernardo Zacka. 2019. “Fieldwork in Political Theory: Five Arguments for an Ethnographic Sensibility.” British Journal of Political Science 49(2): 763–784. Google Scholar WorldCat Kincaid, Peter. 1986. The Rules of the Road: An International Guide to History and Practice. Westport: Greenwood Publishing Group. Google Scholar Google Preview WorldCat COPAC Mansbridge, Jane. 1980. Beyond Adversary Democracy. Chicago: University of Chicago Press. Google Scholar Google Preview WorldCat COPAC Mansbridge, Jane. 2002. “Practice-Thought-Practice.” In Deepening Democracy: Institutional Innovations in Empowered Participatory Governance, edited by Archon Fung and Eric Olin Wright, 175–199 London, New York: Verso,. Google Scholar Google Preview WorldCat COPAC Mansbridge, Jane and Mark Warren, with André Bächtiger, Maxwell A. Cameron, Simone Chambers, John Ferejohn, Alan Jacobs, Jack Knight, Daniel Naurin, Melissa Schwartzberg, Yael Tamir, Dennis Thompson, and Melissa Williams. 2016. “Deliberative Negotiation.” In Political Negotiation: A Handbook, edited by Jane Mansbridge and Cathie Jo Martin, 141–196. Washington D.C.:Brooking Institution Press. Google Scholar Google Preview WorldCat COPAC Mendleberg, Tali. 2002. “The Deliberative Citizen.” In Political Decision Making: Deliberation and Participation, edited by Michael X. Delli Carpini, Leonie Huddy,. et al. 151–193 Bingley: Emerald Group Publishing. Google Scholar Google Preview WorldCat COPAC Riker, William. 1982. Liberalism Against Populism. San Francisco: Freeman. Google Scholar Google Preview WorldCat COPAC Robert, Henry. 2020. Robertʼs Rules of Order, 12th edn. New York: Public A airs. Google Scholar Google Preview WorldCat COPAC Sandel, Michael. 1998. Liberalism and the Limits of Justice. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Scanlon, T. M. 2003. “The Diversity of Objections to Inequality.” In The Di iculty of Tolerance: Essays in Political Philosophy T.M. Scanlon, 202218. Cambridge: Cambridge University Press.

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Sche ler, Samuel. 2003. “What is Egalitarianism?” Philosophy and Public A airs 31: 5. Google Scholar WorldCat Searle, John R. 1969. Speech Acts: An Essay in the Philosophy of Language. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Tawney, R. H. 1931. Equality. London: George Allen and Unwin. Google Scholar Google Preview WorldCat COPAC Waldron, Jeremy. 1999a. Dignity of Legislation. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Waldron, Jeremy. 1999b. Law and Disagreement. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Waldron Jeremy. 2013. “Civility and Formality.” NYU School of Law, Public Law Research Paper 13(57). Google Scholar WorldCat Waldron, Jeremy (2015). Political Political Theory. Cambridge: Harvard University Press. Google Scholar Google Preview WorldCat COPAC

Notes 1

Consider the literatures on majority preference cycling or heresthetics, including Rikerʼs (1982) all-knowing parliamentarian who exploits every rule at her disposal.

2

Few deliberative democrats mention, let along discuss, Robertʼs Rules of Order and its rivals (e.g., Je ersonʼs Manual of Parliamentary Practice or Cushingʼs Manual). Jeremy Waldron (1999a) discusses parliamentary rules twice. In more recent work, he gives a powerful defense of the need for rules of talk: “Rules of order are needed precisely because we are not transparent to one another and we disagree radically with one another, yet nevertheless we want to be able to listen and respond to each representativeʼs di erence from and disagreement with what various others have to say” (Waldron 2015, 14).

3

Jeremy Waldron raises this charge (1999b, 91–93).

4

But the kernel of this distinction, I will argue, is present in Beyond.

5

To accommodate the emerging legal structure of right-lane driving, Henry Ford changed to le -hand drive in the 1908 model year. The final legacy model was the 1907 Ford, which was advertised as the “last of the right drive Fords” (Kincaid 1986).

6

In a personal communication, Mansbridge reflected on the simplest explanation of this anomalous second vote. Mansbridge o ers this: “First vote 32 to 37; Third vote 35 to 37; By the third vote, three more people had joined the meeting (or the vote). All three new entries weighed in for the Planning Commission. So if we compare only the first and third votes, it looks as if the 37 people who voted against the Planning Committee the first time did not move and the Planning Commission got three new votes from three new voters, but this was still not enough to get a majority. The anomaly is the second vote, in which the Planning Commission got four more votes than it had the first time (one more than its final three more), and the anti-Planning Commission side lost three votes. Maybe three of the people voting the first time against the Commission had slipped out of the meeting for a moment, or maybe there was an overall small change in personnel, with some new people coming in and others leaving. Maybe there was an irregularity here, with one of the pro-Planning Committee people voting twice, which would account for its one extra vote in this round. But itʼs hard to explain the loss of three against the Commission, unless it had to do with people leaving the meeting temporarily or

permanently. Itʼs not clear, but people do leave and join the meeting. Not everyone has the whole day free (itʼs a weekday and a workday).” Personal communication, June 9, 2017. 7

Jeremy Waldron (2013) has recently stressed the chilliness of the virtue of civility. Deliberative formality is needed precisely under conditions where we arenʼt friendly, let alone friends, and yet we still desire to accomplish something together.

8

Sche ler stresses the relational aspect in “What Is Egalitarianism?” (2003, 5–39). He acknowledges, though, that he is introducing the basic outlook found in Tawney (1931)

9

Jane Mansbridge cites this paradox in later work, including “Practice–Thought–Practice” (Mansbridge 2002, 183).

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Herbert Marcuse, One-Dimensional Man  Volker M. Heins https://doi.org/10.1093/oxfordhb/9780198717133.013.48 Published: 06 November 2017

Abstract In his widely read classic One-Dimensional Man (ODM), Herbert Marcuse o ers a political anthropology of twentieth-century liberal democracy which is deeply pessimistic and yet has been read in the 1960s and 1970s as a call to transformative action in the elds of politics and everyday life. The chapter begins by addressing the concepts introduced by Marcuse to explain why transformative political action is unlikely to succeed: manipulation, false needs, repressive desublimation. It then considers Marcuse’s search for agents of change who are nevertheless able to undermine or circumvent the total power of contemporary society, as well as his normative vision of a libidinal democracy based on an implicit concept of positive freedom. Finally, the chapter assesses both the limitations of ODM and its continuing, if unacknowledged, in uence among contemporary theorists who attempt to move beyond liberal theories of justice.

Keywords: Herbert Marcuse, One-Dimensional Man, manipulation, false needs, repressive desublimation, total power, positive freedom, libidinal democracy, theories of justice Subject: Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Herbert Marcuse’s One-Dimensional Man (Marcuse 1991; henceforth ODM) can be read in a number of ways: as a dystopian narrative of post-Second World War capitalist society, as a work of popular political theory, or as an inspirational text that exerted a major in uence on the student movement of the 1960s in the United States and Europe. Given the extent to which the book, rst published in 1964, ran counter to the spirit of its day, its popularity at the time is something of a surprise. Traditional leftists, who thought of capitalism as irredeemably evil but on its way to extinction, were told by Marcuse that the dominant “system” was actually hyperstable and lacking in any genuine opponents. Defenders of the free West, meanwhile, were confronted with the claim that Western freedom was a tool of oppression. Drawing on modern literature, the history of philosophy, and insights from the social sciences, ODM conveys a deeply pessimistic message: parliamentary democracy is a sham; both the public sphere and personal privacy are vanishing; and technological progress is resulting in the enslavement of the individual. “Man” is born free but is still in chains—even though he (or she) may not feel them.

Many have read ODM as a call to transformative action, and yet Marcuse’s central claim is that precisely this kind of collective action is highly unlikely to occur, let alone succeed, in “advanced industrial society.” Modern society, it is argued, poses structural threats to the very possibility of genuine transformative politics. Marcuse explains why society needs to be changed, and what direction such change should take, but before he does so, he insists that the avenues to change are blocked. This blocking, which he describes as “the closing of the political universe” (19), does not result either from the apathy of the masses or from relations of production. Nor is it explicable in terms of open political repression. Marcuse o ers a political anthropology of twentieth-century liberal democracy. At the heart of his book lies the claim that the historical gure of the citizen has been replaced by the one-dimensional individual. The de ning characteristics of the latter are “false needs” and “repressive desublimation” (to which I return shortly). According to Marcuse, modern individuals are living in an arti cial state of nature from which, unlike in the contractualist tradition, there is no escape. The gradual loss of capacities intrinsic to the human species, notably the capacity for self-re ection and empathy, and the capacity to criticize the conditions in which people live, is both the condition and the consequence of the imposition of unprecedented imperatives of societal self-perpetuation. The book is divided into three parts: “One-Dimensional Society,” “One-Dimensional Thought,” and “The Chance of the Alternatives.” Rather than looking critically at each of these parts in turn, I prefer to pose the question of what kind of critical theory ODM advances. The tasks of such a theory, if it is not to remain in the realm of utopia, are three: it must identify those obstacles in modern society and politics which need to be overcome if an alternative society is to be realized; it must identify agents of change who are willing and able to remove those obstacles; and it must present us with a clear vision of the goals and objectives that de ne the desired society. With these three tasks in mind, I will show how Marcuse de nes obstacles, goals, and social agents of genuine transformative politics. In conclusion, I will discuss the shortcomings of Marcuse’s classic text as well as the reasons why some of its elements still attract attention.

The Closing of Liberal Society Like other thinkers associated with the Frankfurt School of critical theory, Marcuse sees the human condition as one of progressive domination by an anonymous, increasingly global system that cuts across the boundaries of political orders and historical cultures. Anticipating more recent theorists, he argues that systemic power ultimately permeates all social relations. He quotes and concurs with the Romanian-French playwright Eugène Ionesco, who characterized “the world of the concentration camps” built during Nazi rule in Europe not as something exceptional or unique but as “the image, and in a sense the quintessence, of the infernal society into which we are plunged every day” (80). This language is marked by the same hyperbole as is found in the observations of like-minded philosopher Theodor Adorno, who, in the early 1960s, also saw the Holocaust as epitomizing modern society as such and who, more generally, pointed to the essential similarity between democracy and dictatorship (see, e.g., Adorno 2000, 109). The rhetorical power of these kinds of generalizing statements derives from the way in which, to the reader’s surprise, they negate widely accepted dichotomies. Marcuse’s metaphor of one-dimensionality implies not only the idea of a totalitarian “convergence of opposites” (19) in the elds of both domestic and global politics and economics, but also the notion that the distinction between utopia and reality, progress and stagnation, technology and politics, and between the various levels of the human psyche identi ed by 1

Freud—the ego, superego, and id—is disappearing.

This claim in turn rests on one crucial distinction that Marcuse needs to hold on to: the distinction between essence and appearance. That nothing is truly as it seems is part of the de nition of the all-encompassing “system” of which Marcuse speaks. Unlike Hegel and Marx, however, Marcuse no longer believes in a

dialectical relationship between these two entities. Rather, the essence of things is hidden behind and beyond appearances and does not manifest itself via a historical process in the real world and in a way perceptible to all. Individuals are robbed of the capacity, rst to distinguish between appearance and reality, and second to discern the essence of the system behind the innocuous façade of appearance. This critical capacity is the object of systematic “suppression” (97) by one-dimensional society and its institutions. This suppression is the main obstacle to any comprehensive social or political transformation. One of the interesting aspects of Marcuse’s work is that suppression, as he de nes it, does not only touch on the consciousness of individuals but goes deeper. The total integration of all individuals into society is not based just on “a change in consciousness” but on a complete “[a]ssimilation in needs and aspirations, in the standard of living, in leisure activities” (29). Even our speech, even public opinion, science, and philosophy become functions serving the self-perpetuation of the system and the exclusion of opposition. Marcuse ratchets the radical quality of this thesis up another notch, holding that even people’s psychological energies and drives are open to political manipulation. This is not entirely without precedent. An extreme manipulation thesis had already been formulated by Max Horkheimer in the 1930s. Political power, he claimed, becomes more intrusive as it moves beyond simply learning how to overcome resistance and begins to tap into, and channel, the deep motivational springs that feed that resistance. The result is an e ective “distortion of the drives” (Verbiegung der Triebe) (Horkheimer 1993, 108) in line with the functional requirements of the social system. When this happens, injuries and injustices committed by the powerful do not trigger political con ict, and indeed may not even be recognized as such by the powerless. Marcuse maintains that modern society is fast approaching a new stage when “social cohesion would be strengthened at the deepest instinctual roots” (79). The term he chooses for this enormous expansion of the reach of power is “controlled” or “repressive desublimation.” Repressive desublimation marks a situation in which, as a result of rising incomes, mass consumption, and the freedoms a orded by the market, individuals are liberated from the burdens of toil and scarcity, but are at the same time condemned to a life that leaves no room for substantive alternatives. Marcuse is expressly not claiming that individuals are able to indulge their natural needs to a greater extent than previously—because, for example, sexual taboos have been relaxed. He is saying, rather, that the needs which individuals are permitted to gratify in freer societies are themselves the product of manipulation. The needs in question are “false needs” that have been “implanted” or “superimposed” on people (4–5). People may think they are indulging themselves, but their apparently spontaneous yen is itself an arti cial product. The concept of false needs takes up the Marxist idea of false consciousness and radicalizes it. “False consciousness” is taken to mean a number of di erent things: seeing the world as an immutable, unquestionable given; interpreting social conditions in individual and personalized terms; or failing to recognize one’s own interests and being ruled by a false sense of power or powerlessness (Eyerman 1981, 268–277). The di erence between false consciousness and false needs, however, is that false consciousness is amenable to criticism because it ultimately rests on illusions that can be translated into falsi able propositions. This same is not true of allegedly false needs. The satisfaction of particular needs can have harmful consequences; but can those needs also be “false”? By answering yes to this question, Marcuse accepts a positive theory of human nature which, however, remains vague. Ultimately, Marcuse’s argument rests on a political interpretation of Freud’s psychoanalytic theory. Freud’s model of the mind represents the psyche as a microcosm analogous to the macrocosm of the modern state. The inner life of the individual is viewed not as being transparent and freely organized around self-chosen preferences and desires, but as being a battleground of opposing forces. In Freud’s metapsychology, it is the ego that has to assert its hegemony over the superego (the internalized voice of society) as well as over the reckless and chaotic id. Freud refers to the parts of the psyche as a foreign territory, a state of nature beyond civilization which nevertheless cannot be tamed by mere repression (Brunner 1995, 75–79). The preferable path is that of “sublimation,” which may be compared to the search for compromise by warring powers.

When everything goes smoothly, the psyche functions like a well-ordered federation in which superordinate and subordinate authorities and sources of power coexist under the leadership of a benevolent monarch—more or less as in the multinational Habsburg Empire explicitly mentioned in this context by Freud (see Brunner 1995, 58). If we translate the term “repressive desublimation” into Freud’s political metaphors, it means the deposition of a reasonable sovereign in favor of mob rule. Moving beyond Freud, Marcuse takes the close parallel between psychological and socio-political processes literally. The forces of society gain power over the human psyche by weakening the ego, by blunting the force of the moral imperatives represented by the superego, and by allowing the libido to be invested more freely in social relationships. But for Marcuse, this is not good news, since he believes that a society, if it is to be truly liberated, must be based on “the sublimations of higher culture” (56). Whenever Marcuse evokes the “ideal” of this higher culture, he gives in to the temptation of European cultural pessimism. On the side of sublimation and high culture stand Baudelaire, Racine, Tolstoy, and Goethe; ranged in sharp contrast against them are the depictions of desublimated sexuality that appear in Faulkner, O’Neill, and Nabokov and “in all the stories of Hollywood and New York orgies, and the adventures of suburban housewives” (77). Thus speaks the elderly emigré philosopher who hankers after a long-gone European world and nds America crude and vulgar. Marcuse’s approach di ers from Horkheimer’s earlier political anthropology, which is still Marxist in its insistence on assigning blame for the current state of society to a ruling class opposed to the rest of the population. In Horkheimer’s view, class con ict has been replaced by a highly symmetrical interaction between political and cultural elites and the rest of the population. When the dominant elites face serious threats to their rule, they appeal to collective emotion rather than to reason in order to co-opt the masses: “With the consolidation of a small stratum of monopolists brought about by concentration and centralization, cultural activity takes form more and more exclusively as domination of the masses” (Horkheimer 1993, 83). Thus, the cultural process of shaping preferences and motives is strictly top-down and unidirectional. Leaders who represent the perspectives of the ruling classes in uence the public, but the public has little in uence on the leaders. That said, even for Horkheimer in the 1930s, the masses are far from being uniformly susceptible to such propaganda. For him, it was largely the “lack of integration into a rational work process” (Horkheimer 1993, 67) that rendered sectors of the population psychologically dependent and politically gullible. This is an argument previously advanced by Max Weber and Antonio Gramsci, who also perceived social groups not subject to the discipline of productive labor as easy prey for ideologues. Marcuse’s argument is a di erent one. He points the nger not at individual social groups or political tendencies but at society per se, with its objective, anonymous, technological power. It is true that he too sometimes refers to “the Establishment” or “the makers of politics” (8, 14), but it is generally “society” as a whole that is depicted as the active agent of repression and manipulation. At the same time, Marcuse denies the existence of social classes that think and act more rationally than others simply because of their social position. Older dichotomies such as people versus government or proletariat versus bourgeoisie are replaced by the opposition between “society” and “men” (xlvi, 15).

Agents of Change: Elites, Outcasts—or Everyone? But even the opposition between society and individuals can only be an apparent one, since Marcuse has already declared in his “Introduction” that modern citizens live in a “society without opposition.” This means that individuals see no reason to ee the arti cial state of nature in which they live. They do not su er the privations that characterize the state of nature in Hobbes or Rousseau, and they have no sense of “alienation” (11), since this would presuppose a distance vis-à-vis society which they have long since lost. Time and again Marcuse uses dramatic language to illustrate the transformation of citizens into mere objects of the administration and the market. A vampire-like society “swallows” and “absorbs” any kind of opposition, resulting, as Marcuse puts it (xlviii, 79), in the “atrophy of the mental organs” that are needed to develop any desire for change. Given this state of a airs, it is meaningless to talk of a “struggle for mutual recognition” or indeed of “domination” (32–33), because in a world that stamps out the last remaining urge to resistance amongst its subjects, there is no domination. Instead of domination, Marcuse generally prefers the term “manipulation.” Max Weber famously de ned power as the probability that one agent will succeed in overcoming the resistance of another. Manipulation, by contrast, implies a broader concept of power, one that is based on the “means of undermining resistance” (Goodin 1980, 8). It implies subtle interference, usually by unknown agents or forces. When writing about the media, technology, or political parties, Marcuse uses many formulations that suggest he has exactly this kind of interference in mind. Manipulation typically causes people to behave in a manner that runs counter to their true desires. It is a technique for luring individuals and groups away from the pursuit of their true interests and needs. In Marcuse’s “totally administered” society, citizens have no way of establishing what they might want, if their interests and needs were not manipulated by the system. In this situation, “qualitative change appears possible only as a change from without” (49, original emphasis). This spatial metaphor, familiar from the history of the communist movement, can be read in three ways. It may imply, rst, that Marcuse is irting with the idea of an educational dictatorship (39–41). In this elitist attitude toward those a

icted by the “happy consciousness” of advanced industrial society we see the belief in the

civilizing power of high European culture mingled with “latent Leninism” (Holman 2013, 78). Second, change from outside can mean that those who are excluded from society are assigned a historic and revolutionary mission. Hope rests on “the outcasts and outsiders, the exploited and persecuted of other races and other colors, the unemployed and the unemployable. They exist outside the democratic process…. 2

Their opposition hits the system from without and is therefore not de ected by the system” (256–257).

Third, Marcuse sometimes deviates from the extreme manipulation thesis, which states that individuals are rendered incapable of articulating needs that cannot be readily satis ed by the existing system. Pursuing a weaker line, he argues that individuals are only seemingly happy and in fact suspect that there is something missing in their lives, even though they cannot know or say exactly what this is. There is arti cially induced “instinctual approval” but there is also di use “hatred and frustration” (79, 32). These unarticulated and inchoate feelings lie beyond the reach of the system and form part of the unintended fallout from the latter’s operations. Since these feelings of frustration a ect every one of us, every one of us is also a potential actor in new opposition movements. The implication is that there is in everyone a trace of essential moral sensibility that can be nurtured and developed through democratic practice. This is the kind of reading which Christopher Holman (2013) has undertaken. At the heart of an existentialist interpretation such as this—one that Marcuse himself sometimes suggests—lies the concept of the radical act which can be born out of the rudimentary consciousness of structural unhappiness. This concept goes back to the notion of the irrepressibly “sensuous” nature of human needs, as formulated in particular by the young Marx. Later on, Marcuse saw in the student movement and the New Left attempts to detach the sensuous individual from the categories

of class and nation and test out a new form of aesthetic self-education. In ODM there is talk of “the rst act of the revolution” that has to be prepared beforehand in higher forms of consciousness (41). At a later stage, spontaneous action is accorded a role even when it is not rooted in a developed revolutionary consciousness. Radical action in the form of “wildcat strikes, boycotts, sabotage, gratuitous acts of noncompliance” (Marcuse 2000, 83), is possible at all times and in all places. Given this activist program, ODM can be read not only as a political theory but also as a performative activity, one that seeks to foster particular forms of oppositional behavior. What Marcuse says about the language of the industrial society, namely that it is “evocative rather than demonstrative” (91), is also true of his own language. The text has an ambivalent rhetorical dimension, one feature of which is an actively performative use of language intended to in uence the course of events: the truths it communicates are not empirical but prophetic and designed to mobilize the public. ODM de nes the endpoint of a tradition of modern political thought which complains vociferously about the manipulability of the masses, moral conformism, and the closing of the political community—and by this very rhetoric renders manipulation more di

cult, undermines conformism, and introduces new elements

of opposition into political life. Because it was simultaneously also a performative activity, critical theory as expounded by Marcuse helped to create the opposition whose possibility it denied.

A Libidinal Democracy Given the closed and system-like character of advanced industrial society, in which nothing is as it seems and people are unable to pierce through the façade, fundamental political change is unlikely. Nonetheless, the aim of Marcuse’s critical theory is the transformation of this society, which in turn presupposes the transformation of individuals. The ideal of an alternative society or “new civilization” consists rst and foremost in overcoming the prevailing state of nature through the “paci cation of existence” (37, 16). Like traditional Marxists, Marcuse distinguishes between objective and subjective preconditions for liberation. The latter include the conquest of the false needs that trap individuals, groups, and states in never-ending struggles for power and prestige. In general, Marcuse is pessimistic with regard to the transformation of individuals into revolutionary subjects. He is, however, fairly optimistic when it comes to the objective preconditions of liberation. The automation of production processes in particular creates the material basis for a new civilization even under the conditions of advanced industrial society. Correctly deployed modern technology is a precondition of “genuine democracy” (47). This is because automation would allow individuals to quit the realm of necessity and cultivate their talents and inclinations in an entirely new way. Work would be replaced by the free play of human capacities and the free ow of libidinal energies. This is, of course, a vision as vague as it is attractive and reminiscent of political utopias of earlier times. We learn nothing more about this playful state of society—only that the individuals in it regain the capacity not only for non-repressive sublimation but also for desublimation and letting-go of control. A concomitant of this is the capacity for real happiness and real democracy. Each depends on the other. Marcuse rejects the exclusively private pursuit of happiness that does not express itself in corresponding political forms. At the same time, he avoids making any pronouncements about the kinds of political institutions a liberated society might have. By contrast—and all the more surprisingly—he is unequivocal as to the objective nature of the functional technical conditions that will continue to limit the free play of human capacities in the future: “To be sure, a mature and free industrial society would continue to depend on a division of labor which involves inequality of functions. Such inequality is necessitated by genuine social needs, technical requirements, and the physical and mental di erences between the individuals” (44). Thus, the technological apparatus of every society necessitates the maintenance of a certain functional authority. Holman has described this position as “political managerialism” (Holman 2013, 82) and has pointed out

that it sits ill with Marcuse’s radical criticism of the administered society and the trust he sometimes expresses in the “experimental energies” of contemporary society (Marcuse 2002, 145). Another peculiarity of Marcuse’s political utopia deserves mention here. The appeal of this utopia derives from the observation that the unprecedented rise in the standard of living that has occurred in certain parts of the world since the Second World War has in no way been matched by a growth in individual happiness. On the contrary, economic growth “has been accompanied by moronization, the perpetuation of toil, and the promotion of frustration” (242). But from this, Marcuse goes on to draw the reverse but by no means logically necessary conclusion that less growth and decreased production of material goods are preconditions of increased happiness. In a further step, the thesis is even applied to demographic growth. Marcuse atly states that the paci cation of existence calls for a reduction in population. Society is criticized for the “moral and religious scruples” that cause it to shrink from curbing human procreation: “The problem is not only (and perhaps not even primarily) that of adequate feeding and caring for the growing population—it is rst a problem of number, of mere quantity … The crime is that of a society in which the growing population aggravates the struggle for existence in the face of its possible alleviation” (243–244). Not only do human beings have false needs and consume too much; there are also too many of them. Thus, Marcuse’s utopia is ambiguous: it can be read as a precursor of contemporary concerns about conviviality and post-growth economics; but there is also a streak of neo-Malthusianism in it.

Limitations and Legacy The most obvious limitation of ODM is its tendency toward an illiberal kind of misanthropy. Marcuse expresses sentiments that are not far removed from those of the German historian Oswald Spengler, who also bemoaned the expropriation of the free spirit by a centralized media industry and predicted that this would result in the proliferation of modern-day “fellaheen peoples” for whom life consisted merely in a 3

sequence of events “devoid of signi cance” (Spengler 1928, 170–171). While this misanthropic layer of ODM can be simply ignored, other aspects of the text pose a more serious challenge to the reader. In particular three inconsistencies stand out. First, the question arises as to whether human nature can be in nitely manipulated or whether it is a resource for liberation. Marcuse’s concept of false needs presupposes a human nature that is potentially a source of true needs and hence also a threat to the system. In modern industrial society, however, this nature is said to be formless and malleable. Second, Marcuse oscillates between the assertion that modern technology is a mere tool and the more radical thesis that technology creates its own world which then develops independently of relations of production and conditions of ownership. At some point, the problem seems to lie in the “oppressive utilization” of society’s technological potential. This is the stance taken by Marcuse as a defender of political managerialism. At other times, technology is said to be not a neutral tool, but “an entire culture” (35, 154) of its own, beyond the control of those who use it. Third and nally, there is a discrepancy between Marcuse’s images of the individual and the international situation during the Cold War. ODM characterizes individuals and states as homologous units subject to the same overarching trend toward the “convergence of opposites:” one-dimensional individuals no longer wrestle with themselves and live without internal tension; and modern states no longer face any genuine internal opposition. But Marcuse also suggests that the international order is directly re ected in domestic relations (45). This, however, is puzzling since Marcuse remains silent about the domestic equivalent to the Cold War which was a mortal con ict driven and contained by the ability of mutual annihilation. In spite of its analytical shortcomings, ODM is a deeply resonant text that has become a classic of contemporary political theory. Not only did it strike a chord with broad sections of the public in the 1960s and 1970s, in uencing the student movements in the United States and Europe as well as subsequent new

social movements focusing on the environment, peace, and global justice. Marcuse has also in uenced debates in political theory about the changing character of especially two central phenomena in capitalist democracies: power and freedom. With regard to the question of power, it needs to be emphasized that ODM was clearly innovative in taking the role of technology and technological power in modern society seriously. Marcuse raised awareness of the fact that it is di

cult to criticize this new type of power in terms of traditional concepts of political

theory such as justice or equality (Feenberg 2002). His book both expressed and contributed to a growing sense of unease about the proliferation of human resource management and the managerialization of both the private and the public sector, including higher education. More importantly, Marcuse anticipated crucial elements of what Steven Lukes later developed into a full- edged “radical” conception of power (Lukes 2005). Both Marcuse and Lukes agree that power can go beyond the ability of imposing decisions against the interests of others and beyond constraining the decisions taken by others. Whereas these types of power imply that people can be made to behave against their perceived interests and needs, power can also be exercised by covertly manipulating those needs and interests so that people who are subjected to power act willingly or even happily in ways that appear contrary to their most basic needs and interests. However, Lukes explicitly rejects Marcuse’s account of contemporary society by arguing that even the most pervasive power “is always partial and limited” and unable to “produce one-dimensional man” (Lukes 2005, 150). Lukes, then, is much closer to the original spirit of critical theory than Marcuse. The purpose of critical theory is to produce a kind of knowledge that a ects the society it explores by addressing the members of society with the goal of contributing to their self-knowledge and enlightenment. Within the critical theory tradition, Marcuse has become a rather marginal gure because of his dystopian concept of a total power that leaves the powerless unaware of what is done to them and without any desire for change. In the in uential writings by critical theorists such as Jürgen Habermas or Axel Honneth, Marcuse is typically not even mentioned. However, in tracing the orbit of the in uence of Marcuse’s political theory, we discover unexpected and unacknowledged continuities between Marcuse and the French thinker Michel Foucault. The philosopher and psychoanalyst Joel Whitebook has compared Marcuse’s picture of the onedimensional society to the world described by Michel Foucault in Discipline and Punish (Whitebook 2002, 65). Whitebook goes as far as calling Foucault a “Marcusean in structuralist clothing.” He shows that both thinkers believe in the almost in nite malleability of our bodies and pleasures; and that both have shared and reinforced the political agenda of social movements that aim to create new forms of life out of the reservoir of our adaptable and “polymorphous” sexual drives (see Marcuse 1955). This brings us, nally, to the question of freedom. ODM belongs to the broad family of writings critical of “negative” freedom. According to Marcuse, liberation in the form of repressive desublimation only paves the way to our more radical enslavement to unre ned, thoughtless, and ultimately conformist drives and inclinations. This claim is both true and in line with John Stuart Mill’s observation that “even in what people do for pleasure, conformity is the rst thing thought of” (Mill 1998, 68). However, one of the reasons why ODM has lost much of its purchase is that it didn’t come up with an attractive alternative concept of “positive” freedom. Rather, it exempli es Isaiah Berlin’s concern that the invocation of our higher self and claims about what is objectively good for humans are vehicles for the justi cation of paternalistic and elitist regimes (Berlin 1969). This is at odds with the idea of rights which is central to most theories of justice. Marcuse puts the “interest of the happy individual” (5) center stage, not ideas of fairness, mutual recognition, or redistribution that have dominated more recent debates in political theory. Therefore, ODM needs to be read against the grain in order to uncover its potentials for contemporary theory. An example is Axel Honneth’s Freedom’s Right which, without acknowledging any debt to Marcuse, can nevertheless be read as taking up Marcuse’s idea that democratic life needs a libidinal foundation. Unlike most contemporary political theorists, Honneth gives “relationships of intimacy and love” (Honneth 2014, 141) at least a place in democratic theory. Reconciling justice with happiness, Honneth develops a

concept of “social” freedom modeled on Hegel’s idea of romantic love (Honneth 2014, 45–46). By unrealistically calling for modern society to be re-organized in light of the principle of a love-like social freedom he returns to a utopian brand of socialism that resembles Marcuse’s concept of liberation as “the reconciliation of Logos and Eros” (167). Meanwhile, a younger generation of Frankfurt School-inspired political theorists is again explicitly referring to ODM in search of a new politics beyond liberal theories of justice that addresses the ethical “question of how we want to live” (Jaeggi 2014, xxii; see also Loick 2017).

References Adorno, Theodor W. 2000 [1965]. Metaphysics: Concept and Problems, trans. Edmund Jephcott, Stanford, CA: Stanford University Press. Google Scholar Google Preview WorldCat COPAC Benjamin, Jessica. 1988. The Bonds of Love: Psychoanalysis, Feminism, and the Problem of Domination. New York: Pantheon Books. Google Scholar Google Preview WorldCat COPAC Berlin, Isaiah. 1969. Four Essays on Liberty. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Brunner, José. 1995. Freud and the Politics of Psychoanalysis. Oxford and Cambridge, Mass.: Blackwell. Google Scholar Google Preview WorldCat COPAC Chodorow, Nancy J. 1989. Feminism and Psychoanalytic Theory. New Haven, NJ: Yale University Press. Google Scholar Google Preview WorldCat COPAC Eyerman, Ron. 1981. False Consciousness and Ideology in Marxist Theory. Stockholm: Almquist & Wiksell International. Google Scholar Google Preview WorldCat COPAC Feenberg, Andrew. 2002. Transforming Technology: A Critical Theory Revisited, 2nd edn. New York: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Goodin, Robert E. 1980. Manipulatory Politics. New Haven, NJ: Yale University Press. Google Scholar Google Preview WorldCat COPAC Holman, Christopher. 2013. Politics as Radical Creation: Herbert Marcuse and Hannah Arendt on Political Performativity. Toronto: University of Toronto Press. Google Scholar Google Preview WorldCat COPAC Honneth, Axel. 2014. Freedomʼs Right: The Social Foundations of Democratic Life, trans. Joseph Ganahl. New York: Columbia University Press. Google Scholar Google Preview WorldCat COPAC Horkheimer, Max. 1993 [1936]. “Egoism and Freedom Movement: On the Anthropology of the Bourgeois Era.” In Between Philosophy and Social Science: Selected Early Writings, trans. Frederick Hunter, Matthew S. Kramer, and John Torpey, pp. 49–110. Cambridge, Mass: MIT Press. Google Preview WorldCat COPAC Google Scholar Jaeggi, Rahel. 2014. Alienation, trans. Frederick Neuhouser and Alan E. Smith. New Haven, NJ: Yale University Press. Google Scholar Google Preview WorldCat COPAC Lepenies, Wolf. 2006. The Seduction of Culture in German History. Princeton, NJ: Princeton University Press. Google Scholar Google Preview WorldCat COPAC Loick, Daniel. 2017. “21 Theses on the Politics of Forms of Life.” Theory & Event 20(3): 788–803. Google Scholar WorldCat Lukes, Steven. 2005 [1974]. Power: A Radical View, 2nd edn. Basingstoke: Palgrave Macmillan. Google Scholar Google Preview WorldCat COPAC Marcuse, Herbert. 1955. Eros and Civilization: A Philosophical Inquiry into Freud. Boston: Beacon Press.

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Notes 1

Marcuse uses the concept of totalitarianism in the same way as Pitirim Sorokin, the founder of the Department of Sociology at Harvard University. Sorokin (1985: 517–518) distinguishes between “compulsory” and “familistic” totalitarianism and detects a tendency to the latter even in Western democracies. “Familistic totalitarianism” denotes a situation in which the state or some other organized group expands its control over the entire society in accordance with the desires of the people.

2

Women are also included amongst these outcasts. On the feminist critique of Marcuse, see Benjamin (1988) and Chodorow (1989).

3

On the “sacralization” of culture, including amongst le -wing European intellectuals in American exile, see Lepenies (2006). On the psycho-history of the antithesis between culture and the masses, see Theweleit (1987, vol. 2, 43–61).

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Robert Nozick, Anarchy, State, and Utopia  David Schmidtz https://doi.org/10.1093/oxfordhb/9780198717133.013.23 Published: 02 September 2020

Abstract Anarchy, State, and Utopia is arguably the twentieth century’s most in uential work of political philosophy after Rawls’s Theory of Justice. It substantially responds to Rawls, despite ranging over many topics. The Experience Machine, discussed in Part I, engagingly articulates Nozick’s discomfort with utilitarianism, and with Rawls’s way of modeling separate personhood. That is, Rawls depicts bargainers as separate consumers, entitled to separate shares, while dismissing the separateness of what they do as arbitrary. Part II continues to pound on the incongruousness of respecting our separateness as consumers (see his discussions of distributing grades and mates) while implicitly denigrating and even denying our separateness as producers. Part III argues that true utopia would not impose a favored vision of utopia while silencing incompatible rivals. It would instead be a cooperative society for mutual advantage, premised on everyone coming to the table with a robust right to say no to unattractive o ers.

Keywords: Anarchy, State, and Utopia, Nozick, justice, distribution, utopia, experience machine, property, appropriation, transfer, acquisition Subject: Political Theory, International Relations, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Robert Nozick was interested in everything. The range of his contributions is astounding: epistemology, personal identity, free will, decision theory, and more. Yet the contribution for which he remains notorious is his book Anarchy, State, and Utopia (henceforth ASU). “Individuals have rights, and there are things no person or group may do to them (without violating their rights)”: thus begins ASU (ix). Part I (Anarchy) argues that a world where the separateness of persons is respected by a minimal state is possible. Much of what we want and need from our government could arise as a thoroughly rights-respecting spontaneous order. Part III (Utopia) argues that the diversity of lifestyles and communities that would proliferate in a rights-respecting nation would be attractive. Part II (State) argues that a world (including a Rawlsian world) where respecting our separateness is not taken to its

logical conclusion will be neither attractive nor just. ASU’s main focus is Part II, and so is that of this essay, starting with a synopsis of elements of Rawls’s theory that provide Nozick with his main foil.

Rawlsʼs Experience Machine Robert Nozick and his Harvard colleague John Rawls were giants of twentieth-century political philosophy. No one comes close to Rawls in terms of citations or in uence, and yet, it is also true that no one comes closer than Nozick. Nozick said, “Political philosophers now must either work within Rawls’s theory or explain why not” (ASU, 183). There is truth in the compliment, yet when it came to explaining why not, no one did more than Nozick. ASU is the work of a young man. Nozick was in his early thirties when ASU was published. He did not intend it to be a synopsis of his life’s work. Indeed, it reads as what Nozick intended: namely, a series of interventions, picking up threads of various conversations, often turning them on their head. ASU was more than a response to Rawls, but it was very substantially that. Nozick did in fact work within Rawls’s theory, even as he worked to explain why not. Rawls seeks to model justice as a kind of fairness. As Rawls models his departure from strict egalitarianism, we assume we are each entitled to an equal share of the pie. However, realizing we make the pie bigger by giving each other an incentive to work, we allow inequalities when allowing them makes us all better o . This yields an “incomplete principle” (1999b, 135). Departures from equal shares are just if they make everyone better o , but how should we choose among the “inde nitely many” departures tting that description (1971, 65). Rawls suggests targeting one class and maximizing the prospects of its members. Which class? Rawls picks the least advantaged. Di erence Principle: Inequalities are to be arranged to the greatest advantage of the least advantaged. Who are the least advantaged? First, Rawls is referring to a least advantaged class, not a least advantaged person. Second, the class is identi ed by wealth and income, not by any other demographic. In Rawls’s theory, “least advantaged” refers in practice to unskilled laborers (1999b, 139; 1971, 98; 2001, 59). Their disadvantages and needs are not unusual but are instead stipulated to be “within the normal range” (Rawls 1999a, 83). Because the least advantaged, as Rawls de nes them, are workers, they claim a share of the social product because they contribute, not because they are disadvantaged. “The least advantaged are not, if all goes well, the unfortunate and unlucky—objects of our charity and compassion, much less our pity—but those to whom reciprocity is owed” (2001, 139). Rawls wants to invoke our sense of justice, not only our sense of sympathy.

Strains of Commitment Taken at face value, the di erence principle says that (to borrow Rawls’s example) if we can make unskilled workers better o

in the amount of one penny, we must do so even when the cost to others is a billion

dollars. To say the least, this “seems extraordinary” (Rawls 1971, 157). However, Rawls says, “the di erence principle is not intended to apply to such abstract possibilities” (Rawls 1971, 157). Notwithstanding Rawls’s protest that the di erence principle is not intended to apply to cases where its implications seem extraordinary, skilled workers might well be incensed. Inspired by Nozick, they might say, “You imagine us negotiating terms of cooperation, then infer from your imagination that fairness is about some other class getting as much as possible? We never asked you to see us as self-made Robinson

Crusoes, only that you grant that our growing up in ‘your’ society does not a ect our standing as separate persons, and by itself gives you no claim whatever to any skills we bring to the table.” Rawls’s reply, in essence, is that skilled workers are wrong to see themselves as mere means to the ends of the less advantaged. Their skills may be mere means, but their skills are not part of them so much as accidents that arbitrarily befell them. When skilled workers reconceive themselves as undeserving winners in a genetic and social lottery, they will see the distribution of skill as a common asset. They will not see themselves as bringing anything to the table, other than their interests. That turns Rawls’s original position into an implicit answer to the question later posed by Nozick’s Experience Machine (44–45). Nozick asks us to imagine a machine that would lead us to believe we are living as well as we could reasonably hope. Nozick asks us to re ect on whether we would hesitate to plug in, leaving aside any concerns about the machine functioning as advertised. Most of us would hesitate. What does that reveal about what we want out of life, aside from mere experience? Nozick’s answer is that we want to be agents. We want to do things, not just experience them. The accent here is on our separateness as producers. Rawls’s original position hints at a di erent answer, because in a crucial way it treats people as if what matters is what they take away from the table, not what they bring. What agents bring to the table is arbitrary from a moral point of view. Although it may be merely a di erence of emphasis, the accent in Rawls, by contrast with Nozick, is on our separateness as consumers. Rawls can, of course, insist that he, too, at least intends to be talking about rational bargainers who do things. But if Rawls wants to talk about the reciprocity that separate contributors command as their due, he had better not dismiss their contributions as arbitrary from a moral point of view. Do bargainers bring their histories—above all their histories of contributing—to the table, or only their rational interest in maximizing their bundle of primary goods? Is it only their stomachs that command respect? The critical implication of Nozick’s Experience Machine is that if we agree that principles of justice must respect what less advantaged people do, we will be agreeing not only to respect what less advantaged people do from now on, on the grounds that respecting them is in their interest. We will be choosing to respect as a matter of right what they have been contributing all along. If justice were (as Rawls says) the rst virtue of institutions, it would answer the rst question: not how to distribute what people brought to the table but how to respect the fact that they brought it. Rawls-inspired theorists get around this point by saying no one truly brings anything to the table. Nozick nds this risky as a basis for treating persons as ends in themselves. Nozick suspects that a bias against respecting separate persons lurks in the very idea of distributive justice. It implies that goods are distributed by a mechanism for which we are responsible. Nozick believes there generally is no such mechanism and no such responsibility. “There is no more a distributing or distribution of shares than there is a distributing of mates in a society in which persons choose whom they shall marry” (Nozick 1974, 150). The lesson: If we have a license to distribute X, then we ought to distribute X fairly, and Rawls gave us a theory about how to do that. However, we lack a license to distribute, for example, mates. Therefore, we have no right to distribute mates unfairly, and neither do we have a right to distribute mates fairly. They are not ours to distribute. More generally, to show that I have a right to distribute X according to a given plan, we may at some stage need to show that my plan is fair, but before that, we need to show that X’s distribution falls within my jurisdiction. In e ect, Rawls’s principles do not start at the start: they tell us how to distribute X, given that X’s distribution is our business. But the latter is not a given.

Rawls speaks of mitigating the arbitrary e ects of luck in the natural lottery (1971, 74–75). He says, “Once we decide to look for a conception of justice that nulli es the accidents of natural endowment and the contingencies of social circumstance … we are led to these principles. They express the result of leaving aside those aspects of the social world that seem arbitrary” (1971, 15). Arbitrary? The word has two meanings. Natural distributions can be arbitrary, meaning random. Or choices can be arbitrary, meaning capricious. In one case, no choice is made. In the other, an unprincipled choice is made. There is a di erence. In fair lotteries, winners are chosen at random. A rigged lottery is unfair because it fails to be arbitrary in the benign sense. It is by failing to be arbitrary in the benign sense that it counts as arbitrary in the bad sense. What of the natural lottery, then? The natural lottery is arbitrary in the benign sense, but how does that connect to being unfair in the way capricious choice is unfair? Rawls says, “Intuitively, the most obvious injustice of the system of natural liberty is that it permits distributive shares to be improperly in uenced by these factors so arbitrary from a moral point of view” (Rawls 1971, 72). However, when “arbitrary” means random, as it does in this passage, there is no connection between being arbitrary and being improper. Put Nozick’s point this way: Life is about playing the hand you are dealt. Separate personhood is about having been dealt separate and by no means identical cards. Being dealt a bad hand is not the same as facing a stacked deck. A deck is stacked if, but only if, a dealer deliberately stacks it, declining to leave the matter to chance. Nozick’s thought experiment regarding grade distribution is telling here. Suppose we are grading exams, and decide to allocate grades arbitrarily (that is, capriciously) paying no attention to the quality of any student’s performance. One alternative would be grading to the advantage of the least advantaged student. That would be non-random, yet still arbitrary in the bad sense. That is, it is still a capricious way of discharging a presumed responsibility to sort out students according to their performance. So, while Rawls insists that the di erence principle is not meant to apply to abstract possibilities, Nozick observes that Rawls’s theory seemingly does not apply to concrete possibilities either.

Nozickʼs Pattern Nozick distinguishes several conceptions of what principles of justice are supposed to do. Some of his statements are hard to interpret, but the following is roughly what he meant. Current Time-Slice principles assess a distribution at a given moment. On an egalitarian time-slice principle, if the outcomes are unequal, that is all we need to know in order to know we have injustice. End-State principles do not treat outcomes as time slices. Thus, suppose the Smiths and Joneses have the same jobs at the same factory, but the Joneses are three years older, started working three years earlier, and continually get pay raises in virtue of their seniority that the Smiths will not get for another three years. At no time are wages equal—at no time do people look equal—yet lifetime income evens out. We have injustice by an egalitarian time-slice principle, but an end-state principle looks beyond time slices. Patterned principles include each of the above as examples, but within the broader class are patterns that are neither time-slice nor end-state. “Equal pay for equal work” is an egalitarian principle that is patterned but neither end-state nor time-slice; it prescribes what outcomes should track—in this case labor inputs—but does not prescribe that outcomes be equal. Historical principles say that what matters is the process by which outcomes arise. Historical principles are complex because, notwithstanding Nozick’s intended contrast, patterned principles can have historical

elements, and vice versa. “Equal pay for equal work” is both patterned and historical; that is, it prescribes outcomes tracking a pattern of what people have done. Nozick classi es Rawls’s di erence principle as patterned but not historical, insofar as it prescribes a distribution without in any explicit way asking who brought what to the table. By contrast, what Nozick calls entitlement theory is historical but not patterned. The problem with patterned principles is that, in Nozick’s words, liberty upsets patterns. “No end-state principle or distributional patterned principle of justice can be continuously realized without continuous interference with people’s lives” (163). To illustrate, Nozick asks you to imagine that society achieves a pattern of perfect justice by the lights of whatever principle you prefer. Then (in one of the century’s most controversial examples) someone o ers Wilt Chamberlain twenty- ve cents for the privilege of watching Wilt play basketball (161–164). Before we know it, thousands of people are paying Wilt twenty- ve cents every time Wilt puts on a show. The distribution of wealth is no longer equal, but no one complains. Moreover, we are all like Wilt. Every time we earn or spend a dollar, we change the pattern. So, if justice is a pattern, achievable at a moment, what happens if we achieve perfection? Must we then prohibit everything —no further consuming, creating, trading, or even giving—so as not to upset the perfect pattern? Notice: Nozick neither argues nor presumes people can do whatever they want with their property. That is not the point at all. The point is that, if there is anything at all people can do—even something as trivial as giving a coin to an entertainer—then even that tiniest liberty will disturb the pattern (161–164). Entitlement principles recognize realms of choice that time-slice principles cannot. Resources governed by time-slice 1

principles would never be at a person’s disposal, or even a whole nation’s (167).

But not all patterned principles are prescriptions for time-slices. There are passages where Nozick seems to assume that his argument against time-slice principles undermines patterned principles more generally. Not so. Not all patterns are alike. Not all require major interference. Nozick is right that if we focus on timeslices, we focus on isolated moments, and we end up taking moments too seriously, whereas what matters is not the pattern of holdings at a moment but the pattern of how people treat each other over time. But there is no reason why liberty must upset an ongoing pattern of fair treatment. A moral principle forbidding racial discrimination, for example, prescribes no particular end-state. Such a principle is what Nozick calls “weakly patterned,” sensitive to history as well as to pattern. It prescribes how people should be treated without prescribing an end-state distribution (164). It a ects the pattern (as would even a purely historical principle) without prescribing a pattern (or more precisely, without prescribing an end-state). And if a principle forbidding racial discrimination works its way into a society via cultural progress rather than legal intervention, it need not involve any interference whatsoever. If we achieve a society where Martin Luther King’s dream comes true, and his children are judged not by the color of their skin but by the content of their character, we achieve a uid, evolving pattern tracking merit rather than skin color. In the process, society comes to require less intervention than the relentlessly coercive, segregated society from which it evolved. So, although Nozick sometimes speaks as if his critique applies to all patterns, we should take seriously his concession that “weak” patterns are compatible with liberty. Some can promote liberty. The problem is not patterns but speci cally end-state and especially time-slice principles. It would be a mistake, though, to infer that Nozick’s critique of Rawls misses its target altogether. Nozick showed how a theory might portray Wilt Chamberlain as a separate person in a more robust sense (unencumbered by nebulous debts to society) than Rawls could countenance. For Nozick, Wilt’s advantages are not what Wilt nds on the table; they are what Wilt brings. And respecting what Wilt brings to the table is the exact essence of treating him as a separate person.

In part due to Nozick, today’s egalitarians are acknowledging that any equality worthy of aspiration focuses less on justice as a property of a time-slice distribution and more on how people are treated: how workers are rewarded for their contributions and enabled over time (and inspired over time) to make contributions worth rewarding. This is progress.

Elements of Entitlement Nozick says an entitlement theory’s principles fall into three categories. Principles of initial acquisition explain how a person or group legitimately could acquire something that had no previous owner. Principles of transfer explain how ownership is transferred from one party to another. Principles of recti cation specify how to undo wrongful acquisitions or transfers. Nozick favors a version of entitlement theory, grounded in an ideal of voluntarism. Nozick says a distribution is just if it arises by just steps from a just initial position, where the paradigm of a just step is voluntary exchange. As an exemplar, Nozick o ers the ideal of a civil libertarian, free market society governed by a minimal state (a government that restricts itself to keeping the peace and defending its borders). As people interact by consent and on mutually agreeable terms, there will be “strands” of patterns; people amass wealth in proportion to their ability to provide (more precisely, to actually providing) goods at prices that make their customers better o . However, although society will be meritocratic to that extent, that pattern will be only one among many. There will be inheritance and philanthropy, too, conferring goods on recipients who may have done nothing to deserve such gifts (158). Is that a problem? Not to Nozick. Nozick joins Rawls in denying that merit is a principle to which distributions (and transfers) must answer. The question is whether people deal with each other in a consensual way. Nozick’s theory in a nutshell is that we need not preordain an outcome. We need not know what pattern will emerge from voluntary exchange. What arises from a just distribution by just steps is just. If people want to pay Wilt Chamberlain to watch him play basketball, and if this leads to Wilt having more than others, so be it. One thing we might say in support of Wilt having a right to live as he does, and our having a right to pay him for services rendered, is that Wilt, like us, is a self-owner. After all, we speak of people’s talents as their talents. One way or another, someone makes the call regarding how to use Wilt’s skills. Who, if not Wilt, has the right? According to G. A. Cohen, liberalism’s essence is that people are self-owners. Their lives are theirs; they can live as they please so long as they live in peace. As Cohen de nes the terms, right-wing liberals like Nozick believe people can acquire similar rights in external objects, whereas left-wing liberals do not. How should we classify Rawls? Cohen says: Rawls and Dworkin are commonly accounted liberals, but here they must be called something else, such as social democrats, for they are not liberals in the traditional sense just de ned, since they deny self-ownership in one important way. They say that because it is a matter of brute luck that people have the talents they do. Their talents do not, morally speaking, belong to them, but are, 2

properly regarded, resources over which society as a whole may legitimately dispose (2000, 252).

Rawls and Nozick each saw a gap between (1) saying Jane owns her talents and (2) saying Jane owns the cash value of what she produces when she puts her talent to use. Yet, where Rawls embraces the gap between (1) and (2), Nozick struggles to bridge the gap when he gestures at a Lockean theory that we acquire bits of otherwise unowned external world by working on them. I say “gestures” because Nozick is unsure how the

theory works at the edges. Must labor add value? Must labor be strenuous? If I pour my tomato juice into the ocean, why don’t I thereby come to own the ocean? With similar candor, Nozick admits he is unsure what to say about a case where, through no one’s fault, a town has only one remaining water source, and Joe is its sole owner. If the result came about via a process that violated no one’s rights, would that make the result okay? At rst, Joe could sell his water for whatever the market would bear. After Joe accidentally becomes a monopolist, Nozick is less sure. As Nozick acknowledges, we cannot take any simple concept of property for granted here. There are strands of patterns at work, carrying more weight than his simple story suggests. We must ask what a community is for, how property rights (and speci c ways of establishing legal title, including more or less ritualistic forms of labor-mixing) normally foster a community, and whether that normal function is ever superseded. Neither in Nozick’s work nor in any classical liberal’s is there any suggestion that the right to property implies a correlative duty in cases of emergency to roll over and die rather than trespass on someone’s land. For a property system to be stable, respecting it has to be a good option for nearly everyone, including those who arrive too late to be among the wave of rst appropriators. For respecting the system to be a good option for nearly everyone, it must be true that nearly everyone has good options regarding how to make a living within the system. This drives Nozick to acknowledge what he calls the Lockean Proviso: the requirement that the person claiming property leave as much and as good for others.

Regarding Initial Acquisition When Nozick drew our attention to a problem with the Lockean Proviso, philosophical critics of private property were gleeful. To critics, the Proviso seemed wonderfully unsatis able, making (private) property in land unjusti able on Lockean grounds. As Judith Thomson (not herself a critic) put it, if “the rst labormixer must literally leave as much and as good for others who come along later, then no one can come to own anything, for there are only nitely many things in the world so that every taking leaves less for others” (1990, 330). Thomson was not alone. “Every acquisition worsens the lot of others—and worsens their lot in relevant ways” (Bogart 1985, 834). “The condition that there be enough and as good left for others could not of course be literally satis ed by any system of private property rights” (Sartorius 1984, 210). And so on. If we take something out of the cookie jar, we thereby leave less for others. It seems selfevident. But it isn’t even true, for two reasons. First, it is hardly impossible—certainly not logically impossible—for a taking to leave as much for others. We can imagine a logically possible world of magic cookie jars: every time you take a cookie, more and better cookies take its place. Second, the logically possible world I just imagined is the sort of world we actually live in. Philosophers writing about original appropriation tended to speak as if rst appropriators are lucky. The truth is, rst appropriators pay most of the cost of launching society as a cooperative venture; latecomers get most of the bene t. Consider America’s rst permanent English settlement, the Jamestown colony of 1607. (Or, if you prefer, imagine people crossing the Bering Strait from Asia thousands of years ago. It does not a ect the point at hand.) Was their situation better than ours? How so? They never worried about being overcharged for car repairs. They never awoke in the night to the sound of noisy refrigerators, leaky faucets, or even ushing toilets. They never had to change a light bulb. They never faced the prospect of a dentist’s drill. Life was simple. Philosophers are taught to believe, in e ect, that original appropriators got the good stu

for free. We have

to pay for ugly leftovers. In truth, original appropriation is a cornucopia of wealth, but mainly for latecomers. The people who got here rst could not have imagined what latecomers take for granted. Our life expectancies exceed theirs by several decades.

Appropriation typically is not a zero-sum but a positive-sum game. As Locke himself stressed, it creates the possibility of mutual bene t on a massive scale. It creates the possibility of society as a cooperative venture. The point is not that enough is produced in appropriation’s aftermath to compensate latecomers who lost out in a race to appropriate. The point, rather, is that being an original appropriator is not the prize. The prize is prosperity. Latecomers win big. If anyone had a right to be compensated, it would be the rst appropriators. For twenty years following the publication of ASU, critics celebrated this seemingly gaping hole in Lockean property theory, a hole to which Nozick drew our attention. The hole got lled (Schmidtz 1994), informed critics stopped talking about it, and philosophy made progress.

Regarding Transfer In Nozick’s theory, rights are trumps or side-constraints, not merely weights to balance against other considerations. What justi es side-constraints? Nozick is sometimes accused of having no foundation, of merely assuming what he needs to prove (Nagel 1975). For better or worse, Nozick simply borrowed John Rawls’s premise about the separateness and inviolability of persons. As Rawls puts it, “Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override … [T]he rights secured by justice are not subject to political bargaining or to the calculus of social interests” (1971, 3–4). Nozick (33) concurs with this “root idea, namely, that there are di erent individuals with separate lives and so no one may be sacri ced for others” (33). This is Nozick’s foundation, and Rawls’s. Another answer regarding what justi es side-constraints is that some rights are prerequisites of a society being a cooperative venture for mutual advantage. Some rights enable people to know what to expect from each other, and to plan their lives accordingly. On this view, what gives rights a foundation also limits their scope. Why do we have rights? Because we cannot live well together unless we treat each other as having rights. Why do we have limited rights? Because we cannot live well together unless we treat our rights as limited. That is how we know that Wilt’s right to enjoy his property in peace does not include a right to build biological weapons in his suburban garage. That is also how we know that Wilt’s right to buy a sports car does not include a right to drive through school zones as fast as he pleases (171). At some point, a community, realizing that drivers must be able to get where they need to go without imposing undue risk on pedestrians, concludes that ten to twenty miles per hour is within reason, then picks something in that range. After a community posts a limit, such as fteen miles per hour, drivers no longer have a right to judge for themselves whether twenty is within reason. Pedestrians now have a right that drivers observe the posted limit. Such a right is a straightforward side-constraint. This is how side-constraints emerge. Ordinary drivers in normal cases have no right to judge for themselves whether the constraint is outweighed. When the constraint applies, it applies decisively. (Nozick uneasily suggests that rights don’t stop us from doing what it takes to avoid catastrophic moral horror. So, where is the line between overriding rights to avoid catastrophe, and ignoring rights to promote e

ciency? He doesn’t say, or pretend to know.)

Regarding Rectification G. A. Cohen engaged with Nozick’s theories of property and liberty extensively in the decades following the publication of ASU. Cohen saw a problem for anyone who believes property rights embody a commitment to peaceful cooperation. Cohen thinks that enforcing property rights is as coercive as robbery. Property rights require us not to initiate force, but the problem is: governments back that requirement with a threat of force. That very threat is itself an initiation of force.

I want, let us say, to pitch a tent in your large back garden, perhaps just in order to annoy you, or perhaps for the more substantial reason that I have nowhere to live and no land of my own, but I have got hold of a tent, legitimately or otherwise. If I now do this thing that I want to do, the chances are that the state will intervene on your behalf. If it does, I shall su er a constraint on my freedom (1995, 56). For Cohen, “incursions against private property which reduce owners’ freedom by transferring rights over resources to non-owners thereby increase the latter’s freedom. In advance of further argument, the net e ect on freedom of the resource transfer is indeterminate” (1995, 57). There is no denying Cohen’s point: even when the state is trying to protect our freedom, its methods are coercive. Yet, we cannot infer that the net amount of freedom doesn’t change, or even that we’ll have a problem discerning a change. Suppose we treat Cohen’s claim not as conceptual analysis but as a testable empirical claim. For example, my freedom to drive through a green light comes at a cost of your freedom to drive through a red one. Is anything indeterminate about the net e ect? Not at all. It is, nevertheless, in the context of recti cation that Cohen’s claim (that protecting property is coercive) is acutely relevant. When victims and victimizers are long dead, and nothing can be done short of transferring property from one innocent descendant to another, that is when enforcing rights by rectifying an ancient history of unjust transfers really does start to look like an initiation of force. Cohen did not intend his point to apply especially to this aspect of rights enforcement, yet the application is compelling. Should we enforce property rights of long dead victims at the expense of people who did not themselves initiate force, and who themselves turn out to descend from victims if we go back far enough? If we must return a wallet seized from a previous owner, must we also make sure the previous owner did not seize the wallet in turn? Nozick envisions a civil libertarian society where we carry on from where we are, in peace. Yet we cannot carry on in peace unless our obligation to undo the past is limited. There are places where people have been “evening the score” for centuries, and the cycle of mutual destruction will not stop until people aim to leave the past behind.

Conclusion Nozick’s historical entitlement theory is ASU’s signature contribution to political philosophy: a distribution is just if it arises by just steps (paradigmatically, through voluntary exchange) from a just initial position. That sets the bar high. What can historical theories say when few (if any) titles have unblemished histories? As I see it, Nozick’s theory was a more disruptive departure from the general train of academic thought than the young Nozick himself realized. What Nozick o ered us was not a rival (historical) theory about how to treat the pie. Instead, he was implicitly saying a good theory of justice would not be a theory about how to treat the pie; it would be a theory about how to treat bakers. More speci cally, the legacy of ASU is Nozick’s theory of speci cally just transfer, not any more general theory of just distribution: namely, a transfer from one person to another is thoroughly just if thoroughly voluntary. Thinking of the theory in this way allows us to think constructively about recti cation. Nozick might have said that the question is whether ongoing changes in distributions result from peaceful cooperation. We are fated to live in a world of background injustice, each of us descended from both victims and victimizers. It is a virtue of Nozick’s theory that it need not pretend that we might achieve perfect justice if only we could “even the score.” Without aspiring to even the score, it remains possible for moral agents, living ordinary lives, to abide by Nozick’s principle of just transfer, and, to that imperfect extent, to have

clean hands. Voluntary transfer cannot cleanse a tainted title of original sin, but any injustice in the result will have been pre-existing, not created by the transfer. Nozick treats voluntarism as the concept that grounds a theory of just transfer. Along the way, ASU gestures at how to get unowned resources into the realm of what can be voluntarily transferred, and acknowledges that part of justice concerns undoing wrongful transfers. For Nozick, sometimes justice is about returning a stolen wallet to the person from whom it was stolen. Why return the wallet to that person? Not to restore a previously fair pattern but to restore a wallet to the person from whom it was stolen. Sometimes, justice is about returning the wallet, not distributing it. The wallet’s history trumps any thoughts about how it might be distributed. ASU’s enduring contribution will be a matter of how we come to grips with that thought as we go forward. ASU leaves us with a picture of justice that we can live with, the justice of a free society, wherein the point of undoing wrongful transfers is simply to undo wrongful transfers, not to track a pattern. This suggests a vision that can count as utopian despite the envisioned government being minimal in scope. It is a vision of “rule of law” as opposed to “rule of men.” Those who believe in a theory of distributive justice will also tend to believe that justice mandates imposing their vision on anyone who sees things di erently. Their vision of utopia will be one in which alternative visions are absent, and no one ever threatens the ideal pattern by marching to the beat of a di erent drummer. By contrast, Nozick was groping toward a vision of utopian diversity. In Nozick’s utopia, people feel robustly secure in their right to say no, and that robust right to say no is all they need in order to feel safe enough to head into town, hoping to meet some disruptive innovator to whom they can freely say yes.

Acknowledgments This essay is a radical reworking of material borrowed from Schmidtz (1994, 2002, 2005, 2006, 2011) and from Schmidtz and Freiman (2012). For helpful recent feedback, I thank Jacob Levy and Cate Johnson. For their profound in uence on my thinking about Nozick over many years, there is no end of people I could thank, but I will single out Jason Brennan, Chris Freiman, and Matt Zwolinski, along with Nozick himself.

References and Further Reading Bader, Ralf. 2010. Robert Nozick. New York: Continuum. Google Scholar Google Preview WorldCat COPAC Bogart, J. H. 1985. “Lockean Provisos and State of Nature Theories.” Ethics 95: 828–836. Google Scholar WorldCat Brennan, Jason. 2007. “Rawlsʼs Paradox.” Constitutional Political Economy 18: 287–299. Google Scholar WorldCat Cohen, G. A. 1995. Self-Ownership, Freedom, and Equality. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Cohen, G. A. 2000. “Self-Ownership, World-Ownership, and Equality.” In Le -Libertarianism and Its Critics, edited by P. Vallentyne and H. Steiner, 247–270. New York: Palgrave. Google Scholar Google Preview WorldCat COPAC Lacey, A. R. 2001. Robert Nozick. Princeton: Princeton University Press. Google Scholar Google Preview WorldCat COPAC Locke, John. 1960. Two Treatises of Government. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Nagel, Thomas. 1975. “Libertarianism Without Foundations.” Yale Law Journal 85(1): 136–149. Google Scholar WorldCat Nozick, Robert. 1974. Anarchy, State, and Utopia. New York: Basic Books. Google Scholar Google Preview WorldCat COPAC Rawls, John. 1971. A Theory of Justice. Cambridge: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Rawls, John. 1996. Political Liberalism. New York: Columbia University Press. Google Scholar Google Preview WorldCat COPAC Rawls, John. 1999a. A Theory of Justice, revised edn. Cambridge: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Rawls, John. 1999b. Collected Papers, edited by S. Freeman. Cambridge: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Rawls, John. 2001. Justice as Fairness: A Restatement. Cambridge: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Sartorius, Rolf. 1984. “Persons and Property.” In Utility and Rights, edited by R. Frey, 196–214. Minneapolis: University of Minnesota Press. Google Scholar Google Preview WorldCat COPAC Schmidtz, David. 1994. “The Institution of Property.” Social Philosophy & Policy 11: 42–62. Google Scholar WorldCat Schmidtz, David, ed. 2002. Robert Nozick. New York: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC

Schmidtz, David. 2005. “History & Pattern.” Social Philosophy & Policy 22: 148–177. Google Scholar WorldCat Schmidtz, David. 2006. Elements of Justice. New York: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Schmidtz, David. 2011. “The Right to Distribute.” In Anarchy, State, & Utopia Reappraised, edited by J. Meadowcro and R. Bader, 197–229. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Schmidtz, David and Chris Freiman. 2012. “Nozick.” In Oxford Handbook of Political Philosophy, edited by David Estlund, 411–428. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Thomson, Judith Jarvis. 1990. The Realm of Rights. Cambridge: Harvard University Press. Google Scholar Google Preview WorldCat COPAC

Notes 1.

Rawls replies: “The objection that the di erence principle enjoins continuous corrections of particular distributions and capricious interference with private transactions is based on a misunderstanding.” One page later, Rawls clarifies: “even if everyone acts fairly as defined by the rules that it is both reasonable and practicable to impose on individuals, the upshot of many separate transactions will eventually undermine background justice. This is obvious once we view society, as we must, as involving cooperation over generations. Thus, even in a well-ordered society, adjustments in the basic structure are always necessary” (1996, 283–284). In any case, one challenge for a constitutional democracy is to limit “adjustments” that signal to citizens that they are governed by men, not law. I thank Tom Palmer (in conversation) for pointing me at this passage.

2.

Rawls (2001, 75–76) says “it is persons themselves who own their endowments,” which sounds liberal, but his next remark is, “What is to be regarded as a common asset, then, is the distribution of native endowments, that is, the di erences among persons.” By contrast, genuinely liberal self-ownership, to Cohen, includes aspects of selves that make us di erent from each other.

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Michael Oakeshott, On Human Conduct  Richard Boyd https://doi.org/10.1093/oxfordhb/9780198717133.013.1 Published: 05 February 2020

Abstract This chapter surveys some of the main themes of Michael Oakeshott’s On Human Conduct (1975). Despite Oakeshott’s reputation as a conservative thinker, an examination of his theory of civil association reveals how extensively the book anticipated subsequent developments in contemporary liberal political philosophy. On Human Conduct o ers many insights into questions of liberal neutrality, civility, agonistic pluralism, and radical individuality that have come to dominate the writings of leading contemporary exponents of liberalism. Notwithstanding these enduring in uences, however, the book proves much less helpful in clarifying thorny questions about the distribution of membership in bounded political communities.

Keywords: conservatism, liberalism, civil association, enterprise association, agonistic pluralism, civility, radical individuality, public reason, political membership Subject: Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Introduction: On Human Conduct The publication in 1975 of Michael Oakeshott’s On Human Conduct (OHC) was anxiously awaited by his longtime admirers, but the book was met with some puzzlement when it appeared. Devotees expected an elaboration of conservative themes along the lines of classic Oakeshott essays such as “Rationalism in Politics,” “Political Education,” or “On Being Conservative.” These writings from the 1940s and 1950s were characterized by stylistic elegance, a keen eye for empirical details, and a conservative sensibility that seemed to place Oakeshott squarely in the tradition of Burkean conservatism. What OHC’s readers found instead was a highly abstract philosophical treatise that interrogated the foundations of human agency and volition before moving on to examine the moral underpinnings of the modern state. In lieu of AngloAmerican liberal political philosophy’s familiar terminology of “state,” “rights,” “citizens,” “contract,” and “obligation,” Oakeshott unveiled a bewildering array of neologisms such as “civil association,” “enterprise association,” “‘going-on’,” “lordship,” and “the individual manqué,” not to mention repurposed Latin terms such as cives, lex, respublica, universitas, and societas. The work’s conceptual novelty, dense prose, and abstruse terminology made it hard to digest even by scholars well-versed in Oakeshott’s philosophy. OHC survived this initial confusion to become one of the twentieth century’s most in uential works of political philosophy, inviting comparisons to Aristotle’s Politics, Hobbes’s Leviathan (1994), or Hegel’s Philosophy of Right. Abandoning the rights-based or contractarian formulations that had heretofore dominated Anglo-American political theorizing on the state, political obligation, and the nature of citizenship, the book marks a radical departure. And yet for all of its novelty, Oakeshott’s understanding of the liberal state pre gured many contemporary iterations of political liberalism and deliberative democracy. Oakeshott’s species of liberalism is de ned by features such as purposive neutrality, agonistic pluralism, non-foundationalism, and the pursuit of radical individual self-enactment and self-disclosure that have subsequently become cornerstones of contemporary political theory. After surveying these key themes, this chapter also suggests the book’s shortcomings with respect to questions of political membership.

Plan of the Work OHC is divided into three loosely related essays: “On the Theoretical Understanding of Human Conduct,” “On the Civil Condition,” and “On the Character of a Modern European State.” In the spirit of Hobbes’s Leviathan, about which Oakeshott elsewhere wrote so insightfully, the rst essay opens by tackling elementary questions of agency, volition, and conduct. What does it mean to understand the world in terms of intelligible “goings-on,” and what model of agency motivates free human conduct? Following in the footsteps of Aristotle’s Politics, the second essay turns to the essence of what Oakeshott calls “the civil condition.” Oakeshott nds it useful—as did Aristotle or Locke, for that matter—to distinguish the “civil” relationship shared by fellow citizens from other kinds of moral relationships (say, between parents and children, masters and slaves, fellow parishioners, or shareholders in a corporation) with which civil association is metaphorically, if not literally, confounded. To do so, Oakeshott invents a new typology of “civil association” versus “enterprise association,” whose contrast helps to specify this unique relationship among citizens. Finally, like both Aristotle and Hegel, after sketching out the ideal moral qualities associated with a political community so understood, the third essay provides concrete historical examples of how these disparate theoretical conceptions—what he subsequently dubs societas and universitas—have served as blueprints for modern European states. Conceived on the latter model, the modern state faces a crisis whereby once

intrepid, freedom-loving citizens abdicate all responsibility in their craving for safety and communal solidarity, giving rise to the insipid gure of the “individual manqué.”

Freedom and Human Agency One way of telling the story of modern and contemporary political theory is as a transformation of the meaning of freedom. Speaking broadly, freedom evolves from a bare-bones Hobbesian conception of liberty as nothing more or less than the absence of physical compulsion to more substantive conceptions that presuppose underlying faculties, resources, or empowerment. There have been counter-currents along the way, no doubt, the most notable of which is Isaiah Berlin’s seminal essay “Two Concepts of Liberty,” which powerfully rea

rms so-called “negative liberty” (1969). Still, the general drift in the second half of the

twentieth century and beyond has been to harness ever more stringent requirements to the idea of freedom. Various preconditions—active self-government, empowerment, recognition, non-domination, etc.—must be met in order for an agent to be considered truly free. OHC stands in opposition to this arc of contemporary political theory. Indeed, its de nition of freedom harks back toward the minimalist de nition proposed by Hobbes, who famously characterized “Liberty, or Freedom” as “the absence of opposition (and by opposition I mean external impediments of motion).” In this view “a FREE-MAN is he that in those things which by his strength and wit he is able to do is not hindered to do what he has a will to” (1994: Ch. 21, 136). For Oakeshott, freedom similarly consists in nothing more or less than “an intelligent agent responding to an understood (or misunderstood) situation meaning to achieve an imagined or wished-for outcome” (23). The key features of this account of freedom are the “intelligent agent” and the notion of “responding” to external conditions. Freedom is the de ning activity of reasoning, deliberating, and choosing agents—with the emphasis on their agency. “Conduct,” Oakeshott notes, “postulates what I shall call a ‘free agent.’” Agents are “‘free’” insofar as they have at least a “formal detachment from certain conditions,” and not necessarily because they are “substantively ‘self-directed’,” a condition of “‘autonomy’” or “‘self-determination’” which agents may or may not possess (36-37). The status of free agency postulated by Oakeshott is “formal,” in his words, and not substantive. Agents are free de jure if not de facto. Here he seems to be responding, even if implicitly, to various trends of behaviorism or structural determinism that would portray human “behavior” as either unchosen or overdetermined by genetic, psychological or economic in uences. To concede the view of human beings as passive victims of fate, oversocialized pawns of environmental forces, unconsciously driven by their genes or repressed psyches or objective powers, does grave injustice to the status of human beings as free and intelligent agents. The second aspect of freedom is a human capacity to respond intelligently to external conditions. Pace Hobbes, freedom is devoid of any requirement of physical action (one can respond intelligently in other ways than physical motion). It also need not entail that one responds successfully. One hardly lacks freedom just because all one’s best e orts in pursuit of an “imagined or wished-for outcome” are in vain (13). One is “free” to act even when circumstances, or the resources at one’s disposal, are unavailing. An intelligent agent’s conscious understanding of her own circumstances—and not whether they are “alterable by an act of unconstrained ‘will’”—is what constitutes freedom (37). This supposes that an individual stuck in situations many deem coercive—between the proverbial “rock and a hard place”—is nevertheless as “free” to respond as someone well situated. Oakeshott cites the example of debtor Z confronting unenviable choices. Rather than being constrained by circumstances, or lacking freedom due to restricted options, the debtor is free by dint of his ability to respond intelligently:

What Z has to consider is not the best, the quickest, or the most economical, etc. means of becoming solvent or of achieving a successful indi erence to being in debt, but with what action or utterance he shall respond to what he understands his situation to be. Nor is the agent in conduct in the position, for example, of a chess-player who has to choose between a xed number of alternative moves. The alternative actions he has to consider are his own inventions, and deliberating is not merely re ecting in order to choose, it is also imagining alternatives between which to choose … But if to this circumstantial condition is added the quali cation that (in order to address himself to his situation) he must deliberate only those actions which are plausibly responses to it, that is scarcely a limitation. It allows him to consider doing nothing because all the actions he can think of seem to carry with them unacceptabilities greater than that which he now su ers; and at the other extreme it permits him to consider the sovereign release from all unacceptable situations, namely, suicide (43). This case highlights the distinction between freedom and power—and indeed the common con ation of those two terms. Oakeshott would not quarrel, I think, with the claim that a debtor whose least unacceptable action is suicide could be characterized as lacking power. He might insist, however, that even straits as dire as these are (to some degree) a function of a paucity of inventiveness, rather than a mark of abject powerlessness.

The Adverbial Moral Relationship of Civility Besides abstract matters of freedom and intelligent engagement, OHC is also concerned with what Oakeshott refers to as “conduct inter homines.” Agents may deliberate and respond to the world individually, or act according to moral rules they have prescribed for themselves, but the preponderance of human conduct involves “the association of agents (each engaged in seeking his own chosen satisfactions) in terms of mutual participations in multifarious practices of di erent dimensions and of di erent degrees of generality, exactness, ‘institution’, variability, complexity, and independence” (57). “Practices” are what we might term “social” in nature—although Oakeshott eschews this ambiguous term. Practices are intersubjective moral rules that constrain, qualify, or condition human action in ways that are best understood as “adverbial” (113). As with most actual languages, practices shape the terms in which one engages in conduct inter homines while leaving the substance of any speci c utterance up to the agent. Practices are facilitative rather than substantively demanding or restrictive. By way of illustration, Oakeshott o ers the analogy that “[t]he language of betting does not tell a punter which horse to back or a bookmaker what odds he should o er” (113). While underscoring the abundance of such qualifying practices, OHC is preoccupied with a very speci c moral relationship—that of “civil association”—which is characteristic of citizens. Civil association is not a relationship of mutual self-interest, strictly speaking, nor one de ned by the pursuit of shared ends or purposes. Nor is it an instrumental bargain struck among entrepreneurs or the disinterested solidarity of comrades at arms. Neither is it—interestingly for a liberal theorist—the result of consent in any straightforward contractualist sense of the term. Rather, civil association is a relationship of mutual moral consideration by which we nominally subject our dealings with one another to the “adverbial” rules that Oakeshott calls “civility.” Civility sets the terms by which we undertake all of our actions inter homines, whether public or private, self-promoting or other-regarding, intermittent or permanently institutionalized (183). Civil association bears some resemblance to a “state,” but there are crucial di erences. What is at issue is not the matter of denominating a particular, objective thing called a “civil association” as of identifying the

underlying moral relationship that constitutes a civil (as opposed to some other kind of) association. Like the opening book of Aristotle’s Politics, Oakeshott seeks to distinguish the political association shared by fellow citizens from other non-political associations such as families, households, or corporations (109– 111). States di er from households, corporations, clubs, or churches not by virtue of being larger, or having a monopoly on the legitimate use of violence, or being other-regarding, or providing some tangible bene t. Political communities are unique because of the distinctive nature of their constitutive moral relationship. The key to civil association is that there is no summum bonum of living together in a political community— or of human life more generally. Our engagements with fellow citizens have no “common purpose,” and so they cannot be judged according to whether they approximate or diverge from any unifying good, whether moral or practical (119, 129). Fellow citizens are bound together solely by a shared moral agreement about the means they may legitimately avail themselves of in pursuit of their self-chosen ends. As with the rules of grammar, the conditions of civil association set the stage for individuals to relate to one another as they see t. An agent may recite a poem to seduce a lover, tell a joke to elicit laughter and admiration, or pitch a sale to earn a pro t—all these utterances are performed in light of the moral quali cations of civility.

Civil Association versus Enterprise Association In Oakeshott’s view, the purposive neutrality of civil association is an opportunity rather than a drawback. For the lack of compulsory engagement in ostensibly common purposes leaves citizens free to cultivate ends of their own. They may pursue these self-chosen purposes as solitary, intrepid individuals—subject, of course, to the acknowledgment that most instances of individual conduct are themselves conditioned by antecedent practices. Or, more importantly, they can advance them jointly with associates who happen to share the same goals. In contrast to the relationship of “civil association,” which is purposively neutral, the term Oakeshott coins to delineate such purposive associations is “enterprise association.” These two modes of associating are categorially di erent and must never be confused. Enterprise associations can be instrumental or even commercial in nature, as in the cases of a “bassoon factory,” joint stock corporation, professional association, trade union, or other collective enterprise for the goal of pro t maximization (114). Or they may be disinterested, as in the cases of a church, poetry society, political party, fraternity, or other communal undertaking. They may be organized by written charter or remain loose and informal. Whatever their animating purpose—whether it be economic, spiritual, philanthropic, or recreational—the constitutive features of this category of associations “are a common substantive purpose and the [voluntary] choice of each of the agents to be related in terms of it” (114). Oakeshott says that he has “noticed enterprise association in some detail because of all durable human relationships it is the most familiar.” It is conspicuous because “there is virtually no limit to the capacity of an agent to be related to others in this manner” (117). Enterprise association is theoretically limited only by human imagination and, in extremis, their non-compossibility (118). Conversely, individuals cannot be compelled to associate for purposes they do not share: “The ‘freedom’ inherent in this mode of [enterprise] association lies … in the associates not being related to one another in the pursuit of any substantive purpose they have not chosen for themselves and from which they cannot extricate themselves by a choice of their own” (original emphasis; 314). As Richard Flathman notes, OHC’s discussion of enterprise association may surely be regarded as a celebration of vibrant pluralism (2005). But there is another and more immediately political reason why Oakeshott has “dwelt upon enterprise association”—namely “because it is the mode of human relationship with which the civil relationship is most often identi ed,” which is to say, confused (118; Boyd 2004b). The misidenti cation of civil association as enterprise association is more than an abstract philosophical or “categorial” error of con ating two distinctive modes. As Oakeshott makes clear in the third essay, modern

European states have often been modeled on enterprise associations such as corporations, fellowships, guilds, churches, or other purposive organizations—that is, collectivities whose associates are united by an overarching purpose, such as the shared pursuit of virtue, salvation, moral development, national greatness, or messianic foreign policy. Because membership in political communities—unlike in churches, clubs, or corporations—is compulsory, the stakes of this fallacy are grave for human liberty. States becomes tyrannical when they dictate common purposes. They also become antipluralist. An abundant and “unregulated variety of self-chosen purposive associations” is only possible when “a state is not itself a purposive association” (316). The state-quaenterprise association “cannot tolerate performances eccentric or indi erent to the pursuit of the purpose which constitutes the association [of the state]” (316). Modern states regard those whose purposes are discrepant as “outlaw[s]” guilty of “treason” (316). The result here is that a political community maximizes the range of purposes freely available to citizens by not attributing any overarching purpose to membership in the political community itself.

Liberal Neutrality Oakeshott is not the only thinker to make purposive neutrality a central tenet of liberalism. And yet, his commitment to liberal neutrality has made him a popular target for liberalism’s critics, who tend to fall into two divergent groups. The rst objects that Oakeshott must be wrong, and his account of civil association discounted, by virtue of the fact that the modern state never has been, nor should it ever be, purposively neutral. States always represent shared substantive conceptions of the good (Parekh 1979: 505–506; Galston 1991: 3). Or to take Oakeshott’s own metaphor of language seriously, all actual languages embody substantive conceptions. Whether because of selective vocabulary or grammatical structure, languages tacitly favor some substantive utterances over others. Analogously, the adverbial relationship of civil association inevitably gives preference to certain substantive ideals. Liberal neutrality, in short, is a mirage. The second group is in many ways the opposite of the rst, in that it takes Oakeshott at his word with respect to the purposively neutral and purely formal aspects of civil association. Oakeshott is right about liberal neutrality: the modern liberal state is substantively vacant, existentially uninspiring, and sentimentally inert. The problem with liberal political philosophy is precisely that it endorses this nonpurposive view of public life (Sandel 1982; MacIntyre 1981). From the vantage of communitarian critics, the virtue of Oakeshott’s account is that it so perfectly crystallizes the underlying logic (and essential defects) of liberalism as a public philosophy. There is more to Oakeshott’s view of liberalism than purposive neutrality, to be sure. Civil association has other noteworthy features. First, “civitas is rule-articulated association,” which is to say this relationship is entirely a matter of a recognition of the authority of common rules. This is the apolitical legalism that many critics have focused on (Pitkin 1976; Barber 1988). In extremis, lacking any sense of warmth, community, or intimacy, our relationship to fellow citizens boils down to mere “considerations of ‘justice’” (123). Second, because it is a relationship constituted by our collective acknowledgment of rules, it is a relationship of equals and is grounded in a sense of moral equality that supersedes our many di erences as enterprisers (128). Third, although it is primarily a legalistic and not emotional or a ective relationship, it does seem to rest upon a tepid kind of moral a ection that Oakeshott calls civility. Citizens are neither friends nor rivals, but something in between: “[B]eing independent of both rivalry and tender concern,” the virtue of civility is able to “subsist where the one is present or where the other is absent” (123). Some of these attributes would seem to support—and others to de ect—misgivings about the neutral, legalistic, and existentially uninspiring character of Oakeshott’s liberalism. The notion of cives bound together solely in terms of abstract rules—indeed by nothing but the arid “rule-articulated” concept of

justice—appears at rst glance to con rm the stereotype (124). And yet two additional features push back in the direction of something more robust. Maybe the most promising is the virtue of civility. Despite Oakeshott’s best attempts to reduce civility by analogy to the status of mere linguistic quali er, it nonetheless signi es a kind of communal a

nity or attachment, however thin and “watery” this may be

(147). It is akin to the non-instrumental relationship shared by all ute players, French speakers, historians, or chemists—a moral a

nity that cannot help but conjure up some loose sense of a ection, if

not comradery (121). The second aspect is his appreciation of how this common moral relationship fosters a sense of equality. Civility is ultimately “a relationship of equals, not because all users of a language are equally competent but because they are all concerned with the same skill and speci ed in the same terms” (121). Civil association is constitutive of citizens who acknowledge themselves as moral equals. Whatever the case, Oakeshott’s vision of a political community de ned by agreement as to common means with respect to which individuals may pursue their own self-chosen ends has great resonance within contemporary liberal political philosophy. Notwithstanding their early disagreement over the meaning and desirability of “conservatism,” the account F. A. Hayek gives of the liberal state in terms of “abstract rules of just conduct” bears an uncanny resemblance to Oakeshott’s “civil association” as an adverbial relationship (Hayek 1973; Boyd and Morrison 2007). Likewise, this sensibility is at least loosely compatible with John Rawls’s rejection of “comprehensive views” in favor of a version of reasonable pluralism that is, within broad limits, neutral with respect to di erent views of the good. There is also Rawls’s insistence that, in the face of pluralism, it is incumbent on citizens to observe the virtue of civility when they address others with whom they may disagree (Rawls 1993). Contrary to many models of deliberative democracy or public reason spawned by Rawls’s later work, however, OHC regards the virtue of civility as more than just a synonym for liberal public reason. Oakeshott’s richly sociological version of civility asks both less and more than Rawls, which makes OHC an intellectual resource for those dissatis ed with the Rawlsian account. On the one hand, Oakeshott’s civility lacks the tacit strictures of Rawlsian public reason. Cives may appeal to any or all kinds of justi cations—or none at all—so long as the manner in which they pro er them conforms to the tenets of civility. The public sphere is open to all utterances—comprehensive or not—so long as they are expressed respectfully, civilly, artfully, tactfully, etc. The way we make arguments matters more than whether they can be contorted to t within the bounds of secular liberal public reason (Kingwell 1994; Boyd 2004a). On the other hand, Oakeshott’s account of civility is more exacting, and arguably of wider contemporary relevance, insofar as it applies civility to the whole gamut of situations—public and private alike—in which we interact with fellow citizens. Civility quali es more than just political speech or public actions. It is a means of communicating respect for fellow citizens in all of our performances. Civility to others in day-to-day life signi es and reinforces our respect for them as moral equals (Boyd 2006).

Non-Foundationalism and Agonistic Pluralism On the basis of his commitment to inherited traditions and wariness of wholesale change in the name of novelty, progressive improvement, or rational reform, Oakeshott is reputed to be a certain kind of conservative. How strange, then, that OHC has been cited by the likes of Chantal Mou e (1993), Richard Flathman (1998; 2005), and others as inspiration for an “agonistic” pluralism predicated on the inescapability of contestation and radical contingency. What is the basis to support such an unlikely reading, and how can Oakeshott be both an agonist and a conservative? Three key aspects of OHC con rm the agonistic reading. The rst is Oakeshott’s contention that human knowledge and moral sensibilities are provisional, predicated on “conditional platform[s] of understanding” and the acceptance of contingent practices (34). This “skeptical” sensibility re ects an

aversion to philosophical monism or moral absolutism. But this non-foundationalism also confers abundant possibilities. Oakeshott famously likens political activity to the enterprise of “sail[ing] a boundless and bottomless sea; there is neither harbour for shelter nor oor for anchorage, neither startingplace nor appointed destination” (1991). OHC similarly describes civil association as a platform for “self-enactment” and “self-disclosure.” “Selfdisclosure,” in Oakeshott’s parlance, involves human beings pursuing ends against the backdrop of established moral parameters. An athlete strives to improve her performance within a framework designed to elicit and gauge a particular kind of performative activity. By way of contrast, “self-enactment” comes closer to the style of radical individuality Oakeshott ultimately endorses. Self-enactment is when individuals “disclose to one another their complex individualities” and “explore relationships far more varied and interesting than those it has a name for or those which a commonplace acceptance of so-called ‘moral values’ would allow” (63). Self-disclosure seems like the moral equivalent of coloring within the lines, whereas self-enactment entails the ability to reshape the whole canvas. This kind of radical individuality clearly anticipates—if not inspires—a major current in contemporary liberal political theory. Thinkers such as Flathman (1992; 1998), George Kateb (1992), Nancy Rosenblum (1987), and many others have endorsed variations of liberalism predicated on exactly this kind of romantic, individualistic, skeptical, and willful liberalism. Second, there is the abiding nature of Oakeshott’s pluralism. At the heart of OHC lies the philosophical premise that distinctive practices result not only in abundant variety but also in inexorable discrepancy. There is no easy way of adjudicating once and for all among disparate purposes. Nor is any teleological hierarchy among ends to be found in nature. As Flathman explains, Oakeshott’s pluralism inheres within practices—intersubjective conventions which shape our ends and set the terms according to which persons relate to one another (2005). Religions or cultures constitute “practices” in this sense, and they prove reliable sources of moral discrepancy, if not outright con ict. Yet at a deeper level, con icts are a function of a “modal” pluralism that stems from categorial di erences in knowledge as cognized by the human mind itself. Oakeshott elsewhere identi es the irreconcilability of di erent “modes,” “idioms,” or “voices” such as religion, history, poetry, and practice, each of which carries within itself distinctive ways of knowing the world that cannot be reduced to any other mode (Podoksik 2003). Finally, interpreters such as Chantal Mou e have taken Oakeshott’s pluralism to be political as well as modal. Mou e appreciates how Oakeshott’s understanding of the moral relationship of civil association marks a departure from the aggregative view of democratic politics as the mediation of our instrumental pursuit of self-interest. Civil association is importantly a moral relationship de ned in terms of one’s common acquiescence to the terms of moral rules. And yet in contrast to the view of a political community as de ned by some common or overarching purposes—as in the conception of the state as universitas—the political relationship understood as a civil association—or in historical terms as a societas—represents a vision uniquely congenial to deliberation and agonistic con ict. All that is needed to convert Oakeshott’s reckoning of the modern state as societas into a theory of agonistic democracy, according to Mou e, is an acknowledgement that the respublica or subject matter of a common good is not xed or given, but is itself a product of power and struggle between a “we” and an antagonistic other (1993: 67–69). This last point re ects back on the question of whether OHC ultimately strays from Oakeshott’s “conservative” roots. Whereas other prominent Cold War thinkers such as Russell Kirk or Leo Strauss appealed to transcendent standards of natural right, it is signi cant that Oakeshott’s philosophy began, and remained, staunchly non-foundationalist, pluralist, skeptical, and nonideological. In light of the evolution of twentieth-century conservatism we tend to forget that a conservative sensibility is consistent with the celebration of a plurality of traditions, each integral and worthy of respect in its own terms; that human knowledge and institutions are radically contingent, rather than universal; that even the most iconoclastic individuality is predicated on the existence of extant practices by means of which we self-enact and self-

disclose; and that political life is less about the single-minded pursuit of self-evident moral verities than the messy process of working through con icts, intimations, paradoxes, and mysteries. In all of these ways, OHC remains—notwithstanding its seminal contributions to liberal political theory—of a piece with Oakeshott’s avor of conservativism.

Civil Association and Political Membership As demonstrated, Oakeshott’s distinction between civil and enterprise association is meant to underwrite a purposively neutral conception of the modern state. In contrast to so-called “republican” conceptions of citizenship that appeal to thick notions of shared culture, values, or purposes as constitutive of the political community itself, Oakeshott’s civil association appears relatively inclusive. We are not expected to embrace substantive purposes or conceptions of the good with our fellow citizens. All we have to do is behave “civilly,” which at rst glance looks like a pretty low bar. And yet if membership in a political community is predicated on our subscription to these adverbial moral quali cations, what does this imply for individuals or group who cannot (or will not) accede to them? Are they potentially left out of civil association? Will they be denied membership or excluded if already present? I want to suggest three aspects of Oakeshott’s conception that may prove uncongenial to a fully inclusive theory of political membership. First, Oakeshott emphasizes that membership in the modern state is “compulsory” (316–317), by which he seems to imply both nonvoluntary (unlike our self-chosen membership in a wide range of enterprise associations), indelible (in the sense of not being easily altered or remedied), and coercive (in that its authority carries with it the threat of force). Unlike other liberal theorists who rely upon simplistic models of contractarianism or dubious assumptions of exit rights, Oakeshott acknowledges the largely ascriptive quality of political membership. Citizens are ordinarily subject to the authority of states into which they are born and whose constitutional order they have not consented to in any straightforward way. Strictly speaking, the moral relationship of civil association may not be derived from “propinquity, kinship, genes, or from organic or so-called ‘social’ integration,” but these criteria do play a big role in the membership policies of actual states (182). The discrepancy between Oakeshott’s ideal conception of civil association and citizenship laws of modern states raises provocative questions about the link between the moral and the juridical terms of our membership in a political community. Most crudely, of the two, which is merely necessary, and which is su

cient? The maximally inclusive way of reading Oakeshott’s theory of

civil association (setting aside for a moment his concession to the ascriptive citizenship policies of actual states) is to treat the moral terms of civility as su

cient for and controlling of political membership. If, as

he stresses repeatedly, our relationship to fellow citizens is essentially a moral relationship, then one plausible inference is that anyone who willingly subscribes to the moral conditions of civility in their treatment of current citizens ought themselves to be reckoned a legal member. On this account it is our moral relationship with fellow cives that justi es the juridical aspects of membership. Political membership should be conferred on anyone committed to speaking the language of civility. This lends a potentially inclusive gloss to Oakeshott’s theory of citizenship. Yet even on this sympathetic reading, there is a less-inclusive corollary. The reality is that not everyone is willing or able to be civil. Lawbreakers, malefactors, and misanthropes refuse to speak the language of civility at all, whereas others may speak it crudely, harshly, or infelicitously. And if we take the moral relationship of civility as duly constitutive of political membership, then it would seem to follow that anyone who fails to submit to the moral terms of civility should be ineligible for juridical membership. We are not obliged to accept would-be members who refuse to abide by the adverbial quali ers of civility, or, more restrictively, current members who violate civility’s moral quali cations may be punished or even expelled.

A second and more plausible way of reckoning the connection between the moral and juridical terms of membership is to grant—as Oakeshott does implicitly—that legal membership is controlling. If, as in most modern states, citizenship is indeed a “compulsory” a air based on idiosyncratic ascriptive criteria, then the moral relationship of civility is necessarily predicated on an underlying juridical relationship among cives. The existence of a vernacular language of civility rests upon some extant “we the people,” a group of fellow citizens who are historical legatees of a common moral tradition and who are accustomed to treating one another with due moral consideration. Setting aside the complicated empirical matter of the contingency or potential transmissibility of any given tradition of civility, the main point is that speaking this language is not in and of itself enough to make one a fellow cive. Such a juridically anchored theory of membership need not preclude cives being admitted into extant political communities, provided they are willing and able to act civilly. But it stops short of positing civility as a su

cient justi cation for political

membership. By theorizing our common subscription to the moral relationship of civility as necessary (but insu

cient) for political membership, if that is what he is doing, Oakeshott highlights civility’s restrictive,

rather than its inclusive, potentialities. Merely being civil won’t get you in, but it might be grounds for keeping certain “uncivil” would-be members out. Clues about the relative permeability or impermeability of civility are found in the “risky analogy” of language (124). Languages are di

cult to learn, but they can usually be mastered by the su

ciently

determined. Yet in his scattered deployments of the linguistic analogy Oakeshott emphasizes the challenges of learning a new “vernacular language,” as if to magnify the di

culties of joining a moral community.

There are some agents “among whom a language of civility is unknown; like the Cyclops in the ancient Greek myth of civility” (123). Others may be “heirs to a language of civil intercourse and not civilly illiterate, but who are so ill educated in this language that they are unable to speak it intelligibly” (123). A language may be used “only in virtue of having been learned and being understood,” which is possible only by actually speaking it. Language is “native to” while being “continuously re-enacted by” a particular historic aggregation of persons (124). If Oakeshott’s theory of civil association ends up being agnostic at best with respect to questions of political membership, his treatment of enterprise associations su ers di

culties as well. As noted, enterprise

associations are supposed to be voluntary; cives may join (or leave) as they like. While he stops short of positing that enterprise associations are composed only of members who have deliberately chosen to join, Oakeshott does insist upon a right to exit as intrinsic to enterprise association: An agent need not have expressly enrolled himself by a deliberate act, but this joint pursuit of a common purpose entails agents related to one another in the acknowledgment of it as their common purpose and it is a relationship from which an agent may extricate himself by a choice of his own (115). Whether animated by seeking pro t, saving the world, or merely a spirit of diversion, what is constitutive of membership in enterprise association is a decision to pursue self-chosen purposes in concert with likeminded others. And yet as an empirical matter it is doubtful that individuals are quite so free to venture into and out of many groups as Oakeshott’s ideal description suggests. Membership in enterprise association is rarely compulsory in the same way as a state, under whose coercive powers we are born and to which we are subject by threat of violence. But many “voluntary” groups do exert informal pressures toward conformity and allegiance that can be reckoned forms of “compulsion.” Institutions and associational memberships are “sticky”; the existence of a formal or de jure right to exit may not be su

cient to overcome de facto informal pressures to remain members. Pluralism and radical

individuality share many sensibilities and premises in common, but in the real world of associations as actually constituted, they can also be potentially at odds in ways that belie Oakeshott’s ideal descriptions.

The di

culty also appears in his sociologically attuned acknowledgement of enterprise associations as

bearers of “practices.” Practices, as he makes clear, constitute a tacit, learned subscription to norms and rules guiding conduct. Individual cives engage in most conduct through the medium of “practices” in the same way that speakers have to use a vernacular language in order to make their utterances clear to others. How might this relate to questions of membership? If we assume that practices are learned by means of experiential engagement, then once learned these practices become part of the worldview of the agent. Whether it is a matter of a group of friends, a family, a professional association, a religious congregation, or speakers of a common tongue, each such relationship is “an invention of human beings, all are subject to historic vicissitudes and local variations, and none is capable of being participated in except by learning to do so” (57). Even the examples Oakeshott deploys in OHC tend to elide rather than resolve thorny dilemmas of associational membership. Churches, fraternities, municipalities, and a

nity groups fall into the same

broad category as bassoon factories, re brigades, and trade organizations (114–119). The “distinction between association in terms of co-operative enterprise and association in terms of transactional engagements” may indeed be “a distinction within purposive association,” but it is less clear whether it is, as Oakeshott asserts, “a distinction without signi cant di erence,” at least when it comes to the sociological verities of our membership in various types of groups (321). For it is hardly self-evident that the necessary condition of a right to exit obtains to the same degree in the former category of religious or cultural groups as it does among, say, joint stock corporations.

Conclusion When OHC was published in 1975, in the wake of John Rawls’s A Theory of Justice (1971) and Robert Nozick’s Anarchy, State and Utopia (1972), Anglo-American political philosophy was disproportionately focused on issues of rights, distributive justice, and contractarianism. OHC either sidestepped these themes or brusquely dismissed them as unhelpful for theorizing the modern state. At the end of the day, however, and despite the work’s sometimes perplexing vocabulary, contemporary political theory came around to Oakeshott’s novel way of thinking. OHC’s themes and preoccupations gradually found their way into late twentieth-century and twenty- rst century articulations of liberalism. His emphasis on the centrality of purposive neutrality to liberalism; his endorsement of radical individual self-enactment, agonistic pluralism, and non-foundationalism; his invocation of the virtue of civility—all of these concerns seem more at home in the context of contemporary political theory than they did when OHC appeared more than four decades ago. As suggested earlier, his account of the role of civility remains a particularly timely and promising source of contemporary inspiration. In all of these ways OHC continues to speak to political theory to a degree that incredulous readers of the 1970s could scarcely have imagined.

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The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Susan Moller Okin, Justice, Gender, and the Family  Michaele Ferguson https://doi.org/10.1093/oxfordhb/9780198717133.013.49 Published: 14 March 2019

Abstract Susan Okin’s radical thesis in Justice, Gender, and the Family is that the ideal of the gender-structured family is source of persistent gender inequality in politics, the workplace, and actual families. However, the book has widely been taken to be making a much narrower claim: that theorists of justice should extend their analysis to the family, ensuring that the division of labor in the family is just. As a result of this misreading, feminist theorists dismissed the book as conventional when it was published, whereas political theorists largely viewed it as innovative. This chapter recenters the radical thesis of the book, shows how Okin’s most important critics have misunderstood it, and discusses why now perhaps more than even in 1989, we should revisit this book.

Keywords: Susan Okin, justice, gender, family, gender inequality, care, John Rawls, Will Kymlicka, division of labor in the family Subject: Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Justice and the Gender-Structured Family At rst glance, Justice, Gender, and the Family (JGF) may strike the contemporary reader as outdated, given Susan Okin’s preoccupation with literatures and demographic patterns from the 1980s. And yet her larger argument—that we cannot conceptualize justice in society and politics separately from justice in the family —is just as urgent now as it was when she published this book in late 1989. Consider how the following passage from the opening page reads when updated with the most recent US statistics available: Substantial inequalities between the sexes still exist in our society. In economic terms, full-time working women (after some very recent improvement) earn on average 82 percent of the earnings of full-time working men (Graf, Brown et al. 2018). 51% of poor (Semega, Fontenot et al. 2017, 16) and 59% of chronically poor (Edwards 2014, 23) households with dependent children are maintained by a single female parent. The poverty rate for elderly women is 1.4 times that for

elderly men (Semega, Fontenot et al. 2017, 15). On the political front, twenty-three out of a hundred U.S. senators are women, three out of nine justices seems to be considered su

cient

female representation on the Supreme Court, and the number of men chosen in each congressional election far exceeds the number of women elected in the entire history of the country (Center for American Women and Politics 2018). (Cf. Okin 1989, 3) Gender inequality is persistent and pervasive despite legal reforms and cultural changes: we continue to observe signi cant inequalities in politics, the workplace, and the family. Okin argues that these various manifestations of gender inequality share a source: the ideal of the traditional family composed of male breadwinner and female caretaker. She contends that theories of justice and policies that aim at equality are inadequate unless they address the power this ideal has to in uence phenomena ranging from the gender wage gap down to the decisions couples make about housework. This claim—the central argument of the book—was frequently missed or underappreciated by Okin’s early readers, but it is crucial to understanding the book’s enduring relevance. In what follows, I rst situate the book in the context of academic debates on justice (within political theory) and care (within feminist theory). I then give an overview of the book’s argument, highlighting the centrality of Okin’s analysis of the gender-structured family. Next, I review how the book was received critically by feminist theorists and political theorists—neither of whom were able to fully appreciate the radical quality of Okin’s argument. Finally, I argue that Okin’s analysis remains important to theorists of justice and gender, although I suggest some modi cations to complicate and update her analysis of inequality.

Justice and Care Okin o ers her argument about the gender-structured family rst and foremost as an intervention in debates about justice among political theorists in the 1980s. Secondarily (and more tangentially), Okin is responding to arguments by feminist theorists that a concern for justice should be supplemented or even replaced by a concern for care. To understand both what was innovative about JGF when it was published, and what has been misunderstood and underappreciated, it is important to situate the book in this larger context. Social justice arose as a dominant theme in American political theory in response to both political and academic developments. The social movements of the 1960s and 1970s exposed the tension between the principle of equality articulated in the US Declaration of Independence, and various practices of treating Americans unequally: racial segregation in housing and education, sex discrimination at work and before the law, disparities in socioeconomic outcomes among the a

uent and the poor. Many political theorists

who wrote about justice in the 1970s and 1980s were directly in uenced by (if not participants in) these movements. The particular academic agenda was set, however, by the publication of John Rawls’s A Theory of Justice (1971), which quickly became the work against which subsequent arguments about justice would be measured. While a full review of the justice literature is beyond the scope of this essay, mention of a few important lines of inquiry is warranted. First, those who sought to articulate a theory of justice conceptualized justice primarily in terms of distribution. Injustice, on this view, entails an unfair allocation of resources. Theories of justice aspired to identify the appropriate principles for allocating di erent kinds of goods fairly. This “distributive paradigm” of justice was critiqued by Iris Young (1990), who argued that many important matters of justice cannot be captured in terms of distribution.

Second, liberal theorists interested in questions of justice were primarily concerned with ensuring equality of opportunity among individuals. The role of the theorist was to determine when and whether unequal distributions of goods were required for—or at least not at odds with—achieving equal opportunity. At stake were proposals for a

rmative action in hiring, progressive taxation, and the like. This approach was

criticized by conservative and communitarian thinkers, who believed that certain traditional inequalities (e.g., the division of household labor between husbands and wives) were not unjust, and even might be necessary to a well-functioning society. Third, the ideal of a theory of justice would be to have equal opportunity regardless of individual di erences not salient to a just distribution. To gure out what such a society would look like, Rawls proposed engaging in the imaginative scenario of the “original position”—re ecting on whether proposed criteria for justice would be valid, if I did not already know my place in an existing distribution of goods. This approach was criticized among others by Michael Sandel (1982) for positing an unrealistic view of the self, an abstraction devoid of the qualities Sandel believed essential to being an ethical person. Okin adopted these three aspects of the justice literature in her own work. Yet she was critical of this literature as well. She contended that political theorists had inadequately (if at all) considered the question of gender in justice—especially in relation to expectations about family life. By asking “how well do these theories of justice account for the lives of women?” Okin was asking a feminist question. Yet she was doing so at odds with the dominant trend among feminist political theorists at the time: toward considering care alongside of—if not instead of—justice. A major theme of feminist political theory in the late 1980s was the inquiry into whether major categories of political thought were irretrievably “masculinist.” Many feminists viewed justice as a masculinist concept insofar as it involved the abstract application of principles to the lives of independent individuals. Drawing on Carol Gilligan’s (1982) controversial research claiming that women have a distinctive approach to moral reasoning, many feminists turned to the concept of “care ethics” as an alternative to the justice approach. Care ethics is grounded in the fact that humans are born into relationships of dependency and care; we are never the fully independent individuals presumed by much liberal political theory. A care orientation emphasizes concrete relationships, a ective ties, and the importance of the usually unpaid (or underpaid) labor of caretaking. Okin rejected the view that justice was a masculinist concept opposed to a more feminine value of care. She argued that “The best theorizing about justice … has integral to it the notions of care and empathy, of thinking through the interests and well-being of others who may be very di erent from ourselves.” While many theorists of justice attempted to adopt a “view from nowhere,” Okin advocated instead “the carefully attentive consideration of everyone’s point of view” (15). This was the basis for her critique of her political theory colleagues: they had not considered justice from the point of view of women.

Injustice and the Gender-Structured Family When we do consider women’s point of view, Okin argues, we notice immediately that they do not have the same opportunities as men. The book opens with the observation that “the impetus toward greater equality for women has not only become stalled but is, in some respects, being reversed” (vii). The persistent and unequal distribution of political o

ces, income, caretaking labor, and wealth between men and women in

the US is unjust because there is no reason why sex di erence should result in these inequities; they are the product of socially constructed gender. A theory of justice that aims at equality of opportunity for all, therefore, must examine and redress gendered inequality. We must ask, “How just is gender?” (8).

Okin claims that the inequalities between men and women in politics, the workplace, and the family all share a root cause: what she alternately calls “the traditional, gender-structured family” and “genderstructured marriage” (8, 141). Gender is thus “the linchpin” connecting questions of justice to questions about the family, as expressed in the book’s title: Justice, Gender, and the Family (6, 14, 170). The genderstructured family is a heterosexual, reproductive, married family in which the husband takes on the role of breadwinner, and the wife that of caretaker. When Okin locates the source of gender inequality in this kind of family, she does not mean to locate it in actual families. She is well aware that most families even in 1989 did not strictly follow this model (and such families are even rarer today). Rather, her claim is that the idea of a traditional gendered division of labor continues to structure expectations about men’s and women’s behavior, which manifest in individual decisions, the division of labor in the family, laws and policies, and large-scale phenomena such as the gender wage gap. This ideal of the gender-structured family is expressed in “two commonly made but inconsistent presumptions: that women are primarily responsible for the rearing of children; and that serious and committed members of the work force (regardless of class) do not have primary responsibility, or even shared responsibility, for the rearing of children.” Or as she puts it more succinctly: “workers have wives at home” (5). These presumptions con ict particularly when it comes to working mothers. Okin shows how these presumptions operate in contemporary theory and practice, and how they work to sustain gender inequality. With respect to political theory, she spends the bulk of the book showing how di erent theorists prominent in the 1980s repeat these presumptions. She is perhaps most well-known for her critical reading of Rawls (to which I will return later), but she also o ers feminist analysis of books by Allan Bloom, Alasdair MacIntyre, Robert Nozick, Michael Sandel, Roberto Unger, and Michael Walzer. Most of these authors, she charges, presume some version of the gender-structured family in their work; the implied subject of their theories is often the male head-of-household, while his dependent family is assumed but rarely made visible. Yet even where these theorists do attempt to incorporate women into their theories, they do so super cially, through the use of “gender-neutral language in a false, hollow way” (8). The result are works that appear to be gender-inclusive—authors refer to men and women—yet which fail to take into account “the fact that there are some socially relevant physical di erences between women and men, and the even more important fact that the sexes have had very di erent histories, very di erent assigned roles and ‘natures,’ and very di erent degrees of access to power and opportunity in all human societies up to and including the present” (10). All of these authors fail to interrogate the justice of gender, and fail to think through justice from the perspective of women. In the penultimate chapter of the book, “Vulnerability by Marriage,” Okin moves beyond her disagreement with theorists to demonstrate how the presumption of the gender-structured family operates in policy, law, the workplace, and individuals’ decisions about career, marriage, children, and divorce in ways that reinforce gender inequality in society as a whole. Women, she argues, are rendered asymmetrically vulnerable in comparison to men—that is, women are more likely to be abused, less likely to have power in (heterosexual) relationships, and more likely to be poor after divorce—because the traditional idea of gender-structured marriage shapes how institutions and individuals behave. It is important to note that Okin’s argument is not that marriage causes women to be vulnerable, but that the ideal of a particular kind of gendered marriage does. Indeed, as she writes, “The cycle of women’s vulnerability begins early, with their anticipation of marriage.” The expectation that young women should prepare for a gendered division of labor in the family “a ects at least as adversely the futures of many women who do not marry as it a ects those who do” (142). Women make decisions early in life about education and career based on the expectation that they will become primary caretakers in a marriage supported by their husbands’ income. This expectation channels women into sex-segregated occupations (such as education and service) perceived to be compatible with exible hours and caretaking responsibilities, but which also tend to be lower paid than male-dominated sectors of the workforce. Or it

discourages women from taking their work lives seriously, out of the expectation that someday they will not need to support themselves. Whether or not they ever do marry, women who make early life choices based on the expectation that they will be primary caretakers ensure that they will have greater economic vulnerability than men. This asymmetric vulnerability is exacerbated during marriage. This is partly due to economic circumstances outside of the home: women are more likely to be dissatis ed with their work lives, whether because of low pay, relative powerlessness, or sex discrimination and harassment in the workplace. These economic forces combined with the normative power of the gender-structured marriage encourage wives to prioritize husbands’ careers over their own, increasing their nancial dependence as they take on a greater burden of housework and childcare (146–148). For housewives, the disproportionate burden of housework they shoulder renders them even less capable of supporting themselves nancially if they later try to get work, since the skills and experience of housework and childcare are not valued by potential employers. Moreover, their economic dependency on their husbands renders housewives more vulnerable to physical and sexual abuse (152). For working wives, the extra housework they take on translates into decreased leisure time relative to their spouses, and hinders advancement in their own careers, where they compete for jobs and promotions with employees who have wives to do their housework (151). Whether or not they work, wives’ lower earning power relative to husbands translates into less power in the relationship to bargain for any change in the distribution of housework, leisure time, and nancial resources (156 .). This increased vulnerability accrued during marriage renders women especially vulnerable in the event of separation or divorce. First, the gendered division of labor in the family often results in women being awarded primary custody of children. Yet perversely, while women’s gendered role as caretaker is often taken into account in awarding custody, men’s gendered role as breadwinner is not taken into account in determining the division of marital assets. Courts are, Okin alleges, primarily concerned with dividing up “tangible assets” like the family home, and disregard investments wives made into their husbands’ career and future earning power. As a result, many divorced women are impoverished single mothers, taking care of children in low-wage occupations, while their higher earning ex-husbands are required to pay little or no alimony, and insu

cient child support—essentially retaining the lion’s share of the family assets in the

form of his income (161–164). Okin concludes that “the asymmetric dependency of wives on husbands a ects their potential for satisfactory exit, and thereby in uences the e ectiveness of their voice within the marriage” (167). In the nal chapter—appended hastily at the request of Okin’s publisher, Basic Books—she makes policy recommendations aimed at “avoidance of socially created vulnerabilities by facilitating and reinforcing the equal sharing of paid and unpaid work between men and women, and consequently the equalizing of their opportunities and obligations in general” (169). “A just future would be one without gender,” she writes. That is, a just future is one without a gendered division of labor. “It would be a future in which men and women participated in more or less equal numbers in every sphere of life, from infant care to di erent kinds of paid work to high-level politics” (171). Her policy recommendations, however, are not a blueprint for such a just society; rather, she suggests reforms that would mitigate the vulnerabilities of women and children in a society still under the in uence of the traditional, gender-structured family. As a liberal, she does not want to force individual men and women to conform to her vision of a just family. Instead, she seeks to reduce the harm caused by these gender roles in our larger society. She recommends reforms in the workplace, allowing for time o

and exible hours to support caretaking parents, as well as leave policies

related to women’s speci c role in pregnancy and childbirth (176). For families that practice a gendered division of labor, she suggests splitting wages equally between spouses (180–181), and ensuring an equal standard of living between households post-divorce (183). These reforms, she hopes, would move us toward a gender-free society.

Missing the Radical Thesis When it was published, JGF was received as an important book within political theory because of its challenge to mainstream arguments about justice, but as a relatively quiescent and conventional argument by feminist political theorists. Both of these responses misread Okin’s argument, reducing her radical claims to the comparatively narrow call to examine justice within the family. Feminists—including Okin herself—usually categorize her work as “liberal feminist” (although, as I note in Ferguson 2016, she references the work of radical feminists and was deeply in uenced by their ideas). This is accurate inasmuch as Okin herself was committed to basic liberal principles (such as equality of opportunity), and sought to bring feminist questions into dialogue with liberal thinkers. However, by the late 1980s, liberal feminism was out of fashion; many academic feminists perceived it as incapable of o ering a radical critique of structured gender inequality. This was in part due to the dominance of a typology of feminisms established by Alison Jaggar. Jaggar de ned liberal feminism as a reformist ideology lacking in structural analysis and thus not requiring any major shift in the status quo: “Liberal feminists take their task to be the extension to women of the liberal political values of liberty, equality, autonomy, self-ful llment, and justice, which they believe can be achieved through limited legal reforms. They do not view the oppression of women as a structural feature of the capitalist economic system” (1983, 199–200). With this expectation set for what “liberal feminism” entails, many feminist scholars were predisposed to read Okin as o ering merely a super cial diagnosis of gender inequality, to be addressed by simple, limited legal reforms. Virginia Held, for example, wrote condescendingly in her review of the book that “many feminists have moved on to more exciting and imaginative inquiries” and warned that “feminists looking for new and interesting theoretical developments may be disappointed” (1991, 302). Held chastised Okin for not o ering an analysis of the family on the cutting edge of care ethics. Echoing this criticism, Jean Bethke Elshtain lamented that “Okin does not allow herself to delve deeply into the rich wells of recent feminist scholarship,” speci cally noting that “Curiously, Gilligan appears neither in Okin’s text nor in her index” (1992, 47). (Gilligan, incidentally, appears in Okin’s footnotes on page 188.) Feminist readers were unlikely to appreciate what was novel in Okin’s work because she explicitly rejected the dominant trend toward theorizing care, and because she was placed in the box of the state-oriented, reformist de nition of liberal feminism advanced by Jaggar. Her structural analysis of gender and her radical policy proposals were simply not intelligible as innovative and radical. To be sure, some di

culties with the reception of the book are Okin’s fault. Many of her readers took her

main claim to be “just add family and stir”: that is, she was widely read as arguing that theorists should ask about justice within the family, and not only in politics and the economy. Indeed, Okin does make this argument, as when she writes, “Until there is justice within the family, women will not be able to gain equality in politics, at work, or in any other sphere.” Here and in Chapter 2, she presents the family as one sphere of our lives, equivalent to those of politics and work. If the family is just another sphere like work and politics, and if theorists already apply theories of justice to political and economic questions, then it should be straightforward to apply those same theories to the family. If we agree that our political institutions and workplaces should be just, then we should agree that our families should be just, too. In particular, justice within the family would require a just distribution of labor between spouses. When Okin represents her argument in this way she unwittingly de ects attention from the much more radical claim at the center of the book: that the ideal of the traditional family creates and reinforces structural inequalities in politics, society, and family. The solution to gender inequality cannot merely be to apply principles of justice internally to the distribution of labor in the family; rather the whole edi ce of the gender-structured family must be analyzed, its multiple e ects traced, and justice pursued in all

dimensions of society. That is, her larger claim is that by ignoring justice in the ideal of the family, theorists of justice have missed the structural gender inequalities present throughout society. For example, theorists cannot adequately theorize justice in the workforce without re ecting on how gendered expectations have shaped sex-segregated patterns of employment and the gender wage gap, nor justice in politics without re ecting on how women and women’s experiences have been systematically excluded from shaping the laws and institutions we have inherited. The title of the book re ects this: it is not Justice in the Family, or even Adding the Family into Theories of Justice. Rather, Justice, Gender, and the Family expresses Okin’s radical thesis that 1

gender ideology is the linchpin between justice and the family. Theorists can only conceive of the family as separate from matters of justice if they ignore the mediating role that gender ideology plays in generating injustice, within and beyond actual families. Since most readers missed the radical thesis, and took Okin to be arguing “just add family and stir,” JGF was paradoxically seen at once as not breaking any new ground by feminist theorists, and as making a signi cant scholarly contribution by political theorists more generally. While Okin was not the rst feminist to criticize theorists of justice (several feminist scholars had already criticized Rawls with respect to gender and the family; see English 1977; Kearns 1983), the wide scope of her book made it impossible to dismiss. She showed that the prevailing liberal, communitarian, and conservative theories were all inadequate to address feminist concerns. It is perhaps surprising that her book generated so little controversy among political theorists, who seemed to readily concede her narrower argument that political theorists should re ect on justice within the family, too. In practice, however, the labor of doing this thinking has been left to feminist political theorists—major works on questions of justice in political theory continue to be written as if families, children, and gender do not exist. While political theorists broadly take JGF to be an important work, it appears to have had little long-term impact on how scholars theorize justice. Consider that of the seven male contemporaries whose work Okin criticized; only two have ever published any substantive response to her criticisms. Walzer, more than two decades after JGF appeared, wrote a brief, four-page response to the chapter that focused on his work (2013). Only Rawls repeatedly and extensively engaged her arguments, most notably in (1997), although like Walzer he focused only on the chapter of JGF that addresses his ideas directly. Ironically, Rawls’s preoccupation with Okin’s criticisms may have helped to increase the reputation of JGF while obscuring its radical thesis. Rawls’s responses to Okin make it clear that he understood her criticism in the narrow sense, as a concern that he had failed to apply the principles of justice to the family. Granted, this is a signi cant component of her criticisms of him, even if it is not the whole of her analysis. Okin discerns a fundamental ambiguity in how Rawls (1971) treats the family. On the one hand, he claims that the family is a part of the basic structure of society (which should therefore make it subject to the principles of justice) (1971, 6). Indeed, Okin (21) states that Rawls is distinctive among contemporary theorists of justice because he notes that the family is where children rst learn about justice (see 1971, §71); she infers that the family could not reliably teach children about justice if it were not itself a just institution. Yet on the other hand, Okin (94) observes that Rawls simply assumes that the family is just (e.g., 1971, §70); he does not interrogate whether actual families are just, nor does he re ect on how families would have to be structured in order to be just. Okin thus nds within Rawls’s work the resources to develop a feminist theory of justice in the family (albeit one Rawls himself did not work out): the principles of justice o er the basis for an account of how the just family must be structured to function as a school of justice, reliably preparing children for citizenship in a just society. For his theory of justice to work as he envisions, she charges, families must be internally just. Rawls was deeply troubled by Okin’s criticisms and ultimately decided that he needed to specify further the claims he had made about the family. He informally circulated manuscripts for years in which he attempted a response to Okin and other feminists. Finally, he arrived at the position that “political principles do not apply directly to [the family’s] internal life, but they do impose essential constraints on the family as an institution and so guarantee the basic rights and liberties, and the freedom and opportunities, of its

members” (1997, 789). In e ect, Rawls reasserted a liberal separation of public and private, shielding individuals from undue state interference in their personal a airs. Indeed, he insisted, “We wouldn’t want political principles of justice—including principles of distributive justice—to apply directly to the internal life of the family” (1997, 790). Having declared the inner workings of families to be beyond the scope of a political theory of justice, Rawls considered that he had adequately addressed Okin’s criticisms. His account of the challenge posed by Okin, however, suggests that Rawls misunderstood her central claims. He takes the issue of justice in the family to refer to the distribution of labor within actual families. It is incompatible with political justice to mandate that spouses adopt an equal distribution of labor within the family, he argues, “because the division of labor in question is connected with basic liberties, including the freedom of religion” (792). Consequently, he concedes that a gendered division of labor in the family can actually be compatible with justice—under certain conditions: “provided it is fully voluntary and does not result from or lead to injustice” (792). However, by imagining such a possibility, Rawls is essentially denying Okin’s radical, structural analysis of the ideal of the traditional gendered family—but without disputing her analysis directly. In refusing to examine the internal dynamics of families, and sidestepping the question of whether they “result from or lead to injustice,” Rawls reveals that he considered Okin to be making the narrow critique of the family. He reduces the question of justice in relation to the family to a question of justice within actual families: speci cally, is there a just distribution of labor within any given family? To which his reply is essentially: this is not a relevant question for a theory of justice. The only relevant question is whether the basic rights and liberties, and the freedoms and opportunities, of members of families are intact. He evades the question of whether traditional gendered divisions of labor can ever be made compatible with the basic rights and liberties, and the freedoms and opportunities of all members of families. Furthermore, he completely ignores Okin’s far more radical thesis that the idea of the gendered family is incompatible with justice: that women—whether they are in families, whether their families practice a traditional division of labor—are disadvantaged economically, politically, and personally by the idea of the gendered family. As Okin stated, “The problem we face is that the family is a social institution that de es the political/nonpolitical dichotomy that Rawls has increasingly emphasized” (1994, 27). Indeed, the only conceivable way that an actual family could practice a traditional gendered division of labor that would neither result from nor lead to injustice is if that family existed in a world without gender, a world in which the idea of the traditional, gendered family no longer exerted any force. Okin was keenly aware that Rawls never responded to her stronger thesis. In later responses to him, she argued that his solution to gender inequality—to protect the basic rights and liberties of women—is unlikely to produce social justice, “because so much of the way that society is structured is a result of a history in which women were legally subordinated and in which it was assumed that it was their natural role to exchange sexual and domestic services, including the crucial task of child care, for economic security in the form of dependence on men” (1994, 41, emphasis added; see also Okin 2003). Many social structures persist that presume a gendered division of labor in the family, despite changes to the law that protect women’s basic rights and liberties, such as “the hours and location of paid work and political activity, the location and type of housing, the hours and vacations of schools and the lack of public child care” (1994, 41). Whether or not actual families practice a traditional gendered division of labor is, to a large extent, beside the point: a theory of justice adequate to the experiences of women must interrogate how seemingly innocent social structures in fact repeat a gendered ideology and reproduce gendered patterns of inequality. Rawls’s only response is limp: if a political conception of justice alone cannot dismantle a “gender system” that “adversely a ect[s] the equal basic liberties and opportunities of women” and their children, then it will have to be supplemented with “social theory and human psychology, and much else” (1997, 793). The political conception of justice, Rawls seems to think, cannot err.

Rawls’s focus on Okin’s narrower criticism of his work appears to have shaped how her argument has been understood by others engaged in this controversy (see Lloyd 1994, 353; Nussbaum 2003, 501). Most notably, G.A. Cohen takes up what he terms “the feminist critique,” whose substance he takes to be “that standard liberal theory [sic] of justice, and the theory of Rawls in particular, unjusti ably ignore an unjust division of labor and unjust power relations within families” (2009, 117). In thus de ning “the feminist critique,” Cohen limits Okin’s argument to the narrower “just add family and stir” position, and avoids the challenge of her radical thesis. Siding with Okin, he defends the more general position he associates with the form of the feminist critique: that individual choices within the basic structures of society (e.g., choices to adopt a division of labor within the family) ought to be subjected to principles of justice (117). Yet even as he develops her claim that Rawls’s principles of justice should apply to the family, Cohen has missed her more radical thesis. While she might agree with Cohen’s conclusion that Rawls’s theory of justice requires the application of principles of justice to individual choices within the family, she surely would be disappointed that he does not go on to question how the ideal of the traditional gendered family in ects social institutions well beyond the family. A di erent line of criticism of JGF centered on the policy recommendations made in the nal chapter; this avenue of criticism also missed Okin’s more radical argument about gender. In particular, Will Kymlicka wrote a lengthy review of the book that was especially in uential in the reception of the book among nonfeminists. Indicating that he largely agrees with her criticisms of political theory’s neglect of justice within the family, he moves on to consider what a just family would look like (Kymlicka 1991, 83). He follows Okin in believing that a just family would be one without gender, but then he mistakes her policy recommendations in the nal chapter for a recipe for such a genderless family. He is thus surprised to nd that her conception of the family in this chapter is not genderless at all. This leads Kymlicka to the conclusion that Okin has not transcended gender as she claims, but imagines the just family rather conventionally as the heterosexual, monogamous, reproductive dyad—only minus a gendered division of labor. To wit: “She writes as if we know who the parents are (mothers and fathers), and who the members of the family are (their children), so that the task of a theory of family justice is to clarify the rights and responsibilities of mothers, fathers, and their children. But to assume that justice requires fairness between ‘mothers’ and ‘fathers’ in the raising of ‘their’ children … is to assume too much of the old ideology of the natural family that Okin herself wishes to defeat” (Kymlicka 1991, 97). Kymlicka recognized that Okin set out to criticize the ideology of the family, but concluded that all she accomplished was the much narrower task of criticizing the gendered division of labor within actual families. Yet Kymlicka completely misunderstood and mischaracterized Okin’s argument in the last chapter of JGF. Rather than o ering a vision of what a genderless, just family would look like, Okin seeks to identify policies that could be implemented today to mitigate the injustices of our current social structures, structures that continue to be in ected by a gendered ideal of family, as merely a rst step toward a future without gender. She o ered suggestions that address our current condition in which our society and our individual lives are often a ected by the traditional ideal, even if our family lives do not mirror it precisely. We currently do live in a world with mothers and fathers raising their children, even as we also live in a world in which people are challenging gender binaries and gender roles, and in which even people who do not intend to challenge gender nonetheless nd themselves in family arrangements that do not replicate the traditional, gendered family. More importantly for Okin, we live in a world in which our laws, workplaces, and other institutions presume a society composed of mothers and fathers raising their children, and so any proposals to address gender justice today must also take this into account. Where Kymlicka interpreted the nal chapter to be o ering a blueprint for a world without gender, she took herself to be merely giving us baby steps we could take to start to move toward that imagined future. Kymlicka’s criticisms of Okin were therefore ungenerous at best, and deeply unfair at worst: he essentially accused her of privileging heterosexual, nuclear families (and indirectly, of being homophobic or at least

unconcerned with justice for nontraditional families). He disregarded the many passages in the book where Okin notes that most actual families do not t the ideal that she criticizes, and where she speci cally addresses research on same-sex couples and notes her concern especially for the status of children in single-mother households. Despite being based on a complete mischaracterization of Okin’s argument, Kymlicka’s review was widely read and in uential. It reinforced the perception among feminist scholars that Okin was uninterested in challenging the status quo and sought only incremental policy changes. And it set the stage for the reception of her controversial essays in the coming years (Okin 1994, 1999). Many scholars echoed Kymlicka’s review of JGF when they reacted to these essays by alleging that Okin was a closed-minded, Western-centric, liberal thinker with little capacity to imagine the perspective of others (see Flax 1995; Okin 1995; Cohen, Howard et al. 1999). While Okin responded forcefully to her critics (and sometimes in ways that reinforced their perceptions of her), she was unable to shake the reputation Kymlicka’s review gave her for being the worst kind of liberal: one who uses liberal principles hypocritically to redress one form of injustice, while simultaneously justifying other injustices contained in the status quo. In sum, Okin’s most important contribution in JGF—her radical thesis that the ideal of the gendered family was the linchpin of injustice for women—was overlooked by many of her critics. While today many political theorists would cite this as an important work that made a signi cant contribution to the eld, the book has yet to have the full impact it deserves in either political theory or feminist theory.

The Continued Importance of Gendering Justice Okin’s analysis of how the ideal of the gender-structured family contributes to persistent gender inequality remains relevant today, despite signi cant political shifts over the past quarter century—and is perhaps even more needed than when the book rst appeared. This might seem counterintuitive as the United States and other Western liberal democracies have shifted even further away from the traditional family since JGF was published. In heterosexual relationships, male and female partners are more likely now to share in childcare and housework, even if women continue to do a disproportionate share. Same-sex marriage has been declared a constitutional right. Millennials are delaying marriage longer than any previous generation, and many Americans are never getting married at all. More children are growing up with parents who are unmarried but cohabiting, and more children are raised by single parents (although the vast majority of these are still female, and they are disproportionately Black and poor) (Livingston 2018a, 2018b). There is no “normal” family arrangement any longer. This demographic shift—that we see ever fewer households composed of a married husband and wife with kids following a traditional division of caretaking and breadwinning labor—encourages the misperception that US society has successfully moved beyond the traditional gendered family. Although the United States is not yet a genderless society, we might be tempted to look at how far we are from realizing conformity to the traditional ideal and lapse into self-congratulatory complacence. That is, the more the traditional, heterosexual, reproductive family becomes the exception in practice, the more di

cult it becomes to see

how the ideal of this family continues to structure individual behavior and policy. We need Okin’s work to remind us not to mistake changes in how people actually practice family with a change in the hold the ideology of the traditional family has over how individuals act and how institutions function. Political theorists still have a great deal to learn from JGF, and especially from the radical thesis they previously overlooked. Okin o ers a bold challenge even to thinkers like Cohen or Kymlicka who agree with her that justice within families is important for political justice. To these theorists, Okin responds that it is insu

cient to address only the gendered division of labor in the home; we must also look at how it

interacts with and is ampli ed by the structures beyond the family that are themselves shaped by the ideal

of the traditional family. For “a cycle of power relations and decisions pervades both family and workplace, and the inequalities of each reinforce those that already exist in the other” (146–147). Okin also o ers a rebuke to theorists like Rawls who believe that we can bracket o

considerations about the

family from a theory of justice. Even if some liberal theorists justify their neglect of the family by insisting, as he does, on a version of the public–private divide, they still must contend with Okin’s insistence that the idea of the traditional family a ects much of how our lives outside of the family are organized. School hours and holidays presume that there is a parent able to look after children during the work day. Divorce settlements continue to neglect future income as a marital asset. While maternity leave policies o er women important support, women are often perceived as less committed to their work than men when they request time o

for family reasons (Munch 2016). Gendered expectations—that workers have wives at

home, that women are natural caretakers and men breadwinners—are embedded in structures extending well beyond the private sphere of the family. Any adequate theory of justice must not only look at gendering within actual families, but must interrogate how gender continues to produce injustice through its permeation in our politics, workplaces, and societies. Finally, feminist theorists, too, still have a lot to learn from Okin. She de es the too-easy categories that feminist scholars have used to classify and underestimate her radical analysis. Situating Okin within a tradition of radical feminism highlights how the rst generations of professional feminist political theorists were deeply in uenced by the activism and the theorizing of second wave feminism (Ferguson 2016). Revisiting how her feminist peers dismissed this book without having understood her argument can serve as an important reminder that we, too, should attend carefully to our own reading practices. Liberal feminism, it seems, can sometimes be very radical—so radical, in fact, that it may take years for its message to become clear.

References Center for American Women and Politics. “Current Numbers.” Retrieved June 12, 2018. http://www.cawp.rutgers.edu/currentnumbers. WorldCat Cohen, G. A. Rescuing Justice and Equality. Cambridge, MA: Harvard University Press, 2009. Google Scholar Google Preview WorldCat COPAC Cohen, J., M. Howard, et al., Eds. Is Multiculturalism Bad for Women? Princeton: Princeton University Press, 1999. Google Scholar Google Preview WorldCat COPAC Edwards, A. N. Dynamics of Economic Well-Being: Poverty, 2009–2011. U. S. D. o. Commerce, 2014. Google Scholar Google Preview WorldCat COPAC Elshtain, J. B. “Begging to Di er.” The Hastings Center Report 22, no. 1 (1992): 47–48. Google Scholar WorldCat English, J. “Justice between generations.” Philosophical Studies 31, no. 2 (1977): 91–104. Google Scholar WorldCat Ferguson, M. L. “Vulnerability by Marriage: Okinʼs Radical Feminist Critique of Structural Gender Inequality.” Hypatia: A Journal of Feminist Philosophy 31, no. 3 (2016): 687–703. Google Scholar WorldCat Flax, J. “Race/Gender and the Ethics of Di erence: A Reply to Okinʼs ʻGender Inequality and Cultural Di erencesʼ.” Political Theory 23, no. 3 (1995): 500–510. Google Scholar WorldCat Gilligan, C. In a Di erent Voice. Cambridge, MA: Harvard University Press, 1982. Google Scholar Google Preview WorldCat COPAC Graf, N., A. Brown, et al. “The Narrowing, but Persistent, Gender Gap in Pay.” April 9, 2018. Retrieved June 12, 2018. http://www.pewresearch.org/fact-tank/2018/04/09/gender-pay-gap-facts/. WorldCat Held, V. “Justice, Gender, and the Family by Susan Moller Okin.” Political Theory 19, no. 2 (1991): 299–303. Google Scholar WorldCat Jaggar, A. M. Feminist Politics and Human Nature. Lanham, MD: Rowman & Littlefield, 1983. Google Scholar Google Preview WorldCat COPAC Kearns, D. “A theory of justice—And love; rawls on the family.” Politics 18, no. 2 (1983): 36–42. Google Scholar WorldCat Kymlicka, W. “Rethinking the Family.” Philosophy and Public A airs 20, no. 1 (1991): 77–97. Google Scholar WorldCat Livingston, G. “The Changing Profile of Unmarried Parents.” April 25, 2018a. Retrieved June 21, 2018. http://www.pewsocialtrends.org/2018/04/25/the-changing-profile-of-unmarried-parents/. WorldCat Livingston, G. “Theyʼre Waiting Longer, but U.S. Women Today More Likely to Have Children Than a Decade Ago.” January 18, 2018b. Retrieved June 21, 2018. http://www.pewsocialtrends.org/2018/01/18/theyre-waiting-longer-but-u-s-women-today-

more-likely-to-have-children-than-a-decade-ago/. WorldCat Lloyd, S. A. “Family justice and social justice.” Pacific Philosophical Quarterly 75, no. 3–4 (1994): 353–371. Google Scholar WorldCat Munch, C. “Flexible Work, Flexible Penalties: The E ect of Gender, Childcare, and Type of Request on the Flexibility Bias.” Social Forces 94 (2016): 1567–1591. Google Scholar WorldCat Nussbaum, M. C. “Rawls and Feminism.” In The Cambridge Companion to Rawls, edited by S. R. Freeman, 488–520. Cambridge: Cambridge University Press, 2003. Okin, S. Justice, Gender, and the Family. New York, NY: Basic Books, 1989. Google Scholar Google Preview WorldCat COPAC Okin, S. “Is Multiculturalism Bad for Women?” In Is Multiculturalism Bad for Women?, edited by J. Cohen, M. Howard, and M. C. Nussbaum, 7–24. Princeton: Princeton University Press, 1999. Google Scholar Google Preview WorldCat COPAC Okin, S. M. “Gender Inequality and Cultural Di erences.” Political Theory 22, no. 1 (1994): 5–24. Google Scholar WorldCat Okin, S. M. “Political Liberalism, justice, and gender.” Ethics 105, no. 1 (1994): 23–43.

Okin, S. M. “Response to Jane Flax.” Political Theory 23, no. 3 (1995): 511–516. Google Scholar WorldCat Okin, S. M. “Justice and gender: An unfinished debate.” Fordham Law Review 72 (2003): 1537. Google Scholar WorldCat Rawls, J. A Theory of Justice. Cambridge, MA: Belknap Press, 1971. Google Scholar Google Preview WorldCat COPAC Rawls, J. “The idea of public reason revisited.” The University of Chicago Law Review 64, no. 3 (1997): 765–807. Google Scholar WorldCat Sandel, M. J. Liberalism and the Limits of Justice. Cambridge: Cambridge University Press, 1982. Google Scholar Google Preview WorldCat COPAC Semega, J. L., K. R. Fontenot, et al. Income and Poverty in the United States: 2016. Washington, DC: Census Bureau, 2017. Google Scholar Google Preview WorldCat COPAC Walzer, M. “Feminism and Me.” Dissent 60, no. 1 (2013): 50–53. Google Scholar WorldCat Young, I. M. Justice and the Politics of Di erence. Princeton, NJ: Princeton University Press, 1990. Google Scholar Google Preview WorldCat COPAC

Note 1.

At times, Okin indicates that gender is the linchpin; at other times, she suggests that family is the linchpin. She is not consistent on this point, which also contributes to confusion about her radical thesis. See Ferguson (2016).

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Elinor Ostrom, Governing the Commons  Jason Brennan https://doi.org/10.1093/oxfordhb/9780198717133.013.61 Published: 06 February 2017

Abstract Few political theorists have read Elinor Ostrom’s Governing the Commons or incorporated its insights into their work. At rst glance, it may seem to be of interest only to social scientists, with little relevance to purely normative political theory. On the contrary, Ostrom’s work in fact shows a kind of presumptuousness in moral theory. It illustrates that theorists tend to assume rather than prove that the central unit of analysis is the modern nation-state. It further shows that theorists may be unable to design solutions to moral problems or problems of justice; they may, at best, only be able to identify such solutions when they appear.

Keywords: liberal theory, polycentric legal order, decentralization, the tragedy of the commons, common pool resources, Elinor Ostrom, political economy Subject: Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Political scientist Elinor Ostrom’s 2009 Nobel Prize in Economic Sciences testi es that Governing the Commons: The Evolution of Institutions for Collective Action (GC) is among the most important works of political economy and institutional economics of the past hundred years. Despite that, she remains virtually unknown among political theorists. Few write about her or incorporate her insights into their work. Few see that Ostrom challenges some of their deepest assumptions. This is not to cast stones. A rst glance at Ostrom’s work, or at the Bloomington School of Political Economy that surrounds it, seems to vindicate the conclusion that this research holds little direct value for political theorists. To see why, consider this summary of GC and its contribution to political economy. Economists and ecologists worry that “common pool resources”—resources that everyone may use but no one owns— su er from the “tragedy of the commons.” When no one owns or has authoritative control over a natural resource, people have little incentive to maintain it, and every incentive to exploit and overuse it. Leaving resources in the commons invites disaster. To avoid disaster, it appears we must either have a strong central

government to seize control of the resource, or allow individuals to divide and privatize the resource. On the contrary, Ostrom showed that, and helped explain how, in the real world people often manage to discover and sustain diverse alternative solutions to the tragic commons, solutions that economists would have thought infeasible or even impossible. It turns out economists and ecologists routinely underestimate 1

people’s ability to extricate themselves from negative-sum games or to nd ways to turn con ict into cooperation. Again, at rst glance, this seems to be of little direct concern to political theorists. Political theorists are concerned with weighing competing conceptions of justice and the common good, with determining the ends societies should pursue and what limits exist on the methods by which they might pursue them. There is a division of labor between political theorists and social scientists, a division not unlike that between a legislature and the executive branch. In principle, theorists are supposed to use their analytical skills to discover abstract principles of justice. They are supposed to identify and weigh competing values and principles, and determine the range of acceptable political outcomes and methods. After they identify what justice is, they turn their theories over to social scientists like Ostrom. These social scientists in turn tell us what institutions and rules will produce just outcomes, or, more pessimistically, inform us just how much justice we can reasonably hope to get (Miller 2013). Theorists identify standards, while social scientists apply them. So, theorists might conclude, Ostrom’s work is downstream from theirs. It is important work, no doubt, but not important for them. I will argue here that this view is mistaken. It is a mistake in part because political theorists and social scientists do not actually divide labor so neatly. Political theorists and philosophers rely on institutional, sociological, and economic presumptions when they concoct theories of justice. If their presumptions are wrong or misguided, their theories of justice may be as well. GC outlines a series of challenges to the background assumptions of most political theorists, philosophers, and economists. The typical political theorist or economist relies upon or defends various models—models that seem quite sensible, from the comfort of his armchair—of how the world works. He then defends various normative conclusions—such as the need for a state, or for heavy-handed state regulation, or for the mass privatization and commodi cation of resources—on the basis of these models. What Ostrom nds, though, is that once we leave the comfort of the armchair, we see that our models frequently fail to match reality. As a matter of fact, real people in the real world are able to solve a wide range of problems with institutions more nuanced than anything an economist or theorist would devise on paper. Perhaps not intentionally, the Bloomington School serves as a warning to technocrats in the ivory tower and the government ministries. Theorists in their armchairs and bureaucrats in the boardroom believe they can design good solutions to distant problems. They believe their solutions, arrived at through philosophy, are better than existing institutions. They then conclude that since their solutions are better, they ought to be imposed on others, for their own good. Ostrom’s work has an epistemic and normative upshot. It tells the technocrats to be skeptical of their ability to design good institutions. It also tells them that even when they’re right, no one made them boss. Further, Ostrom’s work helps demonstrate that Amartya Sen was correct to say that political theorists are in the grip of a “tyranny of ideas in seeing the political divisions of … national states … as being … fundamental, … as divisions of basic signi cance …” (Sen 2009:143). Theorists and philosophers tend to assume their job is to provide normative guidance for the construction of an ideal nation-state with a uniform set of rules for all living under it. But, as Ostrom shows us, decentralized, polycentric legal orders may be, if not best, at least a legitimate alternative. In polycentric law, there are multiple providers of law within a given area. These providers o er their own legal rules, and individuals generally may choose which system to accept. When con icts arise between di erent centers of law, the centers generally avoid expensive violent con ict and will instead use arbitration. Polycentric legal systems avoid central planning

and instead rely upon decentralized negotiation and bargaining. But, as discussed below, something about the method of political theory seems to prejudice theorists against such systems.

The Logic of the Tragic Commons This section explains the problem to which Ostrom’s work responds. Here, I o er the conventional account of why individuals using common pool resources (hereafter CPRs) often have overwhelming incentives to destroy the very resources upon which they depend. In the next section, I outline the two standard solutions economists o er. After that, I explain why Ostrom thinks there are alternatives to the standard solutions. For any given way of using a resource, a resource has a “carrying capacity.” The carrying capacity is the threshold at which the resource can be used inde nitely without degrading the resource. When people exceed the carrying capacity, the resource starts to be destroyed. To illustrate, suppose the carrying capacity of a river’s shing stock is 10,000 salmon per year. So long as people catch 10,000 salmon or less, the population will replenish itself each year. But if people catch more than 10,000 salmon, there will not be enough mating pairs, and the supply of sh will drop. For instance, suppose that if they catch 14,000 salmon this year, then next year they will only be able to catch 4,000. If they greatly exceed the carrying capacity, they might destroy the resource. So, perhaps if they catch 20,000 salmon this year, next year there will be no salmon at all. Rational people who depend on a resource would want to avoid exceeding the carrying capacity. A rational sher who wanted to maximize her long-term shing returns would identify what the carry capacity of the river is, and then catch sh right at that level. Yet, the logic of the tragic commons implies that when a resource is not owned, but can be freely used by all, people are likely to exceed the resource’s carrying capacity. The problem is that when an individual exceeds the carrying capacity, she privately absorbs the bene ts but externalizes the costs onto others. Thus, each individual has an incentive to overuse the resource, though the collective e ect is to destroy the resource. The ecologist Garrett Hardin (1968) dubbed this phenomenon the “tragedy of the commons.” He worried that when no one owns a resource, people have little incentive to maintain it. Worse, they have an incentive to extract as much value as they can before others do. Even if they wanted to use a resource over the long term, they cannot, because they have no way of guaranteeing others will use the resource sustainably. So, Hardin would say, it is no surprise that shing vessels destroy ocean stocks, that Southwestern American cities suck the Colorado River dry, or that everyone dumps too much carbon dioxide into the atmosphere. So long as anyone can use a resource, but no one can exclude others from using it (or control how others use it), then people tend to get caught in a negative-sum game, in which they must try to extract as much value from the resource as they can before it disappears.

Command and Control or Parcel and Privatize Economists usually envision only two viable solutions to the tragic commons: 1) command and control, or 2) parcel and privatize. In the rst case, the government becomes the de jure or de facto owner of the resource. In the second, the resource is divided among many private owners. But, in both cases, the resource must be removed from communal use. Garrett Hardin (1974) believed that tragic commons disasters were widespread. Living on earth, he claimed, is like living on a lifeboat. The lifeboat has supplies only for a small number of people. If we add too many

people, it will sink. In lifeboat scenarios, an ethics of emergency takes over. If the lifeboat can only hold ten people, then the ten people who get to it rst have the permission right to ght o

other survivors who

might swarm and sink the boat. In such emergencies, it can become permissible to control, aggress against, or even kill people. Taking a cue from Thomas Hobbes, Hardin concluded that we need “Leviathan” to protect us from ourselves. Following Hardin, many left-wing economists and political scientists concluded that “central governments [should] control most natural resource systems” (9). Economic historian Robert Heilbroner claimed that “‘iron governments,’ perhaps military governments, would be necessary to prevent ecological problems” (9). Ostrom notes that many so-called “Third World” countries followed their advice. Some nationalized their natural resources, while others implemented extensive and rigid government regulation of those resources (9). Often, the results were bad: the dictators of these governments used the resources to bene t themselves rather than the people at large. In turn, once corrupt dictators depend on a nation’s resources for their personal wealth, they rarely allow transitions to democracy (Freeman and Quinn 2012). The other frequently proposed solution to the tragic commons is to parcel CPRs into private property. When a resource is held in common, individuals qua individuals are rewarded for using the resource unsustainably and punished for trying to preserve it. But when a resource is privatized, individuals are punished for using it unsustainably and rewarded for preserving it for the long term. Another advantage of privatization over central command and control is that mistaken resource management techniques have only small-scale e ects. In a central command and control system, if a central regulator miscalculates the resource’s carry capacity, or if she acts corruptly, she can destroy the entire resource. She would mostly harm others, not herself. But under privatization, if a few shepherds misused their land, they would at least only destroy a small plot, rather than an entire pasture. They would most directly harm themselves rather than others. Thus, many economists conclude that if we want to “leave enough and as good” for future generations, we not only may privatize resources, but often must do so (Schmidtz 1994). Both solutions face certain problems and limitations. The problems with Leviathan are clear: Central governments su er from a “knowledge problem”: without a price mechanism, they lack the information to regulate or plan for the e

cient use of nationalized resources (Hayek 1945). Finally, government agents

sometimes use their power for their own ends rather than for the common good. We cannot just assume that central authorities will be motivated to promote just outcomes. Even if Hardin or Heilbroner are correct that we need a smart and benevolent Leviathan, that does not mean we can get one. Handing a valuable oil eld over to a government agency does not magically transform government bureaucrats (let alone dictators) into social justice faeries. For these reasons, most economists now tend to favor privatization over central command and control (Ellickson 1994). However, we do not necessarily know how to privatize all CPRs. We can parcel out plots of land, or even institute “catch share” systems for shing stocks, but there are no clear private property solutions to certain commons, such as the air. Some advocate creating tradable pollution permits, but these do little good unless every major industrial country participates and enforces the pollution limits. Further, as Ostrom might note, both types of solutions might seem de cient from a communitarian perspective. The command and control solution substitutes an external, distant authority for face-to-face interaction and social enforcement. The privatization solution allows for face-to-face interaction, but it commodi es the resources in question, and subjects them to the forces of the market. When a resource that was held in common is privatized, individuals stop sharing a common fate in a common resource, but instead have essentially arms-length relationships with one another.

Alternative Solutions and the Limits of A Priori Design Hamlet says to Horatio, “there are more things in heaven and earth … than are dreamt of in your philosophy” (Hamlet, 1.5). In e ect, Ostrom tells us the same thing, though in more formal language: “What makes [Hardin’s] models so dangerous—when they are used … as the foundation for policy—is that the constraints that are assumed to be xed for the purpose of analysis are taken on faith as being xed in empirical settings …” (6). Economists assume that people in a negative-sum game cannot escape it, but will respond just as the model predicts. On the contrary, Ostrom nds that in the real world, people often respond by changing the game. In real life, people are able to devise and implement diverse solutions to CPR problems. When they nd themselves in a negative-sum game, they do not necessarily need Leviathan to save them, nor do they always parcel and privatize CPRs. Instead, they often create new structures that maintain communal ownership of CPRs while simultaneously preventing individuals from overusing them. Consider one of Ostrom’s more famous examples, that of cattle owners in medieval Törbel, Switzerland. These villagers were well-acquainted with markets and private property; they had extensive legal mechanisms to facilitate private ownership and exchange, and most resources were in fact privatized and commodi ed (63). Most villagers owned private herds of cattle and had private farms in the valley oor. Still, over the summer, they grazed their cattle on communal highlands. The villagers hired herdsmen to watch all the cattle at once, in a large collective herd. During the summer, the herdsmen milked the cows and produced cheese. At the end of the summer, the cattle were returned to the villagers. Cheese was distributed to the villagers in proportion to the number of cows they had sent to the communal summer pasture. This sounds like a recipe for the tragic commons. Individual villagers would normally have an incentive to send too many cows to the summer pastures. However, the villagers devised a simple, easy to enforce rule: An individual cattle owner could only send as many cows to the communal summer highlands as he could a ord to feed over the winter with grain from his private farm. Villagers lost the incentive to send extra cattle during the summer because they had to bear the costs of these extra cattle during the winter. This simple rule was su

cient to make the system work for hundreds of years (61–64).

Why not just privatize the highland grazing grounds instead? Here, the issue was not a lack of appropriate legal technology. The villagers could have devised a method for fairly distributing ownership rights over the slopes. Rather, they chose not to parcel and privatize the highlands because it was hard to predict which sections of the highlands would turn out in any given year to be good grazing grounds. Keeping the grazing lands communal was a method for reducing individual risk. This is just one example among many. In GC, Ostrom describes and explains the logic behind numerous examples from around the world of long-enduring common-pool resources (90–91). In some, the bene ts are spread among individuals in villages, but others involve both individuals and corporations over a large region. In some cases, the agents maintain CPRs because they prefer to maintain communal ties. In others, they maintain CPRs because communal holdings allow them to spread and di use risks. These CPR institutions rarely result from straightforward design. It is rarely the case that some committee chose these structures after extensive democratic deliberation. Rather, these solutions tend to appear via an unguided evolutionary process. People stumble upon working CPR regulation mechanisms through trial and error. They try di erent things, and when they nd something that works, they keep doing it until it stops working.

Furthermore, at rst glance, these solutions seem like convoluted messes. To describe any one CPR institution takes Ostrom multiple pages. These CPR institutions often lack the elegance of private property and market institutions, or of the statutes central bureaucrats with degrees in urban planning might devise. But on further investigation, these CPR institutions each possess a functional internal logic. The systems work, and we can determine why they work. Successful, long-enduring CPRs have certain common features. For instance, in each, the boundaries determining who can and cannot use the CPR are clearly de ned. This is important because stable CPRs work only if there are set users who know the rules, and the users know who the other users are. CPRs work when there are stable mutual expectations among an identi able group. Those a ected by the rules have some sort of right to participate in modifying the rules. This is important because the rules might need to change or be improved, and the users are the ones who best understand which changes are worth making. Further, the ability to modify the rules gives users a stake in xing problems rather simply overturning or rejecting existing institutions. CPRs are maintained only when monitoring costs are low and there are graduated sanctions for deviation from the rules. This is important because most CPRs present users with prisoner’s dilemma-type scenarios. What prevent users from defecting or taking advantage of the CPR is the mutual assurance that others will also cooperate. But to maintain the mutual assurance requires that users can see other users behave well. The systems need to punish defectors but also allow them to rehabilitate. Finally, CPRs tend to work only when external and district governments do not interfere with the systems’ operations (90). The main reason for this is that governments rarely have the knowledge or the motivation to make things better. They see that some system works elsewhere and mistakenly conclude it should work everywhere. Or, worse, they use “we’re here to help” as a cover for “we’re here to pay o

special interests.”

What is disturbing for many economists and theorists, though, is that even when we see why various CPR institutions work, we do not thereby become better at social engineering. We do not thereby acquire much ability to devise similar structures to solve similar problems. CPR institutions are not easily extractable; just because a system works here, does not mean it would work there. Often the functionality of these institutions depends upon custom, or upon individuals’ mutual trust. Ostrom’s work thus does not add additional tools to the technocrat’s workbench so much as tell the technocrat that his assistance is not needed.

The Presumptuousness of Political Theory Let’s consider how this relates to political theory. In my view, a theorist who re ects on Ostrom’s work might notice that political theory su ers from a kind of presumptuousness about institutions. Many political theorists think about problems of justice in a way subtly prejudiced against Ostrom-style institutions. That is a problem with political theory, not with Ostrom. David Miller (2013) complains that political theory tends to be too disconnected from the facts. He asserts that most political theorists subscribe to a “Starship Enterprise view” of political theory. On this view, fundamental principles of morality and justice are independent of any social scienti c or biological facts about human beings. Through a priori reasoning, political theorists can discover a set of basic normative principles, principles which apply to all possible moral agents independent of the facts of psychology, economics, or anthropology. The empirical and social scienti c disciplines come in later, only to inform us how to apply the principles of justice. On this view, fundamental principles of justice are invariant among all 2

rational species in the universe. At most, the principles of justice would apply di erently among species because the empirical facts might vary from species to species.

Thus, Miller jokes, political theorists are like astronauts going from planet to planet, ready to beam down a set of abstract moral instructions to each new species they encounter: …we might imagine the well-intentioned inhabitants of a spaceship—the Starship Enterprise let’s say—deciding, while still in outer space, on the principles they will attempt to apply to each of the life forms that they discover on their voyage of planetary exploration. Having established the basic principles, they then examine each new planet, looking at its physical composition, the kind of creatures who exist on it, their level of social organization, and so forth, and work out which principles to try to implement when they beam down on to the planet’s surface. The basic principles are always the same, but the secondary or applied principles will vary according to the general facts of life on a particular planet (Miller 2013, 18). But after reading Ostrom, it seems few theorists engage in Starship Enterprise-style theorizing. Indeed, for many of them, moving toward the Starship Enterprise-style theorizing would be an improvement. Rather than being agnostic about institutions, theorists theorize in a way that biases them toward a certain set of institutional conclusions. Rather than writing in a way detached from any facts, they assume certain facts that may not be facts at all. Part of this has to do with their unit of analysis. For instance, John Rawls says the subject of a theory of justice is the basic structure of a society, by which he means the main political and social institutions of a modern nation-state. When Rawls imagines parties in the original position bargaining about the principles of justice that will govern their society, he understands them to be thinking about society whose boundaries are co-extensive with a modern nation-state. In that way, Rawls’s theory of justice presumes, more than it proves, that what counts as our society just is the nation-state, and what counts as the appropriate nal regulator and arbiter of our society just is the central government of that nation-state. It presumes more than it proves that the nal solution to most of our social problems is Leviathan. His theory is largely meant to determine what counts as a good or bad Leviathan. For Rawls, the main institutional questions are how to trade-o

between market and

government power, and how much and what kind of power government should have. There is little space for Ostrom-style communities or alternatives. A Rawlsian might respond that Rawls regarded himself as undertaking a limited project: given that we seem to be stuck living in nation-states, what is the best form of the nation-state? But, even if so, few Rawlsians ask the deeper question of whether a world carved up into nation-states is itself just, except for those who imagine transplanting the Leviathan to the global scale. It might turn out that Rawls’s theory of justice is a theory of the best way to run an inherently unjust institution. Further, even if we take the existence of nation-states for granted, there is still no obvious reason to suppose that what counts as an individual person’s “society” just is his fellow citizens of the nation-state. Rawls de nes a society as a “mutual venture for cooperative gain” (Rawls 1972, 4). But on that account, my “society” includes most foreigners and excludes many of my fellow citizens. Further, on that account, I do not belong to a society, but many societies. Some of these may command greater loyalty and authority than my nation-state. In general, political theorists tend to be governmentalist rather than anarchist. Even if they reject Hobbes’s pessimistic view of human nature, they share his pessimism that societies without governments are societies without law and order. But that need not be and often is not so: As Ostrom repeatedly shows us, as a matter of fact, individuals are able to construct anarchic enforcement mechanisms and produce public goods without relying on Weberian government.

When thinking about law, theorists tend to focus on centralized, uniform, statute laws produced by the nation-state. If they are sophisticated, they might consider federal alternatives. But they rarely consider whether highly decentralized or polycentric legal orders might be superior. Even when theorists try to take into account “pluralism,” they tend to presume that respecting pluralism means trying to gure out how to 3

make one uniform code of laws and institutions for everybody.

On this point: It is far from clear that political philosophers have made much progress in the past 2,500 years, theorists tend to presume that their methodology—of armchair analysis and rational deliberation— is an e ective way to discover which institutions are good and just. Ostrom-style political economy is skeptical of such an approach. It tends to hold that we discover good institutions through real-world trial and error, rather than through argument. Perhaps we cannot “design” good institutions at all. That is, while the tools of philosophy, political science, economics, and sociology might help us understand why some existing institutions work better than others, they might not equip us with the ability to conceive of or construct better replacement institutions. In much the same way, the tools of evolutionary biology allow scientists to understand why certain species evolved and how they are t for their environments. But it’s not at all clear scientists could, despite their understanding, come up with better ecosystems with better organisms. It may be that good institutions, like functioning species, must evolve. Theorists tend to have maximizing conceptions of justice. Not surprisingly, consequentialists tend to say we should implement whatever institutions produce the best overall consequences But even deontologists and proceduralists tend to be maximizers in an important sense: They rst come up with a stringent theory of justice, de ned in deontological terms. They tend to advocate institutions that produce maximal compliance or maximal t with their deontological codes. They tend to construct abstract models of just societies, and then measure real-world institutions by how closely they t these models. In that same vein, theorists tend write about institutions as if such institutions were to appear in year zero, in a vacuum, detached from any history. Consider: When Bruce Ackerman discusses distributive justice, he asks us to imagine we are colonists on a starship, simultaneously arriving at a new planet, wondering how to divide up the new planet’s resources (Ackerman 1983). Ronald Dworkin asks us instead to imagine we are shipwrecked passengers simultaneously arriving on a desert island who then decide to auction the island’s resources (Dworkin 2000). Ostrom’s approach is altogether di erent. Ostrom does not think it useful to ask how ideally situated agents —timeless agents not yet living in the world—would design governmental regulations to solve CPR problems. She does not presume that a legitimate solution to a CPR problem must also be the optimal solution. Instead, she begins by investigating how actual groups in fact solved those problems. She examines how solutions emerge and evolve through trial and error. Rather than looking for optimal solutions, she nds solutions that work su

ciently well, and concludes that such institutions are justi ed

for that very reason. Ostrom’s style of thinking lends itself to decentralized, su

cientarian, and, in a way,

conservative political theory. What justi es institutions is that they are in place and they work, not that they are the institutions that would be most choice-worthy if we were starting from scratch. Ostromesque solutions to CPR problems are stable, working solutions, but they are rarely ideal solutions. Sometimes, command and control or parcel and privatize would work better—they would deliver a higher yield, or be more e

cient, and/or have lower transaction and monitoring costs. Is that su

cient reason for

people sharing a common pool resource to switch over to the superior solution? Some theorists might be inclined to say that status quo is not privileged in any way. Sure, as a matter of practical politics, we have no choice but to start where we are, and it may be that we cannot progress toward just institutions from where we currently stand (Cohen 2009). But that does not mean current institutions are legitimate or justi ed in any way.

Suppose we nd Swiss cattle owners sharing a common pasture in just the way Ostrom describes. Now, imagine representatives from Leviathan and from the Market try to persuade the Swiss to accept the government or private property alternatives. Leviathan says, “Your system works, but we’ve got a better functioning regulatory system, one that will spread risk and reward around the entire country, not just around your small mountain village.” The Market says, “We’ve got a more e

cient solution. Why not parcel

and privatize the slope, and then purchase pasture-grazing services from the new owners? So long as they’re competing, that will keep the price low. And you could always send your cattle to a di erent pasture, or just buy grain from outside at a low cost to feed your cattle. Isn’t it a pain to have to monitor each other constantly?” In both cases, imagine that Leviathan and the Market are right. Imagine that both the market and the central command and control work “better”—they can deliver more output at lower costs and at reduced risks. So they pitch to the villagers, “Get rid of your existing institutions and pick us instead.” Should they agree? Notice that this thought experiment, this all-too-philosophical way thinking about institutions, already loads the dice against Ostrom. Perhaps it is misleading to imagine the Swiss villagers taken out of context and asked to make a once and for all collective decision. If they were to do so, they probably would not choose their extant institutions, but might instead choose Leviathan or the Market. Yet it seems strange to conclude their existing institutions are for that reason defective, let alone illegitimate. By analogy, suppose my wife and I were taken out of context, and could choose two children among all possible combinations of our gametes. It is unlikely we would choose the combinations that in fact became our two actual kids. Yet we do not conclude that our children are defective, or suboptimal, or should be replaced, even though they probably would not be the children we would have chosen in this idealized choice scenario. For Ostrom, the fact that the institutions are in place and work, that they actually solve the problem, seems good enough. And since people grow up with and feel located within such institutions, that seems like su

cient reason to preserve them.

Conclusion There are a number of political theorists and philosophers who incorporate Ostrom’s (or Ostromesque) insights into their work. Consider again, on the left, Amartya Sen, who warned us about the tyranny of the idea of the state. Most liberal philosophers, Sen argues, assume without argument that once something is shown to be basic or human right, the nation-state gets the job of providing for or protecting it. But, Sen says, it’s an empirical question whether a centralized legal system under a nation-state is the best mechanism for defending or realizing rights. It may instead turn out that alternative legal and political structures are best. It may turn out that the system that works best here is di erent from the system that works best there. Jacob Levy’s (2015) recent book Rationalism, Pluralism, and Freedom is another example. Levy notes that in theory, and as a matter of historical fact, liberal states can be oppressive in the sense that they tend to undermine, eradicate, or destroy polycentric orders, private groups, and local institutions providing public goods; they tend to force everyone to t into one mold. Levy is sensitive to Mill’s worry that sometimes these local groups are oppressive, and so eradicating them is liberating. But sometimes eradicating them in the name of liberation is itself oppressive, as it means forcing people who accept a set of functioning local institutions to be placed under the control of a di erent and distant others. A typical philosopher would acknowledge this problem and conclude that we need a set of principles to tell us just when centralism is better than localism and vice versa. But Levy, following Ostrom, is skeptical that any such formula is

available, even in principle, at least in a non-trivial form. Instead, for Levy, certain forms of competition between local and national systems are what tend to generate acceptable, tolerant, liberating results. Ostrom’s work in political economy might seem irrelevant to most political theorists. But, on further re ection, this is because mainstream political theorists tend to theorize about institutions in a way that writes-o

Ostromesque political economy from the start. A political theorist who takes Ostrom seriously

would practise a kind of methodological anarchism, pluralism, and localism. The theorist would be skeptical of theory’s ability to devise solutions; rather, theory is better able to help identify existing solutions. There are indeed political theorists who t this mold to varying extents, including Gaus (2016), Benhabib (2002), and Kukathas (2003). But the main line of political theory over the past fty years sees questions of just institutions as a process of idealized, hypothetical, rational collective deliberation, rather than a process of discovering, cataloguing, and analyzing what actually has a history of working.

References Ackerman, Bruce. 1983. “On Getting What We Donʼt Deserve.” Social Philosophy and Policy 1: 60–70. Google Scholar WorldCat Benhabib, Seyla. 2002. The Claims of Culture. Princeton: Princeton University Press. Google Scholar Google Preview WorldCat COPAC Cohen, G. A. 2008. Rescuing Justice and Equality. Cambridge, MA: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Cohen, G. A. 2009. Why Not Socialism? Princeton: Princeton University Press. Google Scholar Google Preview WorldCat COPAC Dworkin, Ronald. 2000. Sovereign Virtue. Cambridge: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Ellickson, Robert. 1994. Order Without Law: How Neighbors Settle Disputes. Cambridge, MA: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Freeman, John R. and Dennis P. Quinn. 2012. “The Economic Origins of Democracy Reconsidered.” American Political Science Review 106: 58–80. Google Scholar WorldCat Gaus, Gerald. 2016. The Tyranny of the Ideal. Princeton: Princeton University Press. Google Scholar Google Preview WorldCat COPAC Hardin, Garrett. 1968. “The Tragedy of the Commons.” Science 162: 1243–1248. Google Scholar WorldCat Hardin, Garrett. 1974. “Living on a Lifeboat.” BioScience 24: 561–568. Google Scholar WorldCat Hayek, F. A. 1945. “The Use of Knowledge in Society.” American Economic Review 35: 519–530. Google Scholar WorldCat Kukathas, Chandran. 2003. The Liberal Archipelago. New York: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Levy, Jacob T. 2015. Rationalism, Pluralism, and Freedom. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Miller, David. 2013. “Political Philosophy for Earthlings.” In Political Theory: Methods and Approaches, 29–48. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Ostrom, Elinor. 1990. Governing the Commons: The Evolution of Institutions for Collective Action. New York: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Rawls, John. 1972. A Theory of Justice. Cambridge, MA: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Rawls, John. 1993. Political Liberalism. New York: Columbia University Press.

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Notes 1

A “negative-sum game” is an interaction in which, given the background rules (or lack thereof), everyone is expected to be worse o a er interacting than before.

2

Miller has in mind G. A. Cohen, Cohen (2008) in particular.

3

e.g., see Rawls 1993. Compare Rawlsʼs approach to that in Kukathas 2003.

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Carole Pateman, The Sexual Contract  Mary G. Dietz https://doi.org/10.1093/oxfordhb/9780198717133.013.12 Published: 05 December 2016

Abstract This chapter reviews The Sexual Contract, a work by Carole Pateman that identi es masculinized forms of domination and assumptions of male sex-right (the “sexual contract”) embodied in the concept of “contract” generally and speci c to the classic social contract theories of Hobbes, Locke, and Rousseau. Beginning with the “patriarchal confusions” that Pateman exposes in contemporary political and feminist theoretic interpretations of contract theory, the chapter then turns to Pateman’s alternative feminist “storytelling” approach to social contract theory. In particular it examines the merits of Pateman’s subversive critique of contractual relations, political right, and the subjection of women as presented through her threefold story of the “original,” “social,” and “sexual” contracts. Following an assessment of feminist receptions of Pateman’s critique of contract theory, the chapter also explores the interpretive implications of her search for a “logic” embedded in these stories and within the classic social contract texts generally. Finally, it considers the book’s fortunes in relation to new modes and disciplines of identity knowledges, along with some criticisms of the work from contemporary gender, sexuality, and queer studies.

Keywords: The Sexual Contract, Carole Pateman, sexual contract, social contract, women, feminism, gender, sexuality, patriarchy, storytelling Subject: Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

The French feminist theorist Monique Wittig once wrote that the primary aim of a text is to “change the textual reality within which it is inscribed.” In achieving this aim, Wittig says, a work of signi cance might also carry out a political action by “introducing into the textual tissue of the times by way of literature that which it embodies” (1992, 63). When Carole Pateman’s The Sexual Contract appeared on the textual terrain of political theory in 1988, there was no doubting that it represented in literary form a feminist politics that aimed to change conventional accounts of contract and social contract theory. The Sexual Contract (SC) confronted readers with a radically new critique of contractual relations and the concepts of political right, the individual, and the subjection of women. An array of reviews between 1989 and 1990 left no doubt that what we had here was a book chock full of incendiary devices set to explode under both the “classic” and

contemporary political theories it deemed complicit in advancing the domination of men and the privileging of masculine sex-right. Now accorded status as a “classic” in its own right, The Sexual Contract has achieved a distinction as deserved as it probably is double-edged, given how quickly a book under the sign of the “classic” can become a reliquary (read, little cited), a manifesto (cited, little read), or an afterthought (little read, little cited) thus no longer operating, in Wittig’s terms, “as a text in relationship to other past or contemporary texts” (1992, 63). With those dubious prospects in mind, I want instead to recover the primary aims that I think animate SC’s endeavor to change the “textual reality” of its times while at the same time registering the noteworthy successes and inevitable failures it encountered along the way, as befall any text that can lay credible claim to being the rst of its kind in an academic realm.

Patriarchal Confusions, Feminist Freedom Unique though it is, SC didn’t appear from utterly out of the blue. Pateman had already contributed signi cantly to theories of contract ten years earlier, with the publication of The Problem of Political Obligation (PO) (1979). In that analytical work she challenged the notion that consent is the paradigmatic marker of free association in liberal democratic states. SC maintains that attitude while at the same time dramatically altering its con guration, magnifying some ideas and concepts that PO miniaturized, like the “question of women,” while downplaying others that were previously central concerns, like the relation of consent to obligation. Patriarchy and patriarchalism, bare grace notes in PO, loom large in SC as the organizing conceptual elements that drive its critique of the “classic” contract theorists (Hobbes, Locke, Rousseau) and the contemporary unidenti ed “male political theorists” who study them (1988, 19). Across this terrain of political theory Pateman senses “patriarchal confusions” (ch. 2) everywhere, indicting the “standard interpretation of the history of modern political thought” for passing over, as though unseeing, “[c]hapters and passages in the [social contract theorists’] texts dealing with marriage and relations between men and women” (221, 19). Feminist theory hasn’t escaped confusion either. From matriarchal and historical materialist to psychoanalytic and socialist approaches, feminists are guilty of formulating constricted, conceptually muddled, reductionist, even “absurd” (34) accounts of patriarchy that mistakenly con ate it with paternalism or thematize it in terms of “masculine reproductive being” (35). Particularly misguided, Pateman says, are those liberal feminists who treat women “as if they were exactly the same as men” by contending that patriarchy is best countered through laws and policies that render sexual di erence “politically irrelevant” in the name of contract and “civil equality” (17). Determined to break free of all manner of patriarchal confusions, SC begins by promising an examination of modern patriarchalism that will “throw light onto the present-day structure of major social institutions in Britain, Australia and the United States” (4). To that e ect chapters ve to seven address historical and contemporary Anglophone legal juridical policies on marital rape, women’s employment, prostitution, and surrogate motherhood. But comparative studies aren’t the motivating force of the book. What Pateman really wants to deliver is a political theoretical transformation of the “classic” works of social contract by “resurrecting” a “story” she says is harbored there but has been “repressed.” With the notion of retrieving this story in mind she xes to answer the question she says concerns her most: “What upholds patriarchy?” (4, 1, 2). Pateman’s storytelling approach to social contract theory (with all the import of reviving, retrieving, and raising something from the dead that the term “resurrecting” implies) wasn’t much noticed in initial reviews and commentaries. In retrospect, though, her interpretive shift from “theory” to “story” marks an intervention that’s fully in keeping with the “narrative turn” in 1980s political (and literary) theory, with its emphasis on the reality of one’s life as an enacted multilayered narrative exhibiting the concordant unity of a plot that has a temporal span. In this light, SC’s turn to storytelling might also be read as an e ort to humanize a genre increasingly dominated at that moment by analytic, game, and decision theoretic models,

while bringing that genre’s emancipatory ruses to the surface, with all the import of exposing things hitherto hidden from consciousness, as the term “repressed” implies. But other things are striking about SC’s storytelling turn too. One of them is the seeming absence of attention to speci c programs for democratic action (the words “democratic” and “democracy” appear only four times each in the text). The apparent disjunction between SC and Pateman’s earlier Participation and Democratic Theory (1970) spurred some criticisms about its demonstrable lack of “clues to the path” that feminists might follow (Okin 1990, 668), its silence on how its critique of patriarchal oppression will “enable women to participate fully in society” (Anderson 1990, 1793), and its “‘anaesthetic’ e ect on the search for transformative politics” (Dean 1992, 129). Accurate in some respects, these criticisms do fail, I think, to appreciate the full political signi cance that Pateman accords to narrative in SC, where feminist politics as the actualization of freedom presupposes the interpretive political act of resurrecting a hitherto repressed story of the subjection of women under contract. The “retrieval” of the contract story is nothing less than a means toward the overtly political goal of women’s emancipation. To expose the story, Pateman contends, is to allow women to gain “access” to a “profoundly important insight” about the subterfuges and presuppositions of modern contractual patriarchy while at the same time enabling them to arrive at the complete picture of what was previously a “fragmented structure of sexual subordination” (231–232, 225). “When the repressed story of political genesis [of women’s subjection] is brought to the surface,” she states, “the political landscape can never look the same again” (233). In this formulation, where “theory” not only becomes “story” but the story itself becomes something to be retrieved from repression in order to reveal to women the reality of masculine domination, we can nd another striking feature of SC’s storytelling turn. This is the feminist a

nity it shares with the 1980s anti-Freudian, anti-patriarchal psychotherapeutic “recovered memory”

movement that stressed to women the restorative value of storytelling for unlocking memories of childhood incest, rape, and other forms of physical and emotional abuse that orthodox psychoanalysis discredited as fantasies. (The so-called bible of the movement, The Courage to Heal: A Guide for Women Survivors of Childhood Sexual Abuse, by Ellen Davis and Laura Bass, was also published in 1988). SC is at home in this recuperative therapeutic domain. Just as the analyst of recovered memory concatenates fragments of her analysand’s thoughts, fantasies, facts, and ctions in order to arrive at a diagnosis that aims to draw back the veil of patriarchy, freeing her from its abusive e ects, so Pateman teases out from the texts of social contract a repressed story of patriarchal right in the interests of “the expression of the freedom of women as women” (231). In both scenarios, the actualization of freedom presupposes a political act of diagnostics by the theorist/analyst that requires retrieving, telling, and confronting the story of sexual abuse or subordination thereby opening what Pateman calls “new anti-patriarchal roads” and “a new story about freedom” (233). The possibility of a new beginning for feminist politics hinges, then, on the story Pateman resurrects from the repressions she seeks to release from theories of contract.

What Upholds Patriarchy? A Threefold Story “Telling stories of all kinds,” writes Pateman, “is the major way that human beings have endeavoured to make sense of themselves and their social worlds” and in social contract theory writ large she nds “the most famous and in uential political story of modern times” (1). The political story that probably comes immediately to mind is the well-worn tale of human transition “from the state of nature to civil society” narrated (in di erent forms) by Hobbes, Locke, and Rousseau. SC doesn’t reduce to that founding political ction however. Instead it has the nature-to-civil society tale transverse three stories of the “social,” the “sexual,” and the “original” contract(s) respectively. All three stories (along with the various “conjectural histories” and the numerous “political ctions” that Pateman has populating them) are integral to unmasking a complex of concepts, beliefs, values, and relations that begin with “classic” social contract theory and continue on in contemporary contractarian vein to uphold patriarchal relations of domination and subordination. Here they are in brief: The story of the “social contract” reveals that civil society legitimates class relations of exploitation under the illusory representation of the individual as a freely and rationally participating partner to the formation of the contract. Here we nd the individual who, as “the owner of the property in his person,” enters into a mutual exchange with other “property owners like himself,” with that exchange ensured by contract (56). What requires exposure is the story’s “political ction” that gets people to believe that they actually own property in their persons and can therefore sell their labor power (another “political ction”) freely in the form of employment contracts that are really subordinations (151). Under the terms of this story, which Pateman extends into critiques of marriage, prostitution, and surrogacy, the concept of the “individual” is an inherently “patriarchal category” bolstered by (yet another) “political ction” of “universal freedom” that adheres to the pernicious notion of ownership of property in the person (168, 8). The “sexual contract” adumbrates the strains of these already dreary, ction- lled, contractarian arrangements by painting into the picture a more deeply “repressed” story of subjection that is coextensive with the one about freedom in the social contract. Here Pateman complicates contractual relations, sexualizing them beyond mere exploitation in terms borrowed from the poet Adrienne Rich’s “law of male sex-right” (2) (also “conjugal” right (87, 93); and “masculine” right (28, 90)). Integral to the sexual contract, this conjugal “right” created by contract secures access to and the subjection of the female body in the form of relations of domination (2, 8). The meaning of “law of male sex-right” as a social, symbolic, historical, or ontological construct has led Pateman’s commentators both to question (Boucher 2003) and praise (Miriam 2005) its usefulness as a category of political analysis. As the central element in this story it’s the thing that unveils SC’s most powerful argument: Modern “individual right” (political right) is the inherently unstable outcome of contractual relations premised on hidden hierarchically sexed relations of masculine domination and the subordination of women. Within the context of historical political theory, the law of male sex-right marks the rupture between premodern patriarchal “paternalism” (father right) and modern “patriarchalism” as the conjugal right that (mis)represents men and women as presumptively free and equal “consenting adults’” (33). Social contract theory, as the sexual story reveals, deviously secures “masculine right” through “political relations” that dominate women but masquerade as freedom (90, 92). The story of the “original contract” (or the “sexual–social pact”) consolidates the relation between the “social” and the “sexual” contracts (1, 11). The original contract story also harbors a ction or “modern story” of its own (102). Premised on the notion of “masculine political birth,” it carries a tale of patricide, brother clans, brutal desires, and sexual violence, sealed by fraternal arrangements that legitimate the exercise of masculine right as competition for the sexual use of women (102, 105, 114). To get this story o the ground, Pateman innovates by writing a Freudian primal scene of brutal fraternité into the mechanisms behind the sexual–social pact embedded in social contract theory. “Civil individuals form a fraternity,”

Pateman writes, “because they are bound together by a bond as men. They share a common interest in upholding the original contract which legitimizes masculine right and allows them to gain material and psychological bene t from women’s subjection” (113). That bit of interpretive legerdemain, into which some readers have coded a narrative of rape (Zerilli 1989; Elshtain 1990; Okin 1990), gives us a ctional “as if” presented as a factual element, thereby securing the originality of the story that Pateman o ers as a feminist exposure and critique of classic contract theory (102). SC is not a suspense story, however; so Pateman’s answer to the question “What upholds patriarchy?” comes as no surprise. The original contract as sexual–social pact creates the law of male sex-right that secures modern patriarchal power as the freedom of men to have access to the bodies of women. At the core of this arrangement is contract. As SC repeatedly reminds us: contract “is the means through which modern patriarchy is constituted” (2); it “always generates right in the forms of relations of domination and subordination” (8); it’s “the speci cally modern means of creating relationships of subordination” (118); it’s the “mainstay of patriarchy” (168). Evidently complicit in patriarchal domination, contract theory “justi es subjection by presenting it as freedom” (39), “creating social relationships constituted by subordination, not about exchange” (58). The force of the indictment against both contracts and contract theory is so utterly unambiguous that its nal summation—“A free social order cannot be a contractual order”—takes on all the hardness of a logical diktat supported by a claim to political necessity (231).

Feminist Interpretations and the “Logic” of Contract A detailed review of the reception history of SC would have to attend to the responses generated by its unstinting critique of contract along with what Catherine MacKinnon calls its “brilliant demolition” of social contract theory’s fundamental complicity with “the sexual domination of men over women” (2013, 20). Along these lines many early reviewers praised the book for its “absolutely brilliant” demonstration of the dangers of “an alliance between feminism and contract” (Shanley 1990, 186) and the “admirable intellectual rigor” with which it unmasks “the subjection of women” underneath the “liberal construction of contract” (Hirschmann 1990, 170). Moira Gatens (2008, 43) nds “promising paths” for democracy in SC’s (otherwise democracy-free) analysis of the “paradoxes of liberal society,” particularly given its critique of contractarian theories of property in the person. Kathy Miriam (2005, 275) credits SC alone with disclosing male dominance through contract as deeply “embedded” (but hitherto ignored) in the “ontology of liberalism.” Pateman’s reading of Hobbes in SC is often assessed as “the most in uential” of feminist interpretations in drawing attention to “ellipses” about gender in his thought (Hirschmann and Wright 2012, 6), and her interpretation of Locke has been called “the foundational account” of gender narratives in his work (Carver 2012, 210 n. 1). Yet SC also met with a substantial array of feminist critics who represented “liberal” feminist perspectives of the sort Pateman sharply castigates for taking contract as “an apparently unambiguous guarantee of emancipation” (223). Acknowledging the book’s “distinctive contribution” to the interpretation of classical social contract, Elizabeth Anderson (1990, 1804) nevertheless nds the argument “ awed” by “confusions” that fail adequately to distinguish between “possessive” and freely established forms of contractarian theory. Susan Okin (1990, 662, 663) judges the story of the sexual contract “unconvincing” because marred by “dubious” textual “reconstructionist techniques.” Like Anderson, Okin objects to SC’s eliding di erent modes of contract theory including the con ation of “libertarianism with liberalism” in ways that ignore how “contracts can be legitimate” (666, 667), a criticism echoed by others from various theoretical perspectives (Shanley 1990; Fraser 1993; Dickenson 1997; Galeotti 2013). The responses to SC’s dismissal of contract are indicative of the amount of contentious material Pateman gives feminist critics to mine, along with other matters pertaining to property in the person including contractual logic in marriage,

employment, surrogacy, and prostitution. The author has met her critics in print, from 1990 to 2013, with varying degrees of persuasiveness and patience (Pateman 1990a; 1990b; 2007b; 2008; 2013). A second mode of feminist receptions of SC focuses less on normative philosophical or legal analytical problems of contract than on Pateman’s approach to historical political theory and the “classic” contract theorists, especially Hobbes and Locke. Here too the text is taken to task for requiring its objects of study to conform to the shape of its critical desires. Along this line Mary Severance (2000, 509 n. 91) points to a “con ation between Hobbes and Locke that produces the supposedly neutered individual of Rawls and other liberal theorists.” Okin (1990) questions the “continuity” that Pateman establishes among thinkers as di erent as Locke, Kant, Rawls, Hobbes, and Nozick. Joanne Boucher (2003, 35; also Wright 2004) sees the argument straining to make Hobbes and Locke “ t” its “sweeping account, and dismissal, of contractualism.” Kate Nash (1998, 41) thinks Pateman elides “‘inconsistencies’” and thereby “repress[es],” especially in the case of Locke, “what has been and may be most useful to feminism.” Few of these critics question the coherence of classifying Hobbes, Locke, and Rousseau under the ahistorically formalized notion of “social contract theory.” Yet they seem to agree that SC’s political aspirations often require it to perform maneuvers of con ation and coherence that obscure textual complexities and stretch interpretive credibility. When Pateman’s feminist critics point to rudimentary “con ations” and sweeping “continuities” in her appropriations of Hobbes, Locke, and Rousseau, I suspect that they’re onto something troublesome about the methodological orientation that informs her approach to the works she condenses under the rubric of the “classic contract texts.” But the problem isn’t just about the e ort to assert continuities that con ate, condense, and conceal variations within and across historical texts in order to retrieve and tell stories that o er new perspectives on freedom. It’s when the stories themselves are condensed, con ated, and directed toward an end altogether di erent from resurrection and retrieval that a deeper problem comes to the fore. Speaking retrospectively, Pateman o ers this telling summation of what she was really doing in writing what she wrote in SC: “Instead of engaging in … a quixotic quest,” she says, “I investigated the logic of contract theory, or, more exactly, I tried to unravel a number of di erent aspects of that logic. At the most general level I explored how, once the logic of stories of an original contract is appreciated, it becomes possible to see [how] the sexual contract … has been … built into major social institutions” (2007b, 202, emphasis added). The general investigatory imperative that requires the unearthing of a logic of contract theory nds its complement in an approach to the historical texts that also made it “vital,” as Pateman states elsewhere, to identify “the logic of contract found in Hobbes” although the “‘paradigmatic’” theorist in these matters of logic is Locke (2007a 28, emphasis added). The seamlessness with which Pateman’s retrospective comments subsume “stories” under the “logic of contract theory” until they reduce even further to a search for “the logic,” shouldn’t ward o

the thought

that telling a story and nding a logic may not be operations of the same kind. Not just di erent but oppositional perspectives may be vying for supremacy here. From the storyteller’s point of view the imperatives of logic threaten to sti e and constrain our imaginative forays into the possible. From the logician’s standpoint the modes of storytelling distract us from recognizing what’s certain. It’s hard not to see in Pateman’s post-hoc comments an e ort to hold these contrary sensibilities together so that the open-ended aspects of her threefold storytelling approach to social contract theory in SC consort companionably with the search for causal lines aimed at pre guring the stories even before they’re told. But just how successfully does SC keep these apparently oppositional perspectives in sync with each other? Not very, I fear. And it’s the perspective of the storyteller that bears most of the cost. For despite the fact that appeals to “stories” of contract vastly outnumber references to “logic” in SC (95 to 9 according to the Google count) it’s the logician’s aspiration to secure what Nietzsche (1989, 77) once called “the cause of the origin of a thing” that ultimately triumphs in the text. Under the imperative to close what Pateman (2007b, 215) later calls the “logical gaps” in the classic texts, SC’s threefold story is simply put into the service of a

coding operation where the terms “sexual–social pact,” “primal scene,” and “subjection of women,” are e

ciently codi ed into a logic of “the cause of the origin of a thing” that can be cleansed of ambiguity and

derived from the theorists under scrutiny. Occasionally Pateman allows her stories to ght back against the relentless drive of the logic that SC otherwise endeavors to discover. Two brief examples are telling here. One: In something of an understatement, we nd the acknowledgment that “All the stories [of contract] lack a political book of genesis … There are no stories of the primal scene in modern political theory on which I can draw …” (1988, 104–105, 182). Buoyed by this seeming return to the factual truth about the stories (not) told in the social contract texts, the reader quickly learns that what these stories “lack” proves to be no real problem at all when it comes to ful lling the demands of logic. The logician can simply ll in the “gaps” by “develop[ing] [her own] version of the story of the primal scene” (105). This gets us back to Freud from whom Pateman draws the raucously fraternal primal scene that supplies the “origin” that both the “cause” and the “thing” require in order to secure the logic that “modern political theory” cannot be made to deliver on its own. Two: In something close to a debilitating concession, Pateman allows that even once out tted with a manufactured Freudian primal scene, at least one of the classic contract theorists simply refuses to comply with the logic the interpretive regimen requires. Accordingly, SC persistently interrupts its (modi ed) story of the “classic pictures of the state of nature” with the quali er “except in Hobbes” (41, 5, 6, 12, 50, 68, 100). Inconveniently for the entire enterprise, it seems that Hobbes “stands alone” in arguing that “patriarchal subjection is also an example of political right” (50). Moreover, when it comes to women, Pateman allows that the state of nature he conjures isn’t the picture of forcible subjugation of the female body necessitated by her version of the Freudian primal scene (105). But it’s at this very juncture, where we might have anticipated the motor of logicality running dry in response to the complexities of the tales in the Hobbesian text, that SC doubles down on the logic behind its Freudian primal bet. “[L]ike Freud,” Pateman writes, “Hobbes argues that marriage law is created through the original pact” (110) – yet isn’t this the very “original pact” of fraternal bonding she has already endowed with a logic we’re otherwise told doesn’t hold for Hobbes’s story? The dispiriting e ects of these somewhat convoluted interpretive maneuvers, where “the logic” reigns supreme over both the “stories” and the texts, are only ampli ed, I think, by a subsequent remark Pateman makes in conversation with Quentin Skinner. Despite there being no “evidence” for her “story” in Hobbes’s texts (2012, 24), she concedes, it’s “logic rather than history that is crucial” when it comes to locating the origins of the sexual contract. “If there was evidence,” she adds, “I would not have needed to o er my conjecture” (23). Under the “logic” that defeats “history” the absence of evidence in a text doesn’t need to be taken as the evidence of absence. But what are the costs of planting it there, even in the name of achieving freedom for women through the telling of stories of abuses that have allegedly been repressed?

Women in Question in the Sexualized Contract Beyond its contributions to the critique of social contract theory, SC became an often embraced and foundational work for feminist theorists concerned with masculine domination and the subjection of women. Today it is treated far more problematically in relation to both feminist theory and the evolving political aspirations of gender and sexuality studies, given the disciplinary rupture that Robyn Wiegman (2012, 41) identi es in the shift from the category of “women” to “gender” as a “progress narrative” within the academic domain of identity knowledges. Perhaps no work initiated this narrative shift more dramatically than Judith Butler’s Gender Trouble: Feminism and the Subversion of Identity (1990), published two years after SC. Armed with a deconstructive analysis of gender as “always a doing” and alert to how binary frameworks of sex and gender support heterosexist power, Butler initiated a crisis for theorists like Pateman by interrogating the very coherence of feminist appeals to the category of “women” as both a representational and “totalizing” subject (34, 8, 19). With its unapologetic invocation of “women as women” SC makes itself vulnerable to the progress narrative’s decisively di erent political aspriations and critical practices (231, 233). Four possible criticisms that could be (or have been) launched against SC from this new interpretive eld seem pertinent here. The rst goes to SC’s rejection of the term “gender” itself. This “now ubiquitous terminology,” as Pateman puts it, plays no part in the story of the sexual contract, notwithstanding its attention to the politics of “sexual di erence” (1988, 17, 16). Like Monique Wittig (1992, 77) who thinks that gender is the “linguistic index” of women’s domination under the heterosexual contract, Pateman declares: “To use the language of gender reinforces the language of the civil, the public, and the individual, language that depends on the repression of the sexual contract” (225). From this vantage point, “gender” obliterates “female” by marking a capriciously constructed de-sexed or bi-sexed body promulgated by contract’s mysti cation of the already and inevitably masculinized gure of the “individual as owner” (223). Consequently Pateman contends that “A human body, except through misfortunes of birth, is not male and female at the same time … although now … if dissatis ed with their ‘gender orientation’, men can become ‘transsexuals’ and turn themselves into simulacra of women” (223). With that decidedly retrograde vision of transsexuals as bad copies of heterosexual normalcy, Pateman also distances herself from the idea that the category of sexual di erence is itself inherently oppressive, resolutely holding onto the value of a non-oppressive “embodied feminine” intrinsic to a sexual binary relation between “two gures; one masculine, one feminine” (224). If the progress narrative were a baseball game, this would be strike one against SC’s compatibility with its appropriation of “gender” as a means to gure the subversion of binary identi cations. A second criticism that the new disciplinary regime might well level lies in SC’s assigning to sexual di erence an unmediated relation to nature. When the text invokes “women’s natural creativity” (88), “men’s and women’s natures,” “natural physiology and biology” (225), and “the two natural bodies of humankind that must inhabit the body politic” (226), it leaves little doubt that whatever the travesties of the sexual contract, sexual di erence is not itself a legal juridical construction, as the progress narrative has it, but an essential part of the structure of human subjectivity. The ethical dimension of this position leads Pateman to a

rm “the mutual autonomy of women and men” and “other forms of free agreement through

which women and men can constitute political relations” (232) as counters to the now existing “civil masculine world” that the logic of contract exposes (227). To translate this formulation into the language of “sexual di erence” feminism (think here of Luce Irigaray), all subjects are inherently male or female, not according to biology but rather as “sexuated” in a system of symbolic relationships beneath the social structure. This position seems to underwrite Pateman’s caution that “To ask whether sexual di erence is politically signi cant is to ask the wrong question: the question is always how the di erence is to be expressed” (226). Expressions of sexual di erence might change for the better under conditions of true freedom; but expressions of freedom can’t trouble the truth of sexual di erence. Strike two, at least

according to the progress narrative’s insistence upon subverting the tenacity of binary formulations that naturalize and reinforce (hetero)sexual dualism. Related to this is a third criticism: Because SC’s emancipatory scenario relies on the exposure of a naturalized logic of sexual di erence symbolically immunized from the disruptions of politics and history, it can appeal without di

culty to the “freedom of women as women,” (231, 233, 14, 16, 142, 187, 225, 227).

Moreover, the category of “women” can be constituted “outside the structure of oppositions” of contract and hence become the “caveat” for theorizing relations between the sexes in terms that appeal to “free relations” between them (231, 233). For feminist theorists working under the in uence of either social constructionist theories of gender, race, and class, or post-modern genealogies of sex and sexuality, these formulations carry the strong whi

of a categorical formalism born of an essentialist lamp (Hirschmann

1990; Snowiss 1990; Binion 1991; Zerilli 1989; Mou e 1993; Gatens 1996; Severance 2000). Strike three, according to the progress narrative’s well-rehearsed account of the failure of the “referential sign of women” and its displacement of the same (Wiegman 2012, 63). Finally, SC might be charged with failing to comprehend the political aspirations that travel disciplinarily not only from “women” to “gender” but also to the term that is central to distinctly queer approaches to the study of sexuality:“heteronormativity.” Under the gaze of the queer eye, the presumptive heterosexuality resolutely lurking beneath Pateman’s account of the sexual–social pact rockets into view. Remarking upon the “rigidity and normativity” of the man/woman distinction in SC, Jack Jackson (2013, 216) suggests that in Pateman’s scenario, “it’s not women as women” who are the impossible signatories to the original contract but rather “men who are not men, men who desire men.” Leaving aside Jackson’s own exclusion of lesbians from this picture, we can nonetheless see his critique exposing in Pateman’s text a repressed heteronormativity premised on an insu

ciently theorized assumption about the (hetero) not the (homo)

male’s desire for sexual access to women’s bodies. Thus the sexual contract occludes from view those “not men” who are wholly outside the law of a hetero male-sex right that creates the heterosexual contract. It’s just a short step from this queer theoretic critique to Robin Marasco’s (2013, 206) indictment that “lived experience tells very di erent and substantially more complex stories” about the “meanings and powers of sex” than SC can o er, partaking as it does “of the powers of [its own] founding ction.” At the heart of this ction, Marasco goes on to suggest, is Pateman’s misplaced commitment to the concept of “patriarchy”— and so we return to where SC itself began, with a critique of feminist “patriarchal confusions.” Only now the confusions belong to Pateman. Strike four.

A erword What’s striking about recent criticisms from the eld of the “progress narrative of gender” is the smoothness with which the logic of that narrative turns SC’s own exposure of sexual–social textual repressions back upon itself. In an “Afterword” to some of the aforementioned commentaries Pateman allows that SC is “swimming against the strong tide” of contemporary analytic practices, perhaps sensing the danger of its appearing to the purveyors of emergent itineraries as almost as hopelessly misguided as the feminist theories it found rife with confusions in 1989 (2008, 234). “The terms of feminist discourse must be drawn from new realities,” a critic tartly responds, giving credit to the new story’s exposure of the repressions, concealments, and exclusions that bedevil the old (Marasco 2013, 206). The conclusion that hovers here is that SC is now little more than an outdated artifact best consigned to the proverbial dustbin where “history” comes back to haunt Pateman’s text, exacting its triumph over “logic.” Before surrendering fully to that thought, however, here are some elements of SC that I think are worth holding onto: First, there is Pateman’s insistence that when it comes to the feminist interpretation of both classical and contemporary political theory texts we should remember that the construction of sexual

di erence upon which those texts may rely is always co-extensive with relations of power. Second, these relations of power are themselves inextricably bound up with shifting con gurations of masculine domination that sometimes overtly and often deviously get inscribed on the bodies of women, however that category of analysis might be interpreted and understood. Third, it is the task of political theory in both its historical and contemporary registers to stay alert to the ctions of “women,” “sex,” and “gender” that it may unwittingly be inclined to reinforce and legitimate in its various critical and interpretive endeavors. That Patemanesque position is especially important, I think, in a moment when feminist theory and its frequently maligned if not misbegotten “subject” are not only absent (as usual) from conventional interpretive regimes in political theory but also facing erasure from newly emergent ones. Let’s hope, then, that instead of becoming the sort of “classic” that is reverentially regarded yet gently removed from the topsy-turvy world of academic criticism, The Sexual Contract will remain subject to erce contestation on a variety of fronts, continuing to challenge the textual reality within which it participates, wherever and however it nds itself inscribed.

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Snowiss, Sharon. 1990. “Science, Rights, and Control of the Body—The Sexual Contract.” American Political Science Review 84(1): 272–274. Google Scholar WorldCat Wiegman, Robyn. 2012. Object Lessons. Durham and London: Duke University Press. Google Scholar Google Preview WorldCat COPAC Wittig, Monique. 1992. The Straight Mind and Other Essays. Boston: Beacon Press. Google Scholar Google Preview WorldCat COPAC Wright, Joanne H. 2004. Origin Stories in Political Thought: Discourses on Gender, Power, and Citizenship. Toronto: University of Toronto Press. Google Scholar Google Preview WorldCat COPAC Zerilli, Linda. 1989. “In the Beginning, Rape.” Womenʼs Review of Books 6: 6. Google Scholar WorldCat

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Phillip Pettit, Republicanism: A Theory of Freedom and Government  Elizabeth Beaumont https://doi.org/10.1093/oxfordhb/9780198717133.013.60 Published: 06 November 2017

Abstract Since the 1960s, political and legal thought has been in uenced by a republican revival. Philip Pettit’s Republicanism (1997) o ers the most ambitious philosophical contribution to this revival: a blueprint for constitutional governance and citizenship organized around a principle of freedom as nondomination. This chapter examines Pettit’s conception of freedom and e ort to recon gure republicanism into a more inclusive, egalitarian, and cosmopolitan theory. It then considers Republicanism’s in uence, and some criticisms and further inquiries the project invites, including the relation to liberalism, risks of state overreach, su

ciency of non-domination for freedom,

discounting of democratic participation, and limits of law and institutions. While these criticisms are potent, they do not diminish Pettit’s venture. Rather, they indicate the vigor of his neo-republican vision, and its role in expanding debate over the problem of domination and the ongoing challenges of addressing it through political institutions, law, and civic life.

Keywords: citizenship, civic participation, constitutionalism, contestation, democracy, freedom as nondomination, liberalism, populism, republicanism, rule of law Subject: Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Since the 1960s, dissatisfactions with liberalism have helped to inspire a “republican revival” that has identi ed alternate conceptions of freedom, citizenship, and law with roots extending back to classical 1

Rome.  Phillip Pettit’s Republicanism (1997) o ers the most ambitious philosophical contribution to this revival: a blueprint for constitutional governance and citizenship organized around a master principle of freedom as non-domination. This chapter examines Pettit’s conception of freedom and e ort to recon gure republicanism into a more inclusive, egalitarian, and cosmopolitan theory suited for pluralist societies. It then considers Republicanism’s extensive in uence and some criticisms and lines of further inquiry it invites. This sweeping account seeks to shift our understandings of and approaches to everything from issues of political legitimacy, to institutional design and rule of law, to self-governance, policy-

making, and civic norms. Thus, Pettit endeavors not merely to refashion republicanism, but the broader map of political debate and possibility. Indeed, Republicanism’s greatest contribution is not invigorating the republican tradition. Rather, the importance of this project results from drawing attention to domination in a broader array of political and legal thought, and shifting focus to the challenge of confronting domination through political institutions, law, and civic action.

Republican Redux: Pettitʼs Conception of Freedom as Non-Domination and its Historical Grounding Despite much ink spilled over liberty, Pettit believes most of us do not adequately understand it. This misunderstanding is not merely intellectual, but has pervasive political consequences, as it a ects the goals and expectations we set for institutions, laws, and civil society. Rede ning freedom as non-domination is the lynchpin of Pettit’s theory. It is his “ideal for all citizens” and guidepost for modern constitutional governance (viii–ix). Pettit’s task of identifying this principle begins by stepping into a long-standing debate over the meaning of liberty, and more modern debates over liberalism. Following Quentin Skinner’s general approach, he posits liberalism as the adversary, and locates an alternative and paramount ideal of freedom within the republican tradition: Freedom as non-domination (hereafter FND): freedom from actual and potential arbitrary 2

interference in one’s choices by another person or group.

FND is presented as a contrast to dueling notions of ancient and modern freedom suggested by Benjamin Constant (1819), and later reinterpreted by Isaiah Berlin (1958) into a dichotomy of negative and positive liberty: Negative freedom as non-interference: Freedom from constraint or absence of external obstacles to individual choices. (Modern and liberal) Positive freedom as self-mastery or self-governance: Freedom to exercise control over one’s life by participating in a self-governing community. (Ancient and populist) This dichotomy, argues Pettit, fundamentally misconstrues liberty. It encourages many contemporary thinkers, especially liberals, to mistakenly treat freedom merely as non-interference and to devalue democratic rule. It leads others, whom Pettit terms populists, to mistakenly treat freedom as political participation (18–19, 49–50). Moreover, proliferation of these views obscures FND as a superior and “radically di erent” third conception of freedom: one that recognizes that secure liberty requires nondomination and is only possible in a free state possessing institutions now associated with constitutional democracy. While Quentin Skinner laid the groundwork for FND through a detailed history of “republican negative” freedom, Pettit’s aim is to develop a more analytical and systematic account that can guide contemporary politics. Discussions of how dominating power precludes freedom appears in many in uential political theories, but 3

Pettit constructs a more general and precise conceptual framework. His account identi es domination as a phenomenon of power relations in which one person can exercise arbitrary power over another, a relation entailing three necessary conditions: 1. The capacity to interfere: the potential to exercise coercion of the body or will through restraint, punishment, manipulation, or rigging consequences of actions, even if this is not acted upon. 2. On an arbitrary basis: the capacity to make unchecked decisions or judgments without reference to the

agent’s relevant interests or opinions. 3. In certain choices that the agent could make, with the intention of worsening her choice situation: such as changing the range of alternatives or expected pay-o s, or controlling the outcomes (52–58). These are often joined by a fourth condition: common or intersubjective knowledge of the power inequality, such that the dominating party is aware of her control, and the dominated party is aware of her vulnerability (59–61). Although domination and interference often overlap and coincide, they are not the same and can diverge (22–24). These distinctions can be represented through a basic matrix (see Table 1). Table 1. Pettitʼs Contrast of Freedom as Non-Domination with Freedom as Non-Interference Interference

Non-interference

Domination

Bad under both ideals (e.g., slavery under a controlling master; subjects under a political tyrant)

Bad only under non-domination ideal (e.g., a slave with a non-interfering or absentee master; a wife whose life is controlled by her husband (such as Nora in Ibsenʼs A Dollʼs House); an employee who cannot complain against an employer; a welfare recipient vulnerable to the caprices of an administrative clerk)

Nondomination

Bad only under noninterference ideal (e.g., power of attorney; restraints emerging from a fair system of law)

Good under both ideals (i.e., being able to make choices with no coercion, hindrance, threat, or penalty because one is secured against the powerful or not at the mercy of another)

The paradigmatic example of domination is slavery, but Pettit delineates a range of power relations beyond the master–slave binary. His framework demonstrates that not all types of interference in our choices are necessarily or equally problematic for freedom, and that we can be dominated not only by political rulers, but by private actors. By grasping these relations, argues Pettit, we can recognize FND as a supreme ideal of civic liberty that promotes more expansive and resilient non-interference. Its goal is to secure us perpetually against even potential arbitrary whims of anyone with power over us, rather than leaving us vulnerable or needing to rely on luck, likeability, or cunning to avoid unwelcome interference (24–25). Thus, an alternate de nition of FND might be “durable security from arbitrary and interfering power from governmental or private actors.” This conception of freedom is neither new nor derived solely through philosophical conjecture, says Pettit. It is rooted in the republican tradition excavated by Skinner, J.G.A. Pocock, and other intellectual historians (7, 19, 27). Pettit identi es FND as an anti-slavery ideal that provides a “unifying theme” from ancient Rome to the American and French Revolutions, weaving from Cicero’s De re publica, to Machiavelli’s Discourses, to James Harrington and other English Whigs and Commonwealth men, to Montesquieu, Blackstone, and the Federalist (5, 19–20, 28–30). Such thinkers shared a preoccupation with the goal of being a free man that generated distinctly “republican” concerns free citizenship, free states, and good laws, including similar emphases on governing structures, checks and controls on public authority, cultivation of virtue, and avoidance of corruption (11, 31–41). But while the republican tradition is frequently seen as emphasizing citizens’ active participation in shared 4

rule, Pettit rejects this view of liberty (27, 30). He warns that such “populism,” as he views it, threatens simple majoritarianism and creation of arbitrary laws. Democratic control is essential for liberty, but it is entirely instrumental—only a set of tools or a means to the end of non-servitude (27–31). What

republicanism prioritizes is not the relation of liberty to civic participation, but the relation of liberty to law (35). In this intellectual history, the single central principle of FND gives rise to nearly all major ideals and institutions of constitutional democracy: rule of law, equal citizenship, representation, separation of powers, rotation in o

ce, and so on. Republicans then are deeply committed constitutionalists who believe

proper institutional arrangements are not only necessary for, but largely constitute citizens’ freedom by preventing government domination (37, 35). Moreover, in contrast to libertarian views that treat all government—no matter the form—as a necessary evil or interference, or Hobbesian views that freedom exists in the “silence of law,” republicans’ liberty is not freedom from law but freedom through good, nondominating law. According to this view, legitimate systems of law must be designed to prevent two di erent types of domination, arbitrary power exercised by the state (imperium) and by private individuals (dominium) (36). Pursuing this type of rule of law entails several conditions. These include attempting a type of “impartiality” in and through law, or trying to prevent law from promoting any individual’s or group’s arbitrary interests or will, including those with in uential positions or resources. Another involves trying to ensure that law re ects people’s common interests or is responsive, such that the law-making body “answers systematically to people’s general interests and ideas” or “is controlled by the interests and opinions of those a ected, being required to serve those interests in a way that conforms with those opinions” (35). Thus, in Pettit’s retracing, constructing an empire of law is the foremost solution to domination, and the lessons gleaned from the republican tradition are lessons in the principles and structures of modern constitutionalism. This concept of liberty prevailed until the late seventeenth century, says Pettit, but began to be “usurped” after the English Civil War. While FND inspired republican revolutionaries and constitutionalists in England, America, and France, liberty as non-interference was advanced by authoritarians, monarchists, and reactionaries, such as Thomas Hobbes, Sir Robert Filmer, and eighteenth-century Tories. Later, utilitarians and liberals such as Jeremy Bentham, John Stuart Mill, and Isaiah Berlin gave the awed idea of liberty as non-interference modern respectability and encouraged its adoption (21, 41–50). Pettit hopes to reverse this unfortunate trend.

The Case for Non-Domination as a “Supreme Political Value” for a “Commanding Political Philosophy” Pettit’s primary goal is to use the excavated ideal of non-domination to construct a “commanding political philosophy”: a neo-republican theory to guide a “modern, pluralistic state” (viii, 11, 96–97, 103). How does he hope to persuade us? Pettit o ers what can be seen as a type of Dworkinian (1986) algorithm of “historical t plus rational justi cation.” His historical survey suggests that FND “ ts” with important constitutional developments in the Western, especially Anglo-American, tradition. But Pettit urges that the more forceful argument is that FND is an appealing ideal on its own terms. Even if one does not care about the republican tradition—or faults Pettit’s version of it—one can still nd FND logically coherent and politically attractive. Along this track, Pettit argues that everyone should seek FND because it re ects a “deep and universal human desire for standing and dignity,” expands the scope of undominated choices, and provides a model for “what a decent state and a decent civil society should do for its members” (81, 6). In developing these views, Pettit seeks to adapt modern republicanism into a more inclusive, egalitarian, and cosmopolitan theory.

FND’s main advantage over its competitor, liberty as non-interference, is providing a broader “sphere of uninterfered with choice” or more expansive and resilient non-interference by reducing the fear, uncertainty, or strategic deference arising from subordination (83, 89–92). In addition, republican freedom is a more synergistic ideal: it involves “intrinsic” connections among liberty, equality, and community or fraternity (89–92). Among these, FND particularly fosters equal citizenship by countering unequal, arbitrary, and harmful power relations. For FND recognizes what many critical theorists and social activists have argued—that domination is not only exercised by political tyrants. Rather, it can arise in any circumstances when there are unequal resources between parties, including asymmetries related to “physical strength, technical advantage, nancial clout, political authority, social connections, communal 5

standing, informational access, ideological position, cultural legitimation, and the like” (59).

As a result, FND identi es domination as a condition of unfreedom and inequality that can occur in a wide range of relations and settings. This includes the vulnerability and subjection created when governments can mistreat minorities or marginalized groups, husbands can beat wives with impunity, parents can abuse children, employers can re employees on a whim, teachers can chastise pupils for any reason, prison wardens can abuse inmates, bureaucrats can exercise power without appeal or review, and police can abuse arrestees or suspected criminals (57, 61). By recognizing these as problems of unfreedom, FND identi es them as political problems governments should help address. Thus, a key bene t of republican freedom is that it transcends the strict public/private divide found in narrow views of liberalism. It is distinctly attuned to addressing domination in realms that have historically been treated as areas of private relations or individual discretion, as well as domination by the state. Preventing domination also advances a psychology or ethos of free and equal citizenship associated with the republican tradition: feelings of independence, equal standing, and security. Pettit describes this spirit as the idea that you do not need to live in fear of, or deference to others, but have “the capacity to stand eye to eye with your fellow citizens, in a shared awareness that none of you has a power of arbitrary interference over another” (5, 71–72). When states promote non-domination, they also promote equal status by creating new common knowledge, self-images, and intersubjective statuses of civic equality. To further justify FND, Pettit identi es it as a “neutral political ideal” that di erent groups and subcultures can nd legitimate. This is broadly analogous to John Rawls’s (1993) defense of political liberalism: republican freedom o ers a pluralist and “big tent” theory capable of allegiance from people with a range of political values, including liberals, communitarians, populists, and some conservatives, as well as those with more progressive or egalitarian stances (6, 11, 126). Finally, FND is not a merely abstract concept or matter of ideal theory, but involves pragmatic and “consequentialist” dimensions and can be applied to concrete problems. It is a goal to be maximized by the state, one that can be adapted to di erent circumstances and re ned through study and experience (97–98, 100–101). This commitment can be used as a public yardstick for measuring progress and evaluating and reforming institutions and policies, enabling a type of Rawlsian “re exive equilibrium” in political communities (102–106, see also 169–170; see Rawls 1971). Although Pettit promotes FND as a rationally compelling ideal, he acknowledges several criticisms lodged by William Paley in the nineteenth century. These include charges that it is really only a means to the end of 6

liberty as non-interference, fetishizes institutions, and is “too hard” for the state because it will create too many demands and increase social radicalism and complaints. Pettit brie y dismisses these, but suggests the last concern is the most serious. He describes his account as a response to it: “an argument in favour, precisely, of being more radical in relation to policy, less skeptical in regard to the state” (78).

An Empire of Law: Pettitʼs Ambitions for Modern Constitutional Governance and Citizenship Pursuing republican freedom, Pettit believes, can transform modern constitutional governance and citizenship, o ering a “new vision of what public life might be” (129–130). But FND does not point toward a single, prototypical political society. Rather, it provides broad guidelines for designing and evaluating governing institutions and policies, construing popular participation, and suggesting civic norms.

Neo-republican Constitutional Design: Legitimate Power and Constraint Since FND furnishes the legitimacy of constitutional governance, it should inform institutional design and operation at all levels. He identi es three types of necessary constraints or limits on the will of powerful o

cials and interests. All are prominent elements of modern constitutional thought—and most are also

concomitants of liberalism. First, an empire of law condition, similar to the ideal of rule of law: laws must be general, applying to all (including legislators); promulgated in advance, not “ex post facto;” relatively consistent and stable; and not ad hoc or particularistic (174). Second, a dispersion of powers condition: to divide or fracture power amongst di erent parties. This should include the conventional separation of powers among legislative, executive, and judicial functions, as well as other divisions, such as bicameralism, federalism, and decentralization. Third, a countermajoritarian constraint condition, including bills of rights or requiring super-majorities for constitutional amendments, that will protect all from living at the electoral mercy of majorities (181). A further necessity is a jurisprudence or version of judicial review in which the fairness of law is evaluated by the criterion of FND rather than majority support. In addition, Pettit encourages two types of institutional checks to constrain and guide the power of government agents: sanctions (incentives and penalties) and screens, which operate by determining which agents make choices, and which choices agents may make (213–230).

Democratic Contestability as the Crux of Popular Participation Pettit’s treatment of civic participation diverges from mainstream constitutional and democratic thought, and from other civic republicans. The popular counterpart to his institutional arrangements is permanent 7

democratic contestability of all government decisions. Since no legal system can be perfect, this type of participation is crucial for preventing domination. Traditionally, mechanisms of consent, particularly elections, were associated with ensuring that public decision-making would track the “the interests and ideas of those citizens whom it a ects,” and engender a sense of civic authorship or identi cation with the law (184). But Pettit believes explicit individual consent is an inaccessible ideal, while tacit consent is largely empty. So, in his model contestability takes the place usually given to consent; what is of primary importance is not that the government does what the people tells it, but … the people can always contest whatever it is that government does (ix, 63). Thus, neo-republican participation is overwhelmingly reactive. Rather than seeing any particular need or bene t for active and widespread “front-end” input or ongoing civic contribution to governmental decision-making, or emphasizing the role of representation, Pettit suggests that most citizens “may run on automatic pilot most of the time,” allowing much public decision-making to remain insulated and go unexamined. Citizens’ self-rule consists primarily in the fact that any of them could choose to “voice their complaints and to contest the interference of the authority in their a airs” (68).

In this model, contestation is crucial not because “the people” are supreme or there is a majoritarian or popular will that should be respected. Rather, these processes are “designed to let the requirements of reason materialize and impose themselves” and to serve as a testing ground for law. Public contestation promotes evolutionary improvement of law, since only the “ ttest”—the most reasonable and least dominating—laws will survive, and all standing laws will ostensibly “enjoy the best sort of proof available” that they are legitimate (201, 253). Pettit’s democratic contestability entails three preconditions. First, deliberation: use of processes of debate, dialogue, and public reason (see, e.g., Habermas 1992; Sunstein 1993). Second, inclusion, such that a full range of voices and social perspectives can be heard and taken into account (see Young 1990; Phillips 1995). This condition may involve approaches such as party quotas, legislative seats designated for indigenous populations, compulsory voting, and minimum statistical representation of major stakeholder groups in administrative and judicial bodies (191–192). It may also necessitate campaign nance reform and regulations on campaign advertising. The third precondition, responsiveness, means a range of fora exist for hearing and responding to contestation. Although republics must be open to sweeping protests and social movements, Pettit considers it equally important to have systematic procedures for more routine, small-scale contestation, such as complaints against courts, police, or bureaucracy. He agrees with Stephen Holmes that in many cases, such as criminal justice, contestation best occurs through a “quiet,” more professionalized arena, not public fora (196–197). Of course, not everyone who contests policies will “win” or come away satis ed. Governing o

cials should

reject contestatory views, says Pettit, when their best understanding of public interest outweighs them, and use of inclusive and fair decision-making procedures can help alleviate disappointment. However, in cases of particularly deep or intensely personal concerns—such as con icts involving indigenous peoples or minority religions—Pettit suggests government can avoid domination only by permitting group secession or allowing dissenters to claim special accommodation or exemption under law (198–200). One important implication of Pettit’s emphasis on democratic contestability is that the speci c policies and institutional features adopted in a modern republic are not predetermined or xed, but can be continually revised with input from public debate and reasoning (201). At the same time, if FND remains paramount, ongoing contestation will not be destabilizing. It will generate a relatively steady “constitutionalist, democratic republic” that curbs the role of arbitrary will in governance and avoids see-sawing between di erent majority coalitions (231–233).

Neo-republican Civil Society and Civic Norms Ancient republicans insisted that free states require support of distinct civic virtues (241, 245; see, e.g., Dagger 1997). Pettit agrees that “laws must be embedded in a network of norms,” but his views of civil society and citizenship diverge from earlier republicans (241). Several somewhat contrasting civic norms must undergird modern republics. On the one hand, legal support and obedience are necessary for reliable enjoyment of non-domination. In addition, wellfunctioning republican institutions require a sense of civic identity and widespread trust, such as discussed in Robert Putnam’s work on social capital (Putnam, Leonardi, and Nenetti 1993). Yet norms of civic complaint, protest, and distrust are also needed to support democratic contestability and articulate new legal causes. These norms may operate as a “politics of common concern” (which Pettit associates with the environmental movement) or a “politics of di erence” (which Pettit associates with movements for issues facing women, racial and ethnic minorities, homosexuals, prisoners, consumers, and so on). Habits of “eternal vigilance” are also necessary for implementing legal sanctions. For instance, even when laws

prohibit police corruption or environmental pollution, citizen whistleblowers and watchdogs must identify harms (250). Pettit suggests that all of these norms can operate in a healthy equilibrium. Modern republics will not be overly divided or individualistic, but will possess a freedom-sustaining balance between civic attachment and trust, on the one hand, and democratic protest and political/institutional distrust on the other (266– 269). However, he believes it is di

cult for societies to promote such norms where they are lacking.

Moreover, breaking from much republicanism, Pettit sees no important role for education (253, see, for contrast, Dagger 1997). Rather, he suggests that an “intangible hand” can generate civic norms. Loosely akin to the invisible hand mechanism associated with Adam Smith, the intangible hand will lead individuals to respond to social messages of approval and disapproval, such as honor and shame (226–228, 255). Thus, Pettit’s neo-republican civil society will be sustained through a “civic market” or an economy of civic 8

norms.

Policy Aims and Considerations Promoting even enjoyment of republican freedom requires using central constitutional authority and state power (92–97). But how should the state pursue FND? Although this conceptual apparatus emerged from elites long ago, Pettit believes it o ers a exible lingua franca through which people from all stations can express grievances and goals (131–133). Moreover, republican freedom is not xed to a particular agenda, but can engender a range of laws and policies, from more conservative concerns such as private property, to more progressive concerns such as environmentalism, feminism, social welfare, and multiculturalism (135–147). Although Pettit suggests indeterminacy on many issues, he indicates some types of policies neorepublicans might develop regarding external defense, internal protection, personal independence, economic prosperity, and public life. These depart from older republican models. Take his discussion of “external defense.” While classical republicanism is associated with military aggressiveness and vigilant political independence Pettit believes modern republics will learn historical lessons cautioning against such 9

behavior (151). They will be peaceful, cosmopolitan, and willing to share power. Thus, they are likely to join regional or international networks for cooperation and coordination, and cede some internal decisionmaking to multinational bodies or adjudicators that can be “impartial arbiters” or counter local factional interests on issues such as environmental development or rights for homosexuals or women (152–153). Nor will modern republics be highly exclusionary or xenophobic, as their predecessors were, although they may limit immigration to sustain their “republican character.” Pettit’s discussion of other policy areas, too, moves modern republicanism from its past. This includes arguments for dramatically revamping criminal laws and justice; creating a welfare system that ensures personal or socio-economic independence; using tax revenue to support public spaces; prohibiting media monopolies and providing subsidies to support an unbiased, pluralist media (154–169). Neo-republicans will likely di er from narrow liberals in favoring such policies, Pettit argues, because they are “less skeptical of the possibility of state intervention, and more radical in their view of the social ills that the state ought to rectify” (148–149). Despite this, Pettit also suggests they could adopt more minimalist, libertarian, or neoliberal policies, such as limited welfare, if empirical evidence indicated that this would better secure non-domination (149–150). More generally, he suggests modern republics will lean toward middle of the road policies, “moderate” state responsibilities, and limited government. And they will largely accept free markets, even though they may regulate some key areas, such as employment law (164, 203). Ultimately, then, neo-republicans seem unlikely to adopt policies that greatly diverge from middle to leftof-center liberalism.

Lines of Influence, Criticism, and Further Inquiry Republicanism is profoundly in uential: it holds “a leading status in political science and redesigned the geography of political studies” (Urbinati 2012, 607). The current revival in republican political theory is attributed to the ideas collected in this book, yet arguably this revival is not its most signi cant contribution (Laborde and Maynor 2008, 4). Rather, its importance results from provoking attention to domination in a wider range of contemporary political and legal study, and sparking debate over the challenges of confronting domination through political institutions, civic action, and concrete laws and policies. Before Pettit, domination was a central concern for Marxists and critical theorists, but it was not viewed as recurring leitmotif in the Western political tradition, not associated with republicanism, and not treated as a 10

primary concept or problem in mainstream political and legal thought.

 Republicanism changed this.

For two decades, Pettit’s theory of freedom has in uenced a broad array of work. This includes not only scholarship on republicanism and liberalism (Viroli 2001; Bellamy 2007; Kalvyas and Katznelson 2008), but also work on justice and democracy (Shapiro 1999; Lovett 2010), historical thinkers such as Hegel (Bohman 2010), studies of capitalism and market theories (MacGilvray 2011; White 2011), public health and health policy (Powers and Faden 2006), feminism and gender subordination (Phillips 2000; Costa 2012), religious pluralism (Laborde 2009), African American political thought and racial oppression (Gooding-Williams 2010; Roberts 2015), and legal theory, including work on constitutional, criminal, and international law (Eskridge and Ferejohn 2010, Ashworth, Zedner, and Tomlin 2013; Besson and Marti 2009). Beyond this, Pettit’s neo-republicanism signi cantly in uenced the reformist “New Way” platform developed by Spanish Prime Minister Jose Luis Rodriguez Zapatero (Marti and Pettit 2010). Republicanism has also invited several major lines of criticism and questions for further inquiry. First is the relation between neo-republicanism and liberalism, and between FND and liberty as non-interference: Is there a meaningful distinction between them, and what’s at stake? In Shakespearean terms, many nd that Pettit ‘doth protest too much’ on both the distinguishability and superiority of his republican theory, and his ideal of FND vis-à-vis liberty as non-interference. It can seem that Pettit caricatures and foreshortens liberalism, claims too much for the republican tradition, and cannot sustain the distinctive superiority he attributes to FND and neo-republicanism. 11

Various scholars show how the republican tradition, particularly Pettit’s account, overlaps with liberalism. In addition, as Charles Larmore (2001) and Richard Dagger (2000) note, few liberals embrace Pettit’s

narrow rendition of liberty. Not even Isaiah Berlin and John Locke, quintessential liberals, advocated purely negative conceptions of liberty as non-interference. As Larmore points out, Pettit’s republican tradition is constructed through questionable moves such as pulling Locke toward the republican pole and making Hobbes a leading spokesman for liberalism (2001, 40). Pettit further blurs the lines by adopting key liberal views to make neo-republicanism more inclusive and egalitarian. Others view FND as an extension of liberal freedom, or di ering little from egalitarian liberalism (see, e.g., Christman 1998; Carter 2000). Pettit himself seems to have conceded that his theory may be described as a hybrid, or “liberal republicanism,” yet he insists that FND o ers distinctive contributions (Pettit 2000). A second strand of criticism emerges from those with more libertarian or classical liberal concerns. Does neo-republicanism risk unrestrained government or state overreach? Some critics want to better protect free markets (see, e.g., Gaus 2003, 68–69). Others fear more broadly that Pettit’s theory enables excessive paternalistic state intervention and compulsion, permitting government to override individuals’ selfperceived interests (Brennan and Lomasky 2006, 240–242).

A third line of queries is whether neo-republicanism can be dissociated from antiquated or unappealing aspects of traditional republicanism. Pettit strips many of the “darker” republican elements from his model, such as tendencies toward patriarchy and militarism (see, e.g., Phillips 2000; Goodin 2003). But republicanism is also linked to paternalism and elitism, not only by excluding most ordinary people from co-rule, but also by valorizing great Princes and Senators and their capacities for wise law-making (Kapust 2004; see also Herzog 1986, 482–490). Although Pettit believes neo-republicanism rejects elitism, he seems to sustain it by favoring relatively independent decision-making by o

cials and experts (96;

McCormick 2003). A fourth area of inquiry is whether FND is an adequate ideal for guiding a modern polity and addressing domination. Patchen Markell (2008) and James Tully (2005), for instance, argue that broader, more complex understandings of agency, self-determination, or civic freedom are needed to confront problems such as imperialism and slavery (see also Bellamy 2007). Cecile Laborde further suggests that while Pettit’s conceptualization may have been suited for seventeenth- and eighteenth-century conditions, it is not well equipped—and no more su

cient than liberalism—to address more modern forms of domination (Laborde

2013, 279). For others, neo-republicanism seems unable to recognize or respond to more systemic or structural forms of domination, particularly economic domination (Thompson 2013). Many modern thinkers before Pettit incisively critiqued particular systems domination—including economic, colonial, 12

racial, scienti c, and sexual domination—but he does not grapple extensively with these problems.

His

theory remains at a high level of generality, and suggests that all types of domination can be addressed through his prescriptions for FND. A nal crucial query regards the role of democracy and law in neo-republicanism. Pettit’s skepticism toward civic participation and his faith in impartial rule of law and institutions leads him to discount selfgovernance and undermine the democratic potential of republicanism (Bellamy 2007). Even though Pettit recognizes problems with Berlin’s characterization of positive freedom, he rejects “proactive” selfgovernance or what he terms “populism” due to fear of majority tyranny. The result, as Urbinati (2009) suggests, is an “empire of law” that seems designed to be somewhat “depoliticized” or even “anti-democratic,” to the extent that Pettit wants public o

cials and governing

institutions to remain largely isolated from popular will and substantive “front-end” in uence on lawmaking. Democratic dissent is crucial for freedom. Yet Pettit’s suggestion that self-rule consists primarily in potential for ex post contestation is troubling. It erodes the value of democratic participation, diminishes the goal of representative institutions, and creates a governor-governed structure. It also suggests that lack of protest conveys tacit approval, and that maintaining laws demonstrates their reasonableness. Athenian ideals of intensive, direct political participation are clearly implausible in the present, but Pettit takes modern republicanism too far in the opposite direction. His more recent work seems to have responded to such criticisms. His collection On the People’s Terms (2012), for instance, maintains the antiRousseauian character of his theory of freedom, but suggests more space for popular in uence. These questions and criticisms present continuing challenges for neo-republicanism, particularly how to address problems of domination and how to support democratic self-governance. They do not, however, diminish Pettit’s project. Rather, they indicate the remarkable alacrity of his vision, and encourage further debate over freedom as non-domination not merely as an ideal precept, but as a concrete political goal.

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Notes 1

Scholars associated with this revival include Arendt (1958, 1963); Pocock (1975); Skinner (1990); Michelman (1986); Viroli (1995); Sandel (1996); and Sunstein (1988).

2

See, e.g., Skinner (1990, 1998). There are some distinctions between Pettitʼs FND and Skinnerʼs third republican ideal of non-dependence and non-coercion, but they largely overlap.

3

Aristotle, Augustine, Montaigne, Hegel, Marx, and Locke all discuss domination, especially slavery, as do emblematic republicans such as Machiavelli and Harrington.

4

Pettitʼs prime target is Rousseau and his “full populist” view of positive liberty (30). But Pettit does not consider more moderate or pluralist versions of participatory republicanism, such as Arendt (1958, 1963); Wood (1991); or Sunstein (1998).

5

Pettit cites Lukes (1974) and Young (1990), but critiques of domination are central to several schools of thought, including feminists, Hegelians, Marxists, the Frankfurt school, Gramscians, Foucauldians, critical race theorists, and critical theorists more broadly.

6

Ferejohn (2001) and Goodin (2003) similarly question whether FND is actually a “security” goal or supplement to noninterference.

7

Democratic theorist Robert Dahl (1956) emphasized contestation, but elections remain paramount in influential work such as Riker 1982.

8

See, relatedly, Brennan and Pettitʼs (2004) notion of an “Economy of Esteem.”

9

See, e.g., Goodin 2003; Machiavelli 1996 [1517].

10

However, see notes 5 and 10 on long-standing attention to domination in more radical and critical schools of thought.

11

See, e.g., Isaac 1988; Dagger 1997; Kalvyas and Katznelson 2008.

12

Prominent critiques of domination include, for instance, Horkheimer and Adorno (1947); Beauvoir (1949); Fanon (1961); Foucault (1980); Scott (1990), and Mills (1997).

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Hanna Pitkin, The Concept of Representation  Suzanne Dovi https://doi.org/10.1093/oxfordhb/9780198717133.013.24 Published: 10 December 2015

Abstract This chapter reviews Hanna Pitkin’s seminal book, The Concept of Representation, her most important and lasting contribution to political philosophy. Using Ludwig Wittgenstein’s ordinary-language theory, Pitkin explores the semantic landscape and the etymology of the concept of representation. In particular, she expounds on the meaning of representation by proposing four di erent views of representation: formalistic representation, descriptive representation, symbolic representation, and substantive representation. This chapter discusses Pitkin’s arguments, with particular emphasis on her assertion that representation is a paradox and that genuine representation respects the autonomy of the represented and the representative. It also considers the limitations of The Concept of Representation, such as its failure to adequately examine the relationship between democracy and representation.

Keywords: The Concept of Representation, Hanna Pitkin, political philosophy, Ludwig Wittgenstein, ordinary-language theory, representation, autonomy, democracy Subject: Comparative Politics, Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Hanna Pitkin’s brilliance is in her meticulous and methodical attention to the underlying structure and meaning of political concepts. She excavates past meanings, traces their etymological development, and surveys the terrain of contemporary usages, not to solve political problems, but to uncover and understand the tensions and paradoxes that constitute political life. Pitkin systemically presents the language through which humans describe, understand, and evaluate political behavior in order to show how people can have di erent and contradictory aims. Her work also highlights the costs for pursuing any one aim in a singular fashion. In this way, Pitkin’s work provides a conceptual roadmap for navigating the vast and puzzling nature of political ideas. By far, Hanna Pitkin’s most important and lasting contribution to political philosophy is The Concept of Representation. Using Ludwig Wittgenstein’s ordinary-language theory, this seminal book sketches the semantic landscape and the etymology of the concept of representation. Pitkin details how a map can

“represent” a local topography, an actor can “represent” Hamlet, an attorney can “represent” a litigant, and a senator can “represent” her constituents. Despite these seemingly disparate usages, Pitkin identi es a common meaning: Representation is “the making present of something which is nevertheless not literally present” (143). Notice the paradox: representation requires both being present and being not present. Pitkin traces this paradox throughout various usages of representation. For instance, this paradox is most apparent in the activity of representation: representatives should be responsive to their constituents’ preferences (constituents’ preferences present) and act independently in accordance with their constituents’ best interests (constituents’ preferences not present). Her paradoxical approach to representation focuses on whether the autonomy of both the represented and the representative is being preserved. Pitkin maintains that genuine representation requires both. For this reason, Pitkin does not try to reconcile these paradoxical features of representation; rather, she illuminates these contradictions in order to reduce misunderstandings. For Pitkin, political life entails many paradoxical and contradictory commitments. An important task of political theory is to help humans identify and clarify these paradoxes. The Concept of Representation usefully catalogues the vocabulary used to describe, explicate, and assess electoral behavior. Furthermore, Pitkin’s insistence that the meaning of representation depends on its usage enables her analysis to apply to political behavior beyond elections: Pitkin’s catalogue can pertain to non-state actors such as international, transnational, and non-governmental organizations as well as to courts, interest groups, lobbyists, and social movements. As the meaning of representation has become inextricably tied to modern notions of democracy, the signi cance of Pitkin’s analysis has grown. Her work lays out the underlying schematic foundation of democratic representative institutions and practices. Pitkin’s contribution is enduring because it can accommodate changing political practices and thereby incorporate the evolving meanings of representation. Pitkin’s assertions, that representation is a paradox and that genuine representation respects the autonomy of the represented and the representative, provide grounds for criticizing di erent forms of governance such as illiberal democracies (Zakaria 1997) and hybrid regimes (Diamond 2002). After all, in her discussion of how kings can be representatives and how the Soviet Union holds elections, Pitkin recognizes that representative institutions can increase the legitimacy of tyrants and serve undemocratic purposes. Her paradoxical understanding of representation, though, o ers reasons for criticizing even the deliberative turns of authoritarian regimes, for example, China, if deliberations on the local level do not translate into su

cient capacities to act on the central level (He and Warren 2011).

Furthermore, Pitkin’s etymological analysis of fascist forms of representation holds implicit warnings to those who want to eliminate the paradoxical nature of representation: Representation can become mere authority, when representative institutions suppress the autonomy of the represented. Even the responsiveness of representatives to citizens’ preferences can be used as a form of control. In this way, Pitkin’s schematic understanding of representation provides reasons for criticizing and even rejecting certain representative practices. That said, Pitkin recognizes that there are multiple ways to negotiate the contradictory standards for representation. For her, the activity of representation is necessarily pluralist. Because genuine representation requires representatives to act independently and in a manner responsive to the represented, representatives can balance these competing standards in di erent acceptable ways. For this reason, Pitkin holds that appropriate standards for evaluating representation will depend importantly on the nature of interests, welfare, and wishes of the represented, the relative capacities of representative and constituents, and the nature of the issues with which the representative must deal (210). In this way, Pitkin recommends shifting the theoretical attention away from general questions such as “how should an individual represent?” to questions focused on how a particular individual should act in a particular institutional and political context.

So to understand democratic representation using Pitkin’s approach, one needs to ask the following 1

questions: What are the appropriate standards for democratic representation? What are the interests of democratic citizens that should guide and constrain their representatives’ behavior? Do representatives and their constituents have the necessary capacities for democratic representation? What is the nature of the issues facing democratic representatives and their constituents? While her theoretical framework recommends asking certain questions, Pitkin does not provide answers to them. For instance, Pitkin never adequately speci es how we are to identify constituents’ objective interests. At times, she implies that constituents should have “some say” in what these are. However, she recognizes that trustees will sometimes need to advance constituents’ interests by going against their preferences. For Pitkin, representatives who do so must only provide justi cations for their actions. It is unclear, though, how or whether “genuine” representative processes should guarantee or require representatives to give such explanations. Perhaps it follows that transparency should be understood as an “objective interest” of democratic citizens, but Pitkin does not elaborate. Instead, Pitkin concludes with the somewhat unsatisfying formulation that representatives “must not be found persistently at odds with the wishes of the represented without good reason in terms of their interest, without a good explanation of why their wishes are not in accord with their interest”(210). By qualifying her position with the word “persistently,” Pitkin suggests it is only the frequency of decisions contrary to constituents’ preferences without adequate explanation that prevents genuine representation. In this way, Pitkin’s general theoretical approach to evaluating representatives thwarts making particular evaluations. Pitkin does not provide absolute principles that should be used as benchmarks for evaluating a representative’s performance; rather, she o ers guidelines about which kinds of questions we should pursue. And for Pitkin, answers to political problems depend in large part on the kind of question being asked. For example, Pitkin (1965, 1966) saw the “problem of political obligation” and of whether citizens should obey the law as arising from four di erent clusters of questions. The rst cluster, which she calls “the limits of obligation,” considers “when is a person obligated to obey and when not?” This cluster seeks to establish the conditions that necessitate an obligation. The second cluster focuses on “the locus of sovereignty”— that is, the question of “whom are you obligated to obey?” This recognizes that the state is not a monolithic structure; rather, the public sphere can produce various con icting obligations. The third cluster examines the di erence between legitimate authority and mere coercion. In other words, some questions about political obligation are really about the proper use of force. The nal cluster investigates the justi cations of obligation: “Why are you ever obligated to obey even a legitimate authority?” Pitkin argues that these various clusters of questions generate distinct and sometimes incompatible answers. An answer to the question “whom you should obey” will not provide a satisfactory solution to the question “why should you obey a legitimate authority?” Similarly, a question “why should you obey a legitimate authority” will not inform you how you should di erentiate a legitimate authority from mere coercion. Given the di erent issues implicit in the problem of political obligation, answers to the question “should a person obey the law” will depends in a large part which cluster of questions is being stressed (1965, 990). In addition to revealing the need to clarify political questions, Pitkin catalogues the vocabulary with which we investigate and assess representative processes and practices within democracies. Two things strike me as remarkable about using Pitkin’s analysis of representation as the schematic foundation for understanding democratic representation. First, The Concept of Representation never adequately examines the relationship between democracy and representation. The relationship is presumed, not explicated. In fact, as mentioned before, her discussion of representation includes analysis of non-democratic forms of governance. Pitkin notes that “every government claims to represent,” implying that representation is not an exclusively democratic practice. Moreover, she stresses that through much of human history, “both the concept and the practice of representation have had little to do with democracy or liberty” (2). For instance,

Pitkin depicts representation as initially a burden placed on aristocrats by the king as an e

cient way to

collect taxes. Aristocrats were appointed as the king’s delegates. However, the institutionalization of these delegates created a political body that could eventually resist the king’s power. With this institutional transformation, representation became a matter of rights, as opposed to merely a burden. In her later years, Pitkin admitted that The Concept of Representation took the relationship between democracy and representation “for granted as unproblematic.” Pitkin explained that “Like most people even today, I more or less equated democracy with representation or at least with representative government” (2004, 336). Here she acknowledges how contemporary understandings of a political concept can bias theoretical and conceptual analysis. Pitkin goes on to say that the con ation of democracy and representation is “profoundly misleading,” for it obscures the way “that representation increasingly supplants democracy instead of serving it” (2004, 339). Here Pitkin raises an interesting question about whether democracy can be adequately protected by a political representation that is only intermittently bolstered by citizen participation, deliberation, and enforcement of human and constitutional rights (Castiglione 2012). Pitkin remains suspicious of the elitist nature of representation. Second, her theoretical contribution to assessing representative processes in democracies is remarkable given her claim that the concept of representation is, and will always be, a paradox. Satisfying the criteria of representation demanded by one meaning of representation requires violating the criteria required by other meanings. Paradoxes might be descriptively accurate, capturing complexities and contradictions generated by various usages of the term; however, their explanatory power is limited to the degree that they ascribe multiple interpretations to the same phenomena. How does one argue with, let alone refute, a paradox? Pitkin sketches the paradoxical terrain of representation with little advice about how to navigate the normative complexities and ambiguities of representation. In the end, Pitkin requires her readers to use their own judgment for assessing the compromises and bargaining that constitute and accompany representative processes.

The Landscape of Representation How did Pitkin sketch and catalogue the various contradictory meanings of representation? She famously captures the enigmatic nature of representation in a metaphor. She envisions the concept of representation as “a rather complicated, convoluted, three-dimensional structure in the middle of a dark enclosure.” Political theorists provide only “ ash-bulb photographs of the structure taken from di erent angles” (10). In other words, political theorists approach the concept of representation with necessarily limited and partial perspectives. According to Pitkin’s metaphor, political theorists are unable to “see” simultaneously the whole underlying structure of representation. What Pitkin’s metaphor does not stress, though, is how her understanding of “language as action” suggests that the three-dimensional structure can shift, grow, or shrink with common usages. In particular, Pitkin clari es the meaning of representation by di erentiating four di erent views of representation. They are formalistic representation, descriptive representation, symbolic representation, and substantive representation. Each view highlights distinctive features of representation and thereby di erent parameters for identifying and evaluating representation. For instance, formalistic representation examines the process of authorization and accountability. Formalistic representation considers how a representative comes to obtain his standing, status, position, or o

ce, as

well as the institutional mechanisms that encourage responsiveness to the represented. According to this view, institutional procedures, rules, and norms structure the actions of a representative. They determine how a representative can and does act. Using this view of representation, a person becomes a representative

simply in virtue of having a certain job title or o

ce. The formalistic view emphasizes the institutional

procedures by which an agent acquires the authority to act. Interestingly, Pitkin denies that formalistic representation provides any standards for assessing the actions of a representative. Formalistic representation is a kind of normative black hole. A person either has the authority to act or she does not. Of course, one can assess a representative by whether her authority was legitimately obtained or whether she exceeded her legitimate authority. But Pitkin denies that formalistic representation provides any standards for assessing how well a representative behaves. Formalistic representation is a “transaction that takes place at the outset, before the actual representing begins” (39). In this way, Pitkin downplays the ways that representatives can alter and expand their institutional authority. Consequently, her analysis does not provide any standards for assessing violations of accountability, let alone for manipulating authorization devices. Ironically, the view of representation most closely tied to accountability o ers no ethical criteria for judging the performance of the representative. Pitkin’s second view of representation, descriptive representation, focuses on the resemblance or correspondence between the representative and the represented. Of course, what should correspond can vary: Descriptive representation can focus on whether representatives’ experiences, identities, perspectives, and interests are similar to those of the represented. It is, as Anne Phillips famously described, focused on “a politics of presence” that examines who is literally participating in political processes. So, descriptive representation can refer to having representatives from urban and rural areas as well as having representatives who belong to historically marginalized groups. Pitkin helpfully enumerates various metaphors used to describe the nature of this resemblance. Legislatures can be a picture, a mirror, a portrait, a map, a blueprint, a miniature, or even a sample of the citizenry body as a whole. Each of these di erent metaphors provides di erent criteria for judging the correspondence between the represented and the representative. For instance, one might judge a map by whether the resemblance allows one to navigate more e ectively while one could judge a portrait by its ability to capture the model aesthetically. Despite such variations, Pitkin maintains that the proper way of evaluating descriptive representation is the accuracy of the correspondence or resemblance between the representative and represented. When we evaluate descriptive representatives, we judge them by whether they adequately look like or share relevant opinions, experiences, and interests of those they represent. In her discussion of descriptive representation, Pitkin provocatively claims that increasing descriptive representation is likely to decrease accountability to that group. Pitkin based her claim on A. Phillip Gri

th’s

and Richard Wollheim’s provocative argument (1960) that although lunatics might be the best descriptive representatives of other lunatics, it is not desirable to send lunatics to the legislature. For Pitkin, assessing representation in accordance with the accuracy of the resemblance between representatives and represented distracts attention away from the importance of what representatives do. So judging representatives by whether they “look like” the represented weakens judging them by how well representatives advance their interests and opinions. These controversial claims made by Pitkin sparked an entire empirical and theoretical literature about whether and how descriptive representation of marginalized groups matter. According to Anne Phillips, Pitkin’s The Concept of Representation was both an “inspiration and foil” to the normative arguments used to justify increasing the representation of women in legislatures and decision-making assemblies. Phillips explained, “It was inspiration because it forced us to think more carefully about the meanings we were attributing to ‘underrepresentation.’ It was also, however, foil because it seemed so discouragingly critical of descriptive representation. It gured, therefore, as the position that had to be argued down” (2012, 513). The third view of representation, symbolic representation, captures the ways that a representative “stands for” the represented. To help clarify this concept, consider the example of a king. The presence of a king can occasion certain patriotic emotional responses toward the constitutional monarchy. The king embodies the

political signi cance of the kingdom as a whole. Such emotional responses re ect an implicit consent toward a king’s authority. For this reason, a king is more likely “to stand for” the country during a highly ceremonial function, such as a coronation, than during highly partisan politics. According to Pitkin, the reaction of the represented is constitutive of symbolic representation. In particular, what matters is whether a person feels represented. Such feelings will depend importantly on the attitudes and beliefs of the represented. For Pitkin, the representative is merely a passive vehicle for these emotional responses. The feelings generated by the king are like those generated by a ag. Understood in this way, a “real” representative cannot and should not rely on propaganda or coercion to generate consent (109). Pitkin rmly di erentiates accepting and following a leader from accepting the leader as a symbol of the nation. Because the latter relies on the self-understandings of citizens, it cannot easily be coerced. Such coercion would change the meaning of the representative for the represented. Pitkin acknowledges that symbolic representation often rests “on emotional, a ective, irrational psychological responses rather than on rationally justi able criteria” (100); however, she denies that representatives should actively try to shape the represented’s beliefs and identities (110). To do so would be evidence of fascist representation, not of liberal representation that respects the autonomy of the represented. Here Pitkin’s discussion of symbolic representation appears in con ict with recent theoretical work on representation. For example, Michael Saward (2006) endorses understanding representation as a kind of claim-making. He argues that we should not understand representatives as responding to their constituents’ interests and preferences; rather, their claim-making is responsible for shaping the identities, preferences, and interests of the represented. Saward stresses how representatives “read in” interests as opposed to “read[ing] o ” the interests of their constituents (2010, 310). While Saward rejects Pitkin’s framework for presuming that the represented have a “given, transparent, and relatively stable” set of interests, Pitkin could respond that dissolving the distinction between the representative and the represented is dangerous to the degree that it undermines the autonomy of the represented. It also possibly overestimates the autonomy of representatives. The nal and arguably most important view of representation, what Pitkin calls substantive representation, investigates the activities of representatives. Substantive representation refers to the behavior of acting on behalf of, in the interest of, as an agent of, or as a substitute for the represented. For Pitkin, the paradoxical requirement for being both present and not present “is precisely what appears in the mandate and independence theorists’ con icting views on the meaning of representation” (Pitkin 1968, 41). The mandate–independence controversy focuses on the question, “Ought a representative to do what his constituents want, or what he thinks best?” Mandate theorists endorse a “delegate” vision of representation in which the representative is bound by the preferences of constituents. In contrast, mandate theorists endorse a “trustee” conception of representation according to which representatives should act in accordance to what they consider to be constituents’ best interests. Because interests do not necessarily align with preferences, Pitkin concludes that these standards for judging the performance of representatives’ activities are sometimes irreconcilable. Under certain circumstances, a representative will violate the standards of representation, no matter how he or she acts. How do these various views of representation provide the theoretical vocabulary for describing and understanding democratic representative processes? If one adopts a formalistic view of representation, empirical political scientists and political theorists studying democracy focus on the institutional procedures used to authorize representatives and hold them accountable. Symbolic representation concentrates on the emotional reaction of those being represented. For example, political scientists who study symbolic representation investigate whether democratic citizens feel represented by their individual representatives, interest groups, their political parties, or formal political institutions. In contrast, descriptive representation examines whether those participating in representative processes su

ciently

resemble those being represented. Here what matters is whether the representatives adequately “mirror” or

“correspond” to those being represented. Substantive representation critically evaluates democratic representative processes by the criteria of whose preferences and whose interests are advanced. Together Pitkin’s various views of representation provide the conceptual framework for investigating both empirically and theoretically democratic behavior. Following Pitkin, democratic theorists should not try to reconcile the paradoxical nature of representation since the concept of representation works properly when the autonomy of the representative is adequately balanced by the autonomy of the represented. If the representative has all the power, the system is dictatorial. If the represented have all the power, representatives are merely the mouthpieces for the mob. Pitkin wants autonomy for both. Preserving the paradoxical elements of representation is necessary for democratic representation to the extent that it safeguards both citizens and representatives. Pitkin’s analysis constrains the proper behavior of democratic representatives because they must act in ways that protect the capacity of the represented to hold them accountable. Of course, as Pitkin notes, the proper balance will depend importantly on the interests, issues, and capacities at stake in a particular democracy. Pitkin’s theoretical framework for understanding democratic representation allows for the possibility that the meaning of representation can change. But it requires preserving humans’ ability to understand and create new political practices consistent with the problems they face. Pitkin’s theoretical claim that the meaning of representation depends on its use suggests that democratic possibilities are partially created by how we understand and employ language of democratic representation. Some contemporary political theorists resist Pitkin’s understanding of representation as a paradox. Some pose alternative “common meanings.” For instance, Andrew Rehfeld argues that the concept of representation is not paradoxical because representation can be identi ed “simply by reference to a relevant audience accepting a person as such” (2006, 1). Others reject Pitkin’s terminology, especially the language of interests, because it leads us to irresolvable disputes. We are highly unlikely to agree about what people’s interests are (Celis et al. 2014). Perhaps the paradoxical elements of representation could be reduced if we understood how the di erent views of representation t together. If Pitkin only had given us a lexical ordering for the di erent views, for example, symbolic representation trumps formalistic representation, her work would provide clearer tools for assessing representative processes. Unfortunately, Pitkin never o ers such an explanation. At times, she implies that the concept of representation is uni ed. At other times, she emphasizes the tensions among these di erent views. Once again, Pitkin leaves the task of putting together the various pieces of representation to us.

Limitations of The Concept of Representation Despite its theoretical resiliency and adaptability, Pitkin’s analysis of representation might strike some as out of date. Her analysis of political representation centers on electoral relationships and frames them primarily as principal–agent problems. Such an understanding of representation is valuable to the extent that it allows constituents to settle con icts about the proper behavior of representatives by appealing to procedural solutions. After all, elections enable constituents to both vote in and vote out their public o

cials. Electoral representation can simultaneously establish the legitimacy of democratic authority and

create institutional incentives for governments to be responsive to citizens. Unfortunately, not all political institutions link authorization to accountability. By not recognizing how mechanisms of accountability di er signi cantly from those of authorization, Pitkin focuses almost exclusively on methods of authorization, speci cally elections. Moreover, political representation can often occur outside of electoral relationships (Warren and Castiglione 2004). After all, no one votes for Amnesty International to speak on the behalf of the tortured.

Similarly, it is misleading to think of interest groups such as American Association of Retired People as authorized by the votes of their members. As Ruth Grant and Robert Keohane (2005) claim, authorization mechanisms are often decoupled from accountability mechanisms in the international arena. By depicting representation as a principal–agent relationship, Pitkin downplays the importance of horizontal accountability (O’Donnell 1998)—that is, the liberal and republican components of polyarchies that allow state agencies to monitor and enforce law violations. Instead of understanding freedom as protected by the autonomy of constituents, civil and political liberties might be better protected by representative institutions with networks of agencies that enforce the rule of law. Conceiving representation as a principal–agent problem also downplays the important role of surrogate accountability-holders (Rubenstein 2007) who sanction agents on the behalf of those a ected by their actions. Pitkin also overlooks how representative relationships can be mediated by multi-leveled vertical relationships, for example, bureaucracies. All of these omissions reveal a signi cant limitation of Pitkin’s work for understanding representation and more speci cally for analyzing democratic representation: Pitkin’s analysis of accountability and its relationship to representation is woefully underdeveloped. Pitkin implicitly assumes that elections provide su

cient accountability and responsiveness to democratic citizens to guarantee their autonomy. One

explanation for this assumption is that Pitkin does not consider the accountability view of representation to be “an important strand in the literature of representation” (55). Perhaps this devaluation of accountability results from the lack of any single theorist who analyzes the importance of accountability in any sustained and systematic fashion, as Thomas Hobbes did for authorization. Regardless of the reason, Pitkin perceives accountability theories as only a response and a corrective to poor authorization mechanisms. She claims that accountability theorists simply identify a representative as someone who will have to answer to another for what he does. Accountability is, therefore, a matter of responsibility and answerability. It places “new and special” obligations onto the representative. Insightfully, Pitkin notes that we often develop our theories of democratic representative government by juxtaposing them to other (non-democratic) forms of government. Given this approach to understanding democratic representation, it is no surprise that competitive elections often emerge as “the answer” to the question, “how should representative processes be structured?” As David Plotke (1997) noted, de nitions of democracy are deeply in uenced by ideological commitments. During the Cold War, Joseph Schumpeter’s de nition of democracy as competitive elections was useful partly because it could di erentiate Western liberal democracies from Eastern European socialist countries that often identi ed themselves as “people’s democracies.” Pitkin’s observation about the fact that our intuitions about representative democracy can change is partially instructive because democratic representative forms of governance can share certain institutional features with non-democratic representative ones. Recall that Pitkin maintained that formal mechanisms of authorization and accountability do not provide standards for evaluating the performance of individual representatives. They only determine whether the representative is properly authorized. Pitkin’s methodology calls for making political judgments about the appropriate standards of representation, the interests of the represented that should guide and constrain their representatives’ behavior, the necessary capacities for functioning within certain institutional setting, and the nature of the issues at stake within a particular context. The proper political language for describing and evaluating representative processes is signi cantly contingent upon the political norms and practices within a particular setting. Nevertheless, Pitkin recognizes special obligations of representatives and that accountability mechanisms can justi ably constrain representatives’ behavior. For Pitkin, “genuine representation exists only where there are such controls—accountability to the represented” (57). To the degree that elections can serve to reinforce an intolerant majority’s power against minorities, or even serve merely to reinforce the power of

the state, then having elections would be insu

cient for both formalistic representation and democratic

representation. Pitkin does acknowledge “other forms” of accountability besides elections, yet she does not investigate how these alternative forms might in uence our understanding of accountability. For instance, she never di erentiates accountability mechanisms designed “to give an account of,” from accountability mechanisms designed “to hold to account” (55). In this way, she con ates transparency mechanisms with sanctioning ones. Nor does Pitkin adequately theorize the etymological distinctions between accountability that provides control and accountability that provides self-correction. Pitkin’s too-brief discussion of accountability ignores the possible paradoxical elements within it. For example, she does not explore the tensions between responsiveness and sanctioning that can arise when constituents’ interests con ict with their expressed preferences. Pitkin’s analysis of accountability is further limited by its failure to consider the inability of accountability mechanisms to generate “good enough” choices to engage and re ect citizens’ political commitments. Thus, Pitkin does not adequately tie accountability to the proper activity of representatives. Pitkin herself provides a partial explanation for why her lack of attention to accountability is a problem. In her discussion of the uneasy relationship between democracy and representation, Pitkin warned that e orts to democratize the representative system have consistently led to representation supplanting democracy instead of serving it. “Our governors have become a self-perpetuating elite that rules or rather, administers, passive or private masses of people. The representatives act not as agents of people but simply instead of them” (2004, 339). Being a substitute is insu

cient for genuine representation, according to Pitkin.

Drawing on Hannah Arendt, Pitkin argues that “genuine representation” is possible “where the centralized large scale, necessarily abstract representative system is based in a lively participatory, concrete direct democracy at the local level” (2004, 340). The lively local political life allows people to learn and shape the meaning of democratic citizenship so that individual self-interest becomes consistent with public interests. Because of the importance that Pitkin places on self-understandings, she rejects thinking about the choice of political commitments (or of representatives) as “a choice between two foods” (1968, 211). Politics should not be conceived as simply a matter of determining which preference produces the most satisfaction. For citizens’ self-understandings of their political commitments and their political practices in uence the amount of satisfaction they derive from political processes. As a result, one cannot calculate political priorities as easily as a shopping list. Pitkin also rejects using competitive economic market terminology to understand political representation. Such a way of understanding representation is likely to treat political issues as “questions of knowledge, to which it is possible to nd correct, objectively valid answers” (212). The representative becomes an expert and the opinions of constituents become “irrelevant.” So if we treat politics as merely a mathematical question concerning the aggregation of existing preferences or as a scienti c question about e

cient

methods of preference satisfaction, Pitkin concludes that the democratic commitment to “counting noses in the constituency” will appear “foolish” (212). Democracy comes to be seen as an obstacle to good representation. Pitkin’s understanding of the paradox of representation means that being the most e

cient

or capable at satisfying preferences won’t necessarily improve the normative value of the representative’s actions. Such e

ciencies might improve a representative’s capacity to act and thereby the legitimacy of her

authority, but representation involves more than that. Throughout her career, Hanna Pitkin was drawn to paradoxes. In contrast to those who approach a paradox in order to o er some way to reconcile contradictory meanings or avoid the appearance of inconsistency, Pitkin highlighted the paradoxical elements of our conceptual language. She insisted that the theoretical complexities and moral nuances of political life require representation to remain a puzzle. Filtering through

the everyday usages of the concept, Pitkin also reveals how the meaning of representation changes with use. Pitkin breathes life into the conceptual meaning of representation. Pitkin, though, sketches the semantic landscape of a concept without providing a normative map about how we should navigate that landscape. She rejects absolutist principles and perfectionism. Humans must create the new directions and practices of representation themselves. This approach to political theory is best re ected in her response to the question, “Can democracy be saved?”: “I am old; it is up to you” (2004, 342). This approach to political theory allows for humans to disagree deeply about political questions and their answers. For Pitkin, there are multiple ways of representing and having a legitimate state. The point of political theory is not to reach consensus about these ideas but to foster mutual understanding. If we continue to rely on representative processes to settle disputes among citizens, The Concept of Representation will help us understand the limitations and problems with those processes. In particular, Pitkin emphasizes the problem with adopting a limited and partial view of the concept of representation. Still, Pitkin’s approach to surveying the meaning of political concepts might give us pause: evaluations of representative processes are likely to diverge if society disagrees too drastically about what good representation, let alone good democratic representation, means. Pitkin’s desire to make interests, preferences, and processes adaptable to various circumstances opens up that possibility that normative understandings can be strengthened or weakened by political practices. When confronted with deep disagreements and mutual misunderstandings, Pitkin recommends asking more questions, such as whose interests and well-being are served by existing representative processes. Such questions will hopefully generate new representative practices and the conceptual language necessary to better negotiate political con icts. In the end, Pitkin challenges us to adopt various ways of viewing our political concepts and to critically question the function of certain political concepts within its political environment.

References Castiglione, D. 2012. “A New Agenda for Democratic Representation?” Politics & Gender 8(4): 518. Google Scholar WorldCat Celis, K. et al. 2014. “Constituting Womenʼs Interest through Representative Claims.” Politics & Gender 10: 149. Google Scholar WorldCat Diamond, L. 2002. “Thinking about Hybrid Regimes.” Journal of Democracy 13: 21. Google Scholar WorldCat Dovi, S. 2008. The Good Representative (Vol. 2). Oxford: John Wiley & Sons. Google Scholar Google Preview WorldCat COPAC Grant, R. and R. O. Keohane. 2005. “Accountability and Abuses of Power in World Politics.” American Political Science Review 99(February): 29. WorldCat Gri iths, A. P. and R. Wollheim. 1960. “How Can One Person Represent Another?.” Aristotelian Society Supplementary Vol. XXXIV: 187. Google Scholar WorldCat He, B. and M. Warren, 2011. “Authoritarian Deliberation: The Deliberative Turn in Chinese Political Development.” Perspectives on Politics 9(2): 269. Google Scholar WorldCat OʼDonnell, G. A. 1998. “Horizontal Accountability in New Democracies.” Journal of Democracy 9(3): 112–126. Google Scholar WorldCat Phillips, A. 2012. “Representation and Inclusion.” Politics & Gender 8: 512–518. Google Scholar WorldCat Pitkin, H. 1965. “Obligation and Consent—I.” American Political Science Review 59(04): 990-999. Google Scholar WorldCat Pitkin, H. 1966. “Obligation and Consent—II.” American Political Science Review 60(01): 39-52. Google Scholar WorldCat Pitkin, H. 1967. The Concept of Representation, Berkeley and Los Angeles: University of California Press. Google Scholar Google Preview WorldCat COPAC Pitkin, H. 1968. “Commentary: The Paradox of Representation.” In Nomos X Representation, edited by J. Roland Pennock and John Chapman, 38-42. New York: Atherton Press. Google Scholar Google Preview WorldCat COPAC Pitkin, H. 2004. “Representation and Democracy: Uneasy Alliance.” Scandinavian Political Studies 27(3): 335. Google Scholar WorldCat Plotke, D. 1997. “Representation is Democracy.” Constellations 4(1): 19. Google Scholar WorldCat Rehfeld, A. 2006. “Towards a General Theory of Political Representation.” Journal of Politics 68: 1. Google Scholar WorldCat

Rubenstein, J. 2007. “Accountability in an Unequal World.” Journal of Politics 69(3): 616. Google Scholar WorldCat Saward, M. 2006. “The Representative Claim.” Contemporary Political Theory 5(3): 297. Google Scholar WorldCat Saward, M. 2010. The Representative Claim. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Warren, M. and D. Castiglione. 2004. “The Transformation of Democratic Representation.” Democracy and Society 2(I): 5, 20. Google Scholar WorldCat Zakaria, F. 1997. “The Rise of Illiberal Democracy.” Foreign A airs 76(6): 22. Google Scholar WorldCat 1

For one answer to this question, see Dovi 2008.

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

J. G. A. Pocock, The Machiavellian Moment  Emily C. Nacol https://doi.org/10.1093/oxfordhb/9780198717133.013.58 Published: 07 November 2018

Abstract In The Machiavellian Moment, J. G. A. Pocock shows how Niccolò Machiavelli and other Florentine political thinkers adapted Aristotelian and Polybian insights to create a paradigm of republican political thought that was sensitive to the problem of stabilizing civic virtue against inevitable political decay in time. This republican paradigm, he famously insists, traveled to eighteenth-century AngloAmerican contexts via the work of James Harrington and helped political thinkers make sense of two seemingly disparate events—the rise of nance in Britain and the American Revolution—in civic republican terms. Pocock’s insistence that The Machiavellian Moment is a work of history does not negate its contributions to political theory. First, it is a signi cant text for political theorists who attend to the role of language and discourse in political thinking, although the Pocockian approach bears limitations worth acknowledging. Second, Pocock’s work is critical to the republican revival in contemporary political theory, because he centers and defends Florentine and Anglo-American republicanisms as political discourses worthy of scholarly attention. Lastly, The Machiavellian Moment appears, in hindsight, as a foundational text for scholarship in the history of political economy, particularly the pre-history of nance and credit.

Keywords: The Machiavellian Moment, History of political thought, J. G. A. Pocock, language, Atlantic republicanism, political economy, time Subject: Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Introduction There are multiple approaches a reader of J. G. A. Pocock’s The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (MM) could take to establish its status as a “contemporary classic” of political thought. Methodologically, MM stands as a founding text for contextualist approaches to the history of political thought. Conceptually, it remains at the center of political theory’s ongoing debates about republicanism and freedom, serving as a touchstone for both historical and analytic approaches to studying republican modes of citizenship and corresponding conceptions of liberty and civic virtue. Arguably, both of these contributions are foregrounded in the text itself, but they are not its only legacies. In hindsight, MM was also a crucial contribution to what now looks like a turning point in the study of political economy. Its re ections on commercial society, debt, and credit in the long eighteenth century remain important invitations to scholarship and debate for political theorists and intellectual historians working on commerce and capitalism. Each of these distinctive contributions engages the most abstract and thorny of questions for scholars of politics and economy across multiple disciplines—the problem of time.

“The Machiavellian Moment”: Traveling Discourses MM documents the movement of Renaissance Florentine texts and discourses across time and place. As Pocock explains in a new afterword to the 2003 edition, MM “pursues … the fortunes of texts, and the discourses they may be said to have conveyed, as they travel from one context to another, in a history which moves from the sixteenth century to the eighteenth and from Florence to England, Scotland, and revolutionary America” (554). To tell this story, Pocock tracks the fate of Niccolò Machiavelli’s arguments about how the civic nature of man unfolds and develops in time. He interprets Machiavelli’s oeuvre— including canonical texts like The Prince and Discourses on Livy, as well as understudied ones like The Art of War—as an intellectual watershed in an historical narrative marked by continuities and innovations. Pocock’s narrative in MM has itself become a canonical reading of one tradition in early modern political thought. Although Pocock’s Machiavelli does stand as a peerless innovative political thinker, the real purpose of MM is to demonstrate his signi cance as an interlocutor with both ancient and early modern thinkers, to trace the sources that make his claims possible, and to argue for his insights as foundational for later thinkers. As Pocock re ects near the end of the book, he is primarily interested in a single tradition, reducible to the sequence of Aristotle’s thesis that human nature is civic and Machiavelli’s thesis that, in the world of secular time where alone the polis can exist, this nature of man may never be more than partially and contradictorily realized. Virtue can develop only in time, but is always threatened with corruption by time. In this special form taken when time and change were identi ed with commerce, this tradition has been found to have been operative over wide areas of thought in the eighteenth century, and to have provided a powerful impulse to the American revolution (557). In this condensed expression of MM’s central thesis, the di erent threads of Pocock’s argument come together. With a substantial nod to Polybius’ in uence on Florentine theories of mixed government, Pocock situates Machiavelli as a peculiar but insightful heir to Aristotelian political theory. Like Aristotle, Machiavelli studies and articulates the civic conditions under which citizens may exercise their power and develop their virtue, settling on the republic as a favored political mode. His innovation, however, is to add a temporal dimension to his analysis of civic life, and thus to reckon with inescapable challenges to all political projects—contingency, time, and decay. He does so, Pocock argues, by drawing on and reworking

the discourses of political thinking available to him—early modern law, Christian theology, and most signi cantly, humanist rhetoric. Part of Pocock’s purpose, therefore, is to show that Machiavelli’s work is continuous with a longer tradition of political thought, one that considers the proper setting and institutions for cultivating civic life and virtue. But what distinguishes Machiavelli and his fellow Florentines from their ancient predecessors, Pocock argues, is their confrontation with a dynamic tension inherent to republican thought, a contradiction thrown into sharp relief by contingent fteenth-century political events and crises. As Pocock emphasizes, early modern republican thinkers like Machiavelli had to face an inevitable problem head on: even as the republic was understood to be the only context in which human beings could exercise their universal natures as civic or political animals, the “one thing most clearly known about republics was that they came into an end in time” (53). In other words, the political community of the republic is neither universal nor eternal, but always nite, particular, and situated in time. This makes the republic a contingent, unstable foundation for the cultivation of the political virtues and agency of ordinary citizens— but still the best hope for this critical form of human development. The di

cult puzzle facing civic humanists was thus, on Pocock’s reading, twofold. They had to determine

rst “whether the vivere civile and its values could indeed be held stable in time,” and second, how to develop and mobilize citizen power and virtue against the backdrop of secular time (83). It is important, however, that republican thinkers tried to negotiate this paradox within the context of the republic itself, without resorting to alternate forms of political order. As Pocock notices, for Machiavelli and his peers, “it was both a practical and a theoretical problem of the rst order to show how republics came into being and how they might be maintained. The stakes were very high, being nothing less than the establishment of virtue as a principle of active life; the risks were equally high, because of the di

culty of grounding the

enterprise on any but an insecure and transitory foundation” (185). This risky endeavor to imagine and protect the longevity of the republic produced, Pocock argues, a legacy that was also both practical and theoretical—a full-throated defense of “balanced government, dynamic virtù, and the role of arms and property in shaping the civic personality” (viii). While holding Machiavelli up as an exemplar, Pocock also situates him among other Renaissance humanists—Bruni and Guicciardini, for example—and argues for them as a class of thinkers well versed in the Aristotelian and Polybian traditions that might serve their purposes, as well as a group of innovators who presented novel modes of republican citizenship. Their shared aim, in his view, was to avoid the decay of citizen virtue and agency, a problem that proceeded from recognizing that the republic existed in time and would thus have a founding and an end. Pocock goes on to make the case for a “Machiavellian moment” by showing how Florentine Renaissance humanists’ struggle to stabilize citizen virtue in a decaying political community imparted a legacy that far exceeded their shared context. He argues that their ideas—particularly Machiavelli’s—did nothing less than “enlarge the paradigmatic vocabulary of a civilization,” by providing fruitful material for Anglo-American political thinkers who found themselves confronting the problem of stabilizing di erent sorts of republican polities for nearly three centuries after (318). Pocock acknowledges that the trajectory to America via England was an unlikely path for Machiavellian republican discourse to travel, observing that these “ideas had to become domiciled in an environment dominated by monarchical, legal, and theological concepts apparently in no way disposed to require the de nition of England as a polis or the Englishman as a citizen” (334) before making their way to the colonies. But, much as fteenth-century political crises spurred a turn to Aristotelian and Polybian ideas about civic virtue and government among Florentine thinkers, so the English political and constitutional crisis of the 1640s and 1650s provoked an e ort to “restate the terms on which Englishmen as civic beings lived with one another” (348). Pocock describes this process as something of an intellectual fracas, in which the republican alternative had to ght its way to the forefront as a viable practical and theoretical solution to the problems of political instability and corruption against other 1

traditional modes of rule and political engagement in England. The intellectual heavyweight in this ght is,

for Pocock, James Harrington. Pocock centers Harrington as the thinker who does the most e ective work to deploy a language of republican humanism for an England in crisis. Pocock’s Harrington situates England in secular time, reshaping her into a republic of armed, propertied men—a community reminiscent of Machiavelli’s Florentine republic, albeit with English characteristics. The turn to Harrington constitutes a second in ection point in Pocock’s narrative, and he then proceeds to show how republican discourse in an eighteenth-century Anglo-American context takes on both a neo-Machiavellian and a neo-Harringtonian cast. The Machiavellian paradigm reworked by Harrington becomes, Pocock argues, crucial during the radical transformations of Augustan Britain, which was rapidly converting from a land-based political economy to 2

one characterized by mobile, and ctive, forms of wealth. Anglo-British political economists adopted and reshaped the discourses of political instability and civic engagement o ered rst by Machiavelli and then recon gured by Harrington, who added important notions of freehold and economic activity as integral to republican citizenship and virtue. Pocock’s treatment of the Augustan period gives an account of precapitalist commerce and credit as objects of republican political discourse, largely by casting these early eighteenth-century transformations in exchange and nance as problems of the kind that preoccupied Machiavelli and Harrington. Making sense of the rapid turn to wealth accumulation in an “era of devastating economic change” in Britain was, for eighteenth-century political economists, connected to bigger political questions of virtue, stability, corruption, and war (422). Thus, these writers found themselves occupying a “Machiavellian moment,” too, as they observed their conditions “through the development of a neo-Machiavellian, as well as neo-Harringtonian, style in the theory of political economy, in response to England’s emergence as Britain, a major commercial, military, and imperial power” (423). As Pocock argues, some of the earliest thinking on what will later become the most prominent features of 3

capitalism—trade, nance, and credit—is to be found in the tradition of civic humanism that he traces. As for the other side of the Atlantic, Pocock famously argues that “the American Revolution and Constitution in some sense form the last act of the civic Renaissance” (2003, 462). He presents the American founders as occupants of an odd position in the humanist tradition he is narrating. Much like Machiavelli and Harrington before them, these men were facing a “crisis in the relations between

personality and society, virtue and corruption”—precisely what is to be expected in the political context of a republic (462). But, they were at a crossroads in the republican tradition of thought and found themselves in “a moment in history when that problem was being either left behind or admitted insoluble” (462). Pocock depicts the American Revolution as a pivotal event in which the paradigms he has been carefully detailing butt against one another, generating serious friction between the republican ideal of civic personhood and the practical reality of acting as an interest-bearing individual in a world of political economy and sociability. The American Revolution thus holds a poignant place in Pocock’s retelling of the humanist tradition: it was the rst, best chance for humanist political thinkers to “[apply] the sociology of liberty to legislation in the sense of actual state-founding,” but this opportunity arose precisely at the moment that new, modern economic and social phenomena pressed against this kind of statecraft (467). As a result, the American founding exposed strikingly the “crises” and “paradoxes” of classical republicanism and drew to the fore its dialectical character (576). And this is to be expected—as Pocock comments relatively early in MM, “not only was it a fact of experience and history that such structures of virtue could become corrupt and disintegrate; it was, by a terrible paradox, inherent in the very nature of republics that this should be so” (184–185). The American case, which closes Pocock’s story, presents in heightened form the simultaneous promise and pitfalls of republican politics and statecraft.

Reception and Debate: Three Areas of Engagement 4

Upon its 1975 publication, MM both garnered appreciation and invited debate. Unsurprisingly, some readers contested Pocock’s interpretations of speci c thinkers, especially Machiavelli and Harrington, the two anchors of his narrative. Still others challenged his emphasis on the Aristotelian and Polybian roots of Florentine (and ultimately Atlantic) republicanism, arguing for the in uence of Roman sources instead. Some also wondered why Pocock ultimately pursued a story about Britain and America, when he might well have told an equally compelling story about French or German variants of republicanism. But beyond these ne-grained debates about the proper interpretation and legacies of particular texts and thinkers, and more importantly for the purposes of this chapter, MM sparked broader intellectual controversies, even among those who praised it as a magisterial work of intellectual history. Perhaps the most important, enduring line of criticism pertains to both Pocock’s object of study and his way of approaching it. MM traces the emergence and development of a republican political language in distinct linguistic, geographical, and temporal contexts. But, as many readers have noticed, Pocock’s e orts to historicize political discourse dwells at a high level of abstraction and perhaps obscures the stories of the people, politics, and contexts that shaped and directed the languages he analyzes. While even his toughest critics admitted that Pocock acknowledges the “umbilical connection” between MM’s language history and its deep social and political contexts (Wood 1976, 104), many readers charged Pocock with de-politicizing the political languages he identi es and contextualizes, and they questioned whether he reduces political theory to a language game, a criticism that would be leveled repeatedly against Pocock and his Cambridge School colleagues over the coming decades. MM also spurred some readers to ask questions about how Pocock is able to identify the languages he traces in his sources, and whether he overwrites them onto sources where their presence is scant, such as in the documents of the rise of nance and credit in eighteenth-century Britain. As we will see, these critiques pressed Pocock to think more carefully about his own method, to fruitful ends. Another important criticism of MM concerns the presence of multiple intellectual traditions in speci c historical contexts. When Pocock extends the narrative of republican political thought into Atlantic contexts, he traverses ground that has been well-worn by scholars of a di erent intellectual tradition— liberalism. The story of proto-liberal and liberal political thought is absent from Pocock’s account in MM. Liberalism, with its connections to a language of natural jurisprudence, does not appear in Pocock’s story as a either a competitor or an uneasy partner to civic republicanism in the seventeenth and eighteenth centuries. If, as some critics (e.g., Forbes 1976) have insisted, MM is trying to establish that civic republicanism is the dominant political language that constitutes debates about early modern AngloAmerican commerce and statecraft, then Pocock should have asked and answered the question, “Dominant with respect to which other available languages?” It may be the case that Pocock is correct to argue that republicanism was the dominant discourse that shaped political debates about British commerce and nance and the American founding. But establishing this may require showing how it eclipsed or incorporated crucial elements of other available discourses. In the rest of this chapter, I extract from these debates and Pocock’s assorted responses to his critics three avenues of its in uence in the forty-odd years since its publication. MM has been a touchstone for many political theorists who adopt—either wholesale or in part—contextualist or language-centric approaches to interpreting historical texts. Further, by considering one long episode of republican revivalism in the history of early modern political thought, it laid a foundation for the neo-republican revival of late twentieth- and twenty- rst-century political theory. Finally, MM continues to o er insights and generate debate for political theorists turning back to questions of political economy and capitalism, particularly nance and credit.

Language and Politics in The Machiavellian Moment An immediate challenge to treating MM as a work of political theory is Pocock’s own insistence—often in response to critics—that what he is doing is not political theory or philosophy but history. Elsewhere, he notes that the “study of past political ideas” is an enterprise that invites multiple methodological approaches. In his view, the historian’s work “is primarily … the study of the language used in a particular society to discuss political problems, and of the light thrown, often inadvertently, by the use of that language upon the character of that society and the events taking place in it;” whereas the political philosopher studies “the ideas of the past with a view to seeing which of them are worth using, rephrasing, criticizing, or employing as the foundation of other propositions in the making of statements about politics abstractly considered” (1989, 104–105). These are not unrelated endeavors, and some scholars move 5

productively between these two elds. Pocock’s work in MM falls squarely, however, within the parameters of the historian’s enterprise as he understands it. MM is a study of the political discourses accessible to Machiavelli, of what he did with these idioms, and of how the language he fashioned was deployed and remade in Atlantic contexts. Although Pocock is a self-described historian, his work has been taken up and debated by political theorists in the last few decades, particularly those who work on the history of political thought. The “Cambridge School,” of which Pocock is a founder, demarcates an approach to the history of political ideas that emphasizes both historicism and contextualism as key methodological desiderata. Pocock re ects on the “Cambridge School’s” intellectual agenda, commenting that “what we have all been doing is insisting that a certain branch of the study of politics be perceived as a history of activity and be conducted within the 6

discipline of history” (2009, 129). The activity at issue is political thought, which should be understood as a form of “political behavior of a rather special sort” (27) that can “be studied by the method of historical reconstruction” (9). While Pocock does not resist the idea that scholars from di erent disciplines might fruitfully engage the political ideas of the past, he does have speci c ideas about what kind of work can legitimately be called the history of political thought. Pocock’s major contribution to the methodological interventions performed by the “Cambridge School” is his attention to political languages as proper objects of historical study. He describes MM as a “study so designed that we are concerned with identifying certain conceptual vocabularies which were available for talking about political systems considered in their particularity, with exploring their limitations and implications and considering how these operated, and with examining the processes by which these conceptual systems, their uses and implications, changed over time” (57). These vocabularies or languages can often, he thinks, be identi ed by historians of ideas, and his project in MM is to explicate which ones helped political thinkers cope with the problem of stabilizing civic life against the inevitable corrosive e ects brought on by the passage of political time. He elsewhere comments that these are not “of course ‘languages,’ in the same sense as Latin or English, but specialized idioms existing in Latin or English and sometimes translatable from one to the other. It seems inadequate to call them ‘vocabularies,’ that term sounds rather too lexical.” He goes on to note that he is “following [Edmund] Burke in calling them ‘languages,’ but possibly they should be called ‘idioms’ or ‘rhetorics’ instead” (2009, 112). In MM, Pocock looks for the languages available to Machiavelli as he (and others) faced down the problem of secular time, and he settles on “custom, grace, and fortune,” to show that “Machiavelli belonged to a culture limited to these three idioms for dealing with the problem but that he selected and rearranged them from the modes of speech available to him in such a way as to produce extraordinary changes in them” (112). The account of Machiavelli’s thinking that Pocock gives in MM, then, is sensible only when Machiavelli is understood as a speaker who performed utterances in context of the idioms he had available to him—in this case, those of early modern law, theology, and rhetoric. And yet, the story of Machiavelli’s thought cannot only be one of his role as a “speaker” of the diverse languages he could access. Pocock also shows that he used them in

novel ways to instantiate a paradigm shift in political thinking, one continually remade when pressed into contact with new geographical, temporal, and linguistic contexts. Pocock is not particularly wedded to what we call these conceptual systems even though they are his primary unit of analysis as a historian, which makes it harder to determine their epistemological or ontological status. He insists, however, that they are the proper object of study for historians of ideas. They, and not particular thinkers or concepts, are what he—and by extension—other historians of ideas ought to be recovering from texts in the history of political thought and then articulating for other scholars. MM is thus not a study of Machiavelli, Harrington, and other republican thinkers per se, nor is it primarily an e ort to analyze or re ne the core ideals of civic humanism, concepts like virtue or freedom. These actors and concepts are important to Pocock’s account, to be sure, but as he says elsewhere, “the units of the processes that [historians of ideas] trace are the paradigms of political speech” (1989, 25). What he is looking for, then, is the journey of a political language, which he sometimes describes as an idiom, a rhetoric, or a paradigm. As noted earlier, Pocock’s approach in MM and his work more generally raises a question and a critique, both of which he addresses later in methodological essays (1989, 2009). The question is: How do we know these languages really existed and were used and transformed by the thinkers in question? Put more bluntly, how can we verify that they are not, in fact, devised by the historian and then imposed onto the source materials as a wholly or partly exogenous interpretive grid? This is a hard question, but scholars interested in doing Pocock’s kind of historical research must have an answer. For Pocock, the answer is straightforwardly empirical: either the language in question is there in the texts or it is not. As Pocock discusses these languages in his deliberations on method, it sometimes appears that they are simply there to be spotted by an intrepid reader. But at other points in his re ection on his language-centric approach, Pocock complicates this simple answer by suggesting that historians must perform arduous perspectival and linguistic shifts to be able to approach the identi cation of these languages at all. That is, they must learn to read and think as a “native speaker” of these languages might, which goes well beyond the demands of simple empirical observation of their presence or absence. In Politics, Language, and Time, for example, we nd this response from Pocock to the question of how we can know if these political languages existed, and how we can identify them when we see them: “… we should be able to reply empirically: that the languages in question are simply there, that they form individually recognizable patterns and styles, and that we get to know them by learning to speak them, to think in their patterns and styles until we know that we are speaking them and can predict in what directions speaking them is carrying us. From this point we may 7

proceed to study them in depth” (1989, 26). This work appears to be more than a matter of simply “seeing,” then. It requires a historian’s sensitivity and imagination, as well as a kind of uency in political languages acquired through study and also, one might argue, a capacity for high-order philosophical abstraction to grasp the concepts at play in these languages. One further objection to Pocock’s work—or to “Cambridge School” approaches in general—concerns the status of texts, particularly those dubbed canonical by political theorists. “Cambridge School” e orts to historicize and contextualize particular texts often obscures what makes them special or signi cant to us as scholars and teachers. To understand what Machiavelli was “actually doing” in The Prince, for example, we have to view it as something that could only arise in the “matrices” of the languages available to Machiavelli (2009, 113). Once we go to the trouble of becoming as uent as possible in these languages so that we can see how someone like Machiavelli used and subtly altered them, we may risk obscuring the novelty and 8

brilliance of author and text, instead seeing both as overdetermined by their linguistic context. Pocock himself comments, “You cannot write a history in terms of the great text; but there is a sense in which the great texts are di

cult to reduce to history,” a seeming acknowledgment of this danger. But his reasoning

reverts to his insistence that the historian’s task is not to intervene in debates about the relative greatness of texts or thinkers, when he comments that great texts cannot be reduced to history “because they

continue to be read and used by people who are not historians” (2009, 114). Political theorists may be one group that he has in mind here, as we read texts like Machiavelli’s The Prince and Discourses for many reasons—to nd out what Machiavelli was “actually doing” in the context of early modern Florence; to understand his in uence on later political thinkers; to uncover the conceptual apparatus he o ers to scholars interested in power, freedom, and violence; and to seek out some critical political questions that might still be important in our own time. To Pocock, only the rst reason is the historian’s, and as such his work opens up a conversation about the division of labor between historians of ideas and political theorists, 9

and whether we work in parallel, against each other, or in a relationship of mutual in uence and exchange.

Republicanism in Our Time Initially, it might seem a stretch to situate MM within contemporary political theory’s concern with republicanism. It o ers no explicit engagement with the form of the republic in our time, a point of normative and political interest for contemporary political theorists. Nor does Pocock investigate how the language of republicanism evolved in new directions to stage an intervention in contemporary AngloAmerican discourses of political freedom. It is thus possible to read Pocock’s project as divorced from contemporary republican or neo-republican thought. By Pocock’s own lights, MM is a strictly historical treatment of a republican language of politics, which was apt for thinking through and contending with particular political problems located in geographical space and conceptualized time. A truly faithful interpreter might therefore argue for MM as a history of political ideas rst and a methodological statement for intellectual historians second, with very little to say to contemporary republicanism. But as political theorists, we should recognize it as a foundational text of the neo-republican turn, albeit with two related caveats. First, although Pocock and a range of contemporary republicans share some fundamental political thinkers—Machiavelli and other Florentine republicans in particular—as objects of study and inquiry, Pocock attends largely to the Aristotelian roots of early modern republicanism, 10

with less attention to the Roman ones.

Second, Pocock’s Aristotelian focus shapes his insights into the

republican tradition of political thought. He argues for Machiavelli and his cohort as thinkers who displayed “tough-mindedness in retaining a basically moralist concern with liberty and corruption,” and theorized “politics as the erection of conditions under which men might freely exercise active virtue” (317). Pocock emphasizes the Florentine understanding of the republic as the setting in which human beings can exercise and develop their civic virtue; the urgency of this political (or more strictly, governmental) project is heightened by a new sensitivity to the problems of “contingent time” as a corrupting force (27). Other prominent neo-republicans drawing on the same Florentine tradition place a heavier accent on liberty and look to their common texts as sources for conceptualizing freedom as non-domination, perhaps due to their sharper focus on Roman political theory and law. These di erences aside, MM is part of the contemporary republican revival in political theory. It foregrounds republicanism as a political discourse central to the Anglo-American tradition of political thinking, actively resisting the temptation to read a proto-liberal or liberal political discourse as fundamental to it. This emerges most clearly in Pocock’s treatment of the American founding in the last chapter of MM. There he argues against the common reading of American political thought and politics as descended from John Locke’s covenantal politics and its ahistoricity: The conventional wisdom … has been that the Puritan covenant was reborn in the Lockean contract, so that Locke himself has been elevated to the station of a patron saint of American values and the quarrel with history has been seen in terms of a constant attempt to escape into the wilderness and repeat a Lockean experiment in the foundation of a natural society. The interpretation put forth here stresses Machiavelli at the expense of Locke; it suggests that the

republic—a concept derived from Renaissance humanism—was the true heir of the covenant and the dread of corruption the true heir of the jeremiad. It suggests that the foundation of independent America was seen, and stated, as taking place at a Machiavellian—even a Rousseauan —moment, at which the fragility of the experiment, and the ambiguity of the republic’s position in secular time, was more vividly appreciated than it could have been from a Lockean perspective 11

(545).

Pocock roots the American founding in the republican tradition, arguing that “a political culture took shape in the eighteenth-century colonies which possessed all the characteristics of a neo-Harringtonian civic humanism” (505–506) and which found American revolutionaries understanding themselves as “freemen in arms, manifesting a patriot virtue” (513). This is in keeping with the language of republican discourse that Pocock pursues in MM, especially the nal stage of his exploration of Anglophone political thought. He does not tell the story of the emergence of liberal political discourse, which perhaps encouraged some interpreters to see Pocock as enacting and then taking sides in a “liberalism vs. republicanism” debate about the American founding. But as he reminds readers in a 2003 afterword, his purpose was not to instantiate such a debate or to participate in it; rather, his only concern was to see whether discourses of corruption and virtue were present in the literature of the founding of the American experiment, and he concludes they were (578–579). While Pocock sidesteps arguments about liberalism and republicanism as rival traditions of political thinking and theories of freedom, MM makes a case for republicanism as the basis of early modern, Anglo12

American political discourse and invites others to adopt this perspective.

Furthermore, Pocock does not

focus solely on the relationship between virtue and corruption articulated in republican discourse but also makes some space for its consideration of liberty. As he notes, “the end-product of the Florentine experience was an impressive sociology of liberty, transmitted to the European Enlightenment and the English and American revolutions, which arose in reply to the challenge posed by the republic’s commitment to existence in secular history” (85). This largely manifests in two transformations important to Florentine political thought and English republicanism thereafter—the turn from fortuna to corruption as the primary threat to political stability, and the inclusion of arms as critical to the project of citizen virtue and autonomy (211–212). The story of republican liberty, as Pocock tells it, depends both on the capacity to practice civic virtue in concert with others and on the ability to rely on one’s own arms to protect the republic against invasion and corruption. Pocock largely resists the temptation to draw on his study of republicanism to weigh in on contemporary analytical debates about the concept of liberty, which he sees as largely framed by Isaiah Berlin’s distinction between positive and negative liberty. Pocock does align himself with historians who try to see if there are concepts in ancient or early modern history that are related to Berlin’s dichotomy (2009, 133). But he says little about the contemporary debate, save for two brief comments. First, he suggests that his own body of work reveals “a certain sympathy for the ‘positive’, or as will appear, ‘republican’ position.” Second, he separates himself from other historians of early modern republicanism and its political languages who have also engaged the normative debates, “exploring the idea of a ‘republicanism’ that asserts as ‘third concept of liberty’ as freedom from domination of the individual by others” (137). Pocock shies away from this crossover into political philosophy, cautioning that it is unlikely that the concept of “freedom as nondomination” can be explicated as fully as positive and negative liberty have been. As he notes, “once the individual is freed from domination, he or she must decide how to articulate and develop that freedom, and various choices will be presented” (137). Such choices may depend on the spatial and temporal location of the actor in question, and perhaps the languages he or she can access to give voice to what freedom means in the absence of domination. In MM, Pocock gives the reader some glimpses of what this looked like in a variety of temporal and geographical contexts, expressed through the language of civic humanism.

Commerce, Finance, and the History of Ideas In chapters 13 and 14 of MM, and then again in Virtue, Commerce, and History, Pocock analyzes Augustan commercial culture as an iteration of Anglo-British republicanism and establishes himself as an agendasetting thinker for later scholars of commerce and capitalism. Pocock published MM during what looks, in hindsight, like an especially rich period of historical and theoretical scholarship on commerce and 13

capitalism in early modern Europe.

For its part, MM begins a signi cant conversation about the character

of Anglo-British social and political thought during the decades of Britain’s emergence as a scal-military power. Pocock argues that the language the period’s most perceptive political economists, Charles Davenant and Daniel Defoe, had ready to hand to make sense of this monumental shift was the one used and transformed by Machiavelli and Harrington. A “civic morality of investment and exchange” was, in his view, articulated and worked out in the idiom of civic humanism (440). MM therefore looks closely at how Augustan political thinkers understood trade, and credit in particular, as corrupting forces that damaged the general order of things. Pocock features Davenant as the political economist who, guring his analysis in neo-Machiavellian terms, most clearly discerned the relationship between trade and corruption. Trade was, Davenant thought, both an “innovative force and a disturber of … the natural economy of a primitive age in which each man’s wants are supplied by each man’s labor” (444). As a kind of conceptual mirror to Machiavellian virtù, trade bore a complicated relationship to corruption, one mediated through con ict, violence, imagination, and passion. Pocock attributes to Davenant the insights that “trade generates war, and war debt (which is ultimately fatal to trade); luxury generates both robbery/war and exchange/trade, which generates money—the use of a ctitious medium of exchange which, when extended from the use of gold coin to that of paper credit generates debt and consequently corruption” (444). Contained in this formulation we nd not only an argument about trade and corruption cast in the language of early modern republicanism, but also nearly the entire intellectual agenda of eighteenth-century political economists, who struggled to puzzle out the moral and political implications of luxury, debt, and credit and argued with each other about whether these risky features of a commercial republic were worth their economic potential. MM also historicizes the emergence of a nance economy in early modern Britain and reads Defoe’s extensive writings on the double-edged nature of credit as another iteration of the republican idiom, with its interest in virtue and corruption. “Credit, to observers of the new economics, symbolized and made actual the power of opinions, passions, and fantasy in human a airs;” in marshalling these capacities, it simultaneously opened new pathways for growth in commercial Britain and also threatened the stability of its economic, political, and social orders (452). Defoe explored both sides of the new nance economy supported by practices of credit, leaning heavily on the discourses Pocock traces. Pocock suggests that Machiavelli gave Defoe a language for “depicting [the] volcanic and irrational social innovation” that characterized a developing credit economy and the nancial instruments and institutions central to it, while Harrington gave him a vocabulary for communicating to his contemporaries that credit introduced new and dangerous modes of corruption to commercial Britain, due to its total reliance on unstable sources— passion and fantasy (454). Defoe’s project was to determine what the moral bases of credit might be and how it might be recon gured to produce stable social bonds that could survive the disruptions it introduced. By Pocock’s lights, this is a wholly Machiavellian perspective, and one which set the terms for later eighteenth-century re ections on nance, speculation, and credit in British political economy (454). Pocock’s story about British political economy exposes the ssures opened by the transformation from a landed agrarian economy to one premised on credit, nance, and global trade. Using a civic humanist language of virtue and corruption, eighteenth-century political economists tried to sort out how to live with the contradictions introduced by a new credit economy that saw itself as moral and self-regulating and yet depended on the shaky foundations of passion and fantasy. Progress and destabilization were inseparable,

and so the question became how to develop a society and government that could manage and balance these oppositions. Pocock’s analysis hints at a republican basis for later Marxian and Marxist analyses of capitalism as a system riddled with contradiction and con ict. It also invites and continues to encourage contemporary political theorists and intellectual historians to explore the dialectical relations of progress and corruption in the development of nancialization and nance capital, a problem for our time.

Conclusion There is no question that Pocock considers his body of work—of which MM is arguably his greatest—as a history of political ideas grounded in a well-articulated methodology that belongs exclusively to historians. Yet, MM continues to be read and appreciated by political theorists. I have suggested three reasons why this might be the case. First, political theory is itself an interdisciplinary eld, drawing on the methods and insights of historians, philosophers, and political scientists. Pocock’s work has a clear appeal for those who are drawn to both the history of ideas and the political signi cance of language and rhetoric. In studying MM in tandem with his methodological essays, we can nd a repository of advice and caution regarding how much we can know about what political thinkers have said, what they have meant, and what this does or does not mean for our contemporary condition. At the very least, these are methodological arguments we must contend with. Second, while not explicitly part of contemporary political theory’s debate about republican modes of political agency and freedom, MM suggests the value of such a research agenda and lays out some of the ways republican citizenship has been understood in the past. And thirdly, in its republican reading of early modern British political economy, MM can be understood as a foundational text for political theorists who take a dialectic approach to understanding nance capitalism and its 14

challenges.

References Braudel, Fernand. 1979. Civilization and Capitalism: 15th–18th Centuries. 3 vols, trans. Siân Reynolds. Oakland, California: University of California Press. Google Scholar Google Preview WorldCat COPAC Forbes, Duncan. 1976. “The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition by J.G.A. Pocock.” The Historical Journal 19(2): 553–555.

Hirschman, Albert O. 1977. The Passions and the Interests: Political Arguments for Capitalism Before Its Triumph. Princeton: Princeton University Press. Google Scholar Google Preview WorldCat COPAC Lovett, Frank. 2018. “Republicanism.” ed. Edward N. Zalta. URL= . WorldCat Pettit, Philip. 1997. Republicanism: A Theory of Freedom and Government. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Pocock, J. G. A. 1985. Virtue, Commerce, and History: Essays on Political Thought and History, Chiefly in the Eighteenth Century. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Pocock, J. G. A. 1987. The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century, A Reissue with a Retrospect. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Pocock, J. G. A. 1989. Politics, Language, and Time. Chicago: University of Chicago Press. Google Scholar Google Preview WorldCat COPAC Pocock, J. G. A. [1975] 2003. The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition, 2nd edn with new a erword. Princeton: Princeton University Press. Google Scholar Google Preview WorldCat COPAC Pocock, J. G. A. 2009. Political Thought and History: Essays on Theory and Method. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Skinner, Quentin. 1978. The Foundations of Modern Political Thought, Volume 1: The Renaissance. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Skinner, Quentin. 1998. Liberty Before Liberalism. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Suchowlansky, Mauricio and Kiran Banerjee. 2017. “Foreword: The Machiavellian Moment turns Forty.” History of European Ideas 43(2): 125–128.

Wood, Neal. 1976. “The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition by J.G.A. Pocock.” Political Theory 4(1): 101–104.

Notes 1

Also see the final two chapters in Pocockʼs retrospective in an updated edition of The Ancient Constitution and the Feudal Law (1987).

2

The Augustan period in Britain spans the first half of the eighteenth century, through the reigns of Anne, George I, and George II. “Augustan” usually refers to the literary style popular during the period, but Pocock uses it as a descriptor for political and economic thought, too.

3

Pocock defines this Augustan debate as “the first chapter in the history of political economy,” while insisting that we also read it as “a further chapter in the continuing history of civic humanism” (426). The Augustan debate cannot be the first chapter in the history of political economy, but it is an early chapter of the immediate pre-history of capitalism. Regardless, Pocock convincingly argues that this debate has firm roots in humanism, an insight he went on to develop further (1985).

4

A helpful overview of the scope of debates sparked by MM is in Suchowlansky and Banerjee (2017).

5

Pocock (2009, 129–130) names Quentin Skinner as someone whose investigation of republicanism has included both historical and philosophical inquiry.

6

“We” includes the other founders of the Cambridge School in the 1960s and 1970s as identified by Pocock—Peter Laslett, Quentin Skinner, John Dunn—along with their students and like-minded peers.

7

Emphasis added. Then follows the work of proving the languageʼs existence to others. As Pocock explains, “The more authors you can show to have made use of it, the better. If you can show them arguing with one another in it, so that it produces di erent results and grows and changes in the course of usage, better still.” Amusingly, he adds that if an historian can find any proof of her chosen authors acknowledging that they are using a particular language and pointing out its features, she can “get up and dance round the room” (2009, 113).

8

Pocock does, however, state plainly in MM that The Prince is “the greatest of all theoretical explorations of the politics of innovation,” elevating both author and text (2003, 154).

9

It is not easy to tell what Pocock thinks about this question. He does say bluntly in Political Thought and History that almost all debates about methodology are “useless” and largely a matter of asking people to do oneʼs own project rather than the one they have in mind (2009, 51). Although he is strict about what he thinks historians of ideas should be doing, there is no reason to assume he believes their sources cannot be approached di erently by scholars in other disciplines.

10

In contrast, other historians focus attention on the Roman roots of the early modern republican tradition, following the lead of Quentin Skinner (1978 and 1998), a focus picked up by scholars who take a more analytic approach to the concepts critical to this tradition (Pettit 1997).

11

We find a similar move in Pocockʼs treatment of Augustan Britain, where he excludes Locke almost entirely from his analysis, commenting briefly that since “he was no kind of classical or Machiavellian republican, he does not contribute directly to the formation of the tradition we are to study; it seems possible rather to allot him a place, and debate its magnitude, among that traditionʼs adversaries” (2003, 424). Pocockʼs aim is to reconstruct a historical account of Lockeʼs context without Locke, and then raise the question of whether he can be “fitted back into it” (424).

12

Some argue that Pocockʼs focus on the problems of civic virtue, action, and corruption make him a scholar of civic humanism, not civic republicanism strictly speaking (Lovett 2018). While this is a valuable point, Pocockʼs attention in MM is on both the language of civic humanism and on the particular political form of the republic, making it di icult to separate the two in his work.

13

From 1975–1979, MM, Albert Hirschmanʼs The Passions and the Interests, and Fernand Braudelʼs three-volume Civilization and Capitalism: 15th–18th Centuries all went to print in English. On the face of it, these three books present radically di erent accounts of the rise of commerce and capitalism and espouse distinct methodologies, although Pocock and Braudel share a commitment to longue durée approaches to history as well as an aversion to focusing too much on particular individuals or events.

14

Thanks to Jacob Levy and Torrey Shanks for helpful comments on previous dra s.

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

John Rawls, Political Liberalism  Dennis F. Thompson https://doi.org/10.1093/oxfordhb/9780198717133.013.38 Published: 10 December 2015

Abstract John Rawls’ Political Liberalism is much more than just an e ort to correct what Rawls saw as an error in his masterwork, A Theory of Justice. The political liberalism of Political Liberalism stands on its own. It is liberal in a new way, and political in the right way. By examing what makes the theory liberal and what makes it political, the chapter brings out a feature of the theory that has not been su

ciently

emphasized—its dynamic character. Rawls’ political liberalism invites citizens to revise even their liberal views as they seek agreement while continuing to disagree.

Keywords: Political Liberalism, John Rawls, political philosophy, A Theory of Justice, theory of justice, justice as fairness, pluralism, political liberalism Subject: Political Theory, Political Institutions, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

If your rst book were hailed as one of the great works of political philosophy of all time, what should you do for your next project? Surely not devote yourself to repudiating a signi cant part of the rst book, and developing a view in which your original theory appears as only one among many possibly correct views. But that is exactly what John Rawls did. The rst aim of Political Liberalism (PL) was to correct what Rawls saw as 1

a major problem with his magisterial A Theory of Justice (TJ). The theory of justice defended there (“justice as fairness”) could not be a stable basis for a well-ordered society, he decided, because its premise that citizens hold the same comprehensive moral view is incompatible with the “fact of reasonable pluralism” (xliii). Rawls did not renounce justice as fairness. He still thought that it is the best theory of justice, but he came to believe that his earlier account of how citizens can accept it was mistaken. 2

Most of the initial reaction to PL focused on the di erences with TJ. Some readers were disappointed because Rawls seemed to have weakened his liberalism by appearing to downgrade justice as fairness. He seemed to put the egalitarian principles of TJ at the mercy of democratic politics. He had become too political. Other readers were disappointed for the opposite reason. He had not become political enough. PL was still just as “abstract and unworldly” as TJ (lxii). It tried too hard to rise above the political fray. It seemed to cast the theorist in the role of an umpire, impartially setting the rules of debate and terms of

cooperation. With only the view from TJ, political liberalism looked neither su

ciently liberal nor

appropriately political. Preoccupation with comparing the two books—which continues in much recent commentary—has eclipsed the independent contribution of PL. Fixing a problem in TJ is only one of the aims of PL. The other—and arguably more important—aim is to nd fair terms of political cooperation in the face of reasonable pluralism (xxxvi, 47). There is reasonable disagreement about justice, including justice as fairness. How then can we justify imposing laws on one another? PL thus shifts from formulating a theory of justice to nding a theory of legitimacy. This shift sets a distinctive new agenda. “Political liberalism … has a familiar ring,” Rawls writes, but “I mean by it something quite di erent … from what the reader is likely to suppose” (3). That is certainly the case if the reader supposes that it refers to the term as used in contrast to conservatism in American politics, or as used (in quite another way) to describe the ideology of liberal parties in European politics. The liberal tradition from Kant to Mill comes closer to the view that Rawls is developing, but he wishes to distinguish his view from those thinkers as well. His view captures the core values of the liberal tradition, but revamps them for pluralist societies marked by persistent moral and political disagreement. Whatever the merits of TJ, the political liberalism of PL is on its own remarkably robust, and with some modi cations can be made more so—liberal in a new way, and political in the right way. We can better appreciate the contribution the theory makes by considering each of its elements separately to see what makes the theory liberal, and what makes it political. Its distinctiveness comes in part from an aspect of the theory that has not been su

ciently emphasized—what may be called its dynamic character.

Like Rawls’ own theory, political liberalism is a work in progress. It invites citizens to revise and reconsider their political views as they seek agreement even while they continue to disagree. Political liberalism, as both theory and practice, is essentially provisional.

How Liberal is Political Liberalism? A conception quali es as liberal if it gives priority to basic rights over claims based on the general good or perfectionist values, and requires institutional measures to enable citizens to make e ective use of those rights (6, xlvi). Which rights, what kind of priority, and how extensive the measures are all questions about which there can be reasonable disagreement. Di erent liberalisms answer them in di erent ways, and so there is a reasonable pluralism of liberalisms. The liberalism of TJ is one among many. All the liberalisms accept the values of freedom and equality, and in that respect all presuppose liberal democracy in some form. PL assumes the validity of these basic values. It is not intended to justify liberal democracy to those who would reject those values. Nor does political liberalism include the standard forms of libertarianism, which impoverish liberty by ignoring the e ects of social and economic inequalities (lvi). But political liberalism is still quite inclusive. This admirable capaciousness nevertheless creates problems. The rst problem arises because not all disagreements can be accommodated. In striving for a well-ordered society, citizens seek to agree on the same conception of justice, based on moral principles, and to recognize that they do. It is unlikely that there could be an agreement that would include all such conceptions, and even if there were, it would probably be incoherent. So which conceptions should be accommodated? Some theorists try to avoid choosing among substantive conceptions by relying instead only on procedures to produce the right outcomes. To the extent that the political procedures are equal and impartial, the process is open, participants are not coerced and are guided by the force of the better argument, the laws they produce and conceptions they embody are just or at least legitimate. Habermas (1995) presents a

sophisticated version of this kind of procedural theory, and claims that, in contrast to Rawls’, his “can leave more questions open because it entrusts more to the process of rational opinion and will formation (131).” But Rawls argues that no plausible theory of justice can avoid taking a substantive position on justice. Values that on their face seem purely procedural—such as impartiality and openness—are included as part of the procedure only because “they are necessary to render the outcomes just or reasonable” (425). In Habermas’ case, they are intended to guide discussion to an “outcome [that] is certainly substantive, since it refers to a situation in which citizens’ generalizable interests are ful lled.” Habermas has in e ect “shaped the procedure to accord with our judgment of those outcomes” (ibid.). So the question persists: if not all views should be accommodated, which ones should be? Rawls’ answer is that only reasonable comprehensive views a

rmed by reasonable persons. There are two di erent sets of

criteria here—one for views and another for persons. A reasonable comprehensive view presents a coherent and complete account of important aspects of human life, provides guidance for choosing among important human values, and gradually evolves “in light of what, from its perspective, it sees as good and su

cient

reasons” (59). The last characteristic—gradual evolution—is especially signi cant because it supports the dynamic practices of political liberalism, enabling comprehensive views to converge in an overlapping consensus over time. Views that do not remain open to revision or change in light of new evidence are unreasonable. Roman Catholicism presumably counts as reasonable because it has responded to changes in social understandings and scienti c knowledge. But fundamentalist religions that deny scienti c evidence about the creation of the world do not. Still, Rawls keeps this test “deliberately loose” (59) so as to accommodate a wide range of con icting religions, moralities, and ideologies. The more stringent criterion is that the views must be of the kind that can be a

rmed by reasonable

persons. (Reasonable persons tend to hold reasonable comprehensive views, but the connection is 3

contingent, not de nitional, as “reasonable” is not the same in both tests.) “Reasonable person” may seem at rst a rather vague criterion, as Rawls himself acknowledges (48). But Rawls shows that it is actually based on a familiar idea in personal relationships in everyday life. He appeals to the experience of seeing someone propose a deal that is rational given a disproportionate bargaining position but one that most people would consider to be “highly unreasonable, even outrageous.” Persons are reasonable when “they are ready to propose principles and standards as fair terms of cooperation and to abide by them willingly, given the assurance that others will likewise do so” (49). They seek agreements that express a principle of reciprocity, which holds that all who cooperate on fair terms should bene t according to whatever standard of justice is adopted (16). Reasonable persons would reject comprehensive doctrines that cannot support democratic society, such as certain forms of aristocracy, autocracy, and dictatorship (483). They would also reject any conception that does not recognize basic liberal rights, such as those of free speech, association, voting, and running for o

ce (228).

Rawls’ argument that a reasonable society should exclude some views has often been misunderstood, with the result that his liberalism can appear less liberal than it is. Exclusion refers to the content of justice, not the conduct of citizens. Rawls does not mean that those who hold the unreasonable views should be denied any rights that other citizens enjoy, or that their views should be banned or censored. Indeed, in a society governed by justice as fairness (or almost any other liberal conception of justice), those who hold unreasonable views (as de ned by the rst criterion) are to be treated as rightful citizens as long as they obey the law. The claim is only that their comprehensive views are not to be considered as public justi cations for shared political institutions. In deploying reasonableness in this way, Rawls takes an idea familiar in everyday negotiations, and elevates it to a core principle of political philosophy. The idea becomes the basis for the principle of reciprocity, which preserves the liberal value of a respect for individuals freely pursuing their own ends while recognizing the obligations they owe to each other. He has found the sweet spot between impartiality and

prudence that previous liberalisms seem to have missed (16–17). He is puzzled that no one had “worked out” the idea earlier (374n). The explanation may simply be that reasonableness seemed too quotidian to serve as an ideal in a high-minded philosophy of liberalism. Yet, as Rawls reminds us, it is an ideal that deserves respect: “The reasonable society is neither a society of saints nor a society of the self-centered. It is very much a part of our ordinary human world, not a world we think of much virtue, until we nd ourselves without it” (54). It is a virtue developed not in one-time interactions but in ongoing relationships that engage citizens in the liberal project of living with reasonable disagreement. Its practice displays another dynamic facet of political liberalism. Because political liberalism emphasizes that the norms of reciprocity develop in relationships among citizens over time, it avoids the static approaches that disable other liberalisms. A second problem arises not because political liberalism excludes some views but because it includes so many. Given the profusion of reasonable views, many of which con ict with one another, how can citizens possibly agree on a conception of justice that will enable them to cooperate in the making of the laws? Or as Rawls states it: “How is it possible that deeply opposed though reasonable comprehensive doctrines may live together and all a

rm the political conception of a constitutional regime?”(xviii; also see 4, 47).

The answer is to be found in the idea of an overlapping consensus, one of the two most important concepts 4

in PL, and one not found in TJ, or for that matter in any other major political theory. An overlapping consensus is an agreement on a political conception of justice endorsed by all the reasonable opposing religious, philosophical, and moral doctrines that gain a signi cant body of adherents over time in a more or less just constitutional regime (15). Its distinctive feature is that the adherents of each doctrine endorse the conception for their own moral reasons from within their own comprehensive views. The reasons produce conclusions that converge on the political conception. A Kantian may support the consensus because it promotes the autonomy of persons. Religious citizens may support the political conception because their theology shows that it is the right way to relate to others who do not share their faith. A “perfect example of overlapping consensus” is the Islamic reformer who writes that the “Qur’an does not mention constitutionalism, but human rational thinking and experience have shown that constitutionalism is necessary for realizing the just and good society prescribed by the Qur’an” (461). The political conception on which the overlapping consensus converges is free-standing in the sense that it does not depend for its justi cation on any of the comprehensive views. It is “worked up” from the fundamental intuitive ideas that are implicit in the public culture of a democratic society (43). The ideas vary depending on the society, but they must include “ xed considered convictions of justice,” such as the idea of society as a fair system of social cooperation and the idea of free and equal citizens. These ideas are not usually part of any comprehensive doctrine, but the political conception they support can be accepted by all reasonable doctrines for their own reasons. Yet the political values in the overlapping consensus must somehow take precedence over other values. That is the purpose of the idea, but it prompts this question: how can we expect citizens to let these political values outweigh their moral and religious values? Rawls’ answers are not entirely reassuring. He observes that most people’s views are only partially comprehensive, and only loosely related to principles. In everyday life they have not thought much about how their comprehensive views relate to political justice, and most of the time do not need to. There is a lot of “slippage” between their partial views and the claims of political justice (160). This may be a plausible account of everyday political thinking, but it does not help much with the deep disagreements that often divide citizens. If citizens have not thought about how their comprehensive views relate to political justice when disagreements are few and minor, they will be less likely to appreciate its value when con ict heats up, and more is at stake. When political justice is needed most, it may be least available.

A more promising answer can be developed if we situate the problem in a dynamic context. Notice that Rawls does not claim that an overlapping consensus now exists, or even that it will ever be fully realized. At most, we can expect that under the right conditions citizens will gravitate toward it over time (19–20, 30, 34). We should think of it as the product of a continuous process in which citizens at rst tfully, later more dependably, practice the political virtues of tolerance, reasonableness, and a sense of fairness in face of political con ict. Political liberalism is as much about living with disagreement as about reaching agreement. That is why the liberal ideal of citizenship imposes a duty of civility that includes a “willingness to listen to others and a fairmindedness in deciding when accommodations to their views should be 5

reasonably made” (217).

Insofar as citizens try to ful ll the duty of civility, they build up what Rawls calls political capital, which can be drawn on in face of disagreement (157). When con icts with their comprehensive views occur, citizens are more inclined to adjust those views rather than to reject political values (160). Liberal versions of Roman Catholicism evolved over time in much this way by giving greater value to separation of church and state, and by the emphasizing the pursuit of social justice more than the conversion of individual souls. Rawls concludes: “As the success of political cooperation continues, citizens gain increasing trust and con dence in one another. This is all we need say in reply to the objection that the idea of overlapping consensus is utopian” (168). It is not all we need to say, however. What is missing is a substantial account of the practices and institutions that could support this gradual development of the consensus. If citizens do not have occasion to think about, and confront in public and try to resolve, deep con icts, they are not likely to develop the political virtues and see the value of cooperation. They would take the political conception for granted—an attitude that would not sustain the sense of justice required for the stability of liberalism. Theorists such as J. S. Mill argue that greater political participation is required to help citizens develop these civic virtues. But Rawls relies mainly on the “political conception as educator.” As citizens see liberal principles embodied in the public institutions of society, they will learn the value of liberal citizenship (71, 85–86). He does not reject the value of participation provided it is not promoted as a good for its own sake (205–206). But he gives neither political participation nor civic education the prominent role that liberalism requires— especially that his liberalism understood as a dynamic project requires. Those who would adopt and extend his liberalism need to give citizens a more active role in this process by treating them less as students and more as co-teachers of the political conception. The practices and institutions that support political liberalism over time will not be neutral in their e ects, Rawls acknowledges (199–200). That might seem to violate the principle of neutrality that many liberals hold dear—the requirement that the state should not favor any comprehensive doctrine or conception of the good (190). Although Rawls generally avoids the term “neutrality” and its cognates, he reluctantly—and unfortunately—relents in one section in PL. He argues that liberal justice should not try to be neutral in its e ects, which would be impossible, but that it should still be neutral in its aim. The basic institutions and public policy are not to be designed to favor any particular comprehensive doctrine (194). But when the theory is considered from a dynamic perspective, this distinction loses its signi cance. As citizens practice the habits of fair cooperation, modify their own comprehensive views to t better with political justice, as children grow up in a liberal society, some comprehensive views come to be strengthened more than others. The views that have more a

nity with the political conception—such as

those that value individuality as do the moral theories of Mill and Kant—gain, while those that only tangentially connect with the political conception—such as perfectionist or religious views—lose, or do not bene t to the same degree. Rawls acknowledges the possibility that liberal socialization and civic education may produce citizens who accept a morality of liberal individualism: “the unavoidable consequences of reasonable requirements for

children’s education may have to be accepted, often with regret” (200). These are e ects, to be sure, but they are the direct and essential e ects of the aim, which cannot be realized over time without producing such e ects. The distinction between aim and e ects begins to dissolve here. Moreover, if the e ects are essential, why accept them “with regret”? This concession to neutrality even in aim risks putting Rawls in 6

the position of the liberal who cannot take his own side in an argument. Liberals would do better to shed the mantle of neutrality, and when its practices of education and socialization favor some liberalisms over others, stand their ground on the political conception without apology. The third problem with the idea of overlapping consensus also results from the capaciousness of Rawls’ liberalism. He welcomes so much disagreement that he risks lacking any way to resolve it. In applying “the principle of toleration to philosophy itself” (10, 154), he goes further than many readers have recognized. Political liberalism accommodates not only disagreements about religion, morality, and conceptions of the good, but also di erent interpretations of liberal rights, liberties, and opportunities, and the means to realize them. Even citizens who share the same comprehensive views may disagree about the political values of liberalism. The political conception—political liberalism itself—is contestable over time. “It is inevitable and often desirable that citizens have di erent views as to the most appropriate political conception; for the public political culture is bound to contain di erent fundamental ideas that can be developed in di erent ways” (227, 339). This rather surprising and novel expansion of political liberalism makes Rawls’ liberalism more liberal than 7

most other forms. Its basic conception is open to a wider range of challenges. But the expansion raises the question: how should we decide among competing forms of liberalism? Rawls’ answer points again to a dynamic process: “An orderly contest between them over time is a reliable way to nd which one, if any, is most reasonable” (227, emphasis added). The process may not reach a nal conclusion at all; that seems to be the implication of “if any.” The political conception is supposed to provide a framework for dealing with disagreements, but if the framework itself is contestable, indeed inde nitely so, the “orderly contest” begins to look less well-ordered. A constitutional consensus may help by removing some issues such as slavery and serfdom from the political agenda (151–152). Also, the structure of government should be changed only as required by political justice or the general good, not in response to shifts in political power (228). But controversial questions remain, because the interpretation of the constitution is subject to reasonable disagreement, and on occasion requires amendment itself (158–159, 165). Even so, citizens are not without deliberative resources. The agenda of disagreement is xed: it is focused on the relevant merits of the “variant liberalisms”—the interpretation of the basic liberties and equal opportunities, their priority over other values, and the means necessary to protect them (6). When citizens disagree about these interpretations, they can appeal not only to substantive principles of justice, but also to “other moral norms,” especially the norm of reciprocity. Moreover, they do not have to challenge all the principles and norms at once. They can maintain a partial framework in which to challenge particular principles and applications. The framework at any particular time does not have to include the full set of principles of justice, or even any single principle of justice. We may think of the process of contestation as one in which a provisional interpretation of liberalism is challenged—a few principles at time, not all at once. We might appropriate Otto Neurath’s metaphor of a reconstructing a ship at sea (which he used to argue against the foundationalist view of science) to suggest how the principles of liberalism can be revised even as the liberal project proceeds. “We are like sailors who on the open sea must reconstruct their ship but are never able to start afresh from the bottom. Where a beam is taken away a new one must at once be put there, and for this the rest of the ship is used as support. In this way, by using the old beams and driftwood, the ship can be shaped entirely anew, but only by gradual 8

reconstruction.” The liberal revisions could be more radical: how fast and large the changes will be depends not only the democratic contestation itself but on historical events. And as Rawls remarks, “History is full of surprises” (87).

Accepting the possibility of fundamental change of a conception within the conception itself, some may still object that we still lack guidance in making the changes. We are, so to speak, still at sea without a rudder. The “ rst part” of the political conception, its substantive principles of justice, is too general and expansive to o er more than a set of broad limits to any reconstruction during the continuing voyage. That is why we need the “second part” of the political conception, a principle to guide the interpretation and application of 9

the substantive principles. This is the task of public reason.

How Political Is Political Liberalism? Public reason places limits on the justi cations that may be legitimately used in interpreting and applying the principles of justice. It prescribes that citizens and their representatives justify the laws they would enact by appealing to reasons that could be accepted by free and equal persons motivated to nd fair terms of cooperation (49). The requirements of public reason represent the minimal terms of cooperation that no 10

citizen could reasonably reject. 11

legitimate.

The requirements are necessary to make the exercise of political power

The “political relationship” in which citizens stand is non-voluntary and coercive (135–136,

216–217, 222). Under these circumstances, the application of the principles of justice—legislating on constitutional essentials that result in laws that bind everyone—must be justi ed in terms that free and equal citizens could accept. Otherwise, some would be imposing laws on their fellow citizens without showing the respect all are owed. Public reason does not restrict free speech in any way. Rawls is as staunch an advocate of a constitutional right of free speech as any civil libertarian (340–348). Nor is public reason meant to regulate deliberations within associations such as churches and universities in the “background culture” (215). It governs only “political advocacy in the public forum” and applies only to “constitutional essentials” and “matters of basic justice” (such as voting rights, religious toleration, and free speech), not to other political questions that involve the “many economic and social issues that legislative bodies must regularly consider” (such as 12

tax legislation, environmental protection, and property regulation) (214, 227–230).

Still, on its face public reason seems an odd idea. In justifying the laws they advocate and deciding how they should vote on issues involving constitutional essentials, all citizens and their representatives have a “moral duty of civility” to appeal “only to a public conception of justice, not the whole truth as they see it” (216). They should not appeal to their moral, religious, or other comprehensive views. Refraining from telling the whole truth—deliberately ignoring reasons that are relevant to reaching a well-grounded decision—seems more like an authoritarian vice than a liberal virtue. It is like swearing to tell the partial truth, and nothing but the partial truth. Rawls goes even further: “political liberalism does without the concept of truth” entirely (94). He believes his theory does not need to take a stand on the question of whether a conception of justice is true (394– 13

395).

The idea of the reasonable is su

cient as a standard of correctness. Many critics object that Rawls

cannot abstain from making truth claims. Habermas asks: how “could the religious con icts have been brought to an end [in the way that Rawls posits] if the principle of tolerance and freedom of belief and conscience had not been able to appeal, with good reasons, to a moral validity [a truth] independent of 14

religion and metaphysics?”

Even theorists sympathetic to Rawls’ aims believe he has gone too far in this

respect, and that public reason can be better defended, and its democratic potential more fully realized, by 15

allowing that claims about justice can be true or false.

To make the idea of public reason seem less paradoxical and more acceptable, Rawls o ers several analogies, all from the law. He wants to remind us that there are familiar cases where we accept the idea of not appealing to the whole truth even when it is readily available. He cites the exclusionary rules of evidence in criminal trials, testimonial privileges, and protections against self-incrimination (218). What the

analogies have in common is that they are “all cases where we recognize a duty not to decide in view of the whole truth in order to honor a right or duty or to advance a good” (219). The analogies, though illuminating, obscure a critical di erence between these practices and public reason. The requirements of public reason are not simply another instance of balancing or trading-o

some values

in order to promote others, as are the examples from the legal process. If the requirements are interpreted in that way, as a choice to promote some values over others, they invite an obvious objection. It is the public reason version of the question raised earlier about giving the political conception precedence in developing an overlapping consensus. Why should the values of public reason generally take priority over other kinds of values? In establishing the rules of evidence and other legal practices, we weigh the value of deciding on the basis of the whole truth against the values protected by deciding on the basis of partial truths. By the same token, the objection continues, “to assess restrictive rules of public reason, we need to weigh their moral and political costs against the political values they are said to make possible” (Sandel 1994, 1792, emphasis added). Some citizens may place a higher value on promulgating their comprehensive religious views than on promoting the civility or legitimacy that public reason calls for. This objection is misconceived because balancing or trading-o

values in “political relationships” has to be

decided collectively, and in a process that already presupposes the conditions that the objection would include in the balancing. The preclusion of certain reasons is required to get the process of balancing going in the rst place. It is a presupposition of the practice’s taking place at all. In the case of public reason, it is a presupposition of making any collective decision legitimately, including a decision about what “we” would balance or trade-o

in making laws and constitutions. In a conception of legitimacy, “we” has no meaning

in the absence of a mutually justi able procedure for making collective decisions. Public reason helps to de ne that procedure. Furthermore, as citizens practice public reason over time, they come to see less con ict between the political values and their moral and religious views. Public reason bene ts from the same dynamic process, described above, that helps to bring the comprehensive doctrines into alignment with the political conception in an overlapping consensus. Rawls seeks to make public reason more appealing in another way—by moderating its requirements. As he develops the requirements, he rejects an absolutist interpretation, which would hold that citizens should never introduce comprehensive doctrines in the public forum. He suggests that citizens may introduce such doctrines if they do so in ways that strengthen the ideal of public reason itself (247–248). In subsequent revisions, he further loosens this requirement. He adds a proviso that allows reasonable comprehensive conceptions to be introduced at any time if they are supplemented by the appropriate political reasons “in due course” (xlix–l, 453, 462, 491–494). To establish that the abolitionists and the leaders of the civil rights movement satisfy the requirement of public reason, we do not need to cite the injustice of their circumstances, or show that their religious appeals furthered the cause of justice (l). It is enough that their views at some point are defended in terms consistent with public reason. In the spirit of this dynamic liberalism, Rawls modi es his own view of public reason. Although public reason is not as restrictive as is often assumed, it is not as political as the dynamic character of Rawls’ theory seems to require. Rawls himself invites revisions in public reason by remarking that its “content is not xed,” and will change over time as di erent groups raise di erent problems (li). Public reason can be made more political in at least three ways that would strengthen the dynamic character of political liberalism. First, the requirements of public reason should be more responsive to the relative power that citizens and their representatives possess and exercise. Although Rawls himself emphasizes the coercive character of political power, he neglects one of its most important implications. The requirements of public reason should apply more rigorously to individuals and institutions who have power over other people, and who have responsibilities to others on whose behalf they act. Those who have the power to make the decisions

binding have a greater obligation to observe its requirements. Rawls seems to recognize that the requirements can be more or less strict: the Supreme Court is expected to follow them more thoroughly than other institutions. But his rationale for holding the Court to more stringent standards turns less on its 16

political power than on its institutional competence and constitutional role (231–240).

If the stringency of the requirements varies with degrees of political power, we should also place greater demands on majorities than on minorities in the public forum, especially if the majorities are relatively permanent, and the minorities relatively discrete. This is not to say that minorities do not have any duty of civility. They should try to appreciate that when their claims are rejected because they fall outside the limits of public reason, they are not being treated unfairly. They should accept the legitimacy of the decision, or at least the legitimacy of the regime and its constitution. But the implications for those who exercise power are even more important. Those in power should have stronger obligations to seek accommodations with minorities on other matters, and even to support a minority’s cause to which they might not otherwise assign a high priority. A second way in which Rawls’ liberalism can be more political in the right way concerns the role of institutions. At rst, he seemed to think it su

cient to say that political liberalism does not assert or deny

claims about the relative merits of various democratic institutions (235). But as he revised the theory, he came to see that public reason must be situated in an institutional context not only to function well, but 17

even to serve its stated aim at all.

Political liberalism may not have to decide between parliamentary and

presidential forms of democracy, but it does have to adopt the institutions that support a certain kind of deliberative democracy, based on an ideal of political equality (447–450). He prescribes a robust set of institutions, including public nancing of campaigns, educational reform, income redistribution, welfare support, and universal health care, and asserts that they are “necessary” for the form of deliberation that public reason requires to be “possible” at all (lvi–lvii). The purpose of public reason would be completely undermined if the resources to which various groups had access were radically unequal. The reciprocity in the reason-giving requirement would be overwhelmed by the disparity in the bargaining power of citizens. Does that mean that public reason has no place in politics until deliberative democracy is fully realized? If so, political liberalism would lose much of its political relevance; it would have to retreat to the sidelines waiting for a turn that might never come. But here the dynamic character of liberalism again comes into play. It is a mistake to think of institutional change in separate stages: rst create the prerequisites, and then practice public reason. The e orts to realize the requirements of public reason must proceed in tandem with e orts to promote the institutional requisites. The requisites are not prerequisites but conditions that are continually in the process of being realized, never completely, but (if all goes well) progressively. Rawls keeps this process more open than some of his critics would like. He does not include principles of social and economic justice in the catalog of constitutional essentials (229–230). This has led critics to charge Rawls with abandoning the egalitarian commitments of TJ—especially, the concern for the least 18

advantaged as expressed by his di erence principle.

The criticism is misplaced. Rawls is still committed to

his theory of justice as fairness, including its egalitarian principles, as the most reasonable political conception. But a theory of legitimacy must take account of the fact that we can reasonably “expect more agreement about whether the principles for the basic right and liberties are realized than about whether the principles of social and economic inequalities are realized” (229–230). We should therefore make more room for alternative interpretations of social and economic justice, such as a social minimum that may be lower or higher than required by the di erence principle. These alternatives should be debated in the democratic process—within the limits of public reason but not entrenched in a liberal constitution. The implication of the critics’ charge is that economic and social justice should be decided in advance, or in some other way insulated from the give-and-take of democratic deliberation. In this respect, political liberalism is more political than the views of some of its critics.

The third way to make liberalism more political also seeks to make the democratic process more open—not by relaxing its requisites but by broadening its content. Without abandoning the core of public reason, we could make more room in the public forum for comprehensive views than Rawls suggests, both in their 19

characteristic forms of expression as well as their substance.

The boundary between the background

culture where moral and religious debate is to ourish and the public forum where it is to be contained can be, and in practice often is, porous. With less restrictive requirements, citizens might nd that they could— without outing the principle of reciprocity—welcome comprehensive views into public deliberation and even in some instances as the grounds for legislation. The comprehensive views could serve more directly as a check on the anorexic tendency of the political conception (its impulse toward lowest-commondenominator deliberation). Citizens could engage in more free-wheeling political debate, with greater prospects for changing their minds not only about a piece of legislation but also about the reasons for it. This capacity for change through reasoned discussion is one of the hallmarks of deliberative democracy, a conception that Rawls himself endorses. Enabling this kind of continuing deliberation should count as a friendly amendment to a political liberalism that would support a dynamic political process. A more robust conception of public reason would deal more satisfactorily with the concern that its requirements run out when political con icts heat up. Public reason is “incomplete” because Rawls’ political values do not provide a nal resolution for some kinds of disputes, those that have been called “deliberative disagreements,” con icts in which the best e orts at moral reasoning in the spirit of 20

mutuality produce no uniquely correct solution.

These include disputes about abortion, which on some 21

reasonable views cannot be resolved in the political forum on terms that no one could reasonably reject.

The U.S. constitution as presently interpreted may provide a practical resolution, but that does not mean that the question is no longer subject to reasonable disagreement. The public forum should make room for deliberation on such questions (speci cally, those about which there are deliberative disagreements), even at the risk of a “stand-o ” in which parties on both sides of the dispute continue to appeal to their comprehensive conceptions rather than to only free-standing political values. The value of reciprocity itself as well as deliberative democracy provide good reasons to adopt this wider view of public reason. Even on this wider view, public reason would still impose some limits. The primary constraint should be not the lack of comprehensiveness, but mutual accessibility. That God commands us to adopt a certain law does not count as a reason, not because it is based on a comprehensive view, but because its authority is not accessible to citizens who do not have a special link to this particular supreme being. In his later work, Rawls himself recognizes a criterion that is similar to this idea of accessibility. Interestingly, he interprets the criterion so that it also rules out some secular views, such as “elaborate economic theories of general equilibrium” if they are in dispute (Rawls 2001, 90). All citizens should be able to appeal to the “whole truth as they see it” within the public forum, as long as it is a truth that others can appreciate (if not actually accept), and as long as it is a truth that can be reasonably seen as consistent with one of the several conceptions of justice that express political liberalism (581–582). In this way, the commitment to reciprocity would be preserved as far as necessary but not so far as to preclude all reasons that appeal to comprehensive conceptions. Public reason combined with the idea of an overlapping consensus constitutes a powerful, even inspiring, development in the history of liberalism. Practiced properly, Rawls’ political liberalism expresses the liberal value of mutual respect that free and equal citizens should enjoy in a democracy. Revised periodically, it can support a dynamic politics that democratic citizens should welcome. Political liberalism is a work perpetually in progress. Rawls’ auto-revision of his own theory would have 22

continued. He was planning a revised edition of PL when his plans were cut short by illness.

The robust

politics that PL promotes does not exempt the political philosopher. Rawls does not elevate the philosopher above the political fray: “students of philosophy take part in formulating these ideas [of right and justice]

but always as citizens among others” (427). He throws his own theory into the political ring: “So far as other citizens pay attention to it, what is written may become part of the ongoing public discussion, A 23

Theory of Justice along with the rest, until it eventually disappears” (383–384).

Rawls’ work is not likely to disappear from the canon of political philosophy any time soon, if ever, but whether Rawls’ political liberalism survives and prospers depends largely on whether democratic citizens can develop and sustain the civic virtues that PL calls for, and the capacity for revision that Rawls himself exempli es.

Acknowledgments For comments on an earlier version of this entry, I am grateful to Eric Beerbohm, Samuel Freeman, Erin Kelly, Michael Rosen, and T. M. Scanlon.

References Ackerman, Bruce. 1994. “Political Liberalisms.” Journal of Philosophy 91(7) (July): 371–374. WorldCat Aybar, Samuel, Joshua D. Harlan, and Won J. Lee. 1991. “For the Record: An Interview with John Rawls.” Harvard Review of Philosophy (Spring): 39–41. Google Scholar WorldCat Cohen, Joshua. 2009. “Truth and Public Reason.” Philosophy & Public A airs 37: 2–42. Google Scholar WorldCat Freeman, Samuel Richard. 2003. The Cambridge Companion to Rawls. Cambridge UK: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Freeman, Samuel. 2007. Rawls. London and New York: Routledge. Google Scholar Google Preview WorldCat COPAC Gutmann, Amy and Dennis Thompson. 1996. Democracy and Disagreement. Cambridge MA: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Habermas, Jürgen. 1995. “Reconciliation through the Public Use of Reason: Remarks on John Rawlsʼs Political Liberalism.” Journal of Philosophy 92(3): 109–131. Google Scholar WorldCat Hocking, William Ernest. 1942. What Man Can Make of Man. London: Harper & Brothers. Google Scholar Google Preview WorldCat COPAC Kelly, Erin and Lionel McPherson. 2001. “On Tolerating the Unreasonable.” Journal of Political Philosophy 9(1): 43–50. Google Scholar WorldCat Landemore, Hélène. 2013. Democratic Reason: Politics, Collective Intelligence, and the Rule of the Many. Princeton: Princeton University Press. Larmore, Charles. 2003. “Public Reason.” In Cambridge Companion to Rawls, edited by Samuel Freeman. Cambridge UK: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Mandle, Jon and David Reidy, eds. 2014. A Companion to Rawls. Chichester, West Sussex: John Wiley & Sons. Google Scholar Google Preview WorldCat COPAC Michelman, Frank I. (2004). “Justice as Fairness, Legitimacy, and the Question of Judicial Review: A Comment.” Fordham L. Rev. 72(1407): 1407–1420. Google Scholar WorldCat Muirhead, Russell and Nancy Rosenblum. 2006. “Political liberalism vs. ʻThe Great Game of Politicsʼ: The Politics of Political Liberalism.” Perspectives on Politics 4(01) (March): 99–108. WorldCat Neurath, Otto. 1973. “Anti-Spengler.” In Empiricism and Sociology, edited by Marie Neurath and Robert S. Cohen, 158–213. Boston: D. Reidel. Google Scholar Google Preview WorldCat COPAC Plutarch. 1914. “Theseus.” In Plutarchʼs Lives, Volume 1, trans. Bernadotte Perrin. New York: MacMillan.

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Quong, Jonathan. 2013. “Public Reason.” In Stanford Encyclopedia of Philosophy, edited by Edward N. Zalta. http://plato.stanford.edu/archives/sum2013/entries/public-reason/ Google Scholar Google Preview WorldCat COPAC Rawls, John. 1999 [1971]. A Theory of Justice. Cambridge MA: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Rawls, John. 2001. Justice as Fairness: A Restatement, edited by Erin Kelly. Cambridge MA: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Rawls, John. 2005 [1993]. Political Liberalism. New York: Columbia University Press. Google Scholar Google Preview WorldCat COPAC Rorty, Richard. 1991. Objectivity, Relativism and Truth. Cambridge UK: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Sandel, Michael. 1994. “Political Liberalism.” Harvard Law Review 107(7) (May): 1765–1794. WorldCat Sche ler, Samuel. 1994. “The Appeal of Political Liberalism.” Ethics 105(1) (October): 22. WorldCat Weithman, Paul. 2010. Why Political Liberalism? On John Rawlsʼ Political Turn. Oxford: Oxford University Press. 1

PL was originally published in 1993. Its eight chapters are described as lectures, all but one of which had been previously published, though several in a substantially di erent form. For the paperback edition in 1996, Rawls wrote a new introduction, providing a “readerʼs guide” and presenting some significant revisions in the theory. For an “expanded edition” (Columbia University Press, 2005), he added his “Reply to Habermas” (1995) and “The Idea of Public Reason Revisited” (1996). The page citations and substantive discussion in this chapter refer to the expanded edition, which Rawls intended to be read as a single work. By including the revisions, he shows the evolution of the theory. The first book, TJ, was published in 1971, and itself substantially revised in 1999.

2

The single most valuable commentary on Rawlsʼ theory is Freeman (2007). Its extensive bibliography includes references to many of the philosophers who focus on the comparison of the early and later Rawls, as well as some to those who concentrate mostly on PL. Freeman devotes two chapters to PL, which not only clarify its relation to TJ, but also discuss the elements of PL that stand on their own. Freeman is also the editor of an important collection of essays on Rawls (2003). In addition, see Weithman (2010); and Mandle and Reidy, eds. (2014).

3

The criteria also may have di erent implications for toleration: see Kelly and McPherson (2001).

4

The term appears in TJ but with a di erent meaning and in a smaller role (PL, 15n).

5

For the principles of accommodation, Rawls refers to Gutmann and Thompson (1990), the substance of which is extended and somewhat revised in Gutmann and Thompson (1996, 79–81).

6

“He lends himself to the gibe that he is ʻso very liberal, that he cannot bring himself to take his own side in a quarrelʼ” (Hocking 1942, 45).

7

Or more positively, the political conception is open to a wider range of justifications: “the distinctive contribution of political liberalism may be to suggest that there are many ways to arrive at liberal principles and that that very fact is a source of liberalismʼs strength” (Sche ler 1994, 22).

8

Neurath (1973, 199). Cf. Plutarch (1914, 49).

9

For an instructive overview of the vast literature that this concept has generated, most of it within the orbit of political

liberalism understood broadly, see Quong (2013). 10

Rawlsʼ formulation is “closely connected with T.M. Scanlonʼs principle of moral motivation” (49 n2). Rawlsʼ basis for the justification that citizens should give—the political values of public reason and the interests of free and equal citizens—is very close to Scanlonʼs idea of the grounds of reasonable rejection. However, Rawls allows citizens to take into account their own comprehensive views, a qualification that Scanlonʼs idea does not include.

11

Power is legitimate only when exercised in accordance with a constitution that citizens “may reasonably be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational” (216–217).

12

Rawls leaves open the possibility that the requirements of public reason might be extended to these other political questions (“we can then proceed to other cases”) though “not in the same way, or so strictly” (215).

13

Anti-foundationalists such as Richard Rorty (1991) welcomed this turn but took it further than Rawls was willing to go. Rawls does not deny that moral and epistemological views may need a metaphysical foundation, only that his political conception does. He “leaves the concept of true moral judgment to comprehensive doctrines” (116, 125).

14

Habermas (1995, 126).

15

Joshua Cohen develops a “political conception” of truth, which like Rawlsʼ political conception of justice, makes no metaphysical claims but still enables public reason to express “a concern about getting it right, that is, about the truth about justice” (Cohen 2009, 42). But even some epistemic democrats (who would agree that democratic process should be concerned about getting it right) argue that democratic theorists “need not buy into a political conception of truth” but need only to accept the idea of a procedure-independent standard of correctness” (Landemore 2013, 230).

16

Rawlsʼ discussion of judicial review and constitutional essentials in PL has generated a substantial literature by legal theorists: see, e.g., Michelman (2004).

17

For an argument that Rawlsʼ theory could benefit from a greater attention to the role of political parties, see Muirhead and Rosenblum (2006).

18

E.g., Ackerman 1994, 371–374.

19

But cf. Larmore (2003, 387), who argues that, although public reason should permit comprehensive conceptions in “open discussion,” it should not allow such departures in “decision making” when citizens deliberate about which options should have the force of law unless “its most elementary ingredients are in wide dispute.”

20

Gutmann and Thompson (1996, 2–3, 60, 73–79).

21

Rawls does not intend his comments about abortion (243–244n) to be an argument for the right to abortion—at least not a “decisive” argument—and not an argument showing that the denial of such a right would “run afoul of public reason” (liv, 479).

22

See Rawlsʼ proposal for a revised edition sent to his editor at Columbia University Press in 1998: “My thoughts keep changing as time passes” (438–439).

23

In an interview with students, Rawls reflected further on the public role of political philosophy: “In a democratic society, as ours is—although it distressingly falls short of what it should be—I see political philosophy as addressing the citizenry— not government … if they find your ideas convincing, you might change society for the better, or more realistically perhaps, you might prevent it from getting worse” (Aybar, Harlan, and Lee 1991, 39–41). In PL Rawls suggests that philosophy can “shape the underlying attitudes of the public culture and the conduct of politics” (lix), but he also recognized its significant limits (338–339).

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Joseph Raz, The Morality of Freedom  Colin Bird https://doi.org/10.1093/oxfordhb/9780198717133.013.53 Published: 11 February 2016

Abstract This chapter analyzes three major assumptions in Joseph Raz’s book The Morality of Freedom (MF): its account of legitimate authority, its rejection of egalitarianism, and its defense of an autonomy-based perfectionism. It rst summarizes the book’s main line of argument about how a concern for freedom should gure in moral re ection regarding the value and purpose of political practices. It then examines MF’s repudiation of the conventional self-image of liberalism, and in particular utilitarian consequentialism. It also considers Raz’s claim that the trajectory that liberal thought has described in the wake of John Rawls’ A Theory of Justice is misguided. Finally, it discusses Raz’s strategy for reconciling a commitment to liberal freedom with a perfectionist political morality as it relates to the claim that autonomy is an essential aspect of individual ourishing.

Keywords: Joseph Raz, The Morality of Freedom, legitimate authority, egalitarianism, perfectionism, freedom, liberalism, utilitarian consequentialism, political morality, autonomy Subject: Politics and Law, Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Maurice Cranston once joked that liberty is to liberalism as nudity is to nudism. But what does a liberal commitment to political liberty or freedom (terms I use interchangeably) actually entail? Popular answers might include: • An individualist political outlook • Suspicion of government control • The claim that legitimate political authority rests on the consent of individual citizens • A commitment to inviolable, individual rights • At least a quali ed egalitarianism • Principled hostility to the legal enforcement of morality

• The expectation that the state avoid taking sides on questions about the good life over which citizens are likely to disagree Joseph Raz’s The Morality of Freedom (MF) is a quietly subversive book because it rejects or strongly quali es every single one of these claims even as it professes a “liberal” orientation. The book therefore powerfully challenges the conventional self-image of liberalism. Although his arguments propose sweeping revisions, not merely minor modi cations, of a settled orthodoxy, Raz denies that they point in a wholly new direction. To the contrary, he sees them as bringing liberalism back to its traditional perfectionist roots. Raz does not say which historical gures he has in mind when he makes such claims. John Stuart Mill springs immediately to mind. However, since MF repudiates utilitarian consequentialism, its relation to Mill’s ideas is ambiguous. What is clear is that Raz regards the trajectory that liberal thought has described in the wake of Rawls’ A Theory of Justice as misguided and in urgent need of redirection. From the beginning, MF was recognized as a major, path-breaking work, immediately winning two prestigious book awards. Despite its early recognition, the book remains underappreciated. While it certainly hasn’t been ignored, it has not spawned a large interpretative literature in the manner of Rawls’ works, Michael Walzer’s Just and Unjust Wars, Habermas’ Theory of Communicative Action, Rorty’s Philosophy and the Mirror of Nature, or Macintyre’s After Virtue. One reason for this is that The Morality of Freedom makes for an austere, unforgiving read. It is a book for the connoisseur, more Art of Fugue than Brandenburg Concerto. Although never obscure, the text makes few concessions to readers not prepared to read it closely. Unlike other classic works in the eld, the book lacks an arresting centerpiece like Rawls’ Original Position, Nozick’s “entitlement theory,” or Macintyre’s notorious ultimatum: “Nietzsche or Aristotle?” This is consistent with Raz’s own description of the book as a “journey of exploration.” However, its explorations follow many winding paths, often backtracking to pursue false trails and making many “fresh starts.” It is easy for readers to become restless in transit. This partly explains why MF has not commanded the readership it deserves. Some thirty years after its original publication, one hears many of the assumptions it set out to undermine complacently repeated as if they were beyond question. Yet if its message has not fully sunk in, it is certainly not because the book’s arguments are easy to refute. Indeed, nothing published since has handled these topics with greater penetration.

Overview Before considering three of the book’s most provocative contributions (its account of legitimate authority; its rejection of egalitarianism; and its defense of an autonomy-based perfectionism), I begin with a synopsis of its main line of argument. MF is an extended answer to the following question: How should a concern for freedom gure in moral re ection about the value and purpose of political practices? Many would respond by invoking a general “presumption in favor of liberty.” Raz’s opening gambit is to insist (rightly) that this answer is completely unsatisfactory. Freedoms sometimes con ict and we disagree on what counts as their violation. Freedom can be abused. Some freedoms are trivial; others are vital. We need the guidance of other principles to know when, why and in what form, freedoms acquire political importance (6–14). Does this imply that individual freedom is a merely derivative, or even instrumental, value, important only because, and to the extent that, it serves more fundamental desiderata such as justice, utility, or the common good? MF partly endorses that implication, for it denies that the kind of freedom that matters politically is a stand-alone value. Raz ties it to an “essentially Aristotelian” form of perfectionism

encompassing, not only political morality, but also practical reasoning and ethics as a whole (1227). To say that Raz’s theory is “perfectionist” in this sense is just to say that it endorses an account of human ourishing or well-being and takes it to bear directly on political judgment. Despite this perfectionist approach, Raz does not conclude that for political purposes one should demote freedom to the status of a merely derivative—still less instrumental—value. To the contrary, and against the grain of traditional Aristotelian views, MF insists that the interest in personal autonomy—achieving “the ideal of free and conscious self-creation”—is an integral aspect of individual well-being. While that interest is for Raz only one ingredient in individual well-being, he argues that it carries intrinsic importance and special urgency in the context of political morality. In taking this perfectionist line, MF rejects several standard views about the political importance of freedom and autonomy. For example, some say that they have that special importance because the authority of the state derives from the voluntary consent of the governed. Others assume that they do so because political morality is based on individuals’ fundamental moral right to be immune from coercion, oppression, and other burdens on personal freedom. Still others attribute their importance to an unconditional duty to respect each other as free, independent, agents—“ends-in-themselves,” to use Kantian terminology. Finally, even if an autonomy-based theory of well-being is sound, many think it would still be inappropriate for a state to endorse that theory when many of the citizens it claims to represent are likely to have reasonable objections to it. In such cases, the state ought to remain neutral, above the fray. These lines of argument receive very extensive discussion in MF; indeed, fully two-thirds of the text (sections 2–11) is devoted to an attempt to reconstruct and refute them. The critique is detailed and unrelenting. Along the way Raz considers an enormous array of arguments suggested in the recent literature and nds fault with virtually all of them. Raz traces many of their defects to a common source: their reliance on strongly individualistic conceptions of freedom and autonomy. He concludes that to properly account for the public value of freedom one must abandon an individualist approach. How can autonomy and freedom be conceived in non-individualist ways? MF has no interest in the sort of “collectivism” that pits individual interests against some superseding group interest. Raz’s strategy is rather to insist that a truly autonomous life is (partly) constituted by various inherently social conditions, including circumstances that allow agents access to a plurality of genuinely valuable ways of life. It is important to stress that for Raz such circumstances aren’t merely instrumental means toward the achievement of personal freedom, but aspects of autonomy itself. To illustrate this point, MF o ers two examples (373–374). Raz rst asks us to imagine a man trapped in a pit which contains enough food and water to subsist on, but neither the capacity nor the resources needed to pursue independently ful lling activities. He then describes a “Hounded Woman” who must devote all her energy and time to escaping a wild animal that pursues her remorselessly around an island on which she is marooned. It is not that these unfortunate individuals are autonomous but lack material means to realize their autonomy; they are categorically non-autonomous in virtue of their predicament. According to Raz, then, personal autonomy is intelligible only when: a. agents are freed from social analogs of the entrapment and compulsion su ered by the Man in the Pit and the Hounded Woman, and b. their societies guarantee a rich pluralism of genuinely valuable activities. Since whether these conditions are met requires the presence of certain social forms, Raz denies that the value of autonomy is intelligible on a purely individualist basis.

Legitimate Authority To say that freedom and personal autonomy are constituted by certain social forms invites an obvious challenge from an anarchist direction. At least under modern conditions, we live as governed agents: the state claims the authority to tell us what to do. If so, one might argue, the modern state looks like a social form incompatible with personal autonomy because submission to authority appears to alienate control over one’s own choices to external agencies. Am I acting autonomously if I submit unilaterally to someone else’s say-so? On the face of it, these seem contradictory ideas. How (if at all) can the assertion of political authority be reconciled with the idea that its citizens are autonomous? Raz has contributed more than any other recent writer to the analysis of the concept of authority and MF provides a systematic statement of his views on this topic. The discussion of legitimate authority in MF aims to dissolve the worry that the institutional practice of authority con icts with value of personal autonomy. It also has a more speci c aim. Until modern times, inquiry into the state’s right to rule was unselfconsciously informed by claims about the human good deriving from Christian and pre-Christian (including Aristotelian) philosophical views. However, as the great social contract theories developed by Hobbes, Locke, and others in the seventeenth century gained in uence, questions about the right to rule were increasingly divorced from arguments about the good life. The contractarians viewed the legitimacy of the state’s right to rule as a function of some sort of voluntary consent and therefore as largely independent of the truth of any particular theory of human ourishing. As we have seen, Raz regards the value of political freedom as inseparably connected to a perfectionist account of human ourishing. MF’s discussion of authority is thus intended to show that claims about the human good are relevant to judgments about the legitimacy of authority after all. Raz understands practices of authority as aiding agents’ e orts to conduct themselves according to an ideal of practical reason. To succeed as practical reasoners, agents must respond appropriately to the reasons that apply to them in the ordinary conduct of life. Those reasons are diverse and encompassing. They may include prudential reasons (e.g., to avoid excessive risk), moral ones (e.g., to treat others fairly and with consideration), social (e.g., to cultivate successful friendships), aesthetic (e.g., to properly appreciate great art), or personal (e.g., to develop and realize a talent or aptitude). In all cases, however, agents may respond to such reasons more or less successfully. This requires judgment and discernment—reasons often con ict, and agents must weigh their relative urgency with care. Raz suggests that authority is legitimate when it provides agents with necessary assistance in their e orts to be successful practical reasoners. However, the assistance that authorities can provide comes in a distinctive form. Authorities don’t merely advise or warn agents how they should act. They command. According to Raz, I submit to a command only if I accept it as replacing my own judgment as to how I should act. It is not enough for me to simply add the authority’s instruction to my own judgment and then reach a nal decision that somehow splits the di erence. To be authoritative, its commands must preempt my judgment. Indeed, this preemptive quality is precisely what renders authority puzzling to one committed to personal autonomy. So how can it be legitimate? Raz imposes two conditions. X has legitimate authority over me only if (1) X’s commands re ect a weighing up of the same reasons that already bear on the choices I must make in the relevant context; and (2) by allowing my actions to be determined by X’s commands rather than by my own judgments, I will conform better to those reasons than otherwise (Raz calls this second condition the “Normal Justi cation Thesis”).

To illustrate: a variety of reasons apply to our decisions when driving—reasons to drive safely, to show due consideration for other drivers and pedestrians, to reach our destinations as quickly and directly as possible, to sanction other drivers for bad driving, etc. In setting speed limits, con guring signals, imposing rules of the road, and punishing recklessness, the tra

c authorities weigh these same reasons. So tra

c rules

generally satisfy (1). Whether they satisfy (2) depends on whether drivers will travel more safely, considerately, e

ciently, and rapidly than they would if each were left to make these judgments

independently. Authorities can often satisfy (2) because they are wiser or more knowledgeable (think of laws regulating the manufacture of potentially toxic pharmaceuticals) or (as in the tra

c case) because they

have special capacities to coordinate conduct unavailable to individuals acting alone. (This last point explains why, though distinct, authority and political power are often connected). Two implications of this account deserve stress. First, it denies that individual consent is a viable criterion of the legitimacy of political authority. It is a commonplace that very few citizens consent to existing governments. Some self-described “philosophical anarchists” today infer from this that the authority claimed by most of those governments is illegitimate. Raz is largely prepared to swallow that conclusion (few existing governments satisfy his test either), but in one respect his position is still more radical. Usually, philosophical anarchists at least accept that genuinely voluntary consent binds the consenter to obedience. Raz denies this: once the Normal Justi cation Thesis annuls X’s claim to legitimate authority, an agent’s consent to X cannot on his account restore it. Even fully voluntary consent is usually invalid under such conditions (90). At the same time, the Normal Justi cation Thesis in principle allows that X’s authority over me can be legitimate even when I have not consented to it. Second, the Normal Justi cation Thesis is indi erent to distinctions between perfectionist and nonperfectionist reasons; all reasons (prudential, moral, aesthetic, etc.) are in principle in play. If government action leads agents to attend to the truth about the good life better than they otherwise would, then the government’s authority to do so is legitimate under Raz’s provisos. This threatens the assumption, popular among many liberals, that political authority should cultivate neutrality toward disputed ideals of the good life. The discussion of authority in MF thus clears a path for Raz’s larger perfectionist approach. In his account freedom doesn’t matter, and authority doesn’t possess legitimacy, because anyone has consented to anything, nor because agents possess basic, pre-conventional rights that justify and limit state power. They do so, rather, because, and to the extent that, they together promote human ourishing. Legitimate authority is for Raz ultimately accountable to practical wisdom (and thereby cognizant of the contribution of individual rights to personal well-being), not to the will of the individual. Although a major step forward in our understanding of the concept of authority, Raz’s account is not without its di

culties. For one thing, it suggests that the legitimacy of authority is a matter of degree and

can vary from person to person and from authority to authority. MF advertises this exibility as a virtue, but one could reasonably think the opposite. An important function of political authority is the resolution of disagreements, including especially disagreements about how to identify who has legitimate authority. As Hobbes, re ecting on the bloody history of religious con ict, suggested, confusion about the locus of public authority has often proven deadly. His theory therefore required that legitimate authority be identi ed on a clear-cut, all-or-nothing, basis. But if, as Raz suggests, X has legitimate authority over only certain people, only sometimes, and to greater and lesser degrees, judgments about who has it may be fraught with uncertainty. Relatedly, when, and in relation to what baseline, is the “Normal Justi cation Thesis” to be applied? Are we considering the whole ensemble of institutions (the state and law) claiming political authority or just parts of that ensemble, like tra

c laws? Do we make these judgments in advance, or only in retrospect, by

reference to their track record? And do we compare our likely performance as practical reasoners to an

alternative in which the relevant authority is absent, or to one(s) in which some other purported authority is guiding us instead? For example, if the baseline is Hobbesian anarchy, all states have legitimate authority. If it is the infallible judgment of a loving God, none has it. In between lies an in nite range of possibilities: who decides which one we should use as a baseline? These latter questions raise doubts about agents’ access to the sort of information that they would need to apply the Normal Justi cation Thesis. Not surprisingly, critics have often pressed those doubts: if its application is as uncertain as the e ort to judge one’s actions for oneself, could it ever be rational for autonomous agents to submit to a Razian authority? (Hurd 1991; Mian 2002). Other critics resist what they see as Raz’s tendency to collapse the distinction (drawn particularly clearly in Simmons 1999) between the justi cation of political decisions and the structural legitimacy of the institutional agencies that make them. For example, some suggest that even if Raz’s account adequately explicates a plausible notion of “legitimate authority,” that notion cannot fully capture the state’s claimed “right to rule,” and especially its right to coerce non-compliers (Himma 2007; Van der Vossen 2008). Others make a similar point about the obligation to obey: to whom is such an obligation owed under the Normal Justi cation Thesis? (Darwall 2010, 2011; Perry 2005; Regan 1989). Finally, some suggest that the identi cation of authority cannot be (as Raz suggests) only a matter of the substance and character of the practical reasons pertinent to some choice situation, but must also consider the fairness of the procedures by which authorities reach their decisions (Christiano 2004; Marmor 2005).

Equality Most believe that freedom and equality are somehow connected. The label “liberal egalitarian,” claimed today by a large group of political philosophers, presupposes as much. MF however denies that liberalism is in any deep sense an “egalitarian” position. This iconoclastic view implies that in uential recent debates over the implications of a commitment to equality (should we equalize income? Opportunities? Resources? Welfare? etc.) have been misconceived. Commentators link liberty and equality in one of two ways: either they see them as competing basic values that political theorists must somehow balance, or they see them as mutually entailing, two di erent sides of the same coin. The most important version of that latter view, and a major critical target of MF, is Ronald Dworkin’s claim that liberalism is de ned by a commitment to a single, basic requirement that every person be respected as “an equal.” To be treated as an “equal” in the relevant sense, however, is to be treated as an independent, autonomous, and free person—a Kantian end-in-oneself. On this Dworkinian view, a commitment to freedom (autonomy, personal independence) and the expectation everyone be treated with “equal concern and respect” turn out to be two facets of the same value. Raz counters that it is mere confusion to regard such a principle as egalitarian in any non-rhetorical sense. We could just as well reformulate Dworkin’s principle simply as “Being human is in itself su

cient ground

for respect.” So stated, it is simply a “closure principle” requiring that “nothing else [but respect for persons] counts for the justi cation of moral or political action” (220). Recruiting the language of equality here, while not necessarily a serious obfuscation, adds nothing but rhetorical ampli cation, or so Raz claims. What of the alternative view, that liberty and equality are two equally fundamental ethical principles that any adequate political theory must balance? That view makes sense only if one can identify at least one principle that is both (a) genuinely egalitarian and (b) that can be plausibly regarded as basic. MF however contends that no important political principle can meet both of these expectations at once, and concludes from this that egalitarianism has no important role to play in an adequate political morality. Clearly that

argument hinges on a claim about what counts as a “genuinely egalitarian” principle, so we can begin to reconstruct Raz’s anti-egalitarian argument by understanding how he construes such principles. According to Raz, genuinely (“strictly”) egalitarian principles have the form: “All Ps are entitled to Q if some Ps have Q.” The egalitarian character of such principles consists in their implication that: When x, y, and z don’t have Q, it is the fact that a, b….w currently have Q, and not independent facts about x, y, and z (their needs, desires, rights etc.,) that provides a reason for them to be given Q (or a, b….w deprived of it). Raz allows that such principles are relevant in certain cases. For example, when a good or resource is scarce and subject to direct distribution, a principle with this form could have some application. Or, such a principle might in some cases be justi ed on instrumental grounds, to forestall potentially destabilizing envy or to promote fellow-feeling. However, reducing the whole of political morality to a principle of this form has absurd consequences. For example, it would imply that “the happiness of a person does not matter except if there are other happy people” and require us to “level down” for the sake of equality (235). From this Raz concludes that if strictly egalitarian principles play any signi cant role in political morality they must do so in tandem with other basic principles. But what useful role can they perform in this context? To address this question, Raz introduces a pair of important distinctions (235–238). The rst is between principles that are “satiable” rather than “insatiable.” A principle is satiable if it is possible to fully meet its requirements, as with “ensure that all your employees are properly quali ed for their jobs.” In contrast, the principle “Everyone should have as much money as they can” is insatiable: in principle, income can always be increased, and so this requirement will never be completely satis ed. The second distinction is between “diminishing” principles, whose demands become progressively weaker the more the relevant requirement is satis ed, and “non-diminishing” ones, the strength of whose demands is invariant. “Feed the hungry” is a diminishing principle as it becomes less urgent as we feed people more and more. “Obey God” is nondiminishing because the fact that you have been very obedient in the past does not diminish the strength of your obligation to obey Him now. Armed with these distinctions, Raz then argues: 1. The only intelligible role for strictly egalitarian principles to play in a plausible political morality is to qualify insatiable non-diminishing principles. 2. No plausible political morality endorses insatiable non-diminishing principles. Therefore, 3. Strictly egalitarian principles have no intelligible role in a plausible political morality. This argument is directed mainly against utilitarianism, which provides Raz’s stock example of a theory incorporating insatiable non-diminishing principles. Raz grants that “strict” equality can provide a needed constraint on the utilitarian imperative to maximize pleasure and minimize pain. Without such a constraint, the utilitarian cannot acknowledge any reason to stop increasing overall happiness, even if doing so results in grotesquely unequal levels of welfare. An egalitarian constraint remedies this defect, by adding a requirement of equal distribution. Raz suggests that this is why, as a matter of history, the popularity of egalitarian ideals in modern times coincided with the rise of utilitarianism (238–239).

Although Raz goes on to reject utilitarianism, and with it “strict” egalitarian principles, it is important to stress that he does not reject happiness as a fundamental political value. To the contrary, Raz’s own perfectionist account itself relies heavily on an Aristotelian understanding of happiness. On that understanding, however, happiness is a satiable property. “A happy childhood can be perfectly happy …,” Raz tells us. “[I]t can be so happy that adding pleasures to it would not make it happier” (242). Raz’s view doesn’t deny that we have “equal reason” to care about the happiness of every person. But we have it, he insists, only because each person’s happiness matters for its own sake, not because comparisons between one person’s happiness and another’s have any intrinsic ethical signi cance, as strict egalitarianism implies. Such comparisons would be relevant only under insatiable non-diminishing principles but are, Raz argues, unintelligible in any case. Here Raz agrees with many critics of utilitarianism that judgments about the happiness enjoyed by di erent persons are incommensurable, and hence not quanti able in the way consequentialists require. In tandem with a famous article by Harry Frankfurt published the year after MF’s appearance (Frankfurt 1987), Raz’s anti-egalitarian arguments are often credited with the recent surge in interest in so-called “su

cientarian” principles (e.g., Card 2005, 97). Su

cientarians claim that public institutions should be

concerned only to ensure that people have enough (well-being, resources, opportunities, etc.), but need not attend to their relative shares of such goods (Crisp 2003; Huseby 2010). Like su

cientarian views more

generally, Raz’s position will still condemn those forms of inequality that produce absolute deprivation, treat people in humiliating ways, or deny people resources needed to make the best of their lives. But it does so without according strict equality any intrinsic moral signi cance. Some critics challenge this line, arguing that “people cannot have enough of what they need in a society where many other people have much more” (Marmor 2003; see also Casal 2007). But even if one concedes that “strictly” egalitarian principles in Raz’s sense are indeed inadequate for the reasons he gives, one might suspect that other egalitarian ideals can escape his objections. The most obvious candidate, worth considering also because it will later lead us to cast doubt on Raz’s wider perfectionist ambitions, treats equality as a principle of democratic inclusion, one that forbids hierarchy, oppression, privilege, and other invidious distinctions between rst- and second-class citizens (Anderson 1999; Brighouse 1996; Christiano 2004). The idea that democratic citizens must enjoy equal civic status is at least as historically important as, and certainly predates, any tendency to embrace egalitarianism as a corrective to utilitarian maximization. It was forged in the eighteenth-century struggle against the arbitrary privileges of the ancien regime, but has deeper roots in the Judeao-Christian view that all are equals in the eyes of God. Consider in this regard two depressing contemporary phenomena: Money and Politics. Many think that, especially in the United States, wealthy interests enjoy a disproportionate in uence over the democratic process. They would say that those interests e ectively enjoy privileged access to legislators because of the latters’ dependence on cash to ght elections, upsetting fair equality in political representation. Persistent Racial Disparity. In the U.S. today, African-Americans are pulled over, shot, executed and incarcerated at the hands of the authorities at a systematically higher rate than members of other groups. Since the protection of basic freedoms is at stake here, rampant discrimination of this sort threatens democratic equality (Tonry and Melewski 2008).

These practices are clearly incompatible with “concern and respect” for their individual victims. Raz is right that we don’t need the language of equality to make that point. However, to object to them only in the name of a “closure principle … putting forward a right to concern and respect, and not a right to equality” (220) would be to overlook an aggravating factor of special importance from a democratic standpoint. In these cases, de facto privileges warp the terms on which citizens enjoy basic democratic entitlements (political representation, legal adjudication, etc.). When access to vital public goods and services is unequal in this way, victims don’t only have a claim against the speci c individuals who discriminate against them, or who convert economic advantage into political clout. They also have a claim against the wider democratic polity that, in tolerating these abuses, it fails in its self-proclaimed duty to preserve a relationship of social and political equality among its members. As one notable egalitarian put it, unless such a duty is ful lled, “liberty becomes the privilege of a class, not the possession of a nation” (Tawney 1964, 167). The principle underlying such objections is not “strictly” egalitarian in Raz’s sense. It nonetheless requires that citizens enjoy comparatively equal, not merely su

cient, legal and political standing. Corporate lobbies

can still dominate the political process by pouring money into it even when all citizens command a “su

cient” share of votes under the principle “one person, one vote.” From a democratic standpoint, it is

still problematic that some must make do with a merely su

cient share of political in uence, while others

enjoy vastly more just because of their wealth. It is so because it institutes privileges incompatible with roughly equal democratic representation. As long as such a view seems untouched by Raz’s critique and is genuinely egalitarian, we have reasons to doubt that he has successfully refuted egalitarianism in all relevant forms (but see Wall 2006 (replying to Christiano 2004) and Wall 2007). Why is the possibility of a democratic principle of equality seemingly overlooked by Raz? MF’s otherwise comprehensive survey of recently fashionable liberal arguments lacks any extended discussion of democratic theory. The omission is striking. Raz’s apparent unconcern with democratic practices is surprising, although consistent with the historical tendency of philosophical perfectionism. From Plato and Aristotle forward, that tradition has more often than not been hostile to, or at least mistrustful of, democracy. Even Mill had serious doubts. As we turn to assess Raz’s own perfectionist political morality, we should keep this possible blind spot in mind.

Autonomy-based Perfectionism We’ve already noted that Raz’s strategy for reconciling a commitment to liberal freedom with a perfectionist political morality hinges on the claim that autonomy is an integral aspect of individual ourishing. According to MF, this claim justi es three characteristically liberal restrictions on the power of governments. First, the traditional liberal antipathy to coercion and manipulation is strongly upheld. These staples of state control are a standing threat to agents’ autonomy, and hence unacceptably threaten individual wellbeing on Raz’s account. Second, heavy paternalist interference in agents’ lives to directly promote their autonomous ourishing can usually be ruled out as inherently self-defeating. Forcing someone to be autonomous isn’t merely di

cult: it’s paradoxical, even self-contradictory. Third, modern state control is

rarely a competent agent of moral reform: it is bureaucratic, fallible, ine

cient, and must constantly ensure

that its actions do not provoke civil strife or resistance. Raz contends that these three points together support Mill’s famous “Harm Principle,” which forbids government coercion except when required to avert serious harm. For all of its overlap with traditional liberalism, however, Raz’s autonomy-based account still jettisons many conventional liberal assumptions. We have seen that it is neither egalitarian nor individualist. While attentive to the practical limitations of legal and political control, it nonetheless insists that governments

are under a duty to actively promote the conditions of personal well-being in a way that makes at least some liberals (and especially libertarians) uncomfortable. It suggests, for example, that governments must cultivate social conditions under which citizens enjoy an array of genuinely valuable options to pursue. This might include direct support for the arts, or for certain forms of education. In Raz’s view, the case for such support, moreover, turns not on whether citizens want them, but on the claim that they ought to want them even when they don’t, and even when their value is controversial. Raz’s reading of the harm principle, too, departs from standard ones in two respects: on the one hand it allows that self-harm and not only harm to others can justify restrictions on agents’ liberty; on the other, Raz interprets the principle not as forbidding the legal enforcement of morals outright, but rather as de ning “the proper way to enforce morality” (415). This position repudiates the strongly anti-perfectionist stance taken by much modern liberal thought. Raz’s forceful critique of anti-perfectionism in MF has proven by far the most in uential aspect of the book, touching o

both a lively debate and several other accomplished works extending his criticisms (Chan 2000;

Sher 1997; Wall 1998). Following Raz, these writers suggest that the only relevant restriction on state action or civic advocacy is that they be based as far as possible on good reasons, including perfectionist ones; the fact that some proportion of the population conscientiously rejects them does not prohibit o

cials or

citizens from acting on them. This does not mean that the state must always act on perfectionist reasons. Raz acknowledges that there may be pragmatic reasons (ine

ciency, likelihood of resistance, etc.) to set

them aside. However, he denies that there is any principled basis for doing so. This position has profound implications for our conception of democratic citizenship and for some sensitive topics of contemporary public concern. Many think that states and governments must remain neutral with respect to controversial conceptions of the good life (e.g., disputed religious orthodoxies). Others go further still and require that citizens of liberal societies have a duty to refrain from advocating legislative action on the basis of arguments that some could reasonably reject. Encouraged by Raz’s anti-perfectionist arguments, however, many now urge the relaxation of such restrictions. Some, for example, challenge the view that political deliberation must be as far as possible secular, arguing against any principled restriction on religious arguments in public discussion (Eberle 2002). Not everyone has been convinced by Raz’s perfectionist turn. Some continue to insist that states may never act in ways they can’t justify to all their citizens (Quong 2011). In a free society, they argue, citizens will have profound but reasonable disagreements about morals, religion, and the good life. This circumstance means (according to Raz’s critics) that controversial arguments, even when sound, cannot su

ce to justify state

action. A state that appeals to such arguments will appear to be “more accommodating, or less accommodating, of some conceptions of the good life than they are of others” (Patten 2012, 257). This anti-perfectionist response is most plausibly supported by the norm of democratic equality enumerated earlier. If a state promotes disputed conceptions of the good just on the basis of their soundness, and without any regard to citizens who reasonably reject them, it is taking sides in a reasonable dispute within its membership. That seems objectionable given the state’s claim to represent the whole public, rather than only certain constituencies. Here again, the worry is that certain (groups of) citizens might enjoy political privileges ruled out by a democratic ideal of free and equal inclusion. Democratic states are not just any agents. The fact that a conception of human ourishing is sound is not su

cient to rebut complaints that a democratic state, in allying itself with that conception when some of its

members reasonably reject it, undercuts its claims to impartially represent the whole community of free and equal citizens in whose name it acts. The complaint is that, in showing its hand in this way, the state unfairly favors those who can accept the relevant conception of the good. Importantly, the issue here is not whether liberalism (a doctrine) should be neutral about the good life, but rather whether the democratic state (an institution—which may or may not be supported by liberal doctrine) should be so.

Perfectionists might reply that these are contingent institutional facts about our current form of public life and so carry little probative weight. If the democratic state is constrained from perfectionist action, so much the worse for the democratic state: what ultimately matters is human ourishing. That is a strong reply, but I close by explaining why it may be unavailable to Raz. One of the most surprising features of MF is its denial that autonomy is a universal value, always required for a well-lived life. Raz allows that under some historical and cultural conditions, for example in a medieval monastery, non-autonomous forms of ourishing are possible. However, he regards that possibility as practically irrelevant for us; citizens of the highly mobile, secular, and pluralist societies ubiquitous today can ourish only insofar as they live autonomously, as authors of their own destinies. As Raz puts it, for those who, like us, “live in an autonomy-supporting environment, there is no choice but to be autonomous: there is no other way to prosper in such a society” (391). But if the value of personal autonomy can in this way be dependent on the presence of historically contingent social forms, it is unclear why the same could not be true of the values of democratic equality and inclusion. Today, citizenship in democratic states claiming (successfully or not) to act in the name of the whole community of free and equal citizens inhabiting its borders is virtually the only form of political association available. In such a world, there may be no other way for putatively equal citizens to receive fair and just treatment except when their state cultivates a principled neutrality with respect to reasonable ethical disputes occurring between them. Current trends suggest, however, that the primacy of the democratic nation-state will likely face signi cant challenges in the future, both globally and locally. The resulting institutional shifts may provide opportunities to develop political institutions better adapted to Raz’s perfectionist program than the currently dominant liberal democratic format. A renewed focus on the institutional requirements for a perfectionist polity, then, would seem to be the next logical step in the fertile research agenda established by Raz’s pioneering contribution in The Morality of Freedom.

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The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

James Scott, Seeing Like a State  Loren King https://doi.org/10.1093/oxfordhb/9780198717133.013.35 Published: 04 September 2019

Abstract States see the world in a particular way, simplifying their domains to better rule them. By the early twentieth century, these ordering imperatives coincided with progressive ideals grounded in hopes that scienti c and technological progress could shape the world for good. That conceit—that we should use the formidable power of the state to forge grand rational schemes for human improvement —blinded planners to the critical importance of local, cumulative, practical knowledge. This is Scott’s core thesis in Seeing Like a State, which he supports with a rich (if selective) body of evidence. If we defend Scott’s book as political theory, then we might worry that he has simply rediscovered skeptical themes (speci cally, worries about coercive power and rational planning) long-evident in counterenlightenment, anarchist, libertarian, and postcolonial thought. These worries, while reasonable, should not obscure the great value of Scott’s book as grounded political theory: there are lessons here, both methodological and substantive, for political theory.

Keywords: James Scott, skepticism, anarchism, states, maps, progress, planning, power Subject: Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Although today there is a considerable conceptual and methodological distance between political theory and empirical political science, a distance that often seems quite acceptable to practitioners in both spheres, this division is actually a quite recent phenomenon and a ectation … (Gunnell 2013, 81) All the state simpli cations we have considered have the character of maps… . To complain that a map lacks nuance and detail makes no sense unless it omits information necessary to its function. (Scott 1998, 87) Seeing Like a State (SLAS) argues that “high modernism” has caused dramatic failures of prominent e orts to improve the human condition. States tend to simplify and organize their domains in ways that run

roughshod over local, practical knowledge accumulated over generations of trial-and-error adaptation. In the modern age, leaders and planners have paired this formidable institutional apparatus of rational organization with abstract ideals of moral progress and human betterment. When these visionaries have both the capacity and determination, and when they face a su

ciently weak civil society that can be pushed

aside in the name of progress, the result is often disastrous, as Scott demonstrates through a series of richly textured examples. In this attention to empirical richness, SLAS is in keeping with all of Scott’s work; but there is a deeper conceptual and methodological unity to Scott’s contributions to agrarian studies, comparative politics, and the history of the state. Consider Scott’s second scholarly book, The Moral Economy of the Peasant (1976). Here Scott explains peasant rebellions in colonial Southeast Asia in terms of risk-aversion associated with subsistence agriculture. In spite of the geographic and topical speci city of this study, we can nd the themes that have been prominent throughout Scott’s career. Rather than explaining rebellion in terms of prevalent Marxistin uenced theories of exploitation and resistance, Scott argued that rebellions follow when the powerful violate a subsistence ethic that has evolved for peasants living close to the boundaries of survival. Scott notes that robust technical arrangements have emerged through trial and error in subsistence economies; why wouldn’t we expect that social norms and moral intuitions will have similarly adapted to the harsh 1

agrarian realities?

Two common themes linking Scott’s earlier writings on peasant resistance with his later works on the nature and history of the state are rst, an attention to local, cumulative, practical knowledge, and associated norms and practices often at odds with the coercive imperatives of the sovereign territorial state; and second, what strategies of resistance the weak bring to bear against the powerful, when the state meets these local ways of life. The arc of Scott’s career, as it has culminated in SLAS and subsequent works, exempli es a vital current alive in much of the best Western political theory since Aristotle: a powerful marriage of cogent conceptual analysis, normative argument, and explanatory conjecture, against a backdrop of plausible (if inevitably selective) historical interpretation. This is an underappreciated feature that makes some of the best political theory distinct from being either applied analytic moral philosophy, on the one hand, or a muddled underachieving cousin of mathematical game theory, on the other. It is a lesson that theorists can draw from Scott, both to clarify and perhaps vindicate some of their own methodological tendencies, and to see ways of more productively linking conceptual, empirical, and normative aims.

A Thesis and Complaint SLAS is about many things: the vagaries of taxation in early-modern states; the failures of nineteenthcentury German “scienti c” forestry; the insults of government-mandated surnames in the Philippines; the absurdly arrogant rationalism of Le Corbusier; the cruelly zealous urban planning that gave us Baron Haussman’s Paris, Robert Moses’s Manhattan, the sterile strangeness of Brasilia; Soviet collectivization and central planning; and the unintended cruelties of mass agricultural transformations and forced village settlement in postcolonial Tanzania. Linking these and several other richly detailed cases are a causal thesis paired with a normative complaint. The causal thesis is subtle, and begins with an argument that sovereign territorial states, by their very nature as engines of coercive control over peoples and territories, require a way of “seeing” their domains. They must secure obedience and amass resources. They must quell rebellion within, and secure borders from the ambitions of others without—not least other established or aspiring states. To do all of this requires, at the very least, reliable intelligence about the people and resources under the state’s control, and how those subjects and resources can be assets, serving the imperatives of the state.

In the rst instance, then, these e orts attempt to organize and simplify a domain; in this they re ect “the classic state functions of taxation, conscription, and prevention of rebellion” (iii). The aims, however, inevitably become more complex. The gaze of planners and bureaucrats eventually turn to the e

cient

provision of public services, and—under the sway of enlightenment optimism and modernist hopes for 2

rational order and scienti c progress—the betterment of subjects.

To “see like a state” is, then, a kind of mapping exercise, involving not only drawing certain kinds of maps, but also forging those maps as designs: inscribing our maps onto parchment, but then also onto territories and peoples, and especially onto their imaginations. These maps re ect concepts and categories that come to de ne the imaginative order of public life for citizens. To be sure, all maps simplify, highlighting some features, obscuring others. A map is a model, a representation imbued with interests, aims, intentions. To really understand a map, look to the mapmaker and their aims. To understand the mapmaker, look to who commissioned the map. A subway map guides me from station to station; if I wonder about the places between, I consult a di erent map. I may, however, begin to imagine those unseen, omitted spaces as simple, undi erentiated, unimportant. State e orts to organize their domains, making them more legible and more productive, often have unforeseen consequences and troubling complications to the extent that they actually do simplify those interstitial spaces, making the map the terrain. The failures of German forestry are an important representative example of this in SLAS. In the German case, yields fell and crop loss to disease became rampant after a single generation of trees, because the resilience associated with complex and diverse forest ecosystems was lost in the e orts to manage timber yield by simplifying plots for more e

cient harvesting (ch. 8).

Such failures do little to humble either sovereign states or commercial interests, which rarely nd complexity-respecting alternative practices, and instead seek ways to manage these complications with further planning and (hopefully) technological innovation—which, of course, often come with their own unforeseen complications. On this perverse dynamic, Scott cites ham sted e orts to reconstruct complex ecologies after the failures of nineteenth-century German scienti c forestry became evident. Other examples are available: think of Mao’s Great Sparrow Campaign in 1950s China, which all but eradicated one threat to crops, without realizing that the sparrows helped balance insect populations which, unrestrained, did far more crop damage, and likely contributed to the devastating famine at the end of that decade. What is distinctive about states, then, in the story Scott tells, is how they reshape the world according to their maps. Territories become places: farms, villages, roads, markets, barracks, air elds, sites of heroic myths, and unifying national narratives. People become subjects; and subjects, citizens. National identities are constructed—peasants into Frenchmen, as Eugen Weber (1976) put it in his history of the construction of the French national identity as a state-building project. When this constructive project is motivated not simply by classic state imperatives but also by modernist aesthetic impulses and notions of human progress, the project has generated unambiguously good outcomes, certainly: public art and education, greater safety under the rule of law, the eradication of disease, social insurance programs. But the project can also come to be expressed with zealous and overbearing optimism. Constructing citizens becomes more than a Machiavellian necessity to ensure obedient subjects and loyal troops. Instead, it becomes a conceit so aptly condemned by Conrad in Heart of Darkness: the heady notion that “by the simple exercise of our will we can exert a power for good practically 3

unbounded.”

Scott’s normative complaint thus tightly supervenes on his causal claim: some schemes to improve living conditions for the citizenry of a city (or country, or region) have failed because they were (but ought not to have been) rooted in particular motivations: to simplify, rationalize, and improve lives according to an abstract, partial metric. These motives blinded bureaucrats and planners to important facts about the world

and ourselves, speci cally the critical importance of local, cumulative, practical knowledge—metis— learned through generations of trial and error, attuned to the messy particulars of the lives and places in question. Not only rulers and bureaucrats: after a time, many of us, under the thrall of state-coordinated industrial civilization, begin to accept these state simpli cations as normal. We recognize the grand tragic failures, of course. Yet many technicians and pundits alike become sure that the problem is one of implementation, not of principle. There are no doubt several factors at work here. As denizens of late Modernity we have become accustomed, as Berman (1982) suggested, not only to seeing “all that is solid melt into air” (Marx’s famous dictum) but also to accepting this as inevitable. We may yearn for permanence, for rootedness in the familiar and the local; but we accept, indeed embrace, the steady transformation of our social and material worlds. A de ning feature of modernity is confronting this ambivalence. Another factor, critical to the high-modernist failures that concern Scott, is a particular motivation: planners and technicians desire simplicity and rational order. For Sennett (1970), observing some of the same dramatic urban transformations that animate Scott, a prime culprit was an immature revolt against the messy complexity of the world, and a corresponding desire for simplicity and purity in our lives. To be genuinely mature, Sennett thought, was to reject those desires and instead embrace the complexity and corresponding di

culties of modern life.

Whatever the best explanation, there is no shortage of historical culprits who t both Sennett’s and Scott’s indictments: highly trained individuals who abhorred the messy complexity of the world and sought to impose a rational order on society. Scott’s critique of Le Corbusier in particular is so devastating because he lets that maniacal champion of unyielding order speak in his own, often terrifying words, endorsing “patriarchal authority” in the service of “total e

ciency and total rationalization” of society (114–116).

Still, those people were typically architects, planners, and technicians. In everyday life, surely most of us do not overtly desire simplicity and order in so dramatic a way as, say, Le Corbusier or Robert Moses? Alas, many of us do eventually come to confuse the simplicity of the map with the actual terrain. When we use a roadway, or when a government expropriates land to build new highways, many commuters will think little of the intervening ora and fauna, and still less of how those ecologies might matter deeply to people living nearby, and to future generations, for whom alternative ways of living in these places have been dramatically limited by our present-day choices. These a ected lives become, for many of us, simply con icting interests to be mediated; the stu

of everyday political posturing and economic bargaining, not a

profoundly troubling loss of ecological and cultural diversity, and a corresponding foreclosure of possible ways of living in the world—and also, critically, potential sources of widely useful metis. The steady sedimentation of powerful interests, shaping how we visualize the spaces of our lives, thus leads to widespread unre ective spatial intuitions (“oh, there was nothing there anyway—terra nullius”). We need reminding—more often than we’d like to admit—not only that perspectives are partial and that power shapes the world in its interests, but that the map is never the terrain, and that the rich complexity of the terrain should teach us humility about the power of reason to reshape the world according to particular moral and aesthetic principles. There are powerful artistic and scholarly voices who do so remind us. These voices do not outright reject the promise of intellectual, material, and moral progress; but they confront us with the uncomfortable realities of coercion, exclusion, and marginalization that have always accompanied social and economic transformations. Scott’s is one of these voices, pairing a critical gaze on concentrated power—however laudable the ends—with a skepticism that planners might realize grand abstract principles of social order and human progress.

Power A critical point in Scott’s analysis is a transformation of the state’s role, from an increasingly e

cient

means for enriching the sovereign, to an engine of social progress and human betterment. The roots of this transformation are well-studied: the rise of science and technology (and the styles of reasoning that made 4

these transformations possible ), alongside increasing intellectual challenges to traditional beliefs and entrenched interests. High modernism, Scott argues, is “a particularly sweeping vision of how the bene ts of technical and scienti c progress might be applied—usually through the state—in every eld of human activity” (89). By the twentieth century, this had become a belief not simply in the desirability of utopian social aspirations (those, after all, have a distinguished pedigree, not least in art, literature, and theology) but rather the technical, administrative, and perhaps most importantly, the imaginative resources to attempt, “root-andbranch, rational engineering of entire social orders in creating realizable utopias” (96). This required a transformation in what Foucault has termed technologies of power, and the social conditions for their implementation. In Foucault’s famous telling, the Machiavellian imperatives of the state—securing obedience and resources su

cient to command authority over a territory and its population—were, at the dawn of European

Modernity, rather straightforward, and in keeping with Machiavelli’s most infamous lesson: the power of the Prince must be shocking in its immediacy and visceral force; yet it must in some meaningful sense satisfy those who are awed by its spectacle. In Foucault’s (1975) interpretation, this power was always too blunt to be fully relied upon. The spectacle of the execution, in particular, could unleash popular passions that agents of the state could scant control. The lesson here was that policing (and punishing) the body was insu

cient: the sovereign must transform the soul, and so the exercise of power transformed into

strategies of rehabilitation and improvement, of betterment. In the nineteenth and twentieth centuries, in retrospect, it was easy to cast this sea change in punitive measures and carceral technologies as disruptive but, on the whole, desirable: science and clear moral thinking came to challenge long-vested interests in inequalities, exclusions, and su ering, all justi ed by appeal either to superstition and tradition, or to the vagaries of monarchical ambitions. The earlier generations of Benthamite reformers, on this reading, challenged the exclusionary and unscienti c legacies of traditional practices, and in so doing helped rein in the power of kings and emperors. Even the prison— the most obvious site of the sovereign’s ability to coerce and compel—could be rationalized and sanitized: wardens and stewards, in place of guards and executioners. Power could be implied rather than imposed; coercion could serve restorative and rehabilitative functions without torturing bodies and inspiring fear and awe. We now know that these same reforms came entangled with technical and institutional innovations—most obviously, increasingly subtle strategies of surveillance and manipulation—that have consolidated power. That awareness, in turn, has corresponded with increasingly sophisticated understandings, in sociology and political science, of the nature of power—understandings to which both Scott and Foucault are intellectual heirs. There are, roughly speaking, two pathways here. One of these paths trace from Max Weber’s insights into the nature of authority in organizations, in particular the state. The other path leads through Marxist thought after Antonio Gramsci, who argued that ruling classes control the cultural and ideological as well as the material means of production, and in this way convince the exploited at every turn that the status quo in fact serves their interests.

Weber’s in uential understandings of authority and control pointed to the critical importance of widespread belief in legitimacy, and in turn to the role of charismatic leadership in shaping those beliefs. His famous de nition of the state emphasized not only agents and agencies holding a monopoly on instruments of coercion, but also insisting that their monopoly is legitimate. In Anglo-American research, much of the subsequent focus in studying authority in communities and organizations was on “who 5

governs” and “whose interests prevail,” which was invariably some class of elites. But if sociologists were nding powerful elites, political scientists (e.g. Dahl 1961) were also discovering that the sources of decision-making control were often plural and intersecting, rather than unitary and hierarchical. Against this pluralist view of authority critics pointed out that decision-making authority was only one “face” of power. To understand power, scholars needed to understand who controlled the agenda of decision-makers (Bachrach and Baratz 1962), but also who had the means and motives to shape broader institutional, cultural, and ideological contexts (Lukes 1974), within which issues are (and are not) put to the agenda, over which decisions are (or are not) made by those in authority. In this way, Lukes and others brought the Weberian and Marxist strands of thought together, forcing the behavioral study of leaders and agencies to engage with broader structural and especially ideological factors. Foucault’s innovation here was to argue that what seems often to be a striking historical disruption and transformation in the nature, sources, and aims of power in fact masks a deeper continuity: one vocabulary replaced another, but the imperatives of power remained rmly in place. For Foucault, this deeper continuity suggested an unsettling possibility: that power and knowledge are intimately related in ways that make an impartial epistemic standpoint unattainable. The very categories of legitimate knowledge by which we might understand subjects—“criminal,” “citizen,” “sexually normal,” “mentally ill”—are constructed within discourses imbued with power. Indeed, the categories themselves are power manifest: they construct the very subjects they describe, by shaping the terms of their own self-understanding within relationships 6

with others, and within structures of authority.

Much of the (sometimes acrimonious) debate over Foucault’s intellectual legacy has been colored by this epistemic conjecture, arguing over the extent to which his historical excavations—of the prison, the asylum, standards of sexual propriety, technologies of surveillance—support his early claim about the power–knowledge nexus, and the impossibility of any epistemically privileged perspective on power that is not itself importantly constituted by systems of power and strategies of control. While these epistemic controversies remain very much alive, variations on Foucault’s methods have shown us how such categories as “normal,” “criminal,” “deviance,” “mental illness,” “child abuse,” “race,” “intelligence,” and “aptitude” are historically constructed against, and implicated in, the vagaries of (often di use, faceless) power, which often isn’t easily demarcated as something exercised (e.g. Hayward 2000). In SLAS we see some of Foucault’s preoccupations, as well as careful attention to how state simpli cations were as much about shaping the imaginative as the physical orders of the state. But for Scott, the focus is the mechanics and changing rationales behind state simpli cations and impositions. These mechanisms and justi cations are not simply distillates of technologies of power. Or at least, Scott’s approach recognizes that, for all that states are driven by the imperatives of rule to simplify and rationalize their domains, there is nonetheless politics here: competing interests and capabilities, feuds and squabbles and intrigues within the halls of power, and between unruly subjects and state actors. Where Foucault’s archeology of power sought to explain (away?) politics, Scott’s approach importantly allows politics—political interests and agency—to explain the con gurations and consequences of power. For Scott, then, agency seems more variegated than for Foucault. State actors do indeed come to operate within the logic of their bureaucracies and agencies, certainly; but even those bureaucrats can interpret, innovate, and lead. In a word: they can act—intentionally, strategically, defensively, sincerely—in ways that are sometimes not simply manifestations of a deeper, sedimented power–knowledge nexus. Indeed, in the

book that preceded SLAS, Domination and the Arts of Resistance (1990), we clearly see this focus on oftenfugitive and subversive agency, as Scott wrestles with ways to uncover the “hidden transcripts” behind formal displays of deference by the dominated in their public exchanges with the powerful. Furthermore, even when Scott’s analysis seems clearly Foucaultian in import (for instance, his invocation of Foucault’s analysis of political economy as a bulwark against economic sovereignty, at 101–102), he gives states a constructive agency that is obscured by Foucault’s abiding attention to the inescapable unity of power and knowledge. The state, for Scott, has a constructive project of transforming the material and social worlds. It can, through increasingly complex con gurations of agencies and institutions, come to be driven by distinct motivations, but it also confronts its own subjects, with their own varieties of practical, cumulative, local knowledge. Subjects, too, are agents in Scott’s analysis in ways that are not easily discernible under either Foucaultian excavation or his later genealogical approach. True, in Scott’s framework we, as subjects, do indeed often come to see the physical and conceptual terrain of politics as the state does, which is entirely consistent with Foucault’s Nietzschean skepticism that we might successfully distance knowledge from power. Yet subjects can and do resist, carving out spaces where they can practice, to invoke one of Scott’s most evocative later titles, “the art of not being governed” (Scott 2009). Toward the end of his life, Foucault (1988, 19) wondered if perhaps he had put too much emphasis on technologies “of domination and power” and too little on technologies of the self. In his later work (and his own life), Foucault certainly gives us ample conceptual resources to imagine spaces and especially practices of resistance. Yet for all that Foucault attempted to grapple with resistance and counter-conduct in the years before his death, the result—genealogies of governmentality—still seems less rich with systematic examinations of agency and intentionality than we would want for a satisfying account of both political structures and agents—an account of those structures, and agents enmeshed within institutions and practices of state authority. In Scott’s version of a Foucaultian archeology of power, then, we have more promise for agency. Scott’s approach recognizes our capacity to distance ourselves from the power–knowledge nexus, or at the very least to recognize it and, in subtle but occasionally dramatic ways, to resist, this in ways that Foucault certainly gestured at in his later interviews and his own life, but that never seemed to be recoverable from his major works and the scholarly traditions that have grown out of them.

Planning The urbanist Jane Jacobs features at several points in SLAS. Jacobs (1961, 1969) famously argued against comprehensive plans for urban renewal, pointing to the subtle and complex ways that successful urban neighborhoods emerge from incremental developments that often seem disordered and chaotic. As Scott summarizes Jacobs’s position: e ective function need not, and often does not, conform to the aesthetic ideals of visual order so prominent among high-modernist architects and planners (133 .). Two (not unreasonable) criticisms of Jane Jacobs note that her spirited critique of urban planning missed some of the very real virtues of centralized, comprehensive planning, at least for certain vital forms of urban infrastructure; and that she took as benign and typically bene cial the spontaneous, local, unplanned systems of everyday life that emerged in messy, seemingly chaotic city spaces. The rst charge has also been leveled against Scott: there have been rather successful “grand schemes” initiated and coordinated by states, aimed at the betterment of living conditions for vast numbers of people. The second charge is sometimes also raised against another great advocate of spontaneous order and erce critic of central

planning: Friedrich Hayek. The charge is that Hayek, and those he inspired, had altogether too much faith in the possibility, stability, and virtues of spontaneous systems of order. I invoke Hayek not to address this charge, but because he provided a prescient and sophisticated case for the kind of skepticism Scott deploys. Indeed, several commentators have noted the curious dearth of engagement with Hayek in SLAS, so it is worth dwelling on the debt Scott may owe to Hayek, but also the ways in which, as with Foucault, Scott perhaps gives us useful conceptual resources that are less easily extracted from, or simply not present in, Hayek’s own formulations. Hayek is widely known for his critique of planned economies, and much of his work, like Scott’s, is grounded in a causal thesis linked to a normative complaint. As with Scott’s in SLAS, the causal thesis is subtle, linking evolved propensities, cognitive capacities, learning mechanisms and dynamics, aesthetic tastes, and particular motivations into an account of why we should expect planned economies to fail. Central to this pairing of causal and normative themes, in Hayek’s case, is a critique of rationalist ambitions in constructing social order, tracing to distinctly (but not uniquely) French strands of the seventeenth- and eighteenth-century European enlightenment. In contrast, the empiricist focus of the Scottish enlightenment, anchored in the works of David Hume, Adam Ferguson, and Adam Smith, inspire a more critical stance with respect to the powers of human reason. Much of the French Enlightenment traces back to Cartesian dreams that reason, properly applied, can discover and build knowledge upon certain foundations. The English and Scottish enlightenment gives us a di erent orientation: a more modest incremental approach to understanding both nature and morals. Hayek (1960) takes inspiration from this Scottish strand of the enlightenment. It is easy to nd in Hayek (1979: esp. chs. 9–16) variations on many of the themes advanced by Scott. In his critique of “constructivism” Hayek anticipates Scott’s scathing indictment of grand schemes of social engineering that sought to build an overarching rational order to organize and manage the complexities of social life. Like Scott, Hayek emphasizes the importance of cumulative, task-speci c knowledge emerging from trial and error; and like Scott, he contrasts this kind of knowledge with a bias toward abstract principles, mathematical reasoning, and universal truths. Hayek traces the development of this “rationalist conceit” through Laplace, Condorcet, and Saint Simon, showing how this bias toward abstraction, formalism, and conscious control has shaped in uential currents in twentieth-century economic thought. Echoing Burke, Hayek (1960, 89 .; 1988, chs. 1, 4–5, and 9) points to traditions as embodying cumulative learning, “rules of thumb” that help us successfully navigate a complex impersonal order, the full particulars of which no one person or group can hope to grasp or control. Scott, in a similar vein, notes that the simpli cations and abstractions of an imposed formal order are “always and to some considerable degree parasitic on informal processes, which the formal scheme does not recognize, without which it could not exist, and which it alone cannot create or maintain” (310). And like Scott, Hayek (1960) worries that technologies of coercion and surveillance, paired with rationalist and 7

constructivist motivations, may destroy “spontaneous forces of growth” (102) as the state reaches deeper and more e ectively into spaces of refuge from, and resistance to, state control—a motivating concern of Scott (2009). Hayek’s thinking evolved through a sustained engagement with the currents of eighteenth-and nineteenthcentury European thought, as well as advances in evolutionary approaches in the human sciences in the twentieth century. Hayek saw early on that evolutionary ideas, which transformed our understandings of the natural world, in fact emerged out of the empiricist and anti-Cartesian currents of eighteenth-century English and Scottish thought. In his last works, Hayek anticipated a distinction increasingly important in evolutionary approaches to human behavior: between rules well-suited to small, tight-knit groups (family, clan, village) versus those necessary to coordinate human actions within much vaster, complex, extended

impersonal orders. Hayek understood that competition, while disruptive of life in small, intimate associations characterized by shared needs and interests, was in fact a virtue in extended impersonal orders, characterized by what today economists would call heterogeneous preferences. Competition is, in Hayek’s (1988, ch. 1) appraisal, a process of discovery and adaptation to novel circumstances, as people stumble through problems, in Humean fashion, towards habits and, eventually, institutions that coordinate diverse activities and mediate inevitable con icts without resort to brute force. Is SLAS then simply an elaboration of Hayekian themes? No. Hayek’s rich tapestry of arguments inevitably return to his abiding concern: the rationalist conceits and resulting errors of command economies and their intellectual apologists. In contrast, as Jacob Levy has ably demonstrated, Scott’s concerns are better framed against a particular intellectual path from the Scottish enlightenment: Adam Smith’s remarks on “the man of system”; Bentham (by way of Foucault) on the mechanics of penal discipline; and Oakeshott’s analysis of rationalism in politics. In Levy’s estimation, Scott’s Hayekian concerns with abstract rational plans and state simpli cations are about the motives and capacities, and the particular rules and norms, of a rich array of actors. Hayek o ers a sustained critique of the epistemic and informational demands of central planning —of the powers of reason assumed by comprehensive planning, and the kinds and amounts of information available to inform those powers. In contrast, Levy (2015, 68) suggests, we should read Scott as concerned with the particulars of how and why various state actors do what they do—“with the rationalist as a type of actor … the habits of thought, disciplines, and mindset, of the individual human beings who come to occupy positions of state power.” By the nal chapters of SLAS, a reader such as Russell Hardin (2001) can be forgiven for seeing little more than a Hayekian critique of central planning, paired abruptly with an insu

ciently theorized distinction

between metis and techne. Yet when read against not only his historical cases, but also Scott’s animating concerns about when high-modernist projects can be implemented, we should be led to a di erent reading of the book, as counseled by Levy. We can nd in Scott’s work a concern for the motivations and spaces for the agency of planners and bureaucrats. These men and women, and the o

ces and agencies they direct, are

agents with distinct norms and ways of acting. To “see like a state” is to see as a planner or bureaucrat empowered to collect certain kinds of data to enact particular parts of broader projects. It is also to “see” as the agency made up of these bureaucrats and technicians, designing and implementing those complex projects. As with Foucault, then, Scott shares with Hayek important critical themes, but gives us, as political theorists, a way to use those critical tools in the service of understanding political agency in something as complex as the modern territorial, bureaucratic, sovereign state.

Lessons for Political Theory? What lessons, then, can political theorists take away from SLAS? Scott’s work is instructive on points of both substance and method. On substance, Scott provides an object lesson in the importance of understanding how deep the imperatives of state power are written into the analytic and normative vocabularies of social and especially political theory. On method, I think we can learn from Scott the great value of balancing our conceptual and critical aims, and this has the happy consequence of pushing to the side an interminable debate in social theory: structure versus agency.

How to See Like A Theorist Consider what we do as theorists. Sometimes we ally ourselves with the social, behavioral, and life sciences in seeking to explain institutions and behavior. As often, we are criticizing existing practices and institutions, and also the explanations on o er for those phenomena. In still another voice, we o er recommendations: sometimes these are instrumental and pragmatic, but more often, our prescriptions are morally laden. Scott, in the tradition of Foucault and Hacking, reminds us how these entangled theoretical ambitions— explanatory, critical, normative—are shaped by the metaphors and vocabularies of the Westphalian imaginary. As theorists, we too are inclined to “see like a state.” Sometimes we tell stories about the naturalness of political organization: we are social animals, a thesis we might develop either as an Aristotelian point about politics being in our nature, or in a more naturalistic key, telling explanatory stories about the evolution of cooperation and hierarchy in higher primates. Of course many of us will reject any such premise: with Machiavelli and Hobbes, we may deny the naturalness of politics; with Locke, perhaps we see the state as something that we construct through some kind of contract. Or with Hume and Burke, we might instead see the institutions of authority not as deliberately constructed, but as emerging gradually from habits and conventions. Or with Marx we may instead see the state as the manifestation of control by the ruling class over the means of production. In each of these narratives, however, the state, once explained and justi ed (or condemned, or explained away) seems to be a fait accompli, a de nite thing that is taken as importantly xed, or at the very least stable, in its nature and purposes: either as the locus and agent of authority, or as a distraction and diversion from the real sources of power. The state may take myriad forms, but there is a clear family resemblance to the Weberian claimant of a legitimate monopoly over coercion. The tendency of theorists to “see like a state” has been challenged, certainly. Foucault denied any essentialist understanding of the state, insisting instead on treating “the state” as a problem to be analyzed 8

in terms of particular historical processes and con gurations of actors and interests. Geertz (1980), in his remarkable (if inevitably speculative) study of precolonial Bali forces us to consider the semiotic dimensions of high politics in ways that rest uneasily with, as he puts it, “each of the leading notions of what the state ‘is’ that has developed in the West since the sixteenth century—monopolist of violence within a territory, executive committee of the ruling class, delegated agent of the popular will, pragmatic device for conciliating interests” (122). Geertz shows us a world in which something very much like a state (negara) was not primarily about mediating con icts over resources, or mobilizing partisans to secure power. Rather, the “driving aim of higher politics was to construct a state by constructing a king” (124): “a structure of action, now bloody, now ceremonious, the negara was also, and as such, a structure of thought. To describe it is to describe a constellation of enshrined ideas” (135) in which power—“de ned as the capacity to make decisions by which others are bound, with coercion its expression, violence its foundation, and domination its aim” (134)—was not the abiding focus of political motivation and agency. In the same spirit as Foucault and Geertz, Scott’s work, and SLAS in particular, critically interrogates our received categories. For Scott, the state is not simply assumed as a stable conceptual category or empirical regularity. Indeed, in Against the Grain (2017), Scott highlights the degree to which many received truths about the deep history of the state—the progression from nomadic hunter-gatherers to grain farming, animal domestication, permanent settlement, agricultural surplus, social and territorial di erentiation, urban civilization, and organized coercion—turn out to be based on at best ambiguous and contested evidence. The state is not, however, explained away either as a precipitate of deeper forces, or a merely contingent outcome that could have been radically di erent. In the spirit of Foucault’s analyses of governmentality, Scott shows us that states have particular histories, rooted in their material circumstances; the motivations of the actors who occupy their o

ces and agencies; and the actions of those

subject to governing practices. Yet the state never manages to circumscribe and control the spaces of political agency. If Geertz reminds us that considerations of power and mastery do not exhaust the idea of “stateness,” then Scott reminds us that the modern state, for all its power, does not exhaust the spaces and possibilities for politics. This is not only a point about acts of resistance against, or avoidance of, state authority central to so much of Scott’s work. When we adopt what Scott calls “an anarchist squint,” we see the degree to which “forms of informal cooperation, coordination, and action that embody mutuality without hierarchy are the quotidian experience of most people. Only occasionally do they embody implicit or explicit opposition to state law and institutions” (2012: xxi).

A Grounded Political Theory of Structure and Agency? “Grounded theory” is a methodological term of art in the interpretive and ethnographic human sciences, emphasizing induction from the full richness of experience, not abstraction and deduction from rst principles, as the core principles of theory construction. Without taking sides in those methodological debates, I note that the term captures what Scott does in SLAS, grappling with how agents are shaped by their historical and cultural circumstances, while at the same time attending to the vocabularies and strategies they deploy in living (and sometimes resisting) those circumstances, particularly the circumstances of power they nd themselves confronting. Scott theorizes about structure and agency in a way grounded in historical accounts of institutions and practices, without obsessing over causalphilosophical priority claims (“structures ultimately shape agency”! “agents are conceptually and ontologically prior to social structures”!) but also without letting the lived practices we mean to understand be obscured by endless contrivances and re nements (“sedimentation”! “structuration”! “morphogenetic processes”!). Scott teaches us, by example, that we can be theorists of actual politics, in its lived richness. Whatever faults historians, anthropologists and economists have found with Scott’s trespasses into their scholarly domains, this lesson is perhaps the least sensitive to those complaints, and the most interesting for scholars of politics: with apologies to Wittgenstein, Scott’s methodological imperative might be “don’t (obsessively) theorize! (critically) explain!”

References Bachrach, Peter, and Morton S. Baratz. “Two Faces of Power.” American Political Science Review 56, no. 4 (December 1962): 947– 952. WorldCat Berman, Marshall. All That is Solid Melts Into Air: the Experience of Modernity. New York: Simon and Schuster, 1982. Google Scholar Google Preview WorldCat COPAC Dahl, Robert A. Who Governs? Democracy and Power in an American City. New Haven: Yale University Press, 1961. Google Scholar Google Preview WorldCat COPAC Foucault, Michel. Discipline and Punish: the Birth of the Prison. Alan Sheridan, trans. New York: Vintage, Random House, 1975. Google Scholar Google Preview WorldCat COPAC Foucault, Michel. “Technologies of the Self.” In Technologies of the Self: a Seminar with Michel Foucault, edited by Luther H. Martin, Huck Gutman, and Patrick H. Hutton. University of Massachusetts Press, 1988. Google Scholar Google Preview WorldCat COPAC Foucault, Michel. Security, Territory, Population: Lectures at the Collège de France, 1977-78. Graham Burchell, trans. London: Palgrave Macmillan, 2007. Google Scholar Google Preview WorldCat COPAC Geertz, Cli ord. Negara: the Theatre State in Nineteenth-Century Bali. Princeton: Princeton University Press, 1980. Google Scholar Google Preview WorldCat COPAC Gunnell, John G. “Leaving Everything as It Is: Political Inquiry a er Wittgenstein.” Contemporary Political Theory 12, no. 2 (2013): 80–101. Google Scholar WorldCat Hardin, Russell. “Seeing Like Hayek.” The Good Society 10, no. 2 (2001): 36–39. Google Scholar WorldCat Hayek, Friedrich. The Constitution of Liberty. Chicago: University of Chicago Press, 1960. Google Scholar Google Preview WorldCat COPAC Hayek, Friedrich. The Counter-Revolution of Science: Studies on the Abuse of Reason. 2nd ed. Indianapolis: Liberty Press, 1979. Google Scholar Google Preview WorldCat COPAC Hayek, Friedrich. The Fatal Conceit: the Errors of Socialism. Chicago: University of Chicago Press, 1988. Google Scholar Google Preview WorldCat COPAC Hayward, Clarissa Rile. De-facing Power. Cambridge: Cambridge University Press, 2000. Google Scholar Google Preview WorldCat COPAC Hochschild, Adam. King Leopoldʼs Ghost: A Story of Greed, Terror, and Heroism in Colonial Africa. New York: Houghton Mi lin, 1998. Google Scholar Google Preview WorldCat COPAC Jacobs, Jane. The Death and Life of Great American Cities. New York: Random House, 1961. Google Scholar Google Preview WorldCat COPAC Jacobs, Jane. The Economy of Cities. New York: Random House, 1969. Google Scholar Google Preview WorldCat COPAC

Lemke, Thomas. “An indigestible meal? Foucault, Governmentality and State Theory.” Distinktion: Scandinavian Journal of Social Theory 8, no. 2 (2007): 43–64. Google Scholar WorldCat Levy, Jacob T. Rationalism, Pluralism, and Freedom. Oxford: Oxford University Press, 2015. Google Scholar Google Preview WorldCat COPAC Lukes, Steven. Power: a Radical View. 2nd Edition. New York: Palgrave Macmillan, 2005 (1974). Google Scholar Google Preview WorldCat COPAC Mann, Michael. “Review: Seeing Like a State.” American Journal of Sociology 104, no. 6 (May 1999): 1813–1815. WorldCat Nobles, Melissa. Shades of Citizenship: Race and the Census in Modern Politics. Stanford: Stanford University Press, 2000. Google Scholar Google Preview WorldCat COPAC Popkin, Samuel L. The Rational Peasant: the Political Economy of Rural Society in Vietnam. Berkeley: University of California Press, 1979. Google Scholar Google Preview WorldCat COPAC Sawyer, Stephen W. “Foucault and the state.” Tocqueville Review/La revue Tocqueville 36, no. 1 (2015): 135–164. Google Scholar WorldCat Scott, James C. Political Ideology in Malaysia: Reality and the Beliefs of an Elite. New Haven: Yale University Press, 1968. Google Scholar Google Preview WorldCat COPAC Scott, James C. The Moral Economy of the Peasant: Rebellion and Subsistence in Southeast Asia. New Haven: Yale University Press, 1976. Google Scholar Google Preview WorldCat COPAC Scott, James C. Domination and the Arts of Resistance: Hidden Transcripts. New Haven: Yale University Press, 1990. Google Scholar Google Preview WorldCat COPAC Scott, James C. Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed. New Haven: Yale University Press, 1998. Google Scholar Google Preview WorldCat COPAC Scott, James C. The Art of Not Being Governed: an Anarchist History of Upland Southeast Asia. New Haven: Yale University Press, 2009. Google Scholar Google Preview WorldCat COPAC Scott, James C. Two Cheers for Anarchism: Six Easy Pieces on Autonomy, Dignity, and Meaningful Work and Play. Princeton: Princeton University Press, 2012. Google Scholar Google Preview WorldCat COPAC Scott, James C. Against the Grain: a Deep History of the Earliest States. New Haven: Yale University Press, 2017. Google Scholar Google Preview WorldCat COPAC Sennett, Richard. The Uses of Disorder: Personal Identity and City Life. New York: Alfred A. Knopf, 1970. Google Scholar Google Preview WorldCat COPAC Thompson, Debra A. The Schematic State: Race, Transnationalism, and the Politics of the Census. Cambridge: Cambridge University Press, 2016. Google Scholar Google Preview WorldCat COPAC

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Notes 1.

This argument was famously cast by Popkin (1979) as a challenge to rational choice explanations. Scott, however, never argued that peasants were irrational creatures of custom, but that subsistence farmers are rationally risk-averse, and their values and expectations reflect their preference for material security over higher but riskier returns.

2.

To be sure, historically, as both the motivations and the mechanisms of government and governance became more complex, so too the relevant actors become less obviously and tidily identifiable simply as “state” agents or ruled “subjects.” As Michael Mann puts the point, critical of Scottʼs own theoretical simplifications vis-à-vis the state: “High modernist disasters have involved states, armed forces, markets, corporations, classes, nationalist movements, and so on, all interacting in complex, confused, and o en unanticipated ways” (Mann 1999, 1815).

3.

That “simple act of will” does not end well for the fictional Kurtz, of course, and was utterly devastating for the actual Congolese victims of King Leopoldʼs ambitions in Africa; on Conradʼs novella as importantly and disturbingly historical, see Adam Hochschild (1998).

4.

The phrase is Ian Hackingʼs.

5.

Indeed, Scottʼs earliest work (1968) was a study of Malaysian political elites.

6.

Think here of important work on the politics of census categories, e.g. Nobles (2000) and Thompson (2016).

7.

By “growth” Hayek is not simply referring to an expansion of material production; instead he means something like the cultural evolution of “essential conditions of liberty under law” (324). “To the empiricist evolutionary tradition … the value of freedom consists mainly in the opportunity it provides for the growth of the undesigned, and the beneficial functioning of a free society rests largely on the existence of such freely grown institutions” (127). See also (1960, 212 .) on coercion.

8.

Whereas Foucaultʼs later works (2007, 2009) on biopolitics and governmentality are o en read as denigrating “the state” as useful focus of study, I am persuaded by Lemke (2007) that, for Foucault, “government by state agencies must be conceived of as a contingent political process and a singular historical event in need of explanation rather than a given fact” (46); and by Sawyer (2015) that “for all of his comments doubting the e icacy of studying the state, Foucault continuously brought the state back in” (141).

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Judith Shklar, Ordinary Vices  Andrew Sabl https://doi.org/10.1093/oxfordhb/9780198717133.013.5 Published: 04 September 2019

Abstract Judith Shklar’s Ordinary Vices is often oversimpli ed, and its radicalism underplayed. Far from simply endorsing “putting cruelty rst,” the work doubts that this is politically desirable (or even clearly possible). Its defense of hypocrisy is subtler and more ambivalent than often thought. Its attack on aristocratic, “primary” snobbery merits less attention than its defense of a pluralistic snobbery that allows each of us to nd some group that may freely exclude, and look down on, (some) others. Its skepticism regarding accusations of betrayal relies less on direct political analysis than on a moralpsychological analysis of our need to attribute disloyalty to others. Its defense of the “liberalism of fear” stipulates the limits of such a liberalism and the necessity to join it with representative democracy. Finally, Shklar’s benign misanthropy leads her not only to endorse constitutional politics but also, and more fundamentally, to denigrate systematic political theory.

Keywords: vices, cruelty, hypocrisy, snobbery, loyalty, betrayal, misanthropy, liberalism of fear, Judith Shklar Subject: Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

There are many books about the political virtues. One has proven su

cient to speak for the other side, for

the gimlet-eyed political theory whose maxim is “one begins with what is to be avoided” (5). Ordinary Vices [OV], Judith Shklar’s (1984) most emblematic and in uential book, is singular in both senses of the word: unique and extraordinary. The source of the book’s title (“Treachery, disloyalty, cruelty, tyranny … are our ordinary vices”), its guiding muse and avowed “hero of every page” (228), is Montaigne, who professed his insights to be matters of self-knowledge rather than systematic philosophy, and tended towards a Pyrrhonian skepticism that casts doubt on all truths as quickly as it asserts them. OV itself repeatedly practices the skepticism it professes. So as to undermine complacency, it spends so much time in brilliant, acerbic arguments against its own main points that these essayistic reversals often seem to be the main points, and proudly so: Shklar embraces “paradoxes and puzzles” [44], takes it for granted that a thinker can only be “instructive” by

virtue of being “self-divided” [158], and calls her book “a tour of perplexities, not a guide for the perplexed” [226]. The book is a masterpiece of staccato allusion and erudition. Its casual references include not just canonical political theory, contemporary ethics, empirical political science, and American history but literally scores of French- and English-language novels and plays. OV assumes an ideal reader who snacks on libraries, and seems content to leave all actual readers panting to catch up. Much of this is doubtless intentional in a book that famously traces the greatest political evils to false certainty, and that calls on us to acknowledge our own vices so as to lance the temptation to cruelly persecute others. This is the least Schmittian book ever written. Shklar rarely, if ever, names an enemy without acknowledging simultaneously that the enemy may have a point—and, more important, that one’s alleged friend is quite possibly a false one and in any case partly vicious (as are we). Shklar’s famous “liberalism of fear”— more fully explained in OV than in her essay of that name (1989)—distrusts both conventional institutions (because they shelter self-satis ed elites, callous towards injustice, and the ideologies that comfort those elites) and the social movements that arrogate the alleged right to sweep away those institutionalized vices in favor of radical ones. Many remember OV as calling for “putting cruelty rst” (a chapter title): “the liberalism of fear,” Shklar writes, “makes cruelty the rst vice” (5). Few remember Shklar’s warnings that truly putting cruelty rst would involve profound personal costs. Because all existing, perhaps all possible, social and political institutions require, to a great extent, ignoring cruelty, putting it rst would require an awful isolation and withdrawal. It would also involve a profound political dilemma: while avoiding cruelty requires avoiding politics, attacking existing cruelty and injustice requires engaging in politics. The constitutional politics that Shklar supports, not a liberalism of fear simply but as a permanent but uneasy alliance between such liberalism and the more hopeful politics of representative democracy, re ects not the culmination of putting cruelty rst but a reluctant second-best given human societies’ inability to do so. We are to turn from Montaigne to Montesquieu because the latter is more practical, not more correct. Following what Shklar calls the “grim realism” at the heart of Montesquieu’s thought (and that of American constitutionalism [43]), we are to fear politics and power while placing a consistent but uneasy trust in institutions that prevent politics and power from being quite as bad as they would otherwise be. All this might make the book seem a cat’s cradle: lled, like a Montaigne essay, with insights but no systematic argument. Shklar invites this reading herself by calling the book a “ramble,” characterizing the chapters as “essays” that may be read separately, and describing her concluding chapter as optional, meant only for “those who have a taste for political theory” (6). In truth, though, each of OV’s chapters ts with the rest; the paradoxes, reversals, and apparent digressions (on everything from just war theory to Pinter’s Betrayal to the English law of treason to the moral psychology of divorce) have place and purpose. Only by canvassing her treatment of the range of social and political vices can we understand why Shklar is— morally, of course, not logically—certain that we should put cruelty rst. Only by appreciating which vices we might have to tolerate as a consequence of putting it rst can we understand why it may be all but impossible to do so. What follows will try, and necessarily fail, to capture the argument and signi cance of each chapter, organized by its cardinal vice. I shall then say something about the method, audience, reception, and signi cance of the whole.

Cruelty “Cruelty,” Shklar writes, “is ba

ing because we can live neither with nor without it” (3). It should be

stressed that Shklar’s discussion of cruelty produces no imperatives: she does not tell us to “put cruelty rst.” Putting cruelty rst remains an aspiration that animates the entire book, and arguably all of Shklar’s later work. But for a non-rationalist like Shklar, who never entertains the odd notion that we can improve politics as a whole through agreeing on distant ideals (“one looks in vain for a Platonic dialogue on cruelty” [7]), the argument that it might be nice if more people managed to do something in no way implies the practical conclusion that we all ought to try to do it. Many of us may lack the qualities of character that would let us pull it o ; and if we had them, we might lack other qualities that society needs. Cruelty’s distinctive badness is therefore the theme of OV but not its plot. Not only do the vices of hypocrisy, snobbery, and betrayal have their own chapters; their chapters are longer and more complex than the one on cruelty. (Misanthropy has its own chapter as well, but a shorter one—perhaps because only a certain version of it counts as a vice.) Hating cruelty, Shklar thinks, merely makes us humane. Putting cruelty rst is, however, a matter very di erent from mere humaneness. To hate cruelty more than any other evil involves a radical rejection of both religious and political conventions. It dooms one to a life of skepticism, indecision, disgust, and often misanthropy. Putting cruelty rst has therefore been tried only rarely, and it is not often discussed. It is too deep a threat to reason for most philosophers to contemplate it at all (8). One could spend a whole book unpacking these claims. (In a way, Shklar did just that.) Brie y: putting cruelty rst involves rejecting the category of sin “to replace it entirely with wrongs done to living beings” (240, emphasis added). This means denying the morality of “revealed religion,” by which Shklar means Christianity—while remaining under no illusions that the prevalent popular morality of the West has involved anything other than Christianity. It also requires rejecting conventions whose enforcement requires cruelly persecuting those who out them; both Montaigne and Montesquieu dared ask what was so bad about adult sibling incest (13). Putting cruelty rst implies a certain “mental worl[d]”: an “easy acceptance of cultural variety” and a “negative egalitarianism” that relentlessly interrogates the re exive tendency of the powerful—this includes us—to victimize “alien peoples” (26, 28). Putting cruelty rst means rejecting the ethos of battle and martial solidarity, embracing “not the courage of the armed, but that of their likely victims” (6). Beyond this, putting cruelty rst seems, or at least seemed to Montaigne, to require a bias towards inaction and non-participation. At the very least, putting cruelty rst implies a “skeptical politics.” If one stresses— as, Shklar maintains, Machiavellians never do—not the angst of politicians but the su ering of likely victims, one will reject the foolish aspiration to master circumstances. One will doubt the validity of claims to “necessity” or reason of state. One will nd no attraction in the personal politics of virtù and fortuna, which ordinary political victims have no reason to welcome in comparison to the relative security of constitutional life (30, 196). Montaigne’s own conclusions were quietist, on the suspicion that all political institutions and actions were likely to be bad. Shklar gives that quietism one cheer, approvingly citing Emerson’s dictum that Montaigne was “equally at odds with the evils of society and with the projects that are o ered to relieve them” (32). Shklar, however, sees in Montesquieu a sort of politics of anti-cruelty. Montesquieu’s work is, she maintains, “no less grim and just as un attering to mankind as Montaigne’s. It is only that he [Montesquieu] added to his hatred of cruelty the belief that public justice and political freedom could limit our worst propensities” (34) as well as the innovative belief that “politics and morality were wholly

dissimilar,” so that human beings could remain vicious while their institutions made life better (33). Beyond the Montesquieuian anti-politics of constitutionalism, Shklar suggests a less-developed and ambiguous sympathy for the kind of “active and positive humanitarianism” that ended slavery. While conceding that humanitarianism risks a savage “moral cruelty” or judgmentalism of its own, Shklar rejects what she takes to be Nietzsche’s project of placing such moral cruelty rst. Doing so leads, Shklar argues, to Nietzsche’s fear of the weak, or fascism’s hatred of them (41). In other words: Shklar turns away from the project of putting cruelty rst in its purest form. She suggests that hating cruelty as much as Montaigne did involves too much psychic strain for most of us to bear. Most of us “talk around cruelty because we do not want to talk about it”: we “shrug at massacres” when they are geographically or racially distant from us, or try to defuse our discomfort through analysis or social science (43–44, quotations at 43). Perhaps, we might add, humanitarian politics involves its own form of benign denial, whereby we focus not on victims but on those working to prevent victimization. We might do so both for consequentialist reasons—hope sustains action—and in order to be able to bear our anguish regarding the victims who always remain.

Hypocrisy The chapter on hypocrisy is often said to be a defense of it. That gloss is imprecise and incomplete. Sociable hypocrisy—pretending to agree with other people’s values when we have no intention of practicing them, pretending to scorn others’ beliefs less than we do—is indeed, for Shklar, no vice. A diverse democratic society whose members take on multiple and shifting roles perhaps “cannot a ord public sincerity. Honesties that humiliate and a sti -necked refusal to compromise would ruin democratic civility in a political society in which people have many serious di erences of belief and interest” (78). It is understandable that many readers remember this bracing point: hypocrisy is not the antonym of democratic civility but almost a synonym. The issue is not merely private civility but also democratic persuasion: Shklar astutely notes that Aristotelian rhetoric, starting with the audience’s premises rather than one’s own, is a sort of hypocrisy itself (47–48). When Shklar claims that she is not endorsing hypocrisy, just refusing to place it above cruelty (86), she is not being fully sincere. She seems truer to herself when she simply proclaims that hypocrisy “bolsters liberal democracy” (247–248). Moreover, Shklar does seek to undermine the hatred of hypocrisy via an error theory. She portrays our obsession with hypocrisy as a regrettable, though largely unavoidable, product of ideological combat, and a sort of moral despair. Unable to label what you propose wrong or evil, since what seems wrong to me seems right to you and doubtful to the uninvolved, persuadable audience, I strike at you, and address that audience, by pointing out that your practice fails in some way to live up to your principles (as it always will). But Shklar complicates this apparently pro-hypocrisy story. First, she more or less unambiguously endorses one mode of accusing others of hypocrisy: the American jeremiad, in which someone speaking on behalf of the powerless laments America’s failure to respect liberty and equality and attacks the ruling-class conventionalism that “sustains established institutions and the self-satis ed people who run them and live o

and for them” (65). Second, the chapter’s main topic is indeed a serious vice but not the one people think

it is: Shklar’s target is “the professional antihypocrite” who expects social transparency and will always end up raging in disappointment (46; emphasis added). Shklar is less a partisan of hypocrisy than an antiantihypocrite. Deploying a commonsense consequentialism that pervades the book, Shklar asks whom in particular antihypocrisy is supposed to help (besides the antihypocrite, whose moralistic neuroses merit neither respect nor succor). She takes aim at “politically active intellectuals, who generally are also extreme antihypocrites” and who su er under “the pretense that the ideological needs of the few correspond to the moral and material interests of the many” (66).

Snobbery This chapter is more central than it seems. To some extent independent of the book’s central theses, it puts forth nothing less than an alternative egalitarianism, a democracy of diversity rather than equal respect. (To be sure: it is mandatory, central to democratic good manners, to profess and demonstrate equal respect for everyone—precisely because no one really feels it [77].) Again the consequentialist, Shklar examines snobbery from the perspective of those it harms. Snobbery is “the habit of making inequality hurt”; as such, its “practical consequences are far greater” than those of hypocrisy, which it resembles (87, 88). Shklar’s objection to “primary” snobbery—an aristocratic, leisured ethos (based in the U.S. on “old money,” not titles) that disdains work, commerce, and merit—is that it causes “pain and rage” (90) and is a “violation of … patriotic values” (91). This piece of OV, though persuasive, seems uncharacteristically dated: today’s cultural elites profess not leisured snobbery but a Stakhanovite work ethic combined with fervent (though shallow) egalitarianism. It is the chapter’s subplot, “secondary snobbery,” that is of more permanent interest, proposing a new social ethos for democracy that is far more realistic than one that posits equal and universal respect. Secondary snobbery is “the snobbery of cliques. It revolves around family and money” and “one’s own kind” (116). It is uncomfortable, ubiquitous, and universally available. It is the hallmark of life in a “culture of many subcultures” (4), “the consequence of any sort of pluralism and of the multiplicity of groups that include and exclude people in terms of some common end that seems worthwhile to the members” (117). Because “almost all groups are selective,” those who do not or cannot share in a particular group’s ends or its tastes may feel excluded. But this e ect is inadvertent and, however regretted, unavoidable. It is the price of real goods: “Our most genuine experiences of equality, of intimacy, and of fraternity occur only within a ‘clique’—that is, in an excluding group of like-minded people, modeled on that most irreducible and necessary of all societies, the family” (135). Shklar proposes a “Madisonian solution” to secondary snobbery. Groups “must be multiplied so that all can have some occasion for inclusion and exclusion, which should make it far easier for everyone to bear.” “We all snub and are snubbed as part of the process of the multiplicity of roles and groups” (136, 248). The “pride and more pride” that Shklar presents as the remedy for victims of primary snobbery and best vaccine against it—“[h]umility is not a democratic virtue” (135; compare 8)—is also Shklar’s avowedly “unchristian” solution to the inevitable disappointments that accompany the pluralistic, secondary kind (248). If my club does not want you as a member, you should found your own. This is realism, as in the chapter on cruelty, but not so grim as there. Secondary snobbery is “one of the unintended outcomes of freedom” (117)—freedom of association. Vices must always be related to “a whole social and religious scheme. Ours is a nonscheme … . Liberal democracy is … a culture of subcultures, a tradition of traditions, and an ethos of determined multiplicity” (248). Shklar is sometimes read as simply advocating, as a remedy for both snobbery and the condescending antisnobbery of noblesse oblige, an egalitarian brashness, a willed indi erence to status. But she actually sees the matter as very complicated. It would be nice if we could be both indi erent to others’ status and sensitive to the troubles of those placed below us in the social order—but we cannot (123, 135). “If we disregard di erences, we will be tactless; and if we are too class-conscious, we will not be democratic” (135). The remedy from below is, as said, pride. Shklar o ers no remedy for potential snobs themselves: any strategy for defanging or deprecating one’s own (presumed, felt) social superiority will become another mode of preening (what we now call a humblebrag). To be sure, Shklar’s own Pyrrhonian skepticism seems to be more of a remedy than she admits. Shklar applies her cleverness, learning, and lethal argumentative skill to the task of making herself and her readers di

dent not of their own worth—that way lies Christian

“humility” cum moral cruelty—but of their ability to judge others’ characters without bias and to exert

political and social power without abuse. No doubt, however, Pyrrhonianism is a permanent minority taste, which may be why Shklar never recommended it as a social practice. Failing that, Shklar does endorse “treating everyone identically and with easy spontaneity” as the least-bad simple advice for those seeking such: this is the “democracy of everyday life” (136). The “‘simplicity’ of manners that has justly been celebrated as the great achievement of democracy” does not eliminate snobbery but may help us “disregard” it (137). Crucially, though, this spontaneity of manners is a social virtue, not a political one: a virtue for those living their private lives in chosen subgroups. The political virtue is not spontaneity but Benjamin Franklin’s cultivated, arti cial amiability: “Candor is not a political virtue in a democracy; successful persuasion is” (136). One wonders, here as elsewhere, to what extent the calculated relativism of democratic political life—each opinion, good or bad, counts for one—is compatible with the liberal freedom to choose one’s true friends. The egalitarianism of diversity and that of (feigned, political) equal respect are, as ever, in tension.

Betrayal Shklar’s chapter title “The ambiguities of betrayal” (138, emphasis added) already signals a “liberal” project of favoring tolerance over demands for loyalty and solidarity. Shklar is skeptical of calls for loyalty, which she regards as essentially martial in origin (156). As for the “call for solidarity,” it is “less a response to betrayals than to a fear of the normal disarrays of political freedom” (186). A pluralistic society will foster “divided loyalties and disparate subcultures” (186); “little platoons” yield not “a Burkean deferential order” but “divided loyalties and fractured betrayals” (189). Obsessions about betrayal may also re ect a nasty opposition to mobility; no one who moves from one social status into another can remain perfectly faithful to both (141). This chapter shows Shklar at her most Nietzschean. Instead of asking how a theory of betrayal is possible, she digs into our psychology to explore why it is necessary. One answer is our childish fears of desertion, allied to the political fear of “the failure to distinguish kin and stranger, the latter almost always called ‘enemy’ as well.” (One might gloss this as saying that most alleged “enemies” deserve ironic quotation marks—we should fear the friend–enemy distinction more than we fear most enemies—as do most alleged instances of giving “the enemy” aid and comfort.) Another answer lies in our literary taste. If betrayals are “the main theme of our literature and history” (138), it is largely because Rousseau’s critique of theater was apt on this point: rare, unambiguous betrayals by unscrupulous masterminds are entertaining as ordinary decency is not (174). Finally, the intellectual’s desire to make moral choice dramatic by stressing crises, dilemmas, and moments of truth—Shklar is savage regarding the love of “dirty hands” problems—may make us forget how successful liberalism is at making tragic moral dilemmas relatively rare. Many readers of Shklar insist that her ethos is wholly negative, that she lacks a summum bonum. Not so: “the most important political and personal aim must always be to live under laws that do not force us to make intolerable choices” (156; emphasis added). This is, of course, the least heroic and dramatic “highest good” imaginable: to live prosaically. Real political betrayal still exists, but one must be careful. In “periods of suspicion,” self-styled superpatriots are overwhelmingly racists, religious bigots, or both (183; this analysis is not dated). And Shklar irts with the idea that government is just another large-scale enterprise, not unlike a business, such that selling a state secret is little di erent from selling a trade secret: both are and should be illegal, but we should not in either case pretend to surprise that some underlings lack deep loyalty (181–182). Yet constitutional democracy does rely, more than hierarchical regimes, on widely dispersed “trust in and allegiance to the constitutional system” (179; emphasis added)—a system founded, of course, on a profound lack of trust in governments and individual political actors.

This complex chapter interweaves at least three accounts of betrayal (or alleged betrayal). One is the faux betrayal that derives from reaction. Change always seems like a betrayal to those whose accustomed “power and prestige” it reduces, but such feelings of betrayal do not constitute evidence for acts of betrayal, i.e. conspiracies (185). (Theories of conspiracy in this reactionary mode are almost always religiously or ethnically tinged [179].) Second, feelings of loyalty to nation, country, or government are natural enough, and not in themselves reprehensible, but in a pluralistic society we must never try to make them mandatory. Most alleged traitors have not betrayed the nation so much as displayed consistent, subjectively honorable loyalty to something else. That said, the clever and privileged, self-styled as “exceptional,” are prone to betray their fellow citizens for the sake of duties that only they themselves regard as overriding and heroic (177); this is the only systematic theory of disloyal groups in which Shklar half-believes. Finally, real betrayal would mean a product of undermining the constitutional trust on which the system rests; Shklar’s central example is Coriolanus. Shklar acknowledges that allegiance to liberal democracy is neither universal nor total—many regard it as ideological (189)—and takes a dim view, as noted, of projects that attempt to make it mandatory, e.g. through loyalty oaths. Still, constitutional democracy requires widespread allegiance to the overall scheme, and attempts to undermine it do constitute a palpable (if nonactionable) betrayal. Shklar refuses to draw from the existence of this real, anti-constitutionalist betrayal any concrete political or legal lessons. One might understandably conclude that she distrusts the language of loyalty and betrayal as such. As in the chapter on hypocrisy, the real topic of this chapter is not betrayal but anti-betrayal. It seems that Shklar downplays real, anti-constitutionalist betrayal because it is less of a threat, at least less of an urgent threat, than the recurrent obsession with alleged disloyalties and betrayals that leads the fearful to take aim at plurality and dissent.

Misanthropy Above it was noted that trust in the constitutional order is not based on trust in humankind but on its contrary. Shklar’s chapter on misanthropy makes this very clear, and represents a not-so-secret apology for the work itself. Shklar starts with an epigraph from Pliny the Younger, “He who hates vice hates mankind” (cited on 192), and reiterates the admission, present from the start of the book, that the misanthropy born of obsession with human vices “can make us miserable and friendless, reduce us to spiritual nausea, and deprive us of all pleasures except invective” (192). That said, misanthropy in some forms is “intellectually unavoidable and politically valuable. Distrust has its place in the world” (192). Misanthropy’s political virtues are fairly straightforward, consisting essentially of Publius’s “if men were angels” and all that. In the eighteenth century a “di use distrust of humanity became the basis of constitutional government, especially in America” (196–197). But Shklar’s account of misanthropy’s intellectual advantages—perhaps the closest Shklar comes to advocating a “method”—is subtler and merits a pause. Shklar regards “satire and philosophy” as “unthinkable without the withering force of contempt” (192); “speculative thought” thrives in the “bitterness” that notes “the huge distance between what we are and what we could conceivably be” (193). “Most moral psychology of any worth is a scream of disgust, as is much of what philosophers since Plato have told us about ourselves” (193). (The savvy theorist’s sense of satire and disgust derives from a full awareness of the rational standards that some enjoy positing but all fail to meet: misanthropy is “the victory of honesty over hope” [193].) Misanthropy may make us intensely disagreeable, but better disagreeable than deluded. It matters, however, which vices drive us to misanthropy. Those disgusted by treachery and hypocrisy are extremely dangerous: they often end up condoning political and cultural slaughters that they wrongly

imagine will be cleansing. Shklar places Nietzsche here, as well as his modern admirers who fulminate against “the masses” (197). Likewise—and turning back to politics—Machiavelli’s satirical sense of how masses were easily fooled led him to write The Prince, “a celebration of violence to achieve glory for one man —at the expense of all the rest” (207). Machiavelli “found it easy to ignore the victims of his prince’s march to power” (205). He was, Shklar argues, very far from being “another Hobbes—a bit wry, but wishing mankind well” (207). Montesquieu’s misanthropy, however, which put cruelty rst, was much more benign than Machiavelli’s as well as more peaceful. It led him to “an essentially misanthropic basis for a liberalism that was meant to reduce fear and to eliminate the greatest cruelties” (194). This was “misanthropy’s nest hour” (197). Shklar stresses that Montesquieu, for all his profound psychological impact, did not believe that the vices were subject to “personal cures.” Only public reform can have an e ect. Montesquieu had a public alternative to Usbek: legal government. Friendship has no public function. There are no personal checks on the reign of misanthropic rulers or on any other political terrorists. Only the abolition of seraglios and personal government as such would make it possible to devise laws to protect the potential victims against the inevitable aggressors. This is the liberalism of fear, and of law as the alternative to violence (214). The entire nal section of the misanthropy chapter, “Liberal Misanthropy: Limiting Government,” expands on this “liberalism of fear.” It implies, among other things, an implicit but savage attack on Straussianism. As Shklar casually asserts, glossing Montaigne but without apparent dissent, “politically powerful people make use of or enjoy the presence of others, but they are not as a rule capable of friendship” (215). Montesquieu’s constitutionalism could not be further from Straussianism’s soul-and-friendship talk, its cult of heroism, and its conviction that only the exceptional leader can save us. The purpose of the liberalism of fear, resting on “a generalized misanthropy that makes no exceptions, is contemptuous of fame, and has no faith in military valor,” is “a balancing of ambitions that will make physical cruelty di

cult and persuade men to concentrate their energies on the less lethal pursuit of wealth and peace. Such

ends are entirely within the limits of their diminutive moral powers” (218). We might also infer from that mention of “diminutive moral powers” a disparagement as well of John Rawls’s constitutionalism, which posited—as Kant’s did not—that human beings are generally inclined to pursue justice. The best that adequate institutions can do, Shklar thinks, is “serve our capacity, miniscule though it be, for putting together a better set of dispositions than we have done so far” (234). Shklar de nes justice in terms that are wholly non-social and deliberately de ationary: Justice itself is only a web of legal arrangements required to keep cruelty in check, especially by those who have most of the instruments of intimidation closest at hand. That is why the liberalism of fear concentrates so single-mindedly on limited and predictable government. (237) Though Shklar clearly loves Montesquieu’s scheme and builds the liberalism of fear from it, she denies that an actual constitutional government can rest on pure liberalism of this or any other kind. To become a system of government, liberalism must be mixed with representative democracy, which inevitably involves “highly personalized politics”; is not a self-regulating system; and requires “dependencies of a far from rational or legalistic sort” (220). Though Shklar clearly wishes there were some way of avoiding it, democratic government requires that the public place some trust in its leaders (ibid.). Still, this “disorderly political nonsystem” contains a non-contemptible “balance of trust and distrust, of hope and fear, of benevolence and misanthropy,” so as to bring about a more or less “liberal outcome” (221). Thus the liberalism of fear is at the outset inherently self-e acing: a component of any decent politics, not a substitute for it.

“Bad Characters for Good Liberals” In her concluding chapter, Shklar essentially takes aim at all existing schools and methods of political thought. She disavows by casual deprecation what is usually called normative theory: “I have contributed nothing to the homiletic literature, and I have not harangued ‘modern man’” (226). She “cannot think why any readers of this book would ask for [her] advice on how to conduct themselves or about what policies they should choose” (226). Shklar disavows the aim to write “intellectual history” but also analytic philosophy and/or meta-ethics (228). She admittedly cites philosophers sparingly and denies they stand as authorities (229). Far from adopting the common practice of using literature only to illustrate abstract theories, she uses it to correct theory. The likes of Molière, Hawthorne, and Shakespeare “impose understandings upon us, sooner or later, by removing the covers we may have put on the mind’s eye” (229)—and Shklar suggests that almost all abstract categories constitute, or at least include, such blinding “covers.” “The great intellectual advantage of telling stories is that it does not rationalize the irrationality of actual experience and of history” (230). To the extent that Shklar does take a political theorist as a model it is Montesquieu qua the theorist closest to literature: “Montesquieu’s Spirit of the Laws is one story after another, and its penetrating qualities owe much to the author’s skill as a novelist” (231). In fact, Shklar trusts liberal political institutions far more than she trusts any philosophy that aspires to architectonic unity. (To aim at “ xing exactly the grounds for praise and blame in politics,” as most philosophers do, is to “copy the theologians”: no compliment.) “Certainty and agreement” are goals “not worthy of free people” (249), and we must learn “to live with contradictions, unresolvable con icts, and a balancing between public and private imperatives” (249). Shklar opposes all prevalent moral systems: being systems, all of them are wrong, and bear the potential to license cruelty. But Shklar does consider Kantianism as the least bad of the systems—in spite of the moral cruelty that she, like Nietzsche, sees it as encouraging (41)—because at least its aspirations are open to all, unlike Aristotle’s ethical aristocratism, and because the utilitarian aspiration to put happiness rst too easily justi es self-styled benevolent despotism (not that any actual despotism is benevolent [238]). A liberalism that takes notes of such contradictions and self-undermining insights is “extremely di

cult

and constraining, far too much so for those who cannot endure contradiction, complexity, diversity, and the risks of freedom” (5). OV calls on us to reject ideology—any ideology—as licensing “worship of violent collective public action” (21). To believe that is to give up on rooting for any party or movement. There is only an austere constitutionalism that threatens to render collective public action as such irrelevant and unattractive (or at best a necessary evil). The book opposes utopian goals, “realistic” or otherwise, and common visions. Its rejection of all myth-making and hero-worship would, if followed, render the cutand-thrust of politics rather dull. Its relentless, self-subverting skepticism threatens, like all skepticism, to cast doubt on the point of all academic and intellectual work. Shklar’s hope seems to be that philosophers can, with practice and in spite of their extraordinary talents, learn to be almost as wise, though perhaps not as decent, as ordinary, literate citizens. In fact, Shklar does not always put cruelty rst. Intellectually speaking, she e ectively puts innocence rst as the master vice. And she portrays philosophy, with some justi cation, as an exercise in deliberate innocence, the shutting of eyes to human experience. This is why OV is, beneath—or rather because of—its obsession with literature, one of the most political books ever written. It aims to force mental and sympathetic experience. For example: if you think you are a Rousseauian, who prizes integrity and authenticity above instrumental rationality, do you really want to condone moralistic misanthropes and condemn Benjamin Franklin? (And what do you propose the likes of Franklin ought to do, anyway: practice lofty disdain for the masses who cannot match their own genius? Or

perhaps, in the belief that rustic virtue trumps ingenuity, ignore that genius and hoe potatoes?) If you think you hate snobbery, do you hate your own tendency to despise people who enjoy monster truck rallies and jello molds (even as they, in turn, despise you)? The problem with political theory is that it makes it seem possible to a

rm a whole host of values without a

rming any of their speci c embodiments. Shklar’s

resort to speci c characters and scenes plays is designed to “show some of the ways (by no means all) in which the common vices are displayed and what they do to agents and patients … .” (6). Her “stories” have much the same function as Orwell’s plain language: to prevent the kind of thinking that “anaesthetizes a portion of one’s brain” (Orwell 1968 [1946], 137). OV has been accused of conservatism or else praised, as by Bernard Williams in his essay “The Liberalism of Fear” (2005), in terms that make it seem akin to a kind of conservatism that tells us to count our blessings since things could be much worse. If so, this is conservatism of a strange kind: savage towards all hierarchies and the arrogance of status; obsessed with the abuse of power rather than its cultivated and allegedly benevolent exercise; indi erent towards all traditions (except intellectual/canonical ones, which Shklar simultaneously takes for granted and continually subverts); sympathetic towards radical democrats for taking primary snobbery seriously (104); withering towards all forms of romanticism and nostalgia (e.g. at 144); opposed to Christianity for its tendency to place alleged sins above cruelty and for promoting “pious cruelties” of its own (236; compare 8, 13, 38, 199, 241). Perhaps it is considered conservative to see in constitutionalism a system that “fences in the powerful to protect the freedom and safety of every citizen, old or young, male or female, black or white” (5); to ask whether calls for solidarity might require selfdeceiving and self-excusing myths; to reject as not quite vindicated by experience the idea that revolutions render polities morally pure; and to dismiss the (generally implicit) premise that subordinate groups are incapable of abusing power and doing evil. If so, one might wish for more “conservative” books. Real blind spots remain. Shklar cannot perceive sexuality and sexual orientation as bases for inequality and fear (and her treatment of E.M. Forster is callously dismissive as a result). In this book—as opposed to American Citizenship (1991), which may be read as atonement—Shklar is too quick to gloss American aspirations as simply liberal and democratic as opposed to containing strong elements of unashamed ascriptive inequality of the kind her student Rogers Smith (1999) has taught us to focus on. Likewise, Shklar is prone to analyze race and gender only in analogy to categories whose study bore a lengthier European and —at the time—scholarly pedigree: class and aristocracy. OV fails to analyze corporations as serious sources of power and its abuse; and its attack on noblesse oblige as having “no place in a democracy” (134) underplayed—because it could not fully imagine—the frightening prospect of billionaires whose social responsibility takes the form of believing that their businesses themselves constitute great enterprises for the public bene t. OV’s astonishing erudition ignores the forms of storytelling most likely to form contemporary characters: it cites no movies, no TV shows. Its contempt for religion leads it to slight the role that providential (or directly Christian) readings of America’s mission continue to play in our politics. Finally, it takes the hurt of class inequality to be more exclusively tied to petty personal interactions than it is likely to be. Shklar has had no true disciples (and would have wanted none). Even those who cite her as an inspiration often do so only by ignoring—in both theory and practice—her own warnings as to how di cruelty rst would be, how di

cult putting

cult and partial even the liberalism of fear necessarily is. For instance,

Richard Rorty (1989), in addition to making strikingly non-Shklarian claims to the e ect that old literature lacks permanent insights into human nature, makes what Shklar regards as a fatal Nietzschean mistake of believing that moral cruelty is as dangerous and blameworthy as the physical kind. (This is a typical academic’s mistake: only those possessing the luxury of being safe from physical cruelty can easily believe that being disparaged by the self-styled avant-garde counts as a harm and poses a real danger.) George Kateb (in many works but especially 1996, 1998, 2014), perhaps the living political theorist whose spirit most closely resembles Shklar’s, comes close to the Montaignean position that Shklar gently warns us must

be abandoned, despite its attractions: that group political action as such is to be shunned. No one has truly attempted thoroughly to explore and develop Shklar’s doctrine that liberal, representative democracy is a benign contradiction, one that combines a system of constitutional checks that aim at rendering political character irrelevant with a system of selecting rulers that place it at the center. Above all, it is not clear that one can be both a true Shklarian and a mainstream academic political theorist —as in many ways Shklar was not. She did not aim to speak exclusively to political theorists—as noted, only the last chapter is addressed to them—and the book is ill-suited to doing so. It “contributes” to no academic “literature,” preferring instead to speak directly to political questions. In fact, just as she trusted constitutions but not citizens, Shklar loved political theory without having much use for her fellow political theorists. Spurning all norms of contemporary academic discourse, OV repeatedly suggests that Shklar’s close colleagues and former colleagues are guilty of moral cowardice or self-deception of a politically and constitutionally dangerous kind; it cites almost no contemporaries. It is written instead for citizens of extraordinary intensity, intellectual and otherwise: “I have assumed that I live among people who are familiar with the political practices of the United States and who show their adherence to them by discussing them critically, indeed relentlessly” (227). Above all, OV assumes an audience that may have been disappearing as Shklar wrote: one of intellectuals, inside or outside of universities, who took “the institutions of constitutional government and representative democracy” as “political givens” while drawing e ortlessly on “a fund of historical and literary memories” (227). Michael Walzer was quite right to blurb OV as a “moral psychology of liberalism” (and quite magnanimous to do so, as it pillories his own views). But it is a much wilder project than that brief label implies. It not only opposes but savagely mocks the rationalist moral psychology that most political philosophy assumes. It rejects as not only vain but also dangerous the aspiration to produce the kind of coherent and de nitive systems on which academic careers are made. It suggests that we might be much better o

reading

literature than theory. Put more simply, one reason that so many have praised Shklar’s book but so few, perhaps none, have taken its lessons fully to heart is this: If what Shklar says is true, much of what we political theorists say is false.

References Kateb, George. “The Freedom of Worthless and Harmful Speech.” In Liberalism Without Illusions: Essays on Liberal Theory and the Political Vision of Judith N. Shklar, edited by Bernard Yack, 220–240. Chicago: University of Chicago Press, 1996. Google Scholar Google Preview WorldCat COPAC Kateb, George. “Foreword.” In Judith N. Shklar, Political Thought and Political Thinkers, edited by Stanley Ho man, vii–xix. Chicago: University of Chicago Press, 1998. Google Scholar Google Preview WorldCat COPAC Kateb, George. “Existential Democratic Individuality: A Conversation with George Kateb.” Revista de Ciencia Politica 34, no. 3 (2014), 665–699. Google Scholar WorldCat Orwell, George. “Politics and the English Language.” In George Orwell, The Collected Essays, Journalism and Letters, Vol. 4: In Front of Your Nose, 1945–50, edited by Sonia Orwell and Ian Angus, 127–140. New York: Harcourt, Brace, and World, 1968 (1946). Google Scholar Google Preview WorldCat COPAC Rorty, Richard. Contingency, Irony, and Solidarity. Cambridge, England: Cambridge University Press, 1989. Google Scholar Google Preview WorldCat COPAC Shklar, Judith N. Ordinary Vices. Cambridge, MA: Harvard University Press (Belknap Press), 1984. Google Scholar Google Preview WorldCat COPAC Shklar, Judith N. “The Liberalism of Fear.” In Liberalism and the Moral Life, edited by Nancy L. Rosenblum, 21–38. Cambridge, MA: Harvard University Press, 1989. Google Scholar Google Preview WorldCat COPAC Shklar, Judith N. American Citizenship: The Quest for Inclusion. Cambridge, MA: Harvard University Press, 1991. Google Scholar Google Preview WorldCat COPAC Smith, Rogers. Civic Ideals: Conflicting Visions of Citizenship in U.S. History. New Haven, CT: Yale University Press, 1999. Google Scholar Google Preview WorldCat COPAC Williams, Bernard. “The Liberalism of Fear.” In In the Beginning Was the Deed: Realism and Moralism in Political Argument, edited by Geo rey Hawthorn, 52–62. Princeton, NJ: Princeton University Press, 2005. Google Scholar Google Preview WorldCat COPAC

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Quentin Skinner, The Foundations of Modern Political Thought  Don Herzog https://doi.org/10.1093/oxfordhb/9780198717133.013.19 Published: 10 August 2017

Abstract In The Foundations of Modern Political Thought, Quentin Skinner has three aims: creating a sort of reference book for hundreds of primary texts in multiple languages, illuminating a more general historical theme using late medieval and early modern political texts, and giving us a history of political thought with a genuinely historical character. Skinner allows us to see political theorists creatively wrestling with di

cult political problems of their day, and attempting to solve them

through their writing. Skinner’s critics, however, cannot shake the sense that placing these texts in historical contexts robs them of some of their profundity and value as works of political theory. This chapter examines some of Skinner’s treatments of particular authors, notes some di

culties with the

book’s methods, and situates the debate around Foundations within the emergence of a self-conscious Cambridge School.

Keywords: history of political thought, Cambridge School, Quentin Skinner, late medieval political thought, early modern political thought Subject: Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

In the 1960s, Quentin Skinner began publishing a series of more or less methodological papers on historical 1

explanation and interpretation. At the same time, he was also publishing more or less substantive accounts, mostly of Hobbes. No doubt these two kinds of publications were mutually reinforcing. Skinner made clear from the beginning his conviction that what passed for the history of political theory was some mix of science ction and patent confusion. How so? I came of age, as I suppose many still do, thinking that “history of political theory” indicated a list of canonical authors, gaily skipping over centuries and continents: Plato, Aristotle, Augustine, Aquinas, Machiavelli, and so on. (That Augustine-to-Aquinas skip is especially dazzling: over 800 years!) Sure, people have quibbled about various contenders for the list: what about Thucydides, or Marsilius of Padua, or

Diderot? Followers of Leo Strauss were by no means the only people to assume, or argue explicitly, that canonical writers escaped the parochial concerns of their own day to address “timeless” or “abstract” or “fundamental” questions about political life. So it was easy to imagine dialogues or rebuttals, to ask for instance in what ways John Stuart Mill’s defense of democracy defeated Plato’s attack on it; or just what Aristotle, Aquinas, and Marx did and didn’t share in their worries about money and interest. So too I came of age, as I suppose many still do, thinking that one just picked up these books and read them: carefully, of course. But it is not polemical to notice, for instance, that you could be a Hobbes scholar in good standing and not know, let alone care, that Leviathan was published two years after the Rump Parliament put King Charles I on trial—and found him guilty and hanged him—for violating England’s “fundamental constitutions,” attempting to make himself an “unlimited and tyrannical” ruler, and fomenting “unnatural, cruel and bloody wars; and therein guilty of all the treasons, murders, rapines, burnings, spoils, desolations, damages and mischiefs”: so much for responsibility for the civil wars of the 1640s (Rushworth 1721, 7:1418–1419). Political theorists who’d dabbled in philosophy of science could try to shrug such matters o

by invoking the distinction between the context of discovery and the context of justi cation.

Hobbes, in this view, might have stumbled on his view by thinking about the political problems of his day. But so too he could have stumbled on them while daydreaming about Aristotle, or just plain dreaming, or reading chalk gra

ti in Malmesbury. None of that has anything to do with assessing the cogency of his

views. In his relatively slim two volumes, The Foundations of Modern Political Thought (henceforth Foundations), Skinner attempted something very di erent. “I have three main aims in this book,” he began. “The rst is simply to o er an outline account of the principal texts of late medieval and early modern political thought.” The bibliographies to the two volumes contain hundreds of primary texts in multiple languages, as well as an imposing array of secondary sources. In this way Skinner’s work serves as a kind of reference book. Need a capsule account of François Hotman, or the Monarchomachs, or Christopher St. Germain’s Doctor and Student? Flip the pages, cruise his account, and you’re ready to go. “My second aim,” continued Skinner, “has been to use the texts of late medieval and early modern political theory in order to illuminate a more general historical theme. I hope to indicate something of the process by which the modern concept of the State came to be formed.” This ambitious explanatory task obviously requires much more than stringing together plot summaries of hitherto neglected texts in the history of political theory. “My third,” he concluded, “is to exemplify a particular way of approaching the study and interpretation of historical texts,” an approach that “might begin to give us a history of political theory with a genuinely historical character” (1:ix–xi). Skinner’s prose style is elegant, usually understated—this is writing that gives not an inch to the decidedly unattractive convention in political theory that excuses or even applauds weirdly ponderous or portentous or plain pretentious prose—but there was no mistaking these ghting words. Skinner indeed had opponents, who registered erce if querulous opposition to the very idea of 2

historical method. But his verb begin intimates indeed a more sweepingly radical skepticism than Skinner has ever held about previous scholarship, some of which he has always been generous about. No surprise that some leading political theorists promptly embraced Skinner’s work—and indeed called for more 3

intensive historical context. Skinner’s was a bold challenge to business as usual, but he had sympathizers, even allies, too. Then again, for many or most political theorists, the vistas revealed by Skinner’s account were arrestingly new. There were political theorists wrestling with how Italy’s cities could cling to self-government against noxious invaders, trying to gure out just what their liberty consisted in and just what it causally depended on. Was faction a problem? Was wealth? What kind of problem? As republican self-government gave way not just to invaders but to princely government, theorists wrestled with new challenges. Doing so, they drew on and repurposed all kinds of older resources: Roman law, Stoicism, the Bible, classical rhetoric, and more.

Sometimes they did so with brio and ironic wit. (A favorite example of mine: Marsilius opens the Defensor Pacis with a glowing tribute to Aristotle, nonchalantly conceding that there was just “one singular and very obscure cause,” “a certain perverted opinion,” the philosopher didn’t know (Marsilius of Padua 2001, 4–5). Only much later in the book does the reader learn what that was: the rise of the Roman Catholic Church and its claims to allegiance and supremacy, which for Marsilius changes everything. They had to respond to political ruptures and war as the Reformation destroyed fantasies of the unity of Christendom. They had to gure out what might properly limit authority, what the jurisdictional boundaries of church and “state” were, when the people might have a duty to resist—or when they might simply have a right to resist. Skinner’s account allows us to see how traditions of political theory don’t simply constrain; they also open up new possibilities. (Someone with no political language at all wouldn’t be in a position to be especially observant or creative. He’d be mute, paralyzed, uncomprehending.) It allows us to see political theorists, minor and canonical alike, as creatively wrestling with di

cult political problems, not as idle daydreamers

musing on the good or anything like that. It’s also daunting: it suggests that academic work in political theory might require a lot more than snuggling up with your favorite canonical text or author. Though Skinner has always been insistently anti-imperialist about the sort of work he does; he has always agreed that there might be other illuminating projects.

Context and Meaning Any account that might qualify as “genuinely historical,” Skinner argues, would have to take up this question in understanding works of political theory, whether minor or canonical: what was the author doing in writing (and publishing) it? The earlier methodological papers make clear Skinner’s debts to J. L. Austin’s account of performative utterances and R. G. Collingwood’s musings on historical explanation. Foundations has a vintage pragmatist claim that I can only cheer for: “I take it that political life itself sets the main problems for the political theorist, causing a certain range of issues to appear problematic, and a corresponding range of questions to become the leading subjects of debate” (1:xi). Reading a text, however closely, with no knowledge of its context couldn’t, then, give us any insight into what problems the author was trying to solve. To see history as throwing up problems that need solutions is not simply to smudge, but actually to obliterate, the facile distinction between context of discovery and context of justi cation. It’s also to corrode the facile thought that historians of theory do “descriptive” work, contemporary theorists “normative” work: for thinking of historical theories as putative solutions is already to evaluate them. What counts as context? Foundations is catholic, even totalizing, and so daunting: Skinner promises a focus on “the more general social and intellectual matrix out of which” canonical works arise (1:x). This was a signi cant change from the central thrust of the earlier methodological papers, which focused on language. Keith Thomas congratulated Skinner on his sketch of the Counter-Reformation and religious wars in France: “Professor Skinner’s reconstruction of these external political pressures is detailed and careful, 4

while his account of the interplay between political event and political theory is subtle in the extreme”

(Thomas 1979). I doubt it: anyway it’s hard to see how two slim volumes covering hundreds of primary texts could also o er detailed accounts of “the more general social and intellectual matrix” over multiple centuries and countries. In fact Skinner’s nods to social and political context are brief, even cursory, and though it sounds uncharitable another reviewer, Cary Nederman, was closer to the mark in complaining 5

about “Skinner’s weak and bookish concepts of history and ideology” (1981). More charitably, one might say the gestures toward social and political context work better as reminders for readers such as Thomas, who already know a lot of relevant history themselves. Not so Skinner’s attention to traditions of discourse. These serve as his preferred frame for situating texts, even or especially canonical texts. When he considers Machiavelli’s Prince or More’s Utopia, he begins by

reviewing what they share with the traditions they’re working in—or with. That, he suggests, gives us a “benchmark” (1:255) against which to appraise their originality. He tends to canvass propositions distilled from the inherited traditions and see whether the canonical gures do or don’t subscribe to each. This approach misses what a more literary or rhetorical approach, thinking of the texts’ strategies and ironic subversion, might reveal. So for instance Skinner argues that Machiavelli’s commitment to virtù is strongly continuous with that of the humanists. He evidences Machiavelli’s “contempt for Agathocles” (1:119; see too 1:137–138). But I think Machiavelli is keenly aware that his reader inherits a formal de nition of virtue, roughly dispositions that produce good ends, and a substantive list of what the virtues are; and I think Machiavelli wants to exploit the thought that conventional vices might meet the formal de nition of virtue, so he knows he needs to wrestle the reader away from his preconceptions. His account of Agathocles is more barbed than Skinner suggests: in short order, Machiavelli tells us his awfulness is virtue, it can’t be virtue, it makes him the equal of the most excellent, and we can’t celebrate him as excellent. Instead of seeing logical confusion, we should see a deliberate attempt to shake the reader out of his complacencies. And the mischievous presentation of Agathocles is just softening up the reader for the decisive blow produced by Machiavelli’s account of Hannibal, which moves e ortlessly from invoking “his inhuman cruelty which, together with his in nite virtues [sua inumana crudeltà, la quale, insieme con in nite sua virtù]” to referring to that same cruelty and “his other virtues [la altre sua virtù],” forcibly implying that Hannibal’s cruelty was 6

itself a virtue (Musa 1964, 140). Nothing in Skinner’s method precludes a more literary approach to canonical—or for that matter more pedestrian—texts. Regardless, Skinner’s command of intellectual context saves him from bogus claims about originality. No wonder he repeatedly chides other scholars for making wrongheaded claims: Hans Baron’s claims about the originality of quattrocentro civic humanists are “perhaps somewhat questionable” (1:43); Alan Gewirth’s contrast between Marsilius and the civil lawyers is “somewhat overdrawn” in missing Bartolus (1:62); Hans Baron is “again somewhat misleading” (1:79) and “speaks somewhat misleadingly” (1:82, and see 1:102); Julian Franklin is “somewhat misleading” in casting Bude as a “pioneer of legal humanism” (1:205); C. B. Macpherson is “somewhat misleading” in casting constitutionalism as a seventeenth-century development (2:347). “Somewhat” here is arch British understatement for something like “wholly and outrageously.” One wonders whether Skinner meant to mark a contrast in neglecting his ritual “somewhat” and complaining that “there seems to be a vitiating confusion” in Michael Walzer’s portrait of the radical innovations of Calvinism (2:323; see too 1:77, where poor Baron gets excoriated for being “misleading” once again, this time without a somewhat). Regardless, the worry about who said it rst summons up an enervating picture of history as epidemiology: who’d they catch it from? and who’d they transmit it to? The project of writing a history of how the concept of the modern state emerged is surely more promising than that. It’s not quite a building without architects: at every step of the way there are writers with intentions, writers grappling with political problems. But the end of the story is unintended, even unforeseen, by any of the players along the way. No one sat down and wondered, “how can I help develop a modern concept of the state?” Instead, a long series of disparate actors grappling with disparate problems introduced a series of conceptual innovations that nally yielded a concept no one had in mind. In this way the creation of the modern concept of the state is an irreducibly social process, with collaborators who don’t even know they’re collaborating. Skinner earlier had blasted claims about “anticipation” in history as nonsensical teleology; one reviewer scolded him for replacing such talk with the vocabulary of “hints” and evolution (Boucher 1980). Point taken: but it’s better to take such language as unfortunate exposition, not as embodying some perverse line of argument that can’t be sustained on the merits. Plenty of readers couldn’t—can’t—shake the sense that placing canonical texts in historical contexts robs them of their profundity, their dignity, their value as works of political theory. If you’re in this mood yourself, you (too) easily reach for such adjectives as enduring or timeless value. This is in part why for

instance Nathan Tarcov complained that “Skinner’s interpretation of Machiavelli is super cial, confused, and poorly documented”: “Skinner is less interested in Machiavelli’s contradicting the Bible, Plato, or us, than in his contradicting Pontano or Patrizi” (Tarcov 1982, 707–708). Even as friendly a reviewer as John Dunn agreed that when it came to the likes of Machiavelli and More, gures “re ecting deeply on what human beings should truly value or do,” it would be hard to maintain that political life not only spun o problems but also determined the outline of solutions (Dunn 1979). More generally Skinner can be lampooned as the person who wants to tell you, indignantly, that if you think you learned something from an old book, he can prove you read it anachronistically, so you misread it, so you really didn’t understand what its author was up to at all. But that’s lampoon-Skinner, not real Skinner. It’s deeply mistaken to imagine that we face a blunt alternative: either a historically informed reading or a theoretically interesting one. Or, put di erently, that we can either put canonical works in some historical context and strip them of any interest they have for us, or we can read them acontextually and learn from them. Make your concerns as putatively timeless or fundamental or abstract as you like, and it might still be that placing canonical works in context is a way to deepen their interest for us. It might even be that that is the only way. I say might because I don’t imagine there are any guarantees here. But a strikingly odd feature of the debate that has bubbled along about Skinner’s work, and historical approaches more generally, is how much in the clutches of that unsupported blunt alternative it is. If I’m right about that, it’s facile to help yourself to the view that precisely insofar as your interest in canonical texts is theoretical, you needn’t trouble yourself with learning any historical context. Still there are puzzles about Skinner’s use of context. Let me juxtapose two passages. First is a quali ed endorsement for Kristeller’s suggestion that we see Renaissance humanists not as bursting out of nowhere, but as teachers of rhetoric whose work was strongly continuous with the Middle Ages. Here’s the quali cation: It is arguable, however, that one e ect of this approach has been to give rise to an oversimpli ed explanation of quattrocento moral and political thought. It has become fashionable in the rst place to lay a somewhat [?!] exaggerated emphasis on purely ‘internal’ explanations of the rise of humanism…. It seems misleadingly one-sided, however, to suppose that an ‘internal’ history of humanism can hope to serve as a su

cient explanation of its development, and thus that the sort

of ‘external’ explanations favoured by Baron can be altogether ruled out. (1:102–103) It matters, Skinner urges, that these humanist writers are in a world where Florence’s liberties are threatened by the Visconti of Milan. The scare quotes around internal and external must indicate some unstated hesitation about the conceptual baggage traveling with that distinction, but it’s clear enough here. Second is a puzzle arising from the rapid international triumph of Luther’s Protestantism, puzzling not least because earlier staunch critics of the church launched popular movements which zzled (think Lollards and Hussites, and if you think, “hey I’m a theorist, I don’t care,” well, think again): The next question must clearly be to ask why Luther’s message, and in particular its social and political implications, should have proved so powerfully attractive in so many di erent countries. There are doubtless many perspectives from which this question can be viewed, each of which may serve to suggest its own set of answers. To the historian of political ideas, however, the most important consideration must undoubtedly be the fact that Luther’s political doctrines, and the theological premises on which they were based, were closely a

liated with—and partly derived

from—a number of deeply-rooted traditions of late medieval thought. (2:21)

I don’t see any way to t these two passages together. I’d scrap the second. It might turn out contingently that the most illuminating context for explaining Luther’s success is its continuity with intellectual traditions. (Though I rather doubt it.) But I can’t imagine why a historian of political ideas must see it that way. Political ideas can be the explanandum without being the explanans. The same historian of political ideas, after all, is willing to insist that we must see the humanists as in part rallying to the defense of Florentine liberties. That’s a challenge in the actual political world, not a matter of any intellectual tradition at all. If “political life itself sets the main problems for the political theorist,” which again I think is an exceedingly good idea, then there’s no reason whatever for a historian of political ideas to blindfold himself from the possibility that Luther’s view took o

precisely because people seized on it as a solution to their

political problems.

Translation and Criteria I want now to press harder on Skinner’s second aim: sketching how the modern concept of the state was formed. Two connected problems make it di

cult to grasp, let alone appraise, what he’s done here. First is

Skinner’s decision to present his materials almost completely in English. This is delightfully unfussy, but sometimes, I’m afraid, one needs to fuss over just what words in foreign languages mean—more pointedly, what they meant when they were written. Second is a surprising silence about the criteria for some of the key concepts in the argument. No reader of Skinner’s methodological papers could imagine that Skinner is somehow (somewhat?) uncomfortable with analytically precise arguments. But Foundations needs lots more of that sort of thing, in ways I’ll try to explain. First, translation. Skinner’s primary sources are in English (but not today’s English, of course), French, German, Italian, and Latin. (Most of his secondary sources are in English, but he draws on French, German, and Italian scholarship too.) Five languages over a few centuries: this raises pressing questions about how contemporaries understood their key terms. Latin was a lingua franca among the learned, though it’s still possible that, say, the Latin used in fteenth-century France (or, more nicky yet, 1480 Paris) was di erent in ways that might matter from, say, the Latin used in sixteenth-century Germany. But it’s crucial to get in focus what words are allegedly standing for what concepts, and how the concepts are di erently in ected across time and space. Skinner is fully aware of this issue: in launching the rst volume, he remarks, “Where key terms present special problems of translation, the rule I adopt is to follow as closely as possible the translations used at the time,” and reviews some key terms that “need to be understood in their earlymodern rather than in their current and somewhat di erent senses” (1:xxii–xxiii). My worry is that this overarching assurance isn’t enough. Occasionally in the main text too, Skinner o ers tantalizing hints of these issues, although, like his bids toward broader historical context, they may work better as reminders for the handful of people who share his daunting command of multiple languages: The true Church becomes nothing more than an invisible congregatio delium, a congregation of the faithful gathered together in God’s name. This Luther saw as a sublimely simple concept, completely encapsulated in his claim that the Greek word ecclesia, which is habitually used in the New Testament to denote the primitive Church, should be translated simply as Gemeinde or congregation… (2:10–11) You might not want to pause at the translation of congregatio delium into “congregation of the faithful,” but there are after all false cognates. Leave ecclesia aside, because I have no reason to doubt it’s been standardly translated as “church”: a critical Bible scholar might have reason to reopen that, but Skinner doesn’t. But those of us without (sixteenth-century!) German have to take his word that Gemeinde is just

“congregation” too. Notice that even if “congregation” works well enough for both congregatio and Gemeinde, it would matter whether there are any subtle shadings of di erence between the two. It would open up the possibility that Luther is tweaking something—or that his cognizant readers will sensibly suspect that he is. Similarly, at one point Skinner balks at a translation of a passage from Machiavelli’s Prince, because he thinks it illicitly summons up an end-justi es-the-means picture not really in the Italian. “Since Machiavelli’s exact phraseology is important to my argument at this point,” he notes, “I am translating from, and referring to, the Italian edition of The Prince” (2:354, n 1). There’s probably nothing much to worry about as Skinner presents the central thrust of Jean Bodin’s Six Books of the Commonwealth—Les Six livres de la République—without even nodding toward the French. Yes, it’s possible that Bodin’s 1576 invocation of souveraineté doesn’t quite answer to our own sovereignty. Skinner gives us—again in English—Bodin’s formal de nition: “the most high, absolute and perpetual power over the citizens and subjects in a commonwealth” (2:287). As his bibliography shows, Skinner here is using a 1962 reprint edition of Richard Knolles’s 1606 translation of Bodin (1962) though he has modernized the spelling. He must think it ne for his purposes: after all, he does not here o er the kind of correction or modi cation he does with Machiavelli’s Prince. The 1606 translation would be perfect if his central interest were the reception of Bodin in early modern England, though even there one would want to know roughly how many Englishmen read Bodin in French. But that’s not in fact Skinner’s central interest here. His account of Bodin appears in a chapter entitled, “The Context of the Huguenot Revolution.” Bodin’s original French runs, “La souveraineté est la puissance absolue et perpétuelle d’une République. …” (Bodin 1583, 122) “Most high” is perhaps a plausible way to mark the distinction between pouvoir and puissance. (My French is bad, my early modern French worse, so I honestly don’t know.) There is nothing in the original French to justify “over the citizens and subjects”—but there is in the “very free” Latin translation of the work that Bodin himself o ered in 1586, and Knolles drew on both (Bodin 1992, xxxvi). There’s another potential pitfall here in appraising the reception of Bodin’s work: which readers had it in French, which in Latin? Finally, one might fuss about whether “commonwealth” and République are nally the same. (If you’re not willing to worry about false cognates, and so not inclined even to hesitate at what might shift when we render souveraineté as “sovereignty,” then you surely ought to be wondering why République shouldn’t be translated as “republic.”) More tantalizingly, Bodin immediately follows his de nition by rattling o

what he takes to be the same notion in Latin, Greek, Italian, and Hebrew. It is not a

boring or recondite or antiquarian matter of philology to dig into these di erent words and excavate what conceptual overlaps—and di erences—they summon up. And one would have thought it grist to Skinner’s mill to wonder what Bodin is doing in the act of simultaneously breaking a kind of (somewhat?) new ground in thinking about sovereignty and in easily suggesting that the same notion has been kicking around various other languages, even ancient languages. Still, as I say—not facetiously—at the end of the day there is probably nothing much to worry about in Skinner’s treatment of Bodin. I’m less con dent about his presentation of Mario Salomonio’s 1514 work, “the series of dialogues entitled The Sovereignty of the Roman Patriciate” (1:131). Here the bibliography suggests that Skinner is translating himself, from the original Patritii Romani de Principatu. His discussion of the book sticks with some of the original Latin: Imperium, Lex Regia, maior universis, maior singulis, inferior universe populo, legibus solutus. But nothing in the text even alludes to what might be thought tricky about translating Principatu—nor what would be tricky about glossing Rome’s patricians as “the people,” as Skinner does consistently here. Whatever my sadly severe limits with French, they’re dwarfed by my complete blankness about Latin, so I shan’t venture a view. But it is an ominous sign that when Bodin gives the Latin for souveraineté, it’s maiestas, not principatu. Even if our own “sovereignty” is a perfectly serviceable translation of souveraineté, maiestas, and principatu, those three foreign words could still have intriguing di erences worth teasing out. And it is by no means trivial to gure out what conceptual resonances Latin has when it’s used here by an early sixteenth-century Italian writer. But when Skinner

doesn’t probe these issues, doesn’t o er any explicit defense of his translation choices, he makes it too easy for the reader to think that Salomonio is already a Lockean in embracing popular sovereignty and a ruler entrusted with limited tasks and accountable to the people for them. He might well be! But I don’t think Skinner has justi ed that picture. Too much of the relevant work is sadly o stage. Second, criteria. In his preface, Skinner tells us that “I have … tried to write a history centred less on the classic texts and more on the history of ideologies,” that “historians of political theory” should “think of themselves essentially as students of ideologies,” that “if the history of political theory were to be written essentially as a history of ideologies, one outcome might be a clearer understanding of the links between political theory and practice” (1:xi–xiii). The concept of ideology is notoriously thorny, so the reader naturally expects some more or less explicit account of just what this orientation entails. Skinner doesn’t provide one. His repeated bid to focus on ideology is embedded in a discussion that also invokes mentalités, itself not given any explicit gloss either. I suspect Skinner does not intend ideology to summon up anything about false consciousness and he explicitly disavows any interest in superstructure. I think all he means by ideology is popular views; I think the theory/ideology contrast means only “views entertained by great 7

thinkers” as against “ordinary views of the day.” But I’m not sure. In particular I’m not sure whether for views I should be substituting discourses or vocabularies or something like that. An author willing to instruct us three times in a row to devote ourselves to ideologies ought to tell us, loud and clear and crisply, what sense of ideologies he has in mind. More striking for a book that promises an account of how the modern concept of the state was formed, it’s hard to identify what Skinner thinks the criteria for that concept are. There are hints along the way: for instance, a passing reference to “the development of a modern, naturalistic, and secular view of political life” (1:50). This language suggests that the modern idea of the state is secular. (That does not quite entail that the things in the world we identify as modern states are themselves secular. Developments since the publication of Foundations—in the West, too—have made it even harder to take that picture seriously. That modern societies or modern states are secular seems like a wistful idealization of Scandinavia or, worse, a faculty lounge fantasy.) But the reader really has to wait for the conclusion to the second volume for Skinner to begin to put together the puzzle pieces. Skinner suggests “that a “precondition” “for the acquisition of the modern concept of the State” “is clearly that the sphere of politics should be envisaged as a distinct branch of moral philosophy, a branch concerned with the art of government” (2:349). Some of his account sounds clearly in Weber: “the supreme authority within each independent regnum should be recognised as having no rivals within its own territories as a law-making power and an object of allegiance” (2:351). And some of it sharpens the idea of secular authority by summoning up the separation of church and state: “the acceptance of the modern idea of the State presupposes that political society is held to exist solely for political purposes. The endorsement of this secularised viewpoint remained impossible as long as it was assumed that all temporal rulers had a duty to uphold godly as well as peaceable government” (2:352). But there’s an unhappily tight circle lurking in the presentation: it’s nally unclear, of all things, just what Skinner means by politics. Political society exists for political purposes, and the sphere of politics is concerned with the art of government: one would like more. This sort of thing is in part why Michael Oakeshott, while saluting Foundations as “an exercise in historical understanding as exact as may be,” expressed grave reservations about Skinner’s argument about the emergence of the modern concept of the state (1980). None of my reservations here depend on any worries about historical work in political theory. On the contrary, they should go to suggest further reasons that such work can be conceptually savvy and theoretically illuminating.

Postscript: The “Cambridge School” In a distressingly gloppy formulation, many now lump together all kinds of historical work under the rubric “the Cambridge school”: this glosses over what might be signi cant di erences—how Skinner’s work has changed over time, how it di ers from John Dunn’s, how both di er from that of J. G. A. Pocock, who might live and work across the Atlantic but who often gets lumped into the same “school,” how all of these might di er from other historically in ected work in political theory. Whatever one makes of that lumping, and the reader can already guess what I do, Foundations is a paradigm of a kind of work that now has an institutionally signi cant instantiation, what must count as signal impact on the eld. That’s the Ideas in Context series at Cambridge University Press. As I write, there are some two hundred volumes in the series, now described this way: The books in this series discuss the emergence of intellectual traditions and related new disciplines. The procedures, aims and vocabularies that were generated will be set in the context of the alternatives available within the contemporary frameworks of ideas and institutions. Through detailed studies of the evolution of such traditions, and their modi cation by di erent audiences, it is hoped that a new picture will form of the development of ideas in their concrete contexts. By this means, arti cial distinctions between the history of philosophy, of the various sciences, of 8

society and politics, and of literature may be seen to dissolve.

Indeed, that agenda is not limited to the history of political theory: but many or most of the titles in the series are in fact that. There’s some of the same totalizing impulse here summoned up by Skinner’s “general and social intellectual matrix,” but of course the individual titles in the series are varied, not just in their topics and quality, but in the sorts of tasks they set themselves and what they take the relevant contexts to be. That’s all to the good: it would be perverse for any series editor to try to impose a high degree of uniformity. One might have hoped for more constructive tra

c between “Cambridge school” work, however conceived,

and other approaches to political theory, instead of frigid if polite balkanization. But there’s no point being utopian.

References Ashcra , Richard. 1981. “The Foundations of Modern Political Thought (review).” Journal of the History of Philosophy (July) 19(3): 388–392.

Black, A. 1980. “Skinner on ʻThe Foundations of Modern Political Thought.ʼ” Political Studies 28(3): 451–457.

Bodin, Jean. 1583. Les six livres de la République. Paris: Jacques du Puis. Google Scholar Google Preview WorldCat COPAC Bodin, Jean. 1962. The Six Bookes of a Commonweale. Edited by Kenneth Douglas McRae. Cambridge, MA: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Bodin, Jean. 1992. On Sovereignty. Edited and translated by Julian Franklin. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Brett, A., J. Tully, and H. Hamilton-Bleakley. eds. 2006. Rethinking the Foundations of Modern Political Thought. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Boucher, David E. G. 1980. “On Shklarʼs and Franklinʼs Reviews of Skinner, The Foundations of Modern Political Thought.” Political Theory (August) 7(4): 406–408.

Dunn, John. 1979. “The Cage of Politics.” The Listener (March). WorldCat Herzog, Don. Cunning. 2006. Princeton, NJ: Princeton University Press. Google Scholar Google Preview WorldCat COPAC Holmes, Stephen. 1979. “The Foundations of Modern Political Thought.” American Political Science Review (December) 73(4): 1133–1135. WorldCat Kelley, Donald R. 1979. “The Foundations of Modern Political Thought.” Journal of the History of Ideas (October–December) 40(4): 663–687. Google Scholar WorldCat Marsilius of Padua. 2001. Defensor Pacis, trans. Alan Gewirth. New York: Columbia University Press. Google Scholar Google Preview WorldCat COPAC Minogue, K. R. 1981. “Method in Intellectual History: Quentin Skinnerʼs Foundations.” Philosophy (October) 56(218): 533–552. WorldCat Musa, Mark, ed., trans. 1964. Machiavelliʼs The Prince: A Bilingual Edition. New York: St. Martinʼs Press. Google Scholar Google Preview WorldCat COPAC Nederman, Cary. 1981. “The Foundations of Modern Political Thought (review).” Renaissance and Reformation 17(4): 229–233.

Oakeshott, Michael. 1980. “The Foundations of Modern Political Thought” (review). The Historical Journal 23(2): 449–453.

Google Scholar

WorldCat

Pocock, J. G. A. 1979. “Reconstructing the Traditions: Quentin Skinnerʼs Historiansʼ History of Political Thought.” Canadian Journal of Political and Social Theory (Fall) 3(3): 95–113. Google Scholar WorldCat Rushworth, John. 1721. Historical Collections of Private Passages of State, 8 vols. London: Printed by Tho Newcomb for George Thomason. Google Scholar Google Preview WorldCat COPAC Shklar, Judith and Julian Franklin. 1979. “Books in Review: The Foundations of Modern Political Thought by Quentin Skinner.” Political Theory (November): 305 and 405. WorldCat Skinner, Quentin. 1978, The Foundations of Modern Political Thought, 2 vols. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Skinner, Quentin. 2000. Machiavelli: A Very Short Introduction. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Tarcov, Nathan. 1982. “Quentin Skinnerʼs Method and Machiavelliʼs Prince.” Ethics (July) 92(4): 692–709.

Thomas, Keith. 1979. “Politics Recaptured.” New York Review of Books (May) 26(8): 405. WorldCat Tully, James, ed. 1988. Meaning and Context: Quentin Skinner and His Critics. Cambridge: Polity Press. Google Scholar Google Preview WorldCat COPAC

Notes 1

The principal ones, with responses from critics and a helpful rebuttal in turn from Skinner, are collected in Tully, ed. (1988).

2

See especially Minogue (1981).

3

Political Theory commissioned not one but two reviews—by Judith Shklar and Julian Franklin (1979)—and both were positive. See too Ashcra (1981) and Kelley (1979).

4

Iʼve concentrated here on the contemporary reception of Foundations. For some views twenty-five years later, see Brett, Tully, and Hamilton-Bleakley, eds. (2006).

5

For a more dyspeptic review urging more context, see Black (1980).

6

For a less fiercely compressed exposition of the point, see my Cunning (2006). Iʼm writing about Foundations, not Skinnerʼs corpus more generally, but Iʼm happy to note that these matters are brought into somewhat sharper focus in his Machiavelli (2000).

7

Compare the suggestions in reviews by Stephen Holmes (1979) and J. G. A. Pocock (1979).

8

http://www.cambridge.org/us/academic/subjects/politics-international-relations/history-ideas/series/ideas-context, last visited 7 August 2014

.

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Leo Strauss, Natural Right and History  Ryan Balot https://doi.org/10.1093/oxfordhb/9780198717133.013.4 Published: 07 April 2016

Abstract This chapter evaluates the arguments and intentions of Leo Strauss’s most ambitious political text, Natural Right and History. Strauss’s stated purpose is to rehabilitate the ancient Greek and Roman conceptions of “natural right”—a term of art by which he referred to the justice inherent in the rational order of nature. His express motivation was to rebut the relativism and historicism that, in his view, characterized twentieth-century political thought. This chapter contends that the book’s core lies in its implicit presentation of philosophical inquiry as the highest human vocation. This idea is presented less through systematic argument than through Strauss’s own engagement with canonical political texts—an engagement designed to illustrate both the excitement and the ful llment of philosophical dialogue. The political virtues, while defended on the surface of the text, remain as unsettled by the end as they were in the introduction.

Keywords: Leo Strauss, natural right, historicism, relativism, esotericism Subject: Comparative Politics, Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Natural Right and History (1953; hereafter NRH) is an ambitious and occasionally frustrating text that is central to the corpus of Leo Strauss (1899–1973). The book o ers an extended account of Strauss’s interest in the dialectic between ancient and modern thought and the con ict between “natural right” and “historicism.” By way of initial clari cation, “natural right”—which should be sharply distinguished from “natural law” (Kennington 1981)—is Strauss’s own term of art and refers to the justice inherent in the natural order. According to Strauss, “natural right” as interpreted by classical philosophers was based on an awareness of the naturally hierarchical order of the constitution, activities, and desires of the human being. From this natural order owed an array of corresponding principles of social organization and a set of claims regarding the just distribution of power and resources. The supposed permanence of “natural right” made it, in Strauss’s view, a powerful and potentially attractive rival to the continuously evolving, culturally constituted norms characteristic of “historicism.” Whether or not readers agree with his presentation of these complex ideas, Strauss has put an indelible stamp of his own on subsequent understandings of these foundational controversies.

Readers will see immediately that NRH requires an interpretation in its own right. Complications arise immediately because of what Strauss calls a “forgotten kind of writing”—that is, writing in which the author conveys both an “exoteric” teaching that conforms to prevailing assumptions and is available to all readers on the surface of the text, and an “esoteric” signi cance that conveys to more ambitious students the author’s deeper and characteristically subversive intentions, always between the lines (Strauss 1954). The character of esotericism itself—and not only Strauss’s substantive ideas—is the subject of debate. Did esoteric writing serve principally to protect philosophers from persecution, or to protect ordinary civic life from the philosopher’s own radical questioning? Or did it serve, instead, a chie y pedagogical purpose— that of compelling students to see the truth for themselves? (Melzer 2014). However Strauss answered these questions for himself, the idea of esotericism is a familiar one in the canon of political theory. Esoteric writing makes an appearance in works as diverse as Plato’s Phaedrus, Maimonides’ The Guide to the Perplexed, al-Farabi’s studies of Platonic and Aristotelian philosophy, and Nietzsche’s Beyond Good and Evil. Strauss was well aware of the pitfalls of esoteric interpretation. But he was right to point out in response to critics that no interpretive approach can claim to be fully warranted without displaying its merits on a case-by-case basis; the validity of any hermeneutical approach can be revealed only by the power of its interpretive results (Strauss 1954, 75). Equally, Strauss recognized the need for caution in attributing esoteric practices to historical authors: we should search for hidden signi cance only when a text’s surface itself fails to reveal a consistent meaning, after careful reading (Strauss 1941; Zuckert and Zuckert 2014, 12–15). Strauss’s esoteric interpretations raise questions about his own practices of writing. Did Strauss himself write esoterically—and, if so, why would he choose to do so in a time and place (mid-twentieth-century America) where political pressures on his activities would have been minimal? (See Beiner 2014, 41–62.) One possibility is that Strauss wrote esoterically for pedagogical and rhetorical reasons (cf. Melzer 2014). Pedagogically, NRH has the avor of a Socratic dialogue, designed speci cally to induce ambitious and public-spirited students to devote themselves to philosophy as Strauss understood it. Rhetorically, on the other hand, Strauss created the impression that his was a spirited defense of traditional morality. In the “Foreword” to the book, Jerome Kerwin calls the work “an able presentation of basic principles of the traditionalist point of view,” which Strauss o ered as a response to “that peculiar twentieth-century phenomenon—the totalitarian regime” (NRH, v). The reality is that, although he criticized several antitraditional views, and thus doubted the doubters, Strauss hardly set traditional morality on a sounder footing.

Argument and Intention in NRH: Straussʼs Introduction To borrow an ancient idea: the beginning is more than half of the whole. With two biblical epigraphs, Strauss sets up his work as a hymn to traditional, commonsense morality (cf. Beiner 2014, 53–56). The stories hit the reader in the gut: in the rst (2 Samuel 12), for example, a rich man forcibly takes a poor man’s cherished lamb, which “did eat of his own meat, and drank of his own cup, and lay in his bosom, and was unto him as a daughter,” and serves it as a meal to a traveller. It is as if Strauss already intends to ask: Why have we lost con dence in self-evidently compelling principles of justice? (Careful readers will note that in the biblical story the Lord uses this parable as a trick, in order to reveal to King David certain unpleasant facts about himself.) Without commentary, Strauss then quotes the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” Why has America lost con dence in these self-evident truths, Strauss asks—without providing any evidence for this doomsday introduction.

Strauss explains that relativism and historicism, German imports, are responsible for our collective selfdoubt. Even if not ordinary people, though, it is “the learned,” and especially contemporary social scientists, who view the Declaration “as an ideal, if not as an ideology or a myth” (2). Social science is captivated by evolutionary theory and by a belief in the controlling force of many “urges and aspirations” (2)—by everything, in short, except a belief in the possibility of “natural right,” which is today as urgent a necessity, Strauss argues, as it has been for millennia. Our social science, that is, our own contemporary expression of rationalism, is Machiavellian or purely instrumental. It might as well support tyranny as freedom. Strauss’s critique of utilitarian rationalism is reminiscent of Heidegger’s diatribes against technology. Yet, unlike Heidegger, Strauss speci cally targets the idea that the ends of human life cannot be adjudicated rationally, that our fundamental principles are nothing more than “blind preferences” (4), an “insane” situation that is tantamount to “nihilism” (4–5). We have moved quickly from the theft of a cherished lamb to a totalitarian and existentialist nightmare. Strauss’s dramatic narrative is motivated by the idea that philosophy (and not presidential leadership, social justice, or military expenditure) is the single most critical element, right now, in defending the free way of life. The rhetoric is bound to be attractive to the audience, especially to young people, the modern counterparts of Glaucon in Plato’s Republic, who worry about justice and look to philosophy for an intellectual defense of it. But what if philosophy cannot mount a knockdown defense of justice in the face of skeptical attack? This concern was familiar to Plato’s own readers, no doubt, but it is also one that contemporary philosophers have raised in their own inquiries into the limits of philosophy (e.g., Williams 1985). Strauss brings us face to face with that problem, albeit in an implicit way. He wanted to suggest, rhetorically at least, that as a professor of political philosophy, he could show that philosophy has resources to ground the natural law tradition, and thereby to resist the threat of nihilism. Strauss maintained that impression throughout NRH, but his substantive defense of natural right grew less powerful as the pages turned. The bogeyman of Strauss’s discussion is Heidegger. Strauss worried that a (paradoxical) relativistic commitment to the pure act of choosing itself, rather than to any particular ends that can be rationally evaluated, would lead to the view that “genuine choice, as distinguished from spurious or despicable choice, is nothing but resolute or deadly serious decision” (5–6). Strauss’s reference to “resoluteness” cannot help recalling that theme in Being and Time, which Strauss associated with the rise and temporary success of Nazism (Strauss 1989, 27–46). His analysis leads to a potentially devastating conclusion: “Liberal relativism has its roots in the natural right tradition of tolerance or in the notion that everyone has a natural right to the pursuit of happiness as he understands happiness; but in itself it is a seminary of intolerance” (6). Without stating its point explicitly, this statement embodies an explosive thesis: that the Declaration of Independence, in its emphasis on the right to pursue happiness as each person sees t, “cultivates nihilism” and leads to “fanatical obscurantism” (6). The Declaration shares signi cant common ground with Nazism. Interpreted in any but the weakest or most abstract way, this claim is implausible; or, rather, it is plausible only if we believe that liberal democracy will turn fascistic unless it is demonstrably grounded in rm ideas of natural law, which ordinary citizens knowingly embrace. That doesn’t seem true. According to Strauss’s own reconstruction, the rejection of modern natural law began at least with Machiavelli, but liberal democracy has muddled through since 1776. Strauss’s opening salvo dramatically explained why philosophy is vital and how it can rescue morality and the state. Strauss’s next step was to question the doubters in two chapters on historicism and Weberian social science. His critique enabled him to reassert the possible truth of “classic natural right.” On that basis, he o ered a theory of error designed to explain where and how modern, and speci cally Enlightenment, rationalism went wrong. The structure of the book is dialectical: there is a dialogue between the moderns and the ancients, historicists and natural law theorists, convention and nature, consent and wisdom, hedonism and virtue, and so on. Strauss lived these debates from the inside and invited others to

do so, too. Without ever defending the Declaration of Independence, he showed his readers how to engage in traditional philosophy’s great debates and why it is exciting to do so. Yet three concerns have already emerged. First, Strauss proposes a historical treatment because, he says, “the problem of natural right is today a matter of recollection rather than of actual knowledge” (7). Paradoxically, in light of his animus toward historicism, Strauss’s philosophical approach depends heavily on the history of thought. Will the historical investigation reveal self-evident truths about human nature, or will the historical record merely suggest for our consideration philosophical theses that must then be subjected to rational scrutiny (cf. Meier 2006: 55–73)? I believe that Strauss’s analysis will yield a 1

convincing response to this worry. Second, Strauss raises but then declines to consider the worry that the teleological foundations of classical natural right have been destroyed by the triumph of modern science (7–8). If the undoubted successes of modern science have discredited teleological defenses of justice, then what is the point of Strauss’s own return to antiquity? Third, which audience is Strauss writing for? Those inclined to appreciate and be satis ed with the traditional moral guidance that Jerome Kerwin extols? Or those who worry that the Declaration of Independence is equivalent to Heideggerian existentialism? It would be an arguably Platonic ruse if the answer turned out to be “both,” if, alongside his “exoteric” defense of the “traditional position,” Strauss intended to lead prospective students from their “noble” concerns about political life to a position of Socratic questioning of all ideals, noble or otherwise.

History, Weberian Social Science, and the “Fact–Value” Distinction Strauss’s primary target in NRH is “historicism,” which he links closely to contemporary relativism and to the positivistic social science rooted in Max Weber’s thought. Historicism holds that judgments of right or justice are constituted by the particularities of each historical epoch; hence, such judgments cannot yield permanent or universal truths. Strauss identi es three main forms of historicism. First is “conventionalism”—the view that the sheer diversity of conceptions of right “proves the nonexistence of natural right or the conventional character of all right” (10). Strauss quickly dismisses this view, because, of course, the diversity of opinions in itself proves nothing about the essential rightness or wrongness of those opinions. As Strauss points out, though, the fact of diversity at least provides an inspiration for further inquiry. Second is a more sophisticated view, which Strauss reconstructs by historicizing modern historicism. His genealogy is designed to unsettle the contemporary belief that human rationality is constituted solely 2

within the horizons of a particular time and place—again, a Heideggerian preoccupation. Historicism arose, Strauss argues, in reaction to the Enlightenment claims to universal norms, equality, and rationalism made by the French Revolutionaries. These claims, according to Strauss, encouraged people to view their local arrangements as imperfect imitations of universal norms. Strauss does not mention the rise of democracy, the Declaration of the Rights of Man, or the overthrow of traditional hierarchies; the Enlightenment was an unquali ed disaster, in his view, rather than a moment of progress toward the enlargement of human freedom or the realization of social justice. Contrary to their intentions, though, the historicists’ response only deepened the crisis of modern society. In seeking to nd ethical standards within particular histories, the historicists destroyed the possibility of meaningful standards altogether. Strauss implies a highly demanding, perhaps unrealistic, foundationalist benchmark for the grounding of ethical norms. Ultimately, historicists showed that history does not reveal meaning; consequently, historicism renders history itself unimportant, as the arbitrary product of fate. Yet historicists still hold, incoherently, that the historicist thesis itself embodies a trans-historical truth. Like Rawls’ “political liberalism,” historicism is neutral with regard to comprehensive worldviews, while smuggling in its own privileged position as an absolute vantage point (cf. 25, last paragraph).

Third is the “radical (or existentialist) historicism” of Martin Heidegger, who is never mentioned by name. Radical historicism embraces the consequences of naïve historicism’s central paradox. Although historicism is a comprehensive worldview that rejects comprehensive worldviews, radical historicists propose that they enjoy a privileged vantage point, based on their “committed” or “resolute” choice of historicism, which discloses to them the fundamental truth of historicism as such. This privileged vantage-point is “the gift of fate” (28), the result of Heidegger’s ability to grasp the previous metaphysical tradition as a self-delusion, and thereby to raise hitherto “forgotten” questions about Being as such, and about the only being for whom Being itself is a question, that is, Dasein (“being-there,” or the human being). Strauss understands radical historicism to pose the challenge that philosophy itself is merely dogmatic or absurd, because of its quixotic attempt to replace opinion with knowledge, or to understand being as “being always,” or as eternal presence (29–31). Leave aside that Heidegger himself would say that philosophy (e.g., his own philosophy, or that of his students) is possible; in other words, a more capacious view of philosophy as an activity might e ectively respond to Strauss’s charge that radical historicism is incompatible with any philosophy that is not dogmatic or absurd. What philosophy is, as we will see, is a major question for NRH. Strauss accepts the existentialist challenge head-on. Out of the ashes of his genealogy, he discerns a trans-historical unity of profound questions derived from human nature itself: “the same fundamental themes or the same fundamental problems” (23). This idea explains, at least initially, how Strauss’s history of thought was designed to combat historicism. The greatest thinkers continually return to questions such as the nature of justice, freedom, law, nature itself, and the individual’s relationship to the community. To this extent, at least, Strauss’s thesis is historical and empirical. Its empirical plausibility is a matter of judgment. Nowadays, certainly, we nd these questions meaningful, as have many other historical peoples, such as the ancient Greeks or medieval Muslims. Arguably, though, Strauss discerns “perennial” questions within a speci cally Occidental tradition, which can be reconstructed in a cumulative way; if so, then the pathdependencies of that tradition might themselves account for the supposed permanence of these issues. It is at least an open question whether the same issues arise equally in the cultures of ancient China or India or among the aboriginal peoples of North America or Australia. A related question is whether Europe’s traditional conceptual armature is adequate to grasp new phenomena, most famously twentieth-century 3

totalitarianism. Finally, even if the verdict of history were transparent, we might wonder whether we should accept that verdict, as opposed to reason itself, in evaluating which questions, if any, are fundamental. Strauss adeptly criticizes the Weberian roots of social science and in particular the “fact–value distinction.” Strauss’s analysis is relevant to the positivistic approach characteristic of many social science disciplines today. Weber’s key idea is the following: while it is possible to study societies and their ideals “objectively” or “impartially”—that is, to generate “facts”—reason itself cannot adjudicate between con icting principles of justice or right, that is, “values.” Our ideals are determined by fate—by the outcome of history —and not by reason. Strauss’s emphasis on “fate” reveals the hidden alliance of positivism with historicism. Even though Weber maintained that scienti c ndings are universally valid, he supposed that the signi cance of such ndings is always subject to “value judgments” that lie outside the jurisdiction of science itself. In the instrumentality of science and in the sharp distinction between “is” and “ought” (or reality and norm), one can discern Weber’s Machiavellian and Humean roots and, to be sure, the basis of Strauss’s critique. Strauss is at his best in this chapter, I think, especially when he explains, contra Weber, the possibility and 4

even necessity of an evaluative social science that looks back to Aristotle (41). Strauss charges Weber’s anti-rationalism with “nihilism” (42), on the grounds that Weber’s writings provide no compass for distinguishing between right and wrong, good and bad, and so on—the kind of “value judgment” that, as Strauss argues, is required for getting meaningful social science or historical study o

the ground in the

rst place. Unable to explain or ground itself, Weberian positivism shares with historicism a fundamental mistrust of the rational investigation of ethical questions. Despite Weber’s own confusions, Strauss lets the arguments unfold dialogically so that the central issues appear clearly. In the end, Strauss points to a deep con ict that Weber himself did not adequately confront. According to Strauss, Weber was caught in an agesold struggle between reason and revelation—an irresolvable con ict, Strauss says, in which revelation appears to have a marginal advantage. The vindication of the claims of autonomous rationality is one of the challenges Strauss takes up in the ensuing two chapters. The second is the challenge of showing that a prescienti c (that is, classical Greek and biblical) understanding of reality is possible and necessary for making a judgment about such matters, because that understanding will provide an Archimedean point, outside science, for judging science itself and potentially for uncovering an adequate ground for natural right. Strauss’s critique of modernity resembles that of both Nietzsche and Heidegger: modern science made hubristic promises that it could not ful ll, which made it necessary to rediscover ancient Greece in order to provide an appropriate framework within which to understand science.

Premodern Natural Right and the Understanding of Human Purposes In these central sections, Strauss invites the reader to eavesdrop on nothing less than seismic movements in ancient debates over politics, ethics, and natural science. Strauss always brings his readers face to face with fundamental questions; he shows why the issues are important; and he brings to light the gaps and limitations, as well as the power, of a kaleidoscopic array of arguments without o ering de nitive claims of his own. I believe that Strauss’s presentation is intentionally puzzling and dialogical; even his most sympathetic readers reach very di erent conclusions about his writings. The surface of the text proclaims the existence and enduring signi cance of “natural right”; but Strauss’s own interrogations of the tradition, and even his signi cant doubts about the doubters, are far from decisive. What we nd, in e ect, is a sophisticated and artful reinterpretation of the main lines of argument discussed by Thrasymachus and Socrates in Plato’s Republic. As a whole, the narrative would fail to satisfy the evidentiary demands and academic re nements of specialists. But resisting academic pedantries enables Strauss to teach his readers how to make the ancient debates their own. Strauss is right, for example, to argue that scholars have glossed too quickly over the hidden and problematic qualities of nature, as well as the ancients’ use of nature as a “term of distinction” (90). He shows that early Greek thinkers discerned in nature a normative standard independent of ordinary customs or “ways” and liberated from any appeal to divine or ancestral authority. The larger implication is that, since the Greeks themselves observed nature’s obscurities and distinction, Heidegger’s Destruktion of tradition is unnecessary for the project of grappling with “being” at ground zero—exactly the opposite, in 5

fact (122–123). Perhaps Heidegger’s own critique of Aristotelian metaphysics has not been adequately confronted, but Strauss does illustrate how and why nature became a fundamental question for re ective human beings. Strauss’s unspoken engagement with Heidegger turns out to be only the starting-point of his own creative interpretation of ancient thought. In the chapter entitled “The Origin of the Idea of Natural Right,” Strauss plumbs the debate between conventionalists and anti-conventionalists over the existence of natural right or justice according to nature. At times (e.g., 107–108) he appears to favor the conventionalist (or Thrasymachean) view that “the con ict between the self-interest of the individual [elsewhere: his “natural desire”] and the demands of the city or of right is inevitable” (107). This impression is extended by Strauss’s lengthy excursus on what he calls the materialistic and hedonistic roots of conventionalism, as expressed most powerfully by the Epicurean Lucretius, in his poem On the Nature of Things (De rerum natura). Strauss encapsulates the idea as follows:

The happiness of the philosopher, the only true happiness, belongs to an entirely di erent epoch than the happiness of society. There is, then, a disproportion between the requirements of philosophy or of the life according to nature and the requirements of society as society. It is owing to this necessary disproportion that right cannot be natural. The disproportion is necessary for the following reason. The happiness of early, noncoercive society was ultimately due to the reign of a salutary delusion (112). Characteristically, Strauss seems to be interpreting, although also ventriloquizing, an ancient text. Does this passage embody Strauss’s own view of philosophy and society? Perhaps. The passage clearly foreshadows Strauss’s interpretation of Plato’s Republic (see Strauss 1964). Plato and Epicurus are made to agree that the highest and best life is that of the philosopher—a life lled with distinctive pleasures that keep the philosopher on the fringes of political society. Philosophers know, as ordinary people do not, that justice is nothing more than an instrument of social control—a “salutary delusion” or “noble lie” which, if taken seriously, would compromise not only the philosopher’s pleasure but also his hatred of “the lie in the soul” (116). Readers may wonder whether and how a “lie in the soul” is supposed to be good for nonphilosophers. Does the argument have another side? Yes, apparently: the one provided by the natural right “doctrine” of Socrates, Plato, Aristotle, the Stoics, and “the Christian thinkers (especially Thomas Aquinas)” (120). It is the view according to which man’s highest good is a well-ordered soul, in which his hierarchically arranged natural needs are met through the cultivation of ethical and intellectual excellence. Politically, Strauss argues, this outlook leads us to prize the small-scale republic of virtue, a “closed” or illiberal society, even a “coercive society” that enforces natural restraints on human freedom: “it is not altogether wrong to describe justice as a kind of benevolent coercion” (133). This republic is not egalitarian. The classical tradition, in Strauss’s enlarged sense, recognizes a natural hierarchy among human individuals, and thus of political regimes, precisely because of their orientation toward humanity’s teleological development. Recognizing the near-impossibility of the rule of wisdom tout court, this tradition settled for the rule of law —a regime characterized by a mixture of wisdom and consent, led by what Strauss calls “gentlemen,” or aristocrats who are “the political re ection, or imitation of the wise man” (142–143). It is devilishly hard to see what this lengthy excursus has to do with reviving con dence in the Declaration of Independence, which proclaims the self-evidence of equality and the individual’s inalienable right to life, liberty, and the pursuit of happiness. The classical tradition, in Strauss’s presentation, is precisely antithetical to those ideals. It explicitly favors natural inequality and paternalistic, coercive institutions. The only happiness that we have encountered since Strauss’s mention of the Declaration is the happiness of the Epicurean philosopher. Is there any way to make sense of Strauss’s line of argument—and why, after all, should we have to work so hard to make sense of it? Seemingly, at least, Strauss responds only with additional puzzles: “Can natural right be deduced from man’s natural end? Can it be deduced from anything?” (145). In light of his reconstruction of ancient natural right, his answer may be surprising: “The de nite character of the virtues and, in particular, of justice cannot be deduced from nature” (145). Strauss has not prepared his readers either for his deep skepticism or for his newly introduced distinction between three di erent types of “classic” natural right: Socratic-Platonic-Stoic, Aristotelian, and Thomistic. Strauss has led his readers to the brink of a novel and more far-reaching nihilism of his own. I believe that his reason for doing so is to make the strongest case possible for the conventionalist (or, to Strauss, nihilistic) view. Can the classical authors dispel the worries and confusions raised by conventionalism? Strauss makes us feel the anxiety that lies behind that question. The question itself reminds one of the question that Glaucon anxiously asks Socrates in Plato’s Republic: that is, does justice, as conventionally understood, bene t its possessor? So it is not surprising that, right here, at the heart of NRH, we nd Strauss o ering a “free” reinterpretation of what he takes to be Socrates’

response. Based on his reading of the Republic, Strauss suggests that political life is subject to an inherent contradiction between justice as an intrinsically cosmopolitan or universal norm and the necessity of civic ties to a particular community. Political life cannot provide perfect justice or satisfy the demands of the highest life according to nature, that is, the philosophical life. Strauss’s Socrates is more concerned with understanding the problem of justice—or, more precisely, with understanding how and why justice is inherently problematic—than he is with “preaching justice” (150 n. 24). Strauss leaves it unclear whether philosophers require justice in order to ful ll their natural human capacities and vocation, or, equivalently, whether we should distinguish between philosophical justice and merely civic justice. Strauss includes enough talk of civic virtue to maintain plausible deniability, but his discussion of Plato’s Republic makes its central ideas entirely compatible with Epicureanism, as in the quotation above. Strauss leaves the powerful impression that civic virtue is a noble delusion, whereas excellent philosophical activity is indeed in accordance with the norms of nature (163–164). To be more speci c, then, natural right consists in the right of philosophers to pursue the highest and most pleasurable human vocation while receiving the protection and aid of “gentlemen” and coercive institutions that compel non-philosophers to behave justly. “The sel sh or class interest of the philosophers consists in being left alone, in being allowed to live the life of the blessed on earth by devoting themselves to investigation of the most important subjects” (143). Philosophers, not religious men or ethical men, are “the blessed.” “And the simply right way of life proves to be the philosophic life. Plato eventually de nes natural right with direct reference to the fact that the only life which is simply just is the life of the philosopher …. [Aristotle] knows that the simply best regime belongs to an entirely di erent epoch than fully developed philosophy” (156–157; cf. 161 n. 33). This statement echoes Strauss’s statement about the Epicurean philosopher and the di erent epoch of the happy society. We can now see why the book is not entitled Natural Law and History. “Natural law” implies restraint or obligation; “natural right” is the freedom of the highest human type, the philosopher, to live pleasurably. Plato di ers from Epicurus in his “exoteric” teaching, but both agree not only that philosophy is the highest and most pleasurable life, but also that the ethical virtues are at best instrumentally valuable. Toward the end of his discussion of premodern natural right, Strauss expends considerable energy in debunking the notion that Cicero’s Republic and Laws defend the goodness of ordinary justice. Whatever statements to that e ect may appear in those Ciceronian works, Strauss points out, correctly, that the works are dialogues in which the chief characters do not reconcile natural law teaching with the claims of civil society. Hence, Cicero “did not regard the Stoic natural law teaching, in so far as it goes beyond Plato’s teaching of natural right, as evidently true” (155). By the same token, however, it is far-fetched to think that Plato’s many diverse dialogues present a single, coherent “teaching.” But this mistake (if it is a mistake and not simply a disguised statement of Strauss’s own philosophical commitments) may be beside the point, because Strauss knows, as we do, that the thesis that philosophy is the highest human vocation cannot be demonstrated by reference to the authority of Plato or to the interpretation of texts. In order to make sense, this thesis must be based only on rational argument. One of the chief objections to Strauss’s view, in fact, is that he o ered no arguments to this e ect, that he dogmatically asserted the priority of philosophy. A second and related objection concerns the question of philosophy’s particular character. Is philosophy an activity of discovering hidden meanings, creating a noble political delusion, and struggling to protect philosophy itself? Or is philosophy about searching for the truth through open argument (cf. Beiner 2014, 61)? It is certainly possible—even forgivable—to interpret NRH as forcing us to ferret out nuggets at the heart of the text, as Strauss’s esotericism would guide his “perplexed” readers to do. It cannot be an accident that Strauss’s clearest statements about 6

philosophy and natural right are located right in the center of the work.

Contrary to appearances, Strauss may have a sound response to these concerns. He has, frustratingly, located his most cherished thesis in the heart of a dense and often misleading text. But his view of the

character of philosophy, and his view that philosophy is the highest vocation, does not depend on hidden meanings. Instead, the entirety of NRH is o ered as an example of philosophy in action. The drama or action of the work is the argument—a quintessentially Straussian idea. What this means is that, by showing his readers how exciting and powerful it can be to engage with the greatest minds of the tradition, Strauss intends to put philosophy on display, to point to it, so to speak, as an excellent and ful lling activity. 7

Strauss’s argument is “apodeictic,” not in the logical, but in the etymological, sense. In the process of making his apodeixis (“a showing forth,” “a display”), Strauss also shows what he takes the character of philosophy itself to be: not the navel-gazing activity of constantly legitimizing philosophy, of devising noble myths to protect philosophy, or of droning on pedantically about “old books,” but rather the activity of engaging for oneself in spirited dialectic about the most important issues of which we are aware. Does Strauss’s apodeixis constitute a “rational argument”? The answer depends on what counts as a rational argument. Certainly Strauss’s presentation cannot be characterized as an appeal to authority or a mere interpretation or assertion. Perhaps the best way of understanding Strauss is again through reference to Plato: Strauss’s presentation is designed to inspire eros for philosophy, an eros that is underwritten by, and even constituted by, the activity of arguing rationally and understanding things by and for oneself. Readers may not be satis ed with Strauss’s “erotic argument” on behalf of philosophy, but then they should ask what kind of argument on behalf of philosophy would be satisfying. If they begin to ask that question in the course of reading NRH, then Strauss’s work should be judged a success. Strauss’s chapters on “classical political right” will invite a host of questions, both critical and exploratory. The rst is why Strauss is so intent on showing that philosophy is the highest and best life, rather than 8

simply a good life. Even if he has displayed the unique pleasures of philosophy, he has not shown that other lives devoted to other human achievements are less good than the philosophical life. Second, and related, is the question of the status of ethics or morality. Does the philosopher need to be just in order to live the good life, or is the good life an activity of magni cent sel shness (cf. Tarcov 2010)? If justice and the other virtues are nothing more than noble delusions, then why did Socrates (at least as presented in most of the Platonic dialogues) spend his life arguing about the virtues, trying to explain them, and searching out their psychological, epistemological, and metaphysical foundations? Isn’t ethical virtue itself, as described by the ancient eudaimonists, an extraordinary achievement, worthy of great respect? Third, there is the diversity of premodern thought, which ranges from the Socratic tradition to Roman philosophy to Augustine and Aquinas, over roughly 1500 years. We hear little about Christianity in NRH. Is the reason for this gap that 9

Christianity spans both ancient and modern worlds? Is it that Christian thinkers like St. Augustine believed that the poor and uneducated were wiser than pagan philosophers, that dishonesty was the mark of a bankrupt soul, and that all human beings are equal?

Modern Natural Right: Origins and Crisis Individualism, equality, freedom, democracy, modern science, hedonism: Strauss discusses these themes and more in subsequent chapters, as he lays out a theory of error that explains how and why modern rationalism went wrong. These chapters are necessarily anticlimactic, but Strauss nds room for another explosive thesis. Modernity is hostile to philosophy, not just because modernity is bourgeois, but because Rousseau, Kant, Hegel, and the others are not real philosophers. How can that be? Strauss often gives the impression that political philosophy both began and ended with Socrates, a sad fact if it were true. Strauss had already prepared the reader for these ideas in the provocative suggestion that “‘Science,’ we may say, is the successful part of modern philosophy or science, whereas ‘philosophy’ is its less successful part” (79). Strauss recognized and was unsettled by modern science’s undeniable successes (cf. 7–8, 166), because they appeared to him (arguably unnecessarily) to have thrown into question the teleological views

10

that his vision of “classic natural right” requires.

Modern philosophy, on the other hand, was hobbled not

only by its substantive outlook (egalitarianism, hedonism, relativism, historicism), but also by its abandonment of the attempt to develop a uni ed theory of human nature and the cosmos—in e ect, its retreat from ancient science as the attempt to grasp “the whole.” In asking whether philosophy should model itself on natural science, or aspire to reconceive of the distinction between theory and practice (cf. 319–322), Strauss draws attention to an issue that demands further study today. Even more shocking, it was the philosophers themselves who killed philosophy. The great founders of liberalism, such as Hobbes, Locke, and Rousseau, refused to draw attention to the philosophical life as the highest human vocation. Instead, they transformed philosophy into ideology—for example, the ideology of liberalism—by supposing that philosophy’s cardinal task was the practical guidance of politics, and “popular enlightenment,” rather than rational understanding for its own sake (199–200). The Leviathan state could never be successful if its subjects’ loyalties were divided between religious and political authorities. As a result, modern philosophy has become an ally of politics against religion, which accounts for its lowered standards, its “political hedonism” (169), its ideology. Strauss’s view that the great modern philosophers are not real philosophers is implausible, as is the idea that modernity (as opposed to classical antiquity) is distinctively hostile to philosophy. Socrates himself, the convict, would have to disagree. Strauss’s emphasis on the distinctiveness of modern rationalism is more plausible, if paradoxical. What is plausible is that modern philosophy supervised the transformation of natural science into the technological conquest of nature; it helped to justify hedonism as the underlying ethic of modern society; and it elevated liberalism, secularism, and democracy to dogmatic status. The paradox emerges when we observe that it is crucial to Strauss that all the views developed by modern philosophy had already been laid out, in their essentials, by the ancient philosophers. Otherwise, Strauss would render himself vulnerable to the charge that his historical investigations show, contrary to his theory, that our leading philosophical questions change over time. In fact, Strauss himself highlights several distinctively modern concerns—above all, historicism, but also, as he explicitly says, “natural public law” and Machiavellian “politics” or the “reason of state” (190–191). Whatever Strauss’s internal inconsistencies, though, it remains true that we continue to wrestle with persistent questions, such as those of justice or human nature itself. We should resist the temptation to settle dogmatically the status of potentially trans-historical questions themselves. Strauss reads canonical texts in an unusually penetrating way. Strauss’s treatment of Hobbes, Locke, Rousseau, and Burke is exciting, erudite, and original. This section of the book is the most successful part, I would say, because Strauss concentrates on interpreting particular texts in detail—his real strength— instead of surveying (as in the chapters on premodern thought) a great variety of texts spanning almost 2000 years. Strauss’s account is powerful precisely because he brings to bear an ancient framework that asks how each philosopher understood the human good and the good society. A case in point is Strauss’s examination of Hobbes. Strauss discerns in Hobbes’ Promethean Leviathan a vision of the good society characterized by “political hedonism.” His treatment remains the best guide to understanding the Hobbesian recon guration of traditional philosophy: from philosophy as Socratic questioning to philosophy as ideological management of politics; from natural science as theoretical contemplation of the teleological cosmos to technology and reductionist materialism; from virtuous conformity to nature to hedonistic individualism; from reliance on reason or logos to reliance on passion and especially fear. For Strauss, Hobbes gave unprecedented signi cance to political philosophy as a directive art, one that optimistically, even hubristically, strives to improve humanity’s material condition and to maximize its freedom. In the general argument of NRH, however, Locke is the key gure. Although Strauss is convinced that the other writers communicated esoterically (e.g., 198–199 n. 43, 258), he shows that Locke discussed his own esotericism in The Reasonableness of Christianity (206–209) and that he o ered a salutary public philosophy in the Second Treatise. No reader of the Second Treatise is unfamiliar with Locke’s confusing appeals to both revelation and reason or with his endlessly blurred picture of the state of nature. Strauss’s argument is that,

beneath these super cial confusions, Locke’s message is profoundly secular, individualistic, and rational. Locke surreptitiously transformed conventional views of political authority. He also unleashed the acquisitive impulse, previously called “greed,” and sancti ed it as the engine of modern society, as the telos of government. Hobbes’ political hedonism had implied that government exists in order to guarantee “commodious living,” or the bourgeois pleasures, rather than human excellence. Locke, always a “Hobbist,” extended this principle and transformed life into “a joyless quest for joy” (251). Strauss explicitly links Locke’s theories of property and “happiness” to those of the Declaration of Independence, by suggesting that James Madison, in The Federalist No. 10, adapted Locke’s ideas to the American Founding (245; cf. 226–227). Strauss’s immensely illuminating discussion of Locke is designed to support his critique of the American Founding, and of contemporary liberal democracy altogether. From Strauss’s account of Locke, it emerges that modern esoteric writing di ers from its riddling ancient counterpart: the modern writers tell you exactly what they mean, if you work through their dense writings with patience and wait for a clear statement. This di erence makes sense, because the modern writers were not trying to entice their most astute readers to engage in philosophical activity themselves. Instead, they were trying to communicate a message of secular individualism and freedom from religious authority, while also disguising their revolutionary views from most of their contemporaries. Their esotericism conformed to their status as ideologues, while Plato’s esotericism served his role as a philosopher. For Strauss, Locke’s proto-capitalist outlook (Strauss acknowledges his similarities to C. B. Macpherson: 234 n. 106) had not yet reached its inevitably nihilistic conclusions. Hobbes and Locke still believed in human nature and human agency; the world was not entirely subject to fate. In the next phase of modernity, however, Rousseau and Burke transformed even these minimal conditions for the possibility of natural law, by logically extending the premises of their early modern predecessors. Although Rousseau and Burke disagreed over the importance of universal principles of enlightenment, freedom, and equality, they both contributed substantially to the modern creation of historicism. Rousseau at least still recognized that the free society requires dishonesty or dissembling; the political philosopher must remain hidden, like Rousseau himself, and counteract public “intellectuals” if democracy is to remain strong or virtuous (258, 261, 263, 288). Strauss argues that although nature provided a norm of radical individuality or freedom for Rousseau (278), Rousseau nonetheless emptied the norms of nature of any particular content. Natural man was subhuman; consequently, the development of man’s particular attributes, such as his rationality and even his humanity, was the result of history, or of “accidental necessity” (272). Burke turned to practice or history rather than theory, but, Strauss points out, he too depreciated reason in favor of sentiment. Burke held that not only our humanity, but also the good society, came about through accident rather than rational agency or prudent choice. The essentials of historicism, and even of radical historicism, have come much more clearly into focus by this stage of the drama.

Conclusion: Strauss the Philosopher Why, then, does Strauss end the work with Burke, and without a particular conclusion? The inference seems irresistible: the case for the ancients needs to be restated, as philosophy’s un nished dialogue continues. But now that same dialogue should be carried on by the reader, who has recognized the signi cance of doing philosophical work, of exploring and inhabiting the “fundamental alternatives.” Strauss’s students have taken up this challenge in interesting ways, although they often disagree over what Strauss himself meant. It may be that controversy over his legacy was yet another of Strauss’s Platonic aspirations. But real questions remain, not only about Strauss’s own thought, but also, and more importantly, about the questions that he raised. To accept Strauss wholeheartedly, we would have to be staunch critics of enlightenment liberalism. Even without taking that step, though, it is also possible to derive important questions from his writings and make them our own. Chief among these is the relationship between modern, non-teleological science, which takes physics as its paradigm, and ancient, teleological, and “eudaimonistic” conceptions of the good life. A related question, later addressed by Strauss himself (cf. Strauss 1968, 3–8), concerns the role of liberal education in the free society. Strauss’s most serious weakness, I think, is that he did not appreciate the power of ancient eudaimonism as a theory of human nature that explains the signi cance of ethical excellence. Ethical excellence makes the philosophical life better; without it, the philosophical life is diminished; and these are the reasons that Socrates himself spent his philosophical life thinking and talking about ethical questions. Strauss’s tendency to diminish ethics and political life suggests, in fact, that he cared about liberal democracy in a purely instrumental way, as providing a home for philosophy. Yet did he see no other di erences between liberal democracy and fascism? In this respect, at least, there may be a di erence between Strauss’s own implicit theses and his commitments in general. Strauss persisted, albeit incoherently, in calling morality a “noble delusion.” Morality was somehow “noble” in addition to being an illusion, but the delusion is precisely that nobility exists. In other words, Strauss was not entitled to use the ethical terminology of nobility, but he continued to employ it anyway—without self-consciousness, apparently, and thus not simply for instrumental reasons. Perhaps he could have embraced that language more self-consciously and consistently if he had not been committed, unnecessarily if nobly, to meeting an excessively demanding standard of proof when he tried to ground ethical norms in human nature. A middle ground exists between natural law based on demonstrative proof and nihilism based on “blind preferences” (4). High drama is not always the way forward, because leading an ethical life for its own sake does not require a Damascus experience. Strauss’s questions and pregnant ambiguities have inspired a variety of rich and provocative discussions since his death. Whether Strauss intended to create a philosophical school of his own remains a subject of controversy (cf. Meier 2006), but several generations of his followers have undoubtedly made a lasting impression on political theory as a discipline. “Straussianism” is a very big tent, in part because of the range, and in part because of the ambiguities, of Strauss’s own writings (cf. Zuckert and Zuckert 2014, 319– 345). In keeping with the themes of NRH, some Straussians have sought to emphasize the philosophical life as represented by Plato as the highest human life, and to stress the chasm that separates this highest vocation from the ordinary lives of decent citizens (e.g., Bloom 1968; Pangle 1980). On the other hand, building on Strauss’s purported defense of the ideals of the Declaration of Independence, many Straussian theorists have o ered sympathetic treatments of the American Founding and its central texts (e.g., Martin Diamond, on whose writings see Zuckert 1999) and of Tocqueville’s Democracy in America (e.g., Mans eld and Winthrop 2000). Whichever path they have followed, Straussians have emphasized the need for clear and perspicuous translations of foreign-language texts, which are intended to enable readers to approach their authors’ thought as nearly as possible even if they lack knowledge of the original language of composition (Bloom 1968; Pangle 1980; Mans eld and Winthrop 2000).

On the other hand, non-Straussian theorists have typically either ignored or reacted with hostility to NRH and related works. The ancient philosopher Myles Burnyeat has written, for example, “I submit in all seriousness that surrender of the critical intellect is the price of initiation into the world of Leo Strauss’s ideas” (Burnyeat 1985, 31). In subsequent decades there has been no lack of diatribe, both inside and outside the university, against the ambitious meta-narrative of NRH, and especially against Strauss’s esotericism. It may be that this furor has arisen largely because of readers’ discomfort with esotericism (see Melzer 2014) or because of Strauss’s supposed connections with neoconservatism or the U.S. invasion of Iraq (Norton 2004; Drury 1997), or the presumption that Strauss endorses noble lies (e.g., Gunnell 1985) or a harshly anti-democratic brand of elitism (e.g., Holmes 1993). Either way, Strauss’s admirers have o ered spirited rejoinders (Smith 2006; Pangle 2006; Zuckert and Zuckert 2014). We should welcome the recent e orts to 11

include Strauss’s thought in the mainstream tradition of the theoretical study of politics (see Smith 2009).

References Beiner, Ronald. 2014. Political Philosophy: What It Is and Why It Matters. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Bloom, Allan, trans. 1968. The Republic of Plato. New York: Basic Books. Google Scholar Google Preview WorldCat COPAC Burnyeat, Myles F. 1985. “Sphinx without a Secret.” The New York Review of Books (May 30): 30–36. WorldCat Drury, Shadia B. 1997. Leo Strauss and the American Right. New York: St. Martinʼs Press. Google Scholar Google Preview WorldCat COPAC Garver, Eugene. 2014. “Sic Semper Tyrannis: Review of Waller R. Newell, Tyranny: A New Interpretation.” Polis 31(1): 151–159. Gunnell, John G. 1985. “Political Theory and Politics: The Case of Leo Strauss.” Political Theory 13(3): 339–361.

Holmes, Stephen. 1993. The Anatomy of Antiliberalism. Cambridge: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Kateb, George. 2002. “The Adequacy of the Canon.” Political Theory 30: 482–505. Google Scholar WorldCat Kennington, Richard. 1981. “Straussʼs Natural Right and History.” Review of Metaphysics 35(1): 57–86. Google Scholar WorldCat Mansfield, Harvey C., Jr. and Delba Winthrop, trans. 2000. Alexis de Tocqueville: Democracy in America. Chicago: University of Chicago Press. Google Scholar Google Preview WorldCat COPAC Masters, Rogers. 1989. The Nature of Politics. New Haven: Yale University Press. Google Scholar Google Preview WorldCat COPAC Meier, Heinrich. 2006. Leo Strauss and the Theologico-Political Problem, trans. Marcus Brainard. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Melzer, Arthur. 2014. Philosophy between the Lines: The Lost History of Esoteric Writing. Chicago: University of Chicago Press. Google Scholar Google Preview WorldCat COPAC Norton, Anne. 2004. Leo Strauss and the Politics of American Empire. New Haven: Yale University Press. Google Scholar Google Preview WorldCat COPAC Pangle, Thomas L., trans. 1980. The Laws of Plato. Chicago: University of Chicago Press. Google Scholar Google Preview WorldCat COPAC Pangle, Thomas L. 2006. Leo Strauss: An Introduction to His Thought and Legacy. Baltimore: The Johns Hopkins University Press. Google Scholar Google Preview WorldCat COPAC Salkever, Stephen. 1990. Finding the Mean: Theory and Practice in Aristotelian Political Philosophy. Princeton: Princeton University Press. Google Scholar Google Preview WorldCat COPAC

Smith, Steven B. 2006. Reading Leo Strauss: Politics, Philosophy, Judaism. Chicago: University of Chicago Press. Google Scholar Google Preview WorldCat COPAC Smith, Steven B., ed. 2009. The Cambridge Companion to Leo Strauss. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Strauss, Leo. 1941. “Persecution and the Art of Writing.” Social Research 8(4): 488–504. Google Scholar WorldCat Strauss, Leo. 1953. Natural Right and History. Chicago: University of Chicago Press. Google Scholar Google Preview WorldCat COPAC Strauss, Leo. 1954. “On a Forgotten Kind of Writing.” Chicago Review 8(1): 64–75. Google Scholar WorldCat Strauss, Leo. 1964. The City and the Man. Chicago: University of Chicago Press. Google Scholar Google Preview WorldCat COPAC Strauss, Leo. 1968. “What is Liberal Education?” In Strauss, Liberalism Ancient and Modern, pp. 3–8. Chicago: University of Chicago Press. Google Scholar Google Preview WorldCat COPAC Strauss, Leo. 1989. “An Introduction to Heideggerian Existentialism”. In The Rebirth of Classical Political Rationalism: An Introduction to the Thought of Leo Strauss, edited by Thomas L. Pangle, 27–46. Chicago: University of Chicago Press. Google Scholar Google Preview WorldCat COPAC Tarcov, Nathan. 2010. “Philosophy as the Right Way of Life in Natural Right and History”. In Modernity and What Has Been Lost: Considerations on the Legacy of Leo Strauss, edited by Pawel Armada and Arkadiusz Gornisiewicz, 43–52. South Bend, IN: St. Augustineʼs Press. Google Scholar Google Preview WorldCat COPAC Williams, Bernard. 1985. Ethics and the Limits of Philosophy. Cambridge: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Zuckert, Catherine. 1990. “Martin Heidegger: His Philosophy and His Politics”. Political Theory 18(1): 51–79. Google Scholar WorldCat Zuckert, Michael P. 1999. “Refinding the Founding: Martin Diamond, Leo Strauss, and the American Regime.” In Leo Strauss, the Straussians, and the American Regime, edited by Kenneth A. Deutsch and John A. Murley, 235–251. Lanham, Maryland: Rowman and Littlefield. Google Scholar Google Preview WorldCat COPAC Zuckert, Michael P, and Catherine H Zuckert. 2014. Leo Strauss and the Problem of Political Philosophy. Chicago: University of Chicago Press. Google Scholar Google Preview WorldCat COPAC 1

The quoted sentence suggests that at one time natural right was clearly known; and what is needed is “recollection.” Is it far-fetched to hear in this term echoes of the Platonic idea of anamnêsis (“recollection”), through which, as Socrates suggests in Platoʼs Meno, we are supposed to have “actual knowledge” of things like number?

2

A helpful introduction can be found in Zuckert (1990, 51–79).

3

For useful investigations of Strauss, historicisim, and the “fundamental questions,” see Meier 2006, 55–73, and Zuckert and Zuckert 2014, 42–67. For a recent discussion of totalitarianism and traditional thought, see Kateb (2002, 482–505).

4

Note the influence of Straussʼs discussion in Salkever (1990).

5

A helpful analysis of Heideggerian Destruktion and Straussian “recovery” can be found in Smith (2006, ch. 5).

6

Melzer (2014, 322) explains that, according to a typical esoteric practice, “many writers will o en signal what thought is really on their minds by placing it (or some hint of it) in the exact center of a list or sequence that they have constructed.”

7

In Aristotelian logic, of course, “apodeictic” arguments are those presented as necessarily true (e.g., EN 1139b31); but prior to these formal or systematic uses, “apodeictic” was also a more general term that refers to “showing forth” or “exhibiting” in the sense of providing a richly detailed account that helps to explain something, such as the nature of the “statesman” (politikos, at Plato, Statesman 277a) or the Athenian empire (archê, at Thucydides 1.97).

8

This question is helpfully posed in Tarcov (2010, 43–52).

9

This point is made e ectively in Garver 2014.

10

For a discussion of the continuing importance of teleology with modern sciences such as biology, see, e.g., (Masters 1989).

11

The author would like to thank the editor, Jacob Levy, and his colleagues Ronald Beiner, Laura Rabinowitz, and Daniel Schillinger for helpful discussions and suggestions.

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Charles Taylor, Sources of the Self  Michael Zuckert https://doi.org/10.1093/oxfordhb/9780198717133.013.13 Published: 11 February 2016

Abstract This chapter reviews Charles Taylor’s Sources of the Self. The book displays Taylor’s mastery not only of the history of philosophy, but of theology, poetry, and art. He also shares Georg Wilhelm Friedrich Hegel’s commitment to synthesizing competing and con icting elements of the culture. Unlike Hegel, however, Taylor does not see philosophy as the highest and truest expression of the human mind or spirit; rather he sees the artists—the poets most especially—as the ones who “can put us in contact with” what we as living and thinking humans need to be in contact with. This chapter examines Taylor’s arguments as articulated in Sources of the Self, especially his view that human beings are selfinterpreting and self-misinterpreting animals and that self-interpretation has ontological signi cance. It also considers what Taylor identi es as a “phenomenology” of human action, his theory of morality and identity, and his concept of the “punctual self.”

Keywords: Sources of the Self, Charles Taylor, philosophy, art, Georg Wilhelm Friedrich Hegel, selfinterpreting animals, self-interpretation, human action, morality, punctual self Subject: Comparative Politics, Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Charles Taylor writes big books. Sources of the Self is not his largest—that dubious honor belongs to A Secular Age—but it is a book that, along with some of his classic essays and his A Secular Age, will de ne his legacy. Its mass is matched by its scope and sprawling character. It is clearly a combination of ethical philosophy and intellectual history, but the thread holding it together is not always easy to discern or to remember as one ranges through discussions of contemporary moral philosophy, and the works of thinkers as diverse as Plato, Voltaire, and Nietzsche, to say nothing of poets like Coleridge, Mallarmé, and Pound. Sources of the Self (SS) reminds one how much Taylor shares with Hegel, who was, not by chance, the subject of another of Taylor’s gargantuan books. Like Hegel, Taylor seems to have read everything of value produced in the course of Western civilization—and to have found a place for it in his classi cation scheme. After nishing Taylor’s 520 pages plus another 70 pages of notes one cannot help but be overcome with

admiration for his erudition. He displays mastery not only of the history of philosophy (his o

cial eld),

but of theology, poetry, and art. Even more importantly, he shares Hegel’s commitment to synthesizing competing and con icting elements of the culture; like Hegel, he is at once a liberal and a communitarian; at once committed to individuals and to the primacy of society; at once attracted to modernity and to what modernism has negated and alleged to have left behind. Like Hegel, he is a thinker of “both/and” rather than “either/or.” (ix; Taylor 1995, 181– 203; Abbey 2000, 2–4, 101–149). Like Hegel, he eschews “one-sidedness,” and he would save “modernity from its most unconditional supporters” at the same time that he would reject its root and branch detractors (x, xi, 448). Nonetheless, one can carry the parallels to Hegel too far. Unlike Hegel, Taylor does not see philosophy as the highest and truest expression of the human mind or spirit; rather he sees the artists—the poets most especially—as the ones who “can put us in contact with” what we as living and thinking humans need to be in contact with. “The philosopher … tinkers around [but] … the artist is like the race-car driver, and we [philosophers] are the mechanics in the pit; except in this case, the mechanics usually have four thumbs, and they have only a hazy grasp of the wiring, much less than the drivers have” (512; emphasis added). In depreciating philosophy relative to art Taylor calls to mind Heidegger, another philosopher who has been of great importance to him, more than Hegel. The priority of art over philosophy for Taylor points to another and in a sense more fundamental di erence between him and Hegel. Hegel writes from the perspective of “absolute knowledge”—he claims to be able to show us the rational in the real, to solve the puzzles reality poses. Taylor writes from the quite di erent perspectives of puzzlement and uncertainty. For example, the modern situation puzzles him. On the one hand, we moderns “feel particularly strongly the demand for universal justice and bene cence, are peculiarly sensitive to the claims of equality, feel the demands for freedom and self-rule as axiomatically justi ed, and put a very high priority on the avoidance of death and su ering” (495). That is to say, he nds a very strong general agreement on morality a

rmed in our modern culture. But at the same time he sees

that “there are profound rifts when it comes to” what “underpin[s] these standards” (495). How we came to live in such a house divided is a puzzle that Taylor sets out to explore. According to Taylor, the puzzle derives from very inadequate ways of thinking and talking about our moral situation and of ourselves as human beings. Taylor’s book is at once a study of meta-ethics—how one should be thinking and talking about ethics and the enterprise of living humanly—and a genealogy of how we have come to the present impasse or puzzle. Much more modest than Hegel, Taylor makes no claim to have sorted all this out, only to have made some headway in nding “language to clarify the issue” (512). He “is no system builder” (Abbey 2000, 4). He nds this language in images of profound personal resonance like “epiphany,” “moral sources,” “disengagement,” “empowering,” and others. “These are images which enable me to see more clearly than I did before” (512, emphasis added). He wanders very widely across the public culture of the West, yet he accomplishes something particularly distinctive to himself. His claims are thus tentative, incomplete, and personal. I think it fair to say that Taylor does not, nor does he claim to, overcome entirely his puzzlement. Unlike Hegel, then, Taylor does not see the hand of reason moving all history to a rational resolution. To paraphrase Voltaire, our present situation as Taylor portrays it is neither rational nor a resolution.

Self-interpreting Animals Taylor’s book is large, sprawling, and complex. We must begin anew in a more systematic manner to nd the thread through it.

Taylor begins with a very personal confession: “I’ve had a di many years” (ix). It was so di

cult time writing this book. It’s taken too

cult and took so long largely because of its topic—“a history of western

identity.” Given all that goes into that topic as Taylor understands it, it is no wonder the book took a long time to complete and caused him some pain in the process. But one must ask: why did Taylor, a philosopher by training and profession, undertake such a massive historical project? The answer lies in the central claims, which at the same time comprise the central paradox of the book: human beings, according to Taylor, are the self-interpreting animal. But they are also the self-misinterpreting animal. As selfinterpreting, what they are is intimately connected to what they take themselves to be. But what they take themselves to be in modern times is not what they took themselves to be in the past (11). What we humans are is what we have become, what we have come to see ourselves to be. Identity is historical. Therefore, to understand the modern “human agent” Taylor embarks on his historical inquiry into “the history of modern identity” (ix). Humans are also self-misinterpreting animals. The identity we have forged or come to in modernity leads us to think of ourselves in certain ways—Taylor will emphasize the theme of the “disengaged” or at the extreme the “punctual self”—that conceal from us the true character of human agency or selfhood. The self we have become occludes the self we are. Part of Taylor’s aim, therefore, is to render the character of the modern self in a way that exposes that character to us and allows us to live or be that kind of self in a more adequate—or perhaps more authentic, thorough, integral, empowered, or informed—way. As Taylor puts it, “an interpretation of ourselves and our experience is constitutive of what we are, and therefore cannot be considered as merely a view on reality, separable from reality, nor as an epiphenomenon, which can be by-passed in our understanding of reality” (1985, 47; 1989, 34). What we are and what we think we are are not in principle separable in the way that a hydrogen atom and what we think of a hydrogen atom are separable. So for Taylor our character of being self-interpreting is not just another way of saying we are speaking or interpreting animals. Our self-interpretations have ontological signi cance in a way that our interpreting or opining about many other things does not. Taylor is not, like some post-modernists, a radical subjectivist, even though he maintains that our subjective understanding of ourselves matters fundamentally (Smith 2004, 35–36, 43). In pronouncing human beings “self-interpreting animals” Taylor clearly aligns himself with the postHeideggerian hermeneutic tradition (1985, 3; Smith 2004, 31, 45). Yet he also brings his own particular way of developing the idea of “self-interpreting animal.” As Nicholas Smith correctly observes, “Taylor … extracts a more explicitly moral meaning from the insight that human beings are self-interpreting animals than other thinkers in the hermeneutic tradition” (2004, 44). It is this more moral or even moralistic version of hermeneutics that accounts for Taylor’s title and the most revealing formulation of his intention in this massive inquiry: “to articulate the good in some kind of philosophic prose.” The “path to [this articulation] has to be a historical one” (103, 104). The good—or goods—is according to Taylor a “moral source,” that is, that which orients and empowers the moral life. When Taylor speaks in his title of “sources,” he has in mind that the good or goods as moral sources, for the self is grounded in, nds its source and identity in the good. Thus he can describe his intent in the book as “to write a history of modern identity” (ix). These are for him identical enterprises, for the identity of the self is inseparable from the good or goods of the self. Taylor’s hermeneutical self is thus oriented around the good or the moral in a way atypical of the modern hermeneutic tradition (Smith 2004, 44). We will greatly misunderstand Taylor’s position, however, if we do not appreciate the unusual (although not idiosyncratic) way in which he understands morality. Above all, he does not understand by “the moral” what is generally understood in modern moral philosophy. There is a tendency, he believes, “to give a very narrow focus to morality. It is thought to be concerned primarily with what it is right to do rather than with what it is good to be. In a related way the task of moral theory is identi ed as de ning the content of obligation rather than the nature of the good life” (3, 79, 92). Modern

thinking about morality—not only by the professional philosophers—focuses on “the right” and on “obligations.” Both utilitarians and Kantians, both Rawls and Habermas, take this view. Taylor, by contrast, understands morality as concerned preeminently with “the good,” the “good life” and the good way to be —“questions about how I am going to live my life which touch on issues of what kind of life is worth living …” (14). In presenting morality in that way he may seem to be reverting to an Aristotelian way of understanding morality. Despite some areas of overlap, that is not the case. Aristotle starts with the idea of happiness as that which all human beings seek. The good—the true goods—are those qualities of character (virtues) that contribute to the attainment of happiness. Taylor, however, hardly speaks of happiness and does not speak of morality in its terms. He rather comes to his view of the primacy of the good in morality via his understanding of human beings as self-interpreting animals. If self-interpretation has the ontological signi cance Taylor claims for it, the clear implication is that one must proceed via what Taylor identi es as a “phenomenology” of human action (68; Abbey 2000). Another way to put it is that Taylor takes an inside as opposed to an outside perspective on human action; he seeks to view action in the perspective of the agent as acting, and not as a spectator/“objective” observer (73). Looked at from the inside, Taylor argues that “selfhood and the good, or in another way selfhood and morality, turn out to be inextricably intertwined themes” (3). When we act, we act out a range of concerns—most human action is engaged or committed action. A human actor is not a robot, indi erent to the goals or character of his or her action. Taylor identi es “three axes” of such concern that he sees as belonging to moral thinking. The rst is that sense of respect for and of obligation to others that dominates most contemporary moral thinking. But also he nds “understandings of what makes a full life” as well as “the range of notions concerned with dignity”, the latter being those “characteristics by which we think of ourselves as commanding (or failing to command) the respect of those around us” (15). The good of dignity is particularly important to Taylor’s account of human agency. We do not merely seek this or that goal, desire this or that good, but we pose to ourselves the question whether the goal, good, or desire is worthy of seeking, whether it comports with our dignity or sense of what makes our human life worthy. Life is not merely a calculative endeavor to achieve the objects of our desires, for we judge our desires. Humans, as Heidegger emphasized with his notion of care, are engaged actors. But Taylor adds that what they are preeminently engaged with is the worth or moral character of their lives. Taylor calls the phenomenon of moral engagement that he invokes “strong evaluation.” All action is evaluative—as Aristotle put it, is pursuit of some good—but action is more complex than Aristotle saw in that we engage in the second order enterprise of “evaluating our values” (to use very non-Aristotelian language), and this second order assessment is not always, perhaps not typically, in terms of happiness. In so pronouncing Taylor is betraying the in uence of the Kantian revolution in moral philosophy and phenomenology, for according to Kant the moral as such is quite di erent from the “happinessproducing.” The strong evaluations in term of which we judge our desires and goals are intimately connected to, or even constitutive of, our identity. Di erent identities, according to Taylor, are constituted according to di erent goods, or rather the ultimate high-level goods that Taylor calls “hyper-goods” that we “love” or are deeply committed to (63). These goods de ne who we are. In many ways Taylor’s position is reminiscent of Augustine for whom what we are is a function of what we love. The object of our love is not merely external to us, but enters into and determines us. Taylor, like Augustine, is particularly concerned to counter the view that we are one thing, the hyper-goods we a

rm or love another to which we are contingently related.

Our identity is not something separated from these goods. Thus for Taylor, morality, in the broad sense in which he uses the term, and identity are inseparable.

These goods serve as what Taylor calls “moral sources.” They are that according to which our moral life/identity is constituted. They are thus the “sources of the self.” But these goods are not xed for all time. That is, Taylor does not understand them to be given in human nature as xed and unchangeable. He is very alive to the variability of human goods, and therefore of human types and identities. The human world, viewed comprehensively, is a radically plural world. That identity and the moral life are mutually constructed in this manner is a universal. But speci c identities are historical. Abbey (2000) very helpfully distinguishes between the ontological (and therefore universal) and the historical (and thus variable) aspects of Taylor’s understanding of the constitution of the self. Taylor’s aims are clearly moral, but his theory of morality and identity might appear to undermine morality. Identity and morality are historical, variable, and therefore apparently relativistic. Variable identities are constituted by variable sources or hyper-goods; Taylor is modernist enough to accept the idea that there is no way to appeal to the good beyond or outside of the constitutive goods within di erent identities. In this sense Taylor is a non-foundationalist, yet he demurs from accepting the label “relativist.” There seem to be two grounds for his refusal. First, as he is attempting to do in SS, he believes that just as we are selfinterpreting, so are we self-misinterpreting. When we misinterpret, we lose sight of the actual sources or constitutive goods of our identities. His task in SS is to “articulate” those sources in our identity and thus to (help) overcome what appears to us to be inevitable relativism from the historical and non-foundational character of the good (92). Moreover, borrowing from Alasdair MacIntyre, Taylor puts forward a theory of the “best account” or “best explanation” of variable moral standards. As with MacIntyre, Taylor’s “best explanations” take the form of “transition arguments.” That is, they do not involve comparing a moral conception with some independent or “objective” or external set of moral truths, but with some other possible moral understanding. “The argument turns on rival interpretations of possible transitions from A to B, or B to A…. The rational proof consists of showing that this transition is an error reducing one” (72). The key question then is how to understand Taylor’s notion of “error-reducing.” If B is superior to A on account of being error reducing, there must be some truth of the matter, however understood, in terms of which B is superior or less in error. Taylor’s theory meets this requirement via his observation “that individuals experience goods as being worthy of their admiration and respect for reasons that do not depend on their choice of them” (58; Abbey 2000, 28). But the access to the goods remains in a sense internal. As Taylor puts it: “My perspective is de ned by the moral intuitions I have, by what I am morally moved by.” This is our access to the goods. “If I abstract from this, I become incapable of understanding any moral argument at all. You will only convince me by changing my reading of my moral experience, and in particular my reading of my life story, of the transitions I have lived through—or perhaps refused to live through” (73). Thus, as we have already noted, the upshot of Taylor’s inquiries is a personal conviction, but not one, for all that, that he understands to be merely subjective. Whether Taylor’s theory of the “best account” is successful and can accomplish what he wishes for it has been a much controverted matter in the assessment of his theory, but that cannot detain us now. The bulk of Taylor’s book is devoted not to these considerations of the ontological character of the self, but to its historical dimension. In many ways this part of his account recalls Hegel’s Phenomenology; it is a genetic account of what he sees to be chief features of the modern identity. This part of his tome has two intertwined aims: to give us a historical picture (not a causal account) of the transition from earlier conceptions of the self to the modern one, highlighting the great changes that are part of this narrative, and second, to bring out the sources of the history and thus of the changing identities. The latter is particularly important for Taylor. He aims to show that the transitions he describes occur in terms of moral sources, that is, understandings, intimations of goods, senses of what constitutes a worthy human life. He is at pains to distinguish his account from a causal account, which he does not believe is at his or anyone’s disposal at present (199–207). Instead he is attempting to bring out what is or was morally attractive in the changing

senses of self that made them e ective in the world. This is a separate issue from what changes in the world might have provoked the original emergence of a new sense of self—of how selves are and ought to be. Taylor picks out “three major facets of this [modern] identity: rst, modern inwardness, the sense of ourselves as beings with inner depths, and the connected notion that we are ‘selves’; second, the a

rmation of ordinary life which develops from the early modern period; third, the expressivist notion of

nature as an inner moral source” (x). Two of the three are more familiar to us as Enlightenment rationalism, that is, inwardness in its distinctively modern form, and Romanticism, which Taylor is calling expressivism. The third, “the a

rmation of everyday life,” is a version of the Protestant doctrine of the

calling or the sacralization of all forms or activities of life if done in the right spirit. Although Taylor does not emphasize it, there seems to be a kind of coherence and comprehensiveness to the three aspects of modern identity that he emphasizes. Inwardness is most intensively expressed in the modern self’s sense of being a self, separate from other selves, de ned by the inner dimension of the subject. As Taylor put it: “we can probably be con dent that on one level human beings of all times and places have shared a very similar sense of ‘me’ and ‘mine’…. [H]ere is one person and there is another” (112–113). This is universal, but “our modern notion of self is … a historically local self-interpretation which … would be opaque and perplexing to outsiders.” The universal of which Taylor speaks “is not at all the same as making ‘self’ into a noun, preceded by a de nite or inde nite article, speaking of ‘the’ self or ‘a’ self. This re ects something important which is peculiar to a modern sense of agency” (113). “There is a sense of ‘inside’ which designates the thought or desires or intentions which we hold back for ourselves, as against those we express in speech and action” (113). Expressivism is the complement, for it is the externalization of the self or of what the self has access to and the a

rmation of self-expression as a good or a moral source (Zuckert 2006, 1). The a

rmation of

everyday life, de ned by Taylor as the activities of production and reproduction, that is, the activities associated with work and family, in a sense complete the triad by identifying the sphere of life in which the inward and/or self-expressing agent acts. That is to say, activity in these everyday spheres is a

rmed as

valuable and provides agents with a sense of worth. Taylor’s task in the larger historical part of SS is to trace the emergence and development up to our time of these three facets of modern identity. To reproduce or even sketch that development is impossible in the space available here. But for a variety of reasons we ought to spend some time with Taylor’s treatment of his rst facet of modern identity—inwardness, or in its modern developed form, the detached self. His treatment of this theme is particularly revealing of his historical genealogical method, of his concern with “sources,” that is, the goods contained within this facet, and nally with his theme of selfmisinterpretation. In the strictly historical part of his explication of this theme of inwardness, he begins with a pre-inward conception of the self in Plato, sees the introduction of inwardness in Augustine, and then nds the truly signi cant modi cations of inwardness that go into modern identity in Descartes and Locke. Plato has a conception of the self (not stated as such) as the soul with reason as its potential master, so far as it is able to order the passions according to the cosmic pattern of order that it—reason—is able to discern. The source of good is not anything internal, but is rather the external or cosmic order, conformity to which is the good for the human individual. For Plato, “to be ruled by reason means to have one’s life shaped by a pre-existent rational order which one knows and loves” (124). Augustine takes the rst momentous step beyond or away from Plato. For Augustine, unlike Plato, the categories “higher/lower” correspond to “inner/outer.” The inner is higher, for it is the inner that leads to God: “the truth dwells within … and God is Truth.” Therefore, the “step to inwardness … is a step toward

God” (129, 132). The identi cation of the inner with the true self by Augustine is at one with his emphasis on the worth-producing good that is to be found within—the path back to God. The decisive step toward modern inwardness was taken by Descartes where he, building on Augustinian foundations, not only nds the inward a pathway to the moral source but actually places the moral source within us (143). Descartes’ new science and his morality are of a piece, claims Taylor (147). The aim of the Cartesian self is to know and control nature. The crucial step toward achieving those goals is the self’s disengagement from nature in order to turn it (nature) into a pure object for observation and control. Among other things, this disengagement involves stripping all spiritual qualities from nature, removing all “contamination” of nature as pure object with anything subjective. The process of disengagement leads to Descartes’ particularly strong form of dualism and leaves nature as pure mechanism, with no spiritual or teleological guidance. The process Taylor has in mind here is just what Max Weber meant by “disenchantment.” Knowledge comes to be understood as constructed, not found—a very di erent conception from either Plato or Augustine. The criteria of knowledge come from us, the knowers, in order to satisfy our criteria of clarity and distinctness (145–147). “This new notion of reason … underlay [Descartes’] ethics as well” (147). The self disengages from itself as well, treating itself as an object of control. “For Descartes, the hegemony [of reason] means … that reason controls, in the sense that it instrumentalizes the desires” (147). Unlike Plato, who posits a moral ideal of rational mastery by reason, Descartes does not posit reason’s activity in terms of the “ancient conceptions of … order…. The cosmos is no longer seen as the embodiment of meaningful order which can de ne good for us” (47–48). The Cartesian model is one of “instrumental control” (47–48). Herein lies the key move of modern inwardness. With Descartes we nd “an internalization of moral sources.” This is an important claim by Taylor for it is part of his insistence that despite appearances, the changing conceptions of self and identity are actually built upon an embrace of moral sources from which derive “the agent’s sense of his own dignity as a rational being … [in being a] mind dominating a disenchanted world of matter,” a world that includes the self’s own mechanical passions (152). Taylor sees this moral source as a “transposition inward [of] something of the spirit of the honour ethic … [W]e act to maintain our sense of worth in our own eyes” though an “ethic of rational control.” Therein we nd “sources in a sense of dignity and self-esteem,” expressed by Descartes in terms of his master virtue of generosité (152–153). Thus the Cartesian self a

rms inwardness in an especially emphatic sense for one no

longer orients toward an “attunement” to any external cosmic order, but rather to “the orders we construct according to the demands of reason’s dominance” (155).

Self-misinterpreting Animals John Locke, on Taylor’s account, develops Descartes’ disengaged self into the yet more radically disengaged entity Taylor calls the “punctual self.” He does not mean by this term that the Lockean self is always on time for its appointments, but there is a temporal implication in Taylor’s description. The punctual self is so named because in Locke’s theory the self is reduced to a mere or pure point—the “I” or ego (175). It has a temporal dimension in that, as Taylor presents it, it is pure presence, connecting Taylor’s analysis subtly with Heidegger’s view of western metaphysics’ misinterpretation of Being as presence. Taylor treats Locke and his punctual self strikingly di erently from the way he treats the myriad of other theories he discusses in the historical part of SS. Of no other thinker does he say what he says of Locke’s theory: “it richly deserves … refutation” (173). Locke’s theory of the self “su ers from a fatal aw” (49). Taylor’s stance toward Locke may appear to be paradoxical or even contradictory with the main line of his argument in SS. If human beings are self-interpreting animals, that is, if they are what they take themselves

to be, then what ground is there to “refute” Locke’s theory of what we are? The contradiction is only apparent, however, for as Taylor has it the self is only partly determined by its self-interpretation. There is, as Abbey emphasizes, an ontological structure to the self, which remains present beneath all the varying self-interpretations that have prevailed throughout human history. A theory of the self that leaves no room for this ontology is thus a misunderstanding or self-misinterpretation. Locke’s theory is Taylor’s preeminent example of such a self-misunderstanding. Locke’s theory of the self may be a misinterpretation but it has been a highly in uential one, in modern times even a dominant one (174). Much of our moral philosophy, social science, political philosophy, and political action is shaped by an underlying adherence to the misinterpretation that is the Lockean punctual self. In particular, the punctual self ties in to the phenomenon of “atomism” that has been a target of Taylor’s criticism from almost the beginning of his philosophic career. “Underlying this atomist [social] contract theory, we can see two facets of the new [Lockean] individualism” (193; 1985, 187–230). It would be not too much of an overstatement to say that one of the chief aims of SS, perhaps the chief aim, is to provide the underpinnings for Taylor’s hostility to the punctual self and the role it plays in our intellectual and social life. The punctual self, then, is a misinterpretation of the nature of the self, but it nonetheless has a great impact on us. Taylor wishes to correct the misinterpretation and thereby, it seems, improve our self-understanding and our lives. Our theory of the punctual self “pictures the self as capable in principle of a kind of total disengagement,” that is, total separation from all the particularity, engagements with the goods or hyper goods that form the basis for “strong evaluation” and identity. One could say that the punctual self is a way of viewing the self that empties it of all the elements of selfhood that lead us to equate selfhood and identity —to be a self is to be someone (173). The punctual self is a “detachable” self. “Disengagement demands that we stop simply living in the body or within our traditions or habits and, by making them objects for us, subject them to radical scrutiny and remaking” (175). Because we are self-interpreting animals the traditions and habits into which we are “thrown” are, on Taylor’s view, authentically part of us, formative of our identities. Disengaging from these is thus a form of self-alienation; turning them into pure objects from which our subjectivity is withdrawn is to inadvertently make us objects to ourselves. The aim or result of this disengagement is the idea of the possibility of radical remaking—what we are is none of the elements of tradition, habit, or of our past formation. We are, according to the theory of the punctual self, “unencumbered,” completely open to remaking. It is no accident that the notion of “the self-made man” emerges in the era of the dominance of the punctual self. All of this, thinks Taylor, is a huge mistake, a mistake with important implications for how we live our lives, and ultimately for our ability to live satisfactory lives. In particular, the false theory of the disengaged self underlies much of our liberal individualistic politics and even more the liberal political philosophy of thinkers like John Rawls, as Taylor’s student Michael Sandel purportedly demonstrated (89). One can easily misunderstand Taylor’s critique of the disengaged self, however. Even here he also emphasizes the constitutive goods that fuel this de nition of the self. It is a view of the self that contains “the ideal of rational self-responsibility (…) [h]olding the package together is an ideal of freedom or independence.” It is that ideal that “has given Locke’s outlook its tremendous in uence (…) right through to today” (174). There is a good with which the Lockean self is engaged and is constitutive for it, but it denies all engaged or constitutive goods and thus holds a drastically distorted and self-contradictory conception of itself and of selves in general.

Misinterpreting the “Misinterpretation” In concluding I wish to raise the questions whether Taylor’s conception of the punctual self is accurate and whether his critique of it and its implications is cogent. Since it is only in the context of discussing Locke that Taylor provides an extended account of the non-extended punctual self, I will take up my rst question in the context of a consideration of Taylor’s interpretation of Locke. We must begin by asking whether Locke does in fact understand the self as punctual. I think the answer has to be “only in part” and, therefore, that he does not. As is well-known (and even cited in passing by Taylor) for Locke the self or an individual’s identity is constituted via the individual’s consciousness—selfhood is not a substance per se, but a construct of consciousness. It is constituted via its consciousness of its past and its projections of itself into the future. The identity of the self is at once the concrete memories, including traditions, customs, and other such things to which Taylor appeals, and also the “I” that is continuous with and contained within the succession of conscious states and that can be projected into the future as the same self with speci c content as yet unknown. We might call these two aspects of the self “the I” and “the me.” Understanding the self like this allows Locke to understand and make sense of such things as the following statement by a character in season ve of Downton Abbey: “I am not the same person I was then.” Actually, she both is and is not the same person she was then. She was a person who could rob her employer with few qualms; she is now a person who looks with contempt on that sort of action and who believes she would never now or in the future do such a thing. So in this important moral sense, she is a di erent person. And yet, as she says, “I am not the same person I was then.” Beneath the change in herself is something fundamentally continuous—“the I,” that in her that was her then and is her now. This “I” is not the whole of her, either then or now, for the self at these two di erent points was also constituted by her goods and commitments, among other things. The Lockean self is far from radically disengaged. Locke emphasizes that the self is irrevocably and necessarily committed to its own happiness—it cannot be disengaged from those pursuits and goods it takes to constitute its happiness. Taylor of course, has picked up something actually present in Locke’s conception of the self, but it is better described as a power to suspend than as radical disengagement. The Lockean self is engaged—it has commitments—but it is capable, as the I attached above all to happiness, to rise out of and suspend (some) particular engagements and form new ones. But it has this power not by virtue of radical disengagement but precisely on the basis of the pursuit of happiness by which it is moved and to which it is attached. Locke’s point about the self is not that we are “unencumbered,” not that we do not have formative commitments, but that to some degree (unspeci ed, perhaps unspeci able) we are also able to disencumber ourselves in the sense of suspend and re-encumber. It is evident that people do change, sometimes even in their deepest commitments. The orthodox Jew became secular. The secular Muslim became a jihadist. To say we are capable of change—that is, of withdrawal from some of our identitymaking commitments—is not to say we are disengaged, just that we are disengageable. To say otherwise is to deny what seems obvious. The Lockean self may in principle be capable of withdrawing from all its encumbrances at once, but typically, of course, it does not. To do so would be an extreme “limit experience,” a crisis of the self, not business as usual. It would be an experience such as Heidegger describes when human beings, in the face of the realization of death and nitude, no longer can feel the point or the meaningfulness of what they have been committed to in their normal lives. According to Locke this power of suspension accounts for the temporal character of the human being. It is not at all pure presence, but lives as projection into the future carrying along its past and responsibility for its deeds and decisions. For Locke human being makes no sense as a mere point—a mere “now.” It also accounts for the ability to escape the determinism a

rmed by Hobbes and other early modern thinkers, and

to change over time, in some respects in self-directed ways. What Locke sees and articulates better than Taylor is the way the self is this combination of “the I” and “the me.” Taylor, partly following Heidegger

and partly objecting to what he sees to be the radically individualistic or self-centered character of the Lockean self, seems to downplay the “I” in the constitution of the self. Although SS can hardly be called a political book, it is closely related to Taylor’s well-known political concerns, such as his animus against certain forms of liberal theory and practice and his endorsement of a “politics of recognition.” As I suggested earlier, SS can be well understood as the e ort to present the infrastructure to support Taylor’s politics. Taylor makes clear, for example, that the phenomena that he associates with “ultra-liberalism” in his well-known essay “Atomism” rest on accepting “the utterly facile moral psychology [i.e. the theory of the punctual self as developed in SS] of traditional empiricism” (1985, 197). As we have seen, Taylor misapprehends the notion of the Lockean self; one can see that he also misapprehends the political implications of the Lockean self, at least as Locke understands them. “Ultraliberalism” is a point of view “holding that all choices are equally valid.” It is a “view that makes freedom of choice … absolute.” It “exalts choice as a human capacity … unconnected with any a (Taylor 1985, 197). It a

rms “self-su

rmation of worth”

ciency” in the sense that it denies that human beings “only develop

their characteristically human capacities in society” (Taylor 1985, 190–191). Such a denial has both moral and political implications of a libertarian sort of which Taylor disapproves. It may be that libertarians like Robert Nozick a

rm some version of Enlightenment empiricism or the Lockean self; but it is certain that

Locke, and, for example, the American founders who for the most part followed him, did not accept Taylor’s account of what follows from the Lockean self. Although they a

rm negative natural rights, one of Taylor’s

targets, they do not go along with the rest of Taylor’s description of them. Locke, to take the paradigm case, maintains that the self develops only in a social context, for its development depends crucially on language (Locke 1975, II 27; Zuckert 1994, 275–291.). As both his Essay on Human Understanding and his Thoughts Concerning Education show, Locke does not believe that “freedom of choice is absolute” or that choicemaking per se is the highest human power. For one, Locke, unlike Hobbes, recognizes that choice is normally limited by duties to recognize the rights of others, and to be concerned with the public good. Consider Locke’s de nition of the purpose of political power: “for the regulating and preserving of property [in Locke’s sense of life, liberty, and estate], and of employing the force of the community in the execution of such laws, and in the defense of the commonwealth from foreign injury, and all this only for the public good” (Locke 1988, 268). That is, Locke’s politics is not as narrow as Taylor usually takes it to be. Taylor tends to accept the old and unwarranted criticism of Lockean liberalism that the presence of the state of nature in his thinking is an indication of an unrealistic radically individualist (atomistic) sense of the human person. He, like Hegel and many others, misses the real point of Locke’s positing of a state of nature. Because Locke’s human beings are rights-bearers, they have a general right (or immunity) against the use of force against themselves. The state of nature is a concept that re ects that fact in that it embodies the idea that political power as the right to use force needs a special justi cation in light of the general immunity against the use of force. The state of nature is a real condition only in exceptional circumstances, and then only among highly political persons, such as monarchs of di erent nations among themselves. Impressive as Taylor’s SS is, it is still subject to the criticism that the whole is to a large degree constructed to counter a theory that is not well understood and is immoderately rejected. Nonetheless, SS is a book of great value and all serious political theorists ought to expend the not insubstantial e ort it takes to master this voluminous tone. That SS has attracted attention is evident from perusing the website devoted to a bibliography of works on Taylor (http://www3.nd.edu/~rabbey1/news.htm). However, it seems as though Sources has had its greatest impact as the work of moral theory and cultural history that it is rather than as the propaedeutic to political theory that it aspires to be. The Taylor expert—and bibliographer—Ruth Abbey, seems quite correct when she observes that SS garnered a great deal of attention when it appeared but has not had a deep impact, 1

except on a few who are particularly close students of his. Interestingly, in the years since its reception, it seems to have been taken up more by European than Anglo-American scholars. Among Anglo-American

scholars, it does not seem to have much purchase among political philosophers. Perhaps the book is too large, too diverse, too complex, too sprawling, too remote from politics and political theory to have the concentrated impact on the discipline of books like those of John Rawls. Perhaps the greatest loss for political science deriving from the less than deserved impact of Taylor’s book is its lack of success in aiding Taylor’s career-long mission to further a hermeneutical as opposed to a “scienti c” political science. (See generally Taylor 1985, and especially ch. 1.) Sources is clearly meant by Taylor to be a part of the case for an hermeneutic approach to the human sciences, and indeed it is a powerful one. But it does not appear have contributed to this project in the way we might have hoped it would. Indeed, the hermeneutical social science he worked for seems farther away today than it did when he published SS.

References Abbey, Ruth. 2000. Charles Taylor. Princeton, NJ: Princeton University Press. Google Scholar Google Preview WorldCat COPAC Locke, John. 1975. An Essay Concerning Human Understanding. Oxford: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Locke, John. 1988 [1689]. Two Treatises on Government. Ed. Peter Laslett. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Smith, Nicholas H. 2004. “Taylor and the Hermeneutic Tradition.” In Charles Taylor. edited by Ruth Abbey. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Taylor, Charles. 1985. Philosophy and the Human Sciences. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Taylor, Charles. 1989. Sources of the Self. Cambridge, MA: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Taylor, Charles. 1995. Philosophical Arguments. Cambridge, MA: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Zuckert, Michael. 1994. Natural Rights and the New Republicanism. Princeton, NJ: Princeton University Press. Google Scholar Google Preview WorldCat COPAC Zuckert, Rachel. 2006. “Expressivism and Aesthetics.” Graduate Faculty Philosophy Journal 27(2): 1–24. Google Scholar WorldCat 1

Personal conversation.

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Richard Tuck, Natural Rights Theories  Daniel Lee https://doi.org/10.1093/oxfordhb/9780198717133.013.40 Published: 10 January 2017

Abstract The chapter reconstructs the main arguments of Richard Tuck’s Natural Rights Theories in order to examine Tuck’s claim that a philosophical problem can be “solved historically” by investigating what role a concept, such as natural rights, might have played in various systems of thought. I focus especially on Tuck’s thesis that natural rights originated in the notion of dominium in medieval jurisprudence and theology, contesting the view that natural rights were a speci cally modern liberal phenomenon. I also consider Tuck’s treatment of Gerson, Grotius, Selden, Hobbes, and Locke to highlight what he regards as the ambiguous “Janus-faced” character of natural rights, represented in two separate legacies—the “conservative” theory and the “radical” theory of rights. In recovering these diverse languages of rights, Tuck underlines their historically contingent character, while also forcing us to alienate ourselves from something that is all too often taken to be immediately familiar.

Keywords: Richard Tuck, natural rights, dominium, Jean Gerson, Hugo Grotius, Thomas Hobbes, John Locke Subject: Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

The appearance of Richard Tuck’s Natural Rights Theories (NRT) in 1979 coincided with a renewed interest among academic philosophers in the concept and status of rights. Writing in the 1970s, Tuck was well aware of the prominence of rights in the research agenda of contemporary philosophy, commanding the critical attention of such philosophers as Joel Feinberg, Alan Gewirth, H. L. A. Hart, David Lyons, Samuel Sche

er,

and—perhaps most notably—John Rawls and Robert Nozick, whose privileging of rights energized a vibrant scholarly discourse variously conceptualizing rights as “side-constraints,” “trumps,” “claims,” or “correlates of duties” (Feinberg 1966; Gewirth 1981; Hart 1955; Lyons 1970; Sche

er 1976; Rawls 1971;

Nozick 1974). This renewal of interest was certainly motivated by the “Rights Revolution” of the twentieth century beginning with the Universal Declaration of Human Rights which framed political and legal discourse in the language of rights. And it was perhaps no coincidence that, with the observance of the Bicentennial of the

American Founding, there was a growing public interest in uncovering the meaning and sources for Je erson’s appeal to “certain unalienable rights” in the Declaration of Independence. The time was ripe for an investigation of rights. It should be recalled that, at the time of the book’s original publication, Tuck was o

cially an historian, not

a philosopher or political scientist. But he was an historian in a university that, beginning in the 1970s, would reimagine how historical scholarship could inform substantive problems in moral and political philosophy on a range of conceptual problems in political thought, such as political obligation and liberty. NRT was conceived in this context and o ers a model of such synthesis, showing how historical scholarship can be deployed as a tool for addressing live normative and conceptual problems in political philosophy. NRT, thus, aspires to a dual identity: While it may look like a conventional work of historical scholarship recovering (as the book’s subtitle indicates) the “origin and development” of natural rights, the book reaches beyond the narrowly antiquarian concerns of intellectual history to engage with ongoing 1

discussions about rights in contemporary philosophy. It is in this way, Tuck announces in the “Introduction,” that a philosophical problem could “be solved historically,” by investigating what “role” a concept, such as a natural right, might have played in various systems of thought, and not simply in our own (1–2). This approach, we are told, is entirely proper since all major concepts of moral and political theory, such as natural right, are fundamentally “theory-dependent” (2). What the historical approach provides is a richer understanding not only of the concept of right, but also (to use Ronald Dworkin’s famous distinction) the many possible conceptions of right. This chapter will highlight several of the key parts of Tuck’s book to show how he accomplishes this, as well as comment on the legacy of Tuck’s landmark study.

The Languages of Natural Rights Tuck’s investigation is on the concept of “natural rights,” but he observes at the outset that a large part of the problem in understanding the history of rights in the West really is semantic. In surveying a period of about four centuries, Tuck thinks it is useless to try to nd one unique word or term signifying such a concept uniformly over time. Words change meaning. They can signify multiple, sometimes contradictory, ideas. We must be prepared, therefore, to segregate a concept from the words (whether English or otherwise) used to denote it. Tuck’s purpose in raising this point is to cast doubt on the conventional wisdom that the concept of natural rights originates in the notion of ius naturale, what conventionally has been treated as the closest approximate cognate in medieval Latin, the language of jurisprudence and philosophy in the Middle Ages. What he wants to avoid, above all, is o ering a “historical lexicography” of the term, ius naturale, because it was by no means clear that this locution always corresponded to the modern concept of “natural right” as an active power or capacity of a subject to do something (1; cf. Straumann 2015, 164). As Tuck judiciously comments, “it is not to be expected that in the course of such a long history the meanings of even central 2

terms should be at all stable,” perhaps the most important methodological insight of Tuck’s book (7). What we nd at the start of Tuck’s study is a re ection on an unavoidable semantic di

culty in the early

language of rights, where ius was originally taken to mean “law,” rather than “right,” as it was for early modern theorists—as a binding or limiting force, rather than an empowering or enabling force. Like its cognates in other Continental languages such as the French droit, the German Recht, and the Italian diritto, the Latin ius indicated not so much a “subjective” concept of an “active” right, but rather, an “objective” or impersonal concept of right suggesting a sense of equity, fairness, or moral uprightness—the law as it ideally should be. Thus, the rst rubric of Justinian’s Digest contains the famous statement of the Roman jurist, Celsus, that ius est ars boni et aequi and that ius is derived from iustitia. In this classical context, there is no obvious hint that ius should be understood as something belonging to a particular agent, and, indeed,

for this reason, it is suggested that there is no reliable evidence to suggest that the ancients even had a concept of subjective right (12). In sketching this linguistic instability in the early language of rights, Tuck appeals to the important scholarship of the French legal historian, Michel Villey, who is credited with underlining this incompatibility between two ways of conceptualizing a right (ius)—either as a “subjective right” or as an “objective right” (7–8, citing inter alia  Villey 1968). Villey points out that the term, ius, was relatively uncomplicated in Roman discourse, signifying simply “that which is just” or lawful. But what is apparent to Villey (and Tuck) is that, at some point, the meaning of ius (and, thus, ius naturale) underwent a radical semantic shift, from an objective concept to an explicitly subjective concept of right as an active power or capacity of some subject—a “moral faculty annexed to the person” as Grotius would put it, or simply a “Liberty” as Hobbes would put it (Grotius 1.1.4; Hobbes 1651, 64).

Ius as Dominium When and why does this shift take place? Some have suggested that the doctrine of natural rights is distinctively a “modern” phenomenon and, thus, locate its origins in the thought of a modern theorist, such as Hobbes (Strauss 1953). But for Tuck, the relevant conceptual change begins to take place centuries earlier in the Middle Ages speci cally with the revival of Roman law in twelfth-century Bologna (a claim that has attracted criticism, most notably by Brian Tierney 1997). The crucial move, as Tuck argues, was the direct linkage established by the Italian “Glossators” of Roman law (so called because their commentaries were written in the form of “glosses” on Roman lawbooks) between the concept of ius and the concept of dominium, two terms that traditionally remained segregated from each other in classical Roman law. Tuck cites the Bolognese Glossator, Irnerius, in stressing the important semantic shift away from classical law that had already started to take place among the eleventh-century jurists: “Dominium is a kind of ius” (13). So, for Tuck, dominium—not ius—must be seen as key in explaining the origins of natural rights in the Latin Middle Ages. This was, at once, a stunningly original, yet also a controversial, thesis. In classical Roman law, dominium speci cally signi ed property ownership. It was, as Tuck puts it, “man’s total control over his physical world—his land, his slaves, or his money” (10). But it is not clear, at least at rst glance, how one proceeds from a concept of ownership to a concept of right. Tuck tries to explain this in terms of the function of dominium in property disputes between parties asserting competing claims over the same object of property, whether land or movables. In principle, there must be an ultimate terminus to such litigation, and that theoretical terminus is to be established by judging who has dominium. To have dominium over some object of property entitles the dominus to assert the legal action of recovery, the vindicatio, enabling recovery of one’s property but also excluding all other potential claimants from asserting a competing claim on “possessory” or “usufructuary” grounds. Even though Roman jurists may have had a primitive notion 3

resembling what might be called a “property right,” they avoided using the term, ius, to signify it. It is only in the Middle Ages that jurists begin treating proprietary dominium explicitly as a ius, a critically important move which infuses the medieval understanding of ius with the classical legal notion of protecting or recovering one’s own by actively laying a claim (vindicans). But by showing how the legal concept of dominium transforms the meaning of ius, Tuck highlights the increasing moral ambiguity of the term, ius, in post-classical thought. Dominium, as Tuck argued, was a morally neutral term which, as the jurist Paul declares in the Digest, could even mean the arbitrary “power” (potestas) of a “master” (dominus) over a slave (in persona servi) (D.50.16.215). It lacked the moral quality of equity or fairness entailed by ius. To speak, then, of dominium in terms of ius opens a worrisome possibility that the language of “right” might be deployed in a morally vacuous way.

Dominium and Natural Right in Scholastic Thought Dominium, which is vital to Tuck’s thesis, has been described as a “portmanteau concept,” with distinct meanings in medieval Roman law, theology, and feudal custom (Lahey 2003, 24). One question to ask is whether the same concept of dominium is operating in all of these di erent discursive contexts. Tuck deliberately avoids answering this question directly, in part because he is trying to highlight overlapping connections between medieval legal thought and scholastic theology. The theologians, Tuck argues, “began to exploit the [legal] terminology for their own purposes” (17). While he is right to show the overlap between these di erent legal and theological discursive contexts, it is important to stress that, despite the common appeal to the concept, dominium is nevertheless treated in di erent ways in these di erent contexts. A case in point was the poverty debate which raged between the Papacy and the Franciscan Order in the fourteenth century. As Tuck shows, the Franciscans who defended their life of apostolic poverty used the juridical distinction between dominium and “use” to make the point that they could use or consume material goods without technically owning them, as a simple “usuary.” But unlike the Romans, medieval critics of the Franciscan doctrine, such as John XXII, were willing to admit that even the bare factual use of some material good could also entail a kind of dominium over it, a claim totally alien to classical jurisprudence (cp. Feenstra 1989; Garnsey, 2007). Tuck’s argument relies on a seamless assimilation between Roman law and scholastic theology, as if dominium in the one context was the same as dominium in the other. But they are not the same—a point that has been important in more recent criticisms of Tuck’s analysis (Brett 1997; Tierney 1997). This is vitally important for Tuck’s overall project. For jurists, dominium belonged strictly within the boundaries of a state. There was, consequently, no such thing as a natural dominium. But for theologians, who saw God as the supreme dominus over all of Creation, dominium was not exclusive to the civil life of the civitas, but to be found even in nature. The notion of such a natural dominium would become crucially important for Tuck’s argument: If something like dominium exists by nature, and dominium is understood to be a ius in the sense of an actionable right (like a property right), it follows then that there must be, in principle, a ius naturale, just as there is a dominium naturale. It is worth stressing that, despite appearances, this is not a Roman law argument, but a scholastic one. What would such a putative “natural right” entail? The earliest discussions of the issue focused primarily on questions of property. This was, indeed, the heart of Ockham’s reply to the John XXII in his Opus Nonaginta Dierum: Even members of mendicant orders such as the Franciscans who eschew legal dominium in earthly goods nevertheless have the natural “right of using” (ius utendi) goods. But the major transformation, Tuck argues, was introduced by scholastic theorists who widened the scope of natural right beyond the narrow con nes of proprietary dominium, a critical move attributed above all to the nominalist theologian, Jean Gerson (25). Gerson (1363–1429), chancellor of the University of Paris and one of the leading partisans of the Conciliar movement, emerges as one of the champions of Tuck’s narrative, for it was he who “really created the theory” of natural rights (25). And this was chie y because he decisively steered the analysis of ius away from the insular medieval discourses on dominium and recast the idea of natural right generally in terms of one’s subjective capacity (facultas) or even the open-ended power (potestas) to do something. As Tuck observes, the term, facultas, was closely aligned with the classical legal concept of liberty, libertas, which allowed Gerson “to assimilate ius and libertas,” in a recognizably modern sense (26). One of Tuck’s great achievements is to show that Hobbes’ famous assertion that “Jus Naturale, is the Liberty each man hath, to use his own power, as he will himself” had already developed centuries before the publication of Leviathan (Hobbes 1651, 64).

The most innovative feature in Gerson’s theory was also the most controversial. Gerson combined ius and libertas together, but he did so in a way that classical law could not allow. In classical legal thought, liberty, as Tuck points out, was a pre-civil, natural, even amoral, condition characterized precisely by the absence or lack of a binding ius: One could either enjoy libertas without ius, or the bene ts of ius, but not both at the same time, since that would be logically impossible (cp. D.1.5.4). But whereas the operation of ius in classical law was strictly prohibitive and restricting liberty, it was, for Gerson, maximally permissive and expanding liberty. The natural default was the natural condition of liberty which empowered humans naturally with rights (iura). One immediate implication of Gerson’s theory is that any subjection—whether it is subjection under the private power of a master or subjection under the public power of a state—must be understood as a departure from this original natural liberty. This radically subjective “Gersonian theory” of natural right as maximal liberty became the basic model for all later theorists of natural right. To be sure, not everybody accepted this theory, least of all the early Spanish neoscholastic theorists of the sixteenth century who treated the emerging subjective notion of ius naturale with suspicion and de ned their teachings on ius naturale partly in opposition to Gerson (cf. Figgis 1907; Brett 1997; Höp 2004). Tuck observes that the neoscholastic theologians, commenting on Aquinas, revived an objective concept of ius, such that, instead of interpreting ius in the Gersonian manner as one’s liberty or faculty to do something, ius came to mean instead simply “that which is just” (quod est iustum), a de nition proposed by Domingo de Soto (46). So, whereas the Gersonian theory of ius naturale was maximally permissive, the neoscholastic theory was, by contrast, fundamentally prohibitive, designed to align human action with the requirements of justice. On the neoscholastic view, then, a person was naturally prohibited from performing certain acts, such as self-enslavement: It is impermissible and o ensive to ius naturale for one to subject—indeed, “enslave”—oneself voluntarily under the dominium of another. But even in this scheme, it was, nevertheless, possible to carve out a conceptual space for at least a limited notion of natural right, by specifying what is implicitly “permitted” or “allowed” by natural law. Here, then, is an important point of intersection between natural right and the related (though distinct) natural law tradition, a distinction that is di

cult to detect. Tuck does not highlight this important point as clearly

as he might, but it is worth stressing that natural law, in the objective sense, operated not only in a restrictive or prohibitive manner by forbidding certain acts (such as self-enslavement), but also in a permissive manner by providing a right to act grounded in the law of nature (such as the right to acquire property) (Tierney 2004, 8). This notion of “permissive natural law”—as Brian Tierney has shown—plays a fundamental role in the development of liberalism, in the thought of its most important theorists such as Locke and Kant (Tierney 2014). But even among neoscholastic theorists, the treatment of iura naturalia as “nested” within the implicit permissions of an objective natural law ultimately proved unacceptable to writers who continued to see a ius as a “dispositional characteristic” belonging to some agent (53). Tuck locates this shift in Jesuit thought emerging as a major intellectual force in the Counter-Reformation of the later sixteenth century. Motivated by the moral questions raised by the growing slave trade and especially the discovery of the Americas, Jesuits, such as Lessius and Molina, not only revived the Gersonian theory of rights, but crafted a morally ambiguous picture of the free, rights-holding individual in nature, one which could potentially serve as a “defence of absolutism” (56). Pointing to Francisco Suarez’s in uential treatise, De legibus ac Deo legislatore, Tuck explains the key innovation. A free person has dominium by nature, but this natural right of dominium extends re exively even over themselves and the very liberty that such a person enjoys—not unlike the modern Nozickean theory of self-ownership. Since a free person “owns” himself and his liberty, it follows that, by the natural right of dominium, a person is at liberty to sell or alienate that liberty, just as any other object of property. Most remarkably, the same argument applies to a free people with dominium over their state: Since a free people “owns” their state and its sovereignty, they are at liberty to sell or

alienate their popular liberty. It is an idea that would become vital to all the major early modern rights theorists—above all, Hugo Grotius.

Grotius The star of Tuck’s story is the Dutch jurist and philosopher, Hugo Grotius (1583–1645) who was, as John Neville Figgis once argued, not only the intellectual heir to these scholastic antecedents, but also the progenitor of two distinct traditions of natural rights theory (Figgis 1907). He was, as Tuck puts it, “both the rst conservative rights theorist in Protestant Europe and also, in a sense, the rst radical rights theorist” (71). It was precisely this dual identity that made Grotius’ theory the pivot point in the evolution of natural rights theories. One of the most outstanding features of Tuck’s study is his treatment not only of Grotius’ most important work, the De Jure Belli ac Pacis, that rightly deserves canonical status and rmly establishes Grotius’ place as the “father of international law,” but also of less familiar texts, to o er a richer account showing points of connection that otherwise might not be so easily visible. One such text is the De Jure Praedae, which Grotius wrote in his capacity as a lawyer for the Dutch East India Company to argue the legality of his client’s seizure of treasure from a foreign vessel captured on the open seas. His engagement with issues of international law in De Jure Praedae framed his original investigation into the matter of natural right. If we know what is legally permissible as “right” among men in nature, we should likewise know what is legally permissible as “right” among states which are in a similar state of nature—including the “right” of war. Perhaps the most distinctively Grotian natural right is what Locke would later call “a very strange Doctrin”—that is, the natural right of punishment which, in Grotius’ view, belongs naturally to all persons (Locke 1689, 226 (= II, §9)). Punishment plays a crucial role in Tuck’s analysis since it was precisely this right—once held and exercised by pre-social individuals in a primitive state of nature, a putative world without states—that sovereign states now exercise exclusively over subjects. As Tuck put it, “the state possessed no rights which those individuals [in nature] had not formerly possessed” (63). For Grotius, then, state sovereignty is entirely reducible and traceable to individual natural rights. There is to be, in principle, a perfect correspondence between the natural rights of individuals, on the one hand, and the sovereign powers of the state, on the other. But humans, of course, held a wide range of natural rights, beyond the right of punishment—perhaps most prominent among them being the right of property and the right of self-defense. Which of these natural rights would have to be surrendered and “alienated” in order to form a sovereign state? It is a question that is probably more often associated with the social contract tradition, but as Tuck shows, in intricate detail, it is really Grotius who begins this line of thought. Grotius does not conclusively answer this question. Instead, Grotius o ers a range of possibilities, each of which yields divergent accounts of the scope of state authority. For example, in the Inleidinghe tot de Hollandsche Rechts-gheleertheydt, a work which remains relatively obscure outside the domain of RomanDutch law and whose “importance in general political theory and in the genesis of the De Iure Belli has only rarely been recognised,” Grotius insists that certain rights are “inalienable” and cannot be surrendered, even if an agent wanted to do so (66). Grotius’ strict position here on inalienable rights rmly rules out the possibility that a free person might, of his own free will, sell himself into slavery and voluntarily place himself under the full jurisdiction and power of another. Since, on this theory, certain rights are inalienable and held in reserve, no public authority is ever entitled to exercise an absolute power. All this changes, however, in the mature theory of natural rights articulated in the De Jure Belli ac Pacis. Here, Grotius allows that, in theory, all rights can be alienated, as in any type of commercial transaction, so that a

free rights-holding individual could, if he so wished, voluntarily enslave himself under the power of an absolute master, even an absolute prince. What is crucial to note, however, is that this extreme case of full alienation of rights and self-enslavement represents only an extreme theoretical possibility. While it is entirely within the natural right of all free and independent (sui iuris) peoples “to deliver up [addicere] themselves to any one or more persons, and transfer the Right of governing [regendi ius] them upon him or them, without recovering any Share of that Right to themselves,” this does not mean that all people in a state actually did have to give up their rights and voluntarily enslave themselves to an absolute sovereign (78, citing Grotius 1.3.8, §§1–2; cf. Lee 2011, 381–386). It is entirely possible, on Grotius’ theory, that people merely surrendered only select rights in constituting the state, while reserving others, such as the right of self-defense, for themselves. Which view is correct? Was it necessary for all natural rights to be given up in forming the state, or were some held in reserve, so as to be reactivated at some later date? The interpretive disagreement underscores the “Janus-faced” legacy of Grotius’ theory which, at once, speaks the language of both liberalism and absolutism (79). It establishes the ideological boundary separating the two rival theories of natural rights, and the corresponding theories of public authority, in early modern Europe. On the one side were what Tuck calls the “conservative rights theorists” who not only accepted the moral permissibility of voluntary selfenslavement but also treated such alienation as the justi catory basis for political absolutism. Natural rights, on this view, were precisely what empowers the full sovereignty of the state. On the other side, however, were the “radical rights theorists” who argued that no rational person would ever voluntarily surrender all their rights as the conservative theorists conjecture. As Tuck puts it, “interpretive charity requires that we assume that all [natural rights] were not in fact renounced,” even if, as a modal possibility, “all our rights could be renounced” in principle (80, citing Quine 1960, 59). Since at least some rights must be understood as having been reserved in the original constitution of the state, these radical theorists suggest that, even while under the jurisdiction of the state, individuals retain a right of resistance and selfdefense.

The “Conservative” and “Radical” Rights Theorists Much of Tuck’s book is designed to investigate the various ways these rival theories were developed in seventeenth-century England, which was “the scene of all the important developments” in the theory of natural rights after Grotius. It is in this ideologically volatile context that perhaps the most well-known early modern theorists of natural rights, Thomas Hobbes and especially John Locke (whom Tuck calls “the most faithfully Grotian” theorist of the period, 173) emerge, but he also shows in meticulous detail how Grotian rights were reinterpreted and deployed by later writers for very di erent ideological purposes. The most outstanding representative of the conservative theory is the English legal historian and antiquarian, John Selden (1584–1654). In Selden’s writings, Tuck found the chief conduit for Grotius’ theory of natural rights in England, but there were important di erences between the two. One concerned the troublesome notion of natural law. Grotius accepted that, even in nature, there must be at least one minimal law of nature binding pre-social free individuals in a state of nature—that is, the law enjoining “sociability.” Selden, however, took issue with this. If individuals in nature are truly to be free in the use of their rights, and if the very purpose of law is to restrict liberty, it follows that there must be no such thing as a natural law at least in the sense that Grotius understood it, as a “dictate of right reason” enjoining humans to act in a manner prescribed by reason. Selden’s vision of nature, thus, is a fundamentally lawless one of “complete freedom,” wherein people are absolutely free, in theory, to do whatever they please (90). This Seldenian interpretation of nature as absolute liberty and even “complete amorality” raised a number of related problems, some of which became especially important for later writers, identi ed by Tuck as the

“Tew Circle” theorists (Oxford intellectuals of an absolutist bent who routinely gathered at nearby Great Tew), in uenced by Selden (104; Tuck 1993, 272–278). One issue concerned the motivation for surrendering such liberty: Why would anybody want to give up the very rights of nature constitutive of their liberty? The conservative strategy required painting a picture of nature so horrifying that, only by the surrender of rights, would it be possible, as the Tew theorist Dudley Digges put it, to “obtaine a more excellent good, the bene t of Peace and Society,” which “in probability” would be far preferable to a life of liberty (104). Hobbes, of course, would craft a similar line of reasoning in explaining the relative advantages of the commonwealth to the anarchy of nature, but it is worth stressing that Hobbes’ interpretation of the “natural condition of mankind” was “much less frightening” than the Seldenian version (125). But there is one important di erence that sets the Seldenian conservatives apart from both Grotius and Hobbes, and that concerns their treatment of the device by which individuals quit their original liberty— that is, contract. Like laws, contracts are binding devices: They restrict liberty by requiring of parties to the contract performance of some prescribed act. But unlike laws which are imposed from above, contracts are self-imposed: Anybody is free to give up some share of his native liberty and voluntarily enter into a contract. The most important point to underscore, however, is that all contracts—even bad contracts—are always binding and must be kept. What would be the motivation for performing contractual obligations, especially when rational self-interest dictates breaking one’s contracts? Selden’s answer is punishment, a response of immense importance for several reasons. It shows, rst, that an obligation (whether legal or contractual) has force only because its violation is attached to a correlative punishment of some kind. Without fear of such prospective punishment, there can be no e ective obligation, and so it is essential to all contracts that there be some mechanism to execute punishments to ensure their faithful performance. But punishment, for Selden, is ultimately divine. Vengeance belongs to God alone, and it is only from God, never from humans, that states, acting as God’s agent, derive their coercive powers of punishment. In tracing the binding force of obligations ultimately to God’s divine right of punishment, the Seldenians repudiate one of the pillars of Grotius’ theory, the notion that punishment was originally a natural right of all humans. Here’s the problem: If it is true that humans have no natural right to punish, then what exactly did free individuals in a Seldenian state of nature agree to surrender by their contract? It must be some other right, and, as Tuck shows, it is the natural right of self-defense which must be surrendered by contract. What emerges from this is “a completely brutal and illiberal doctrine” wherein the state becomes God’s exclusive agent of punishment to enforce performance of contracts (100). Since people, on this theory, have surrendered their right of self-defense, any act of private resistance, even for self-defense reasons, can be seen as breaking a contract, an act which must, in this strictly retributivist theory, be punishable by the state. What is most notable is that Hobbes—often seen as the quintessential “absolutist”—begins with similar premises concerning natural rights and original liberty, but actually turns out to be, in comparison to the Seldenian theorists, a more moderate and even “more liberal theorist” than one might expect. The reason for this, in Tuck’s view, is that Hobbes deliberately distances himself from the Seldenian thought that the right of self-defense must be surrendered away (124). On the contrary, the right of self-defense is the one right that cannot be alienated even to a sovereign, a point that becomes clear in the De Cive and especially in Leviathan. Unlike the Seldenians, Hobbes understood natural rights as instrumental toward the ultimate aim of securing one’s own self-preservation. It would be contrary to reason for one to surrender the very right which most directly “conduces” to self-preservation. The Seldenian theories, it must be remembered, emerged in the ideological context of the English Civil War and were deployed in active defense of the monarchy to combat ideas of resistance and popular sovereignty developed by Parliamentarians such as Henry Parker, while sharing with them the same starting premise of

natural right. But what Tuck reminds us is that natural rights theory by no means had to result in the sort of absolutist nightmare envisaged by the conservative rights theorists. To explain why, Tuck returns to Grotius’ principle that, even though all natural rights could theoretically have been alienated, “interpretive charity” requires us to assume that they were in fact not. This line of reasoning was foundational to a rival “radical” theory of natural rights that was associated with Parliamentarians such as Henry Parker who suggested that, in any contractual transaction involving the rights of the people and the powers of the civil authority, it is only reasonable that a free people would have always “reserved rights to itself” (146), as if they were inalienable. Any monarch, or any civil magistrate, could, therefore, never be absolute in its power, but rather, should be seen in duciary terms of a legal trust which, if forfeited, could potentially activate the dormant rights of the injured party, including potentially the collective rights of a people. Natural rights, on this view, operate by limiting public power and, in extremis, activating a collective right of resistance in the community which are always thought to be held in reserve, an argument of central importance to the Levellers and, above all, to Locke.

Appraising Natural Rights Taken together, Tuck’s historical inquiry allows a critical appraisal of natural rights theory, especially on two points—the alleged modernity of natural rights and their supposedly liberal credentials. When NRT was rst published, it was commonplace for commentators to treat rights, in general, as a distinctively “modern” phenomenon, a product of Western capitalist-industrialist societies constructed upon a rational egoistic picture of the self, which one scholar famously dubbed “possessive individualism” (Macpherson 1962). Kenneth Minogue, for example, asserted in an essay contemporaneous with Tuck’s book that rights are “as modern as the internal combustion engine” (Minogue 1979, 3). Others famously pressed this point even further, suggesting the “modern” discourse on rights had displaced an earlier, more attractive, ethical system grounded in the pursuit of virtues, rather than the assertion of rights (McIntyre 1984, 69). Tuck’s recovery of systematic treatments of natural rights in medieval sources of jurisprudence and theology casts signi cant doubts on this conventional wisdom. But if Tuck has shown critical points of continuity between medieval and modern natural rights theorists, he has also, at the same time, exposed signi cant points of discontinuity underlining what he sees as the fundamentally “ambiguous character of a natural rights theory” (57). Indeed, NRT is often treated as a work tracing the origins of modern rights discourse and, more generally, the foundations of a liberal politics grounded on a robust notion of individual rights. While the historical reconstruction remains valuable to historians of political thought, what makes Tuck’s work so in uential for theorists, even far outside the literature on rights, is his ambitious attempt to recover and assess the many unfamiliar “languages” of rights, whether in Roman law dominium, Gersonian libertas, or Grotian potestas as a postulate of sociability. The diversity of such languages underlines the historically contingent character of rights, that it was by no means inevitable or necessary that rights should have historically become synonymous with liberal modernity. Above all, Tuck’s analysis makes possible, through diachronic comparison, to see the multiply incompatible ways in which 4

rights might be conceptualized. The purpose of all this, I think, is a simple but important one: Only by alienating ourselves from something we take to be immediately familiar, as part of “our” discursive universe, can we understand more completely its moral possibilities. Thus, we can place into context perhaps the most unsettling result of NRT, Tuck’s suggestion that the core logic of natural rights by no means results in a liberal regime of Lockean property rights and limited government, but potentially concludes in a sinister defense of absolutism as in the Tew Circle Seldenians. But this surely does not mean we have to reject natural rights. Indeed, part of their value is that they point to a pre-institutional moral order as a tool to gauge and expose institutionalized injustices, by showing how

even legal acts of state can involve rights violations, and this is perhaps why it remains so attractive to contemporary moral and political philosophers. What Tuck teaches us is that there has historically been no one proper way to visualize what such a moral order should look like. So long as this moral disagreement and even skepticism on rights continues, history must play a central role in the task of understanding the place and function of rights.

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Macpherson, C. B. 1962. The Political Theory of Possessive Individualism: Hobbes to Locke. Oxford: Clarendon Press. Google Scholar Google Preview WorldCat COPAC McIntyre, Alasdair. 1984. A er Virtue: A Study in Moral Theory. Notre Dame: University of Notre Dame Press. Google Scholar Google Preview WorldCat COPAC Minogue, Kenneth. 1979. “The History of the Idea of Human Rights.” In The Human Rights Reader, edited by Walter Laqueur and Barry Rubin. New York: Temple University Press. Google Scholar Google Preview WorldCat COPAC Nozick, Robert. 1974. Anarchy, State, and Utopia. New York: Basic Books. Google Scholar Google Preview WorldCat COPAC Quine, W.V.O. 1960. Word and Object. Cambridge: MIT Press. Google Scholar Google Preview WorldCat COPAC Rawls, John. 1971. A Theory of Justice. Cambridge: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Sche ler, Samuel. 1976. “Natural Rights, Equality, and the Minimal State.” Canadian Journal of Philosophy 6(1): 59. Google Scholar WorldCat Straumann, Benjamin. 2015. Roman Law in the State of Nature: The Classical Foundations of Hugo Grotiusʼ Natural Law. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Strauss, Leo. 1953. Natural Right and History. Chicago: University of Chicago Press. Google Scholar Google Preview WorldCat COPAC Tierney, Brian. 1997. The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law, 1150-1625. Atlanta: Scholars Press. Google Scholar Google Preview WorldCat COPAC Tierney, Brian. 2004. “The Idea of Natural Rights: Origins and Persistence.” Northwestern Journal of International Human Rights 2(1): 2. Google Scholar WorldCat Tierney, Brian. 2014. Liberty and Law: The Idea of Permissive Natural Law, 1100–1800. Washington: Catholic University Press. Google Scholar Google Preview WorldCat COPAC Tuck, Richard. 1979. Natural Rights Theories: Their Origin and Development. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Tuck, Richard. 1993. Philosophy and Government, 1572–1651. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Villey, Michel. 1968. La Formation de la Pensée Juridique Moderne. Paris: Montchrétien. Google Scholar Google Preview WorldCat COPAC

Notes 1

One “disappointed” early critic of the book laments that, although Tuck promises to “shed light on problems in contemporary political philosophy … he does not state what these problems are, nor does he ever return to the issue in the body of his book.” Golding 1982, 157.

2

For example, in the Digest of Roman law, the third-century Roman jurisconsult, Ulpian, defines ius naturale as “natural law”—“that which nature has taught to all animals” (D.1.1.1.3; Inst.1.2.pr).

3

Romans preferred to speak in the more technical juridical language of legal remedies, or “actions.” By treating dominium as a kind of ius, Tuck argues that jurists framed the earliest recognizable theories of rights explicitly within the juridical language of property and, specifically, in terms of the various legal actions and remedies in classical law designed to protect oneʼs claim of dominium. One exception might be D.6.1.17.

4

In this respect, there is no fundamental di erence between Tuck and, say, Hohfeld, in that both are trying to catalogue various conceptions of rights.

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Jeremy Waldron, Law and Disagreement  Melissa Schwartzberg https://doi.org/10.1093/oxfordhb/9780198717133.013.6 Published: 10 August 2017

Abstract Jeremy Waldron’s Law and Disagreement (1999) is a landmark work in jurisprudence and in democratic theory. In retrospect, it also constitutes an intervention into a methodological debate over the aims of political theory, defending the study of institutions over work attending to the ends and ideals of a good society. A crucial insight of LD is the value of equal respect for the judgment of citizens and of legislatures. By entrenching rights in constitutions, and by shifting interpretive authority to courts via judicial review, framers and judges assert moral and epistemic priority over elected representatives and citizens. This priority is unwarranted, given the ineliminable character of political disagreement, and may entail a form of disrespect. Yet Waldron himself provides a sanitized account of legislatures, one that may prevent LD from fully realizing his vision of political political theory.

Keywords: judicial review, legislatures, democratic theory, jurisprudence, equal respect, disagreement, rights Subject: Politics and Law, Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

In the published version of his inaugural lecture for the Chichele Professorship of Social and Political Theory at Oxford, Jeremy Waldron argues on behalf of what he terms “political political theory” (Waldron 2013). By “political political theory,” he means that political theory should shift its focus to political institutions and matters pertaining to constitutional structures. It should move away from what Waldron perceives as the excessive focus on questions of the “ends of life” and the nature of justice, and in general the view of political philosophy as applied moral philosophy (as Isaiah Berlin, a previous occupant of the Chichele chair, described as its proper scope). Waldron a

rms that political theory would “[lose] nothing” if it were taught

“from start to nish in a way that focuses on questions about institutions, structures, and processes,” and in a way that is both receptive to the insights of, and intelligible by, our empirical colleagues. “We are political theorists, not poets,” he gently chides us (Waldron 2013, 21). Although the momentous occasion of the Chichele lecture gave these arguments a particular salience, Waldron makes a similar set of methodological claims in Law and Disagreement (LD). In a footnote on the

very rst page, Waldron defends his decision to use the masculine pronoun so as to avoid “false gender neutrality” (in Susan Okin’s words), suggesting that men especially predominate in political philosophical work in the mode of “I-expect-you’d-all-like-to-know-what-I-would-do-if-I-ruled-the-world” (1, fn 2). Such work ourished after John Rawls published A Theory of Justice, analyzing the fair terms of social cooperation, the core principles of justice, and so forth. These matters, Waldron suggests, constitute one task of political theory; the second constitutes “theorizing about politics” (3). Instead of asking about the implications of Rawls’ theory of justice for democratic and constitutional procedures, Waldron argues, we must ask: “‘What are we to think about democratic and constitutional procedures, given that such procedures have to accommodate a politics for those who di er fundamentally about whether theories like Rawls’ are correct?’” (3). 1

As Waldron acknowledges in the Chichele lecture, this is a greater problem in Oxford than in New York. For instance, the eld of democratic theory is largely occupied by political political theory, particularly work on representation, which encompasses not only traditional questions about the relationship between legislators and citizens, but the protection of minority rights and the design of institutions to accommodate group diversity. Though the literature on deliberative democracy, particularly in its public-reason mode, shares some of the liabilities Waldron identi es with Rawlsian scholarship, contemporary scholarship attractively tends to focus on the optimal design of deliberative institutions. So one way to read LD is as a local intervention into two debates, which we can stylize as residing in Oxford on the one hand, and New York on the other. The late legal philosopher Ronald Dworkin, a main target of Waldron’s critiques, straddled the divide between Oxford, where he was Chair of Jurisprudence (before the move to University College London (UCL)) and New York University (NYU). Although Rawls’ in uence was and is everywhere, Waldron himself characterizes the applied moral philosophy mode of theorizing as particularly British. In contrast, we can stylize the interventions into debates about judicial review and the logic of constitutional precommitment as “American-style,” while noting that the debate with Dworkin over a Bill of Rights for Britain shaped the discussions of Chapter 12, “Disagreement and Precommitment.” The central objection to what Waldron characterized as “Oxford-style political theory,” and to Rawls and his followers in particular, is the problem with using the idea of reasonableness to foreclose disagreement. In particular, Waldron emphasizes the limitations associated with the idea of a well-ordered society, in which “everyone accepts, and knows that everyone accepts, the very same principles of justice …” (Rawls 1993, 35; Waldron, 106, fn. 52) In identifying those who disagree with the fundamental elements of the account of justice—perhaps the core principles agreed upon in the original position—as by de nition unreasonable, Rawls’ model fails to convey respect for the judgment of citizens. Here I will largely set these aside, and focus not on Oxford, but on New York: in particular, on Waldron’s own political political theory, and how it developed in LD.

Equality and Majority Rule The stylized empirical fact that Waldron takes as the premise of LD is that, to paraphrase Whitman, we contain multitudes, and we contradict ourselves—that is, we disagree among ourselves about fundamental matters of justice, all the way down, and about derivative policy issues all the way up. These are the “circumstances of politics.” Rather than either presupposing the existence of a consensus supported by reasonable citizens, or designing institutions to encourage us to reach agreement, Waldron argues that disagreement is an ineliminable and even attractive hallmark of democratic communities. But if we cannot appeal to shared background norms of justice or to broad societal consensus in creating either fundamental political institutions or policy, on what basis should we make decisions?

Waldron asserts that we should do so on equal terms, and in so doing, we demonstrate our respect for citizens’ judgments: in Waldron’s language, “according equal weight or equal potential decisiveness to individual votes is a way of respecting persons” (114). In more recent work, Waldron explores the foundations of equality: the theological foundations of Locke’s egalitarianism (2002), and the importance of equal status, understood as dignity (2012). In LD, the distribuendum is less straightforward. It is clear that respect for persons should be distributed equally, but the way that should be made institutionally manifest is left intentionally opaque: after all, we may disagree about how to cash out equal respect. Because of this, Waldron suggests the best we can do is distribute equally the decisional weight for judgment, though he is at pains to emphasize that equal respect for persons does not demand equal weight via majority rule (115). Dworkin, a primary foil, dismissed out of hand the idea that we might want equality of in uence: “we want those with better views or who can argue more cogently to have more in uence” (Dworkin 1996, 27). Moreover, Dworkin argued that we should wish to situate ultimate authority to answer fundamental questions of principle with the institutional body most capable of rendering decisions that track political morality. When a decision fails to re ect “equal concern” for its members, there is no cost and only bene t for democracy in enabling a court to strike it down. Waldron systematically dismantles such a view, demonstrating convincingly that there is a “theoretical connection between respect for people’s rights and respect for their capacities as political participators” (295). Respect, in Waldron’s view, “has to do with how we treat each other’s beliefs about justice in circumstances where none of them is self-certifying” (111). Waldron takes up at length the question of moral realism, which he deems “irrelevant”: because the “objective values fail to disclose themselves in our consciences or from the skies, in ways that leave no room for further disagreement about their character, all we have on earth are opinions or beliefs about objective values” (111). Moreover, either moral realism is true, and judges’ and legislators’ beliefs matter; or moral realism is false, and judges’ and legislators’ attitudes con ict, but what we cannot accept is that judges’ beliefs con ict with legislators’ attitudes (184). So we might plausibly derive a model from Waldron in which legislators and judges—and perhaps ordinary citizens—all form judgments. Democracy requires that, in rendering collective decisions, we treat these agents with respect, perhaps as members with equal standing or dignity, and to do so we regard their judgments as worthy of equal weight. Majority rule is uniquely respectful as a decision rule in this regard. Other scholars, it should be acknowledged, o er similar defenses. Most notably, Thomas Christiano begins from a similar starting point—permanent and deep disagreement about how to “organize their common world”—and ends up in a similar place. Democracy is founded upon the principle of equal consideration of interests, but, as Christiano notes, we do not advance our interests directly, but rather, our judgments about what constitutes our interests (Christiano 1996, 74). Thus respect for judgment derives from the idea of 2

equal consideration of interests. Moreover, “to treat a person as incompetent in discerning her interests is to undermine a fundamental support for her self-respect. … Her interest in recognition gives us a reason to treat her as competent in judging her interests” (Christiano 1996, 74). Equal treatment of interests—equal treatment of citizens’ judgments of their interests—requires that each “has a common share in authority 3

over that common life”: thus equal voting power, and majority rule.

In light of his defense of decisional equality, it comes as a surprise to nd Waldron arguing that neither “fairness [nor] equal respect for persons requires majority-decision” (115). Instead, he cites the Millian plural voting scheme in support of the view that equal respect, “responsive to proven or acknowledged di erences in reason, wisdom, and expertise,” may justify giving greater weight to some members. But the problem, Waldron suggests, is that if we disagree about the proper metric by which we assess wisdom, we may end up disrespecting others by prioritizing some forms of evidence for superiority over others. As such, this strategy is unavailable to us, and so we must fall back on equal weight even if it is not mandated by

respect, and other methods might have enabled us to recognize and harness the greater wisdom of some citizens than others. Waldron defends majority rule as merely a second-best respectful decision procedure, one that might—were it not for the fact of disagreement about the proper metric—be trumped by plural voting. As we shall see in a moment, the justi cation for democratic participation—especially on the question of rights—is that “it calls upon the very capacities that rights as such connote, and it evinces a form of respect in the resolution of political disagreement which is continuous with the respect that rights as such evoke” (252) Rights, in Waldron’s work, are “based on a view of the human individual as essentially a thinking agent, endowed with the ability to deliberate morally, to see things from others’ point of view, and to transcend a preoccupation with his own particular or sectional interests. The attribution of any right … is typically an act of faith in the agency and capacity for moral thinking of each of the individuals concerned” (250). So there are deep, important moral justi cations for granting citizens equal rights. In ascribing equal rights, we a

rm our citizens’ equal capacity for agency and moral thinking. Citizens’ authority to make

fundamental political and moral decisions about the communities in which they live derives from this capacity. In determining who might serve as their representatives, citizens themselves develop, independently, their own heuristics by which they assess competence to serve in such a setting, and to defend the citizens’ own judgments of their interests. As such, equal respect for persons does require us to ascribe them equal weight in rendering collective decisions; it does, thus, require majority rule. In other words, Waldron’s argument cannot be merely that we are obliged to accept equality simply because we cannot agree on the markers of wisdom. On Waldron’s own account, we ought to embrace equality as the cornerstone of respect for political agents, and we should assign equal weight to the views of these agents as the positive expression of their dignity. Note that this argument is distinguishable from the other caveat Waldron issues, in response to Charles Beitz’s arguments in Political Equality (1989). Beitz’s objection to emphasizing majority rule as the preeminent egalitarian institution was that the outcome of majoritarian decisions may fail to evince respect for members. Majority voting may lead to the persistent neglect of minority interests; it may be, in a Dworkinian sense, at odds with the obligation of equal concern. Waldron’s response to Beitz is that while, tragically, majority rule may generate injustice, we have no recourse outside of a political procedure to ascertain whether or not a particular decision is substantively respectful. “[F]olding substance back into procedure will necessarily privilege one controversial view about what respect entails and accordingly fail to respect the others,” Waldron writes (116). Waldron’s basic opposition to constitutionalism, as we shall now see, followed a similar logic. Constitutionalism, in Waldron’s view, impermissibly folds substance into procedure in exactly this way: it provides ballast for a particular view of substantive equality, embedded in a set of entrenched rights.

Constitutionalism Constitutionalism broadly relies on a two-track logic of political decision-making. The upper track, marked by “constitutive rules” or “higher law,” establishes the conditions and scope of lower lawmaking or “ordinary legislation.” Insofar as the constitution’s rules are truly “constitutive,” in John Searle’s language (Searle 1969), they create and assign new powers or capacities; they bring into being both the fundamental and subsidiary political institutions through which a community can operate. Some constitutional rules may also be “regulative,” insofar as they govern the operation of these pre-existing institutions (“Each House shall keep a journal of its proceedings”). People tend to accept that rights are an essential feature of the upper track: the constitution establishes and secures, inter alia, rights of speech, association, and participation, necessary for the creation of ordinary

laws. These rights—as well as other pivotally important norms ensuring a just society, such as rights of due process and the free exercise of religion—are only safe if they are insulated by a thick, procedural blanket: a set of constitutional amendment procedures requiring supermajoritarian thresholds, time delays, and perhaps distinctive (state or constituent) legislative bodies. (Indeed, some constitutions permanently exclude these rights from amendment via entrenchment clauses.) Were these norms not protected in such a fashion, venal, ckle, or self-interested legislatures would tinker with fundamental rights, dooming democratic decision-making in the process. Waldron rejects virtually all of this, challenging the easy slide from the legitimate assertion of moral rights to the demand for legal and especially constitutional rights. Protecting rights in an entrenched constitution immunizes it, at least provisionally, from legislative revision. This move appears attractive: why would we want to subject freedom of expression to the vagaries and inconstancy of legislatures? Waldron’s response to this challenge encompasses the core claims of LD: To embody a right in an entrenched constitutional document is to adopt a certain attitude towards one’s fellow citizens. That attitude is best summed up as a combination of self-assurance and mistrust: self-assurance in the proponent’s conviction that what he is putting forward really is a matter of fundamental right and that he has captured it adequately in the particular formulation he is propounding; and mistrust, implicit in his view that any alternative conception that might be concocted by elected legislators next year or in ten years’ time is so likely to be wrong-headed or ill-motivated that his own formulation is to be elevated immediately beyond the reach of ordinary legislative revision (221–222). By entrenching rights, constitution framers assert epistemic and moral priority over future legislatures and citizens. They claim not merely that a set of fundamental rights ought to govern all future decisions within the political community, which might be defensible; one might reasonably suggest that absent citizens’ rights of expression, for instance, there wouldn’t be a democracy worth protecting. But note again that there is no necessary identity between the moral defensibility of the right of free speech and the language, “Congress shall make no law abridging the freedom of speech, or of the press.” In codifying these rights in a constitutional document, framers implicitly argue that their particular conception of these rights deserve not only priority, but protection against the risk of alteration by elected representatives except through a typically strenuous amendment process. In other words, Waldron points us to the paradoxical character of entrenched rights. To be sure, rights of conscience (for instance) are foundational for democratic decision-making; the dignity of the democratic citizen rests in her capacity to speak, organize, protest, and vote. Yet by securing these rights, framers implicitly degrade the dignity of the citizen and their representatives by asserting that they can’t be trusted with these norms. Such a model suggests that whereas the framers have good and true motives, and are gifted with prescience in shaping these rules, there is an unacceptably high risk that legislators will be ignorant or venal, and that their citizens will be unable or unwilling to control them. These arguments also shape Waldron’s rejection of a leading explanatory model of constitutionalism: precommitment. In Chapter 12, Waldron emphasizes the extent to which claims on behalf of self-binding smuggle in framers’ claims to epistemic and moral superiority. Jon Elster developed the precommitment model in Ulysses and the Sirens (1984); Stephen Holmes (1988; 1995) later adapted it slightly into an “enabling model.” Ulysses had his crew bind him to the mast so as to enable him to hear the sirens’ song without succumbing to temptation, and the precommitment account of constitutionalism suggests that the act of constitution-making is one of self-binding: a people constrains itself during the constitution-making process to be able to act democratically without the temptation to tyrannize minorities and to alter the rights and institutions that enable collective decision-making.

Waldron’s critique of precommitment derives in part from the fact of disagreement. Framers acting at t1 disagree about the optimal set of rights and institutions, but nd a procedural resolution (majority or supermajority vote, subject to rati cation) to their disagreement. At t2, a majority of an elected legislature seeks to alter the terms agreed to at t1, but are barred at t3 from doing so by a majority of a constitutional court. Waldron “cannot restrain” himself from describing as an “idiot” anyone who thinks that “a narrative like this is appropriately modeled by the story of Ulysses and the Sirens” (268). He argues that there is no pure moment: no moment of epistemic and moral clarity. The decision to amend fundamental law does not itself constitute evidence of decisional pathology or “drunkenness”; it may derive from a reasoned change of mind in light of interpretations or other circumstantial change, or a decision that in retrospect the minority at the framing had the right plan. Elster himself abandons the precommitment model of constitutionalism in Ulysses Unbound (2000) (which 4

appeared shortly after Law and Disagreement) for reasons that largely track Waldron’s objections. Elster concedes there that there is indeed no pure moment at the framing. Constituent assemblies are marked by arguing and bargaining, and framers are driven by passions and interest—both self-interest and institutional interest, in the sense that they may wish to prioritize the institutions in which they anticipated becoming embedded—as well as by reason. Moreover, Elster writes that he has come to believe that the real focus of constitutional commitments was to constrain future generations, rather than self-binding. The precommitment model—widely in uential though it has been—is of course not the only explanatory model of constitutionalism on o er. Notably, the late Russell Hardin (1999) developed a coordinative model of constitutionalism, which he presented as an alternative to a prisoners’ dilemma model of constitutionalism. The problem with imagining constitutionalism to rest on the solution to a prisoners’ dilemma model is that it would remain unstable: if we believe the best outcome for one group is the worst for another, it is di

cult to imagine a constitution enduring in the face of even a minor shift in political

power. Likewise with models that presuppose a social contract: we cannot contract with each other prior to the existence of a stable enforcement agent, which is ostensibly the object of constitutional choice. Hardin argued that for a constitution to endure, it must be self-enforcing: it must describe an equilibrium, rather than inducing it. The logic is of mutual advantage: a stable constitutional order requires the dominant powers to do much better under the constitution than by destabilizing the outcome. It need not equalize the distribution of power across the relevant groups; even if it did, it would be di to be stable upon enactment, as political allegiances and party a

cult for any such distribution

liations, as well as the distribution of

citizens’ allegiances and commitments, will change as soon as ordinary politics begin to operate. Drawing on the “Battle of the Sexes game,” Waldron himself o ers what he terms a partial-coordination 5

account of law in the circumstances of politics (103–105). He suggests, like Hardin, that action-in-concert requires coordination: we cannot bootstrap ourselves into the establishment of new commitments. What makes law run on Waldron’s story is that even if we disagree about the coordinative outcome (in his example, on the particular formulation of a law about rape), we all do better by adhering to this outcome than by going it alone. A legal system links sanctions to one of the coordinative outcomes: for instance, as a contemporary gloss on Waldron’s example, an “a

rmative consent,” or “yes means yes,” standard for

sexual activity. But its capacity to assign these sanctions rst requires that “the society must have decided which of the coordinative outcomes to select as the one to be bolstered by sanctions in this way. That itself is no mean achievement—and I want to say that it is by embodying that achievement that law commands our respect” (104). This is a striking claim, given Waldron’s reluctance to embrace constitutionalism. How, one might ask, can society have decided upon these outcomes absent constitutionalism of some form? Legislatures are not autochthonic, nor are citizens self-constituting: there must be some moment—one surely marked by disagreement—at which we ascertain what the payo s for di erent results would be, and coordinate upon a given outcome. Waldron cannot oppose this version of constitutionalism or constituent assemblies. What he

can and does resist, broadly, is the idea that this particular coordinative outcome may endure because of institutional stickiness, rather than underlying consensus. Like Hardin, he argues that these institutions must be self-enforcing; they must durably advantage the relevant groups to the extent that they will not seek to defect or exit the constitutional bargain. Again, Waldron held that “law commands our respect,” because society has agreed upon a particular set of institutions to be backed by the coercive power of the state. As such, the shift to the language of “society” and to the broad logic of coordination is unexpected. The central claim of LD, recall, is the inescapability of disagreement. Speaking in terms of societal norms—or society as an agent—necessarily e aces the robust disagreement that may persist once a particular set of norms is chosen. Nor can Waldron help himself to the logic of consensus as the backstop of coordinative 6

decision-making. A partial-coordination story cannot explain how a political community can endure in the face of deep disagreement, including over rights, absent institutional constraints: there is too great an incentive for a transient dominant party to remake the constitutional bargain via majority rule. If we wish to emphasize the rationality of political agents over their passions, we must bite the bullet: the regime is likely to be highly unstable. This may not necessarily be unattractive, but it should not give us great con dence in the persistence of those institutions (including legislatures). We might argue that Waldron, in the chapter on “Disagreement and Precommitment,” presses the opposition to constitutionalism farther than he needed to. There he asserts that “constitutional constraints immune from legislative revision” could be defended under two conditions: one, “if the people were constant and unanimous in their conception of majority decision and of the conditions necessary for its e ective realization”; or two, if “minorities had reason to fear that any legislative rethinking of the rules about free speech and loyal opposition would be a way of crushing or silencing dissent” (279). It is surely true that, per condition one, people do disagree about the design of political institutions, as Waldron suggests—though it is also the case that if they agreed, these constitutional constraints would be otiose (because they would be perfectly stable regardless of procedure). Further, the second condition may be too quick. One could argue that Waldron himself accepts that participation is the “right of rights.” As such, he ought to argue that disenfranchisement would constitute a bright line, and that constitutionalism in his own sense entails the minimal claim that democracy requires “one person, one vote.” Though the value of immunizing a set of basic rights from legislative tinkering might be debatable, the procedural requirement of equal respect for citizens simply cannot be satis ed absent full participation rights. To be sure, were we to constitutionalize the right of political participation, interpretive questions would then arise concerning, for instance, the drawing of district boundaries, the speci cation of electoral laws, and the permissibility of special majorities. Absent the backstop of judicial review, these questions would require legislative speci cation. The critic would surely respond that placing the scope of equal voting in the hands of the legislature is tantamount to herding sheep into the wolves’ den. But Waldron could argue in response that a committed legislature, backed by citizens’ support, can accomplish virtually any injustice to which it sets its mind; at the point at which the legislature is acting to disenfranchise its own citizens, democracy is lost in any case. Better, on Waldron’s account, to bite the bullet and accept what I have elsewhere called the risk of “autophagy” (Schwartzberg 2007) than to create institutions designed to stave o

collapse while entrenching suspicion.

Indeed, in the nal pages of LD, Waldron softens his opposition to constitutionalism. Acknowledging that any rule may in a sense be subject to revision, Waldron did note that the risk that “a certain right is ‘up for grabs’ in majoritarian politics may mean that it is respected today, abrogated tomorrow, and reinstated in an amended form on Monday morning” (305). Yet Waldron noted that democratic constitutions might “mitigate this inconstancy” by making the legislative process more “complex and laborious,” through mechanisms such as “slowing-down devices” (305). But he maintained that “democracy would be a ronted

by any attempt to associate such ‘slowing down’ with the idea that there is something pathological about one side or the other in a disagreement about principle” (306). Insofar as these mechanisms do introduce a clear status quo bias, it is hard to understand them in any sense other than pathologizing—or at least disadvantaging—one side rather than another. For matters pertaining to rights, one might think that such a bias might be justi able, but Waldron spends the last third of the book rejecting this claim. We shall return to this argument shortly.

Judicial Review The central argument of LD is sometimes taken to rest in its rejection of judicial review. We have already encountered the grounds for many of Waldron’s critiques. Dworkin, in particular, is simply wrong: in Waldron’s words, “There is something lost, from a democratic point of view, when an unelected and unaccountable individual or institution makes a binding decision about what democracy requires,” and there is value in enabling citizens to make their own “mistakes,” particularly insofar as whether or not a decision is erroneous will be the subject of disagreement. Insofar as judicial review resolves disagreement, it does so only through crowding out debate, or through shifting the terrain away from the core moral questions and toward the arcane doctrines of constitutional scholars. A risk associated with constitutionalism and judicial review, Waldron notes, is that doing so generates important and unattractive shifts in the way in which salient political debates unfold. In contrast to Dworkin, who suggested that Supreme Court decisions ushered in superior (if largely futile) deliberation, Waldron cites the “scholastic” debate in which questions of the permissibility of ag burning or pornography or racial abuse unfolds under the umbrella of whether the behavior potentially subject to regulation constitutes “speech” (220). In a later paper, “The Core of the Case Against Judicial Review,” Waldron seeks to clarify and defend the argument in LD (and other texts) against critics. He identi es four assumptions, conditional upon which the argument against judicial review may hold and which are shared, if implicitly, by LD: “(1) democratic institutions in reasonably good working order, including a representative legislature elected on the basis of universal adult su rage; (2) a set of judicial institutions, again in reasonably good order, set up on a nonrepresentative basis to hear individual lawsuits, settle disputes, and uphold the rule of law; (3) a commitment on the part of most members of the society and most of its o

cials to the idea of individual

and minority rights; and (4) persisting, substantial, and good faith disagreement about rights (i.e., among what the commitment to rights actually amounts to and what its implications are) among the members of society who are committed to the idea of rights” (Waldron 2006, 1361). These assumptions may not hold, and Waldron acknowledges as much. The standard of “reasonably good working order” essentially tracks the existence of a complex legislative structure, featuring political parties, committees, deliberation, and procedurally complicated voting, along the lines of those outlined at the end of LD. The commitment to rights is extremely robust; not only do members of the society accept the existence of individual and minority rights, they also believe that minorities “are entitled to a degree of support, recognition, and insulation that is not necessarily guaranteed by their numbers of by their political weight.” Moreover, they are governed by a Bill of Rights, which “has been enacted to embody the society’s commitment to rights,” though it need not be entrenched or be part of a written constitution (Waldron 2006, 1345). If these conditions (and others) hold, judicial review cannot be justi ed. The question posed to Waldron is whether a legislature’s decision ought to be authoritative when it violates rights. Under the conditions that Waldron speci es, a legislature’s decision ought to be understood as the triumph of one competing view of rights over another, not the failure of a legislature to respect rights. We should not assume that a judiciary will be more likely to resolve these disagreements in a “rights-a

rming” fashion than would a legislature,

under the assumptions Waldron sketches above. In societies marked not by “dysfunctional” legislative institutions but disagreements about rights, the proper response to such disagreements is to delegate their resolution to legislature procedures that prioritize political equality and deliberation. Yet when does legislative dysfunction pose an insuperable obstacle to members’ trust in their legislature’s capacity to respect rights? On his model, even a functional legislature may fall short on his aim of inducing responsiveness to citizens’ disagreements about rights. For instance, the institutional checks praised by Waldron as constituting evidence of a well-ordered legislature might also generate a strong status quo bias. Bicameralism, which Waldron specially praises, is itself a kind of supermajoritarian device, generating unequal treatment of political opinions (Schwartzberg 2014). In defending legislative complexity, he implicitly also supports a bias toward the status quo—one which may be no less strong than a constitutional entrenchment. In other words, once a legislature derogates from simple majoritarianism under unicameralism, it may introduce the speci c varieties of status quo bias and inequitable treatment of opinions to which Waldron is at pains to reject in his account of constitutionalism. In other words, it may end up treating its citizens disrespectfully.

Conclusion Waldron in LD provides a brilliant defense of the judgment of democratic citizens, particularly in his account of political rights, and of the importance of thinking seriously about institutional design beyond the Court. Yet one objection—perhaps the most important—is that in so doing, he e aces legislatures as we 7

might plausibly recognize them. Waldron’s explicit aim is to counter the sanitized model of the judiciary supported—at least prior to Bush v. Gore—by liberal law professors raised in the era of the Warren Court. In the opening pages of Dignity of Legislation, the volume publishing his Seeley lectures, Waldron writes that he aimed to ask: “‘What would it be like to develop a rosy picture of legislatures that matched, in its normativity, perhaps in its naivete, certainly in its aspirational quality, the picture of courts—‘the forum of principle,’ etc.—that we present in the more elevated moments of our constitutional jurisprudence?’” (Waldron 1999a, 2). Yet even as “Political Political Theory” urges us to jump into the muck of institutional design, there is a sense in which Waldron cannot resist the impulse to cleanse. In a passage invoking The Wire, Waldron writes approvingly of the e orts of Stringer Bell, then serving at the head of the Barksdale drug organization. “[T]he drug lord Stringer Bell introduces parliamentary procedure, Robert’s Rules of Order, to try to make meetings of his lieutenants and his drug dealers more orderly and more productive—yielding a wonderful array of quotes like ‘Motherfucka’s got the oor’ and ‘Chair ain’t recognize yo’ass.’” Fans of The Wire will remember—and those who are not will probably guess—that Stringer Bell is doomed. And he is doomed because of the same impulse that caused him to introduce parliamentary procedure: his aspirations to professionalism, his impulse to leave the corner game and its distinctive strategies behind, and his con dence in the quality of his product. Indeed, in an equally compelling quote, one of Bell’s soldiers, Malik “Poot” Carr, asks Bell: “Do the chair know we gonna look like some punk-ass bitches out there?” (Simon 2004). The risk for the scholar of political political theory is that in attempting to study these unquestionably important subjects highlighted by Waldron—federalism, electoral rules, bicameralism, the structure of representation—we may look, frankly, like punk-ass bitches. To be sure, we turn to John Stuart Mill—in Waldron’s preferred example—because we can indeed mine his work for sustained normative analysis of institutional design. But if we truly want to do political political theory—if we want to discuss the normative consequences of di erent choices steeped in a deep understanding of the operation of existing institutions —we must become not only political theorists, but political scientists.

References Beitz, Charles. 1989. Political Equality. Princeton: Princeton University Press. Google Scholar Google Preview WorldCat COPAC Christiano, Thomas. 1996. The Rule of the Many. Boulder, CO: Westview Press. Google Scholar Google Preview WorldCat COPAC Christiano, Thomas. 2000. “Waldron on Law and Disagreement.” Law and Philosophy, 19(4) (July): 513–543. WorldCat Dahl, Robert. 1989. Democracy and Its Critics. New Haven: Yale University Press. Google Scholar Google Preview WorldCat COPAC Dworkin, Ronald. 1996. Freedomʼs Law. Cambridge: Harvard University Press. Elster, Jon. 1984. Ulysses and the Sirens, revised edn. New York: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Elster, Jon. 2000. Ulysses Unbound. New York: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Hampton, Jean. 1986. Hobbes and the Social Contract Tradition. New York: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Hardin, Russell. 1999. Liberalism, Constitutionalism, and Democracy. New York: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Holmes, Stephen. 1988. “Precommitment and the Paradox of Democracy.” In Constitutionalism and Democracy, edited by Jon Elster and Rune Slagstad, 195–240. New York: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Holmes, Stephen. 1995. Passions and Constraint. Chicago: University of Chicago Press. Google Scholar Google Preview WorldCat COPAC Posner, Richard A. 2000. “Review of Jeremy Waldron, Law and Disagreement.” Columbia Law Review 100(2) (March): 582–592.

Rawls, John. 1993. Political Liberalism. New York: Columbia University Press. COPAC Google Scholar Google Preview WorldCat Schwartzberg, Melissa. 2007. Democracy and Legal Change. New York: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Schwartzberg, Melissa. 2014. Counting the Many: The Origins and Limits of Supermajority Rule. New York: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Searle, John R. 1969. Speech Acts: An Essay in the Philosophy of Language. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Simon, David. 2004. “Time A er Time.” The Wire, Season 3, episode 1. Google Scholar WorldCat

Waldron, Jeremy. 1999. Law and Disagreement. New York: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Waldron, Jeremy. 1999a. The Dignity of Legislation. New York: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Waldron, Jeremy. 2002. God, Locke, and Equality. Cambridge: Cambridge University Press. Google Scholar Google Preview WorldCat COPAC Waldron, Jeremy. 2006. “The Core of the Case Against Judicial Review.” 115 Yale Law Journal 1346. Google Scholar WorldCat Waldron, Jeremy. 2012. Dignity, Rank, and Rights. Edited by Meir Dan-Cohen. New York: Oxford University Press. Google Scholar Google Preview WorldCat COPAC Waldron, Jeremy. 2013. “Political Political Theory: An Inaugural Lecture.” Journal of Political Philosophy 21(1) (March): 1–23.

Notes 1

I hope my colleague—a master of the snarky footnote—will forgive me for noting that just down West 4th St. from his o ice, virtually an entire political theory program is devoted to questions of the normative implications of institutional design.

2

Christiano makes this point explicitly in his review of Law and Disagreement (Christiano 2000, 540).

3

Likewise, Robert Dahlʼs “Strong Principle of Equality” derives from two premises: the Idea of Intrinsic Equality (in particular its specification through the Principle of Equal Consideration of Interests (that each person has a claim to have her interests served, without one personʼs interests possessing privilege ex ante)), and the Presumption of Personal Autonomy (“in the absence of a compelling showing to the contrary everyone should be assumed to be the best judge of his or her own good or interests”) (Dahl 1989, 100). In other words, if we believe the interests of each citizen should be weighed equally, and if we presume that every adult person is the best judge of her own interests, majority rule follows.

4

Indeed, Elster acknowledges that Waldronʼs criticisms parallel his own, though the manuscript of Ulysses Unbound had been completed before Waldronʼs book appeared (Elster 2000, 92).

5

Both Waldron and Hardin draw on Jean Hamptonʼs 1986 landmark study of Hobbes.

6

Christiano, in his review of LD, o ers a sustained criticism of Waldronʼs use of the coordination account (Christiano 2000, 525–533).

7

Judge Richard Posner makes a similar argument in his review of LD, suggesting that Waldron ought to be similarly cynical or realistic about legislatures, framers, courts, and citizens, and in particular that electoral pressures, from which federal judges are insulated, may induce distinctive types of bad behavior from legislators (Posner 2000, 591).

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Michael Walzer, Just and Unjust Wars  Terry Nardin https://doi.org/10.1093/oxfordhb/9780198717133.013.26 Published: 10 December 2015

Abstract Michael Walzer’s Just and Unjust Wars remains the standard account of just war theory despite the criticism it has received. Much of that criticism denies the political character of just war discourse by substituting general moral principles for principles generated in re ecting on the use of military force. It challenges Walzer’s view of the relationship between morality and politics and his conclusions about the moral standing of states, the moral equality of soldiers, the moral basis of humanitarian intervention, and the limits of morality in emergencies. Instead of providing a foundational argument, the book reconstructs a tradition of discourse that transcends particular contexts because of the range of historical experience on which it draws. The critics raise genuine issues but their objections do not undermine the book’s argument. That argument stands in a complex relationship with political realism, which it rejects in some ways and embraces in others.

Keywords: Just and Unjust Wars, Michael Walzer, just war, moral standing of states, humanitarian intervention, moral equality of soldiers, emergency, political realism Subject: Political Theory, International Relations, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Just and Unjust Wars has been translated into more than a dozen languages and published in ve editions. Each edition after the rst includes a new preface relating the book’s argument to current concerns: in the second edition (1992), to the Gulf War and preventive war; in the third (2000), the Rwandan genocide and humanitarian intervention; in the fourth (2006), the American occupation of Iraq and regime change post bellum; and in the fth (2015), asymmetric warfare. A postscript to the fth edition defends just war theory against the criticisms of academic moral philosophers. The book was treated as a classic almost from the day it was published. Written in the aftermath of the Vietnam War, which inspired the activism and subsequent re ection on which its argument is based, it explores recurring themes of just war thinking in the context of great power competition, colonial rule and national resistance, and changing military technologies and practices. Among the topics considered are moral skepticism and historical relativism, aggression and self-defense, preventive war and intervention,

military necessity and non-combatant immunity, guerilla war and terrorism, and individual and collective responsibility for crimes of war. Early reviews recognized the book’s importance even as they questioned its central arguments. Richard Wasserstrom, writing in The Harvard Law Review (1978), challenged Walzer’s attribution of moral standing to states—a theme that others would subsequently take up—and J. M. Cameron, in The New York Review of Books (1977), noticed a tension between the book’s claimed commitment to human rights and its utilitarian argument for violating those rights in a supreme emergency. Later critics, including David Hendrickson (1997), Brian Orend (2000), and Je (2004), a

McMahan

rmed the book’s status as a classic by treating it as the standard statement of views they rejected.

Linking these themes and criticisms is the relationship between interest, policy, utility, and necessity, on the one hand, and morality, law, justice, and human rights, on the other. For Walzer, that relationship is political. Just war thinking is concerned with the conduct of states and with the acts of individuals in their public roles as soldiers, citizens, and government o

cials. It therefore has a public dimension that is

missed when the e ort to guide or judge this conduct is viewed as an exercise in applied ethics. By applied ethics I mean deciding according to moral principles with little attention to non-moral considerations such as those of law or policy. The principles may be philosophically defensible but can be oddly irrelevant to the political circumstances in which they are applied. And when they are amended to take account of those circumstances, they converge with the political understandings they were supposed to replace. The principles of just war theory, in contrast, have been shaped by use in the circumstances of war and by re ection on that use. They are expressed in a shared vocabulary that recognizes these circumstances, which have political as well as ethical implications. By starting with acts and practices to be examined instead of abstract principles to be applied, Just and Unjust Wars captures the political character of ethics in war. In doing so, it pays close attention to the requirements of political and military decision-making and reveals the complex relationship between its arguments and those of political realism.

Moral Discourse Just war theory is an interpretation, and what it interprets is a tradition of judgment and argument. The theory reconstructs the ideas that constitute the tradition, but what gets used when judgments are made is not the theory but the particular principles it identi es. Distinguishing right from wrong in particular situations is a practical activity, not a theoretical one. It is “casuistry,” in a general and non-pejorative sense of that word: reasoning in relation to cases and learning from that reasoning (Boyle 1997). The cases examined in Just and Unjust Wars are actual and historical, not imagined or hypothetical. As its subtitle indicates, the book o ers “a moral argument with historical illustrations.” This approach sets it apart from analytical political philosophy, which (to use Walzer’s terms) “discovers” or “invents” principles, previously unknown, and applies them to particular situations. For Walzer, the discoveries or inventions claimed by philosophers are in fact disguised interpretations of an inherited body of ideas and principles. Their purported theoretical superiority cannot put an end to disagreement. Arguing about war, like arguing about morals and politics in general, is persuasive and rhetorical, not demonstrative or a matter of proof (Walzer 1987, 32). Instead of a foundational argument, Just and Unjust Wars o ers an interpretation of just war tradition to defend a theory that achieves a high degree of generality because of the wide range of historical experience on which it draws. Much criticism of the book misses the mark because it confuses personal morality with the demands of justice in and between the legally ordered, non-voluntary associations we call states. If justice is about how people can be compelled to treat one another, the political character of just war theory is evident, for it primarily concerns what states can justi ably compel people to do. With the revival of political realism in academic political theory, this insight is once again coming to be appreciated.

Part of that realism is to appreciate the situation of the interpreter. Much can be learned about Walzer’s approach in this book from the preface to the original edition, which is reprinted in all the later ones. It explains its origins not in philosophy but in his opposition to the American intervention in Vietnam. The philosophy, which emerged in re ecting on this political activity, came later. What just war theory provided for “us,” he writes, was a shared vocabulary through which opponents of the war could articulate their indignation. The experience of political criticism, and even more their subsequent re ection on it, taught critics of the war that the thoughts expressed in their inherited vocabulary were “reports on the real world, not merely on the state of our own tempers.” The “moral reality of war” is constituted not by what people do but by “the moral law”—“those general principles that we commonly acknowledge, even when we can’t or won’t live up to them” (xii, xiii). Two points are evident here. First, the “us” expands to include not only those who condemned the war but also “those who understood the condemnation (whether or not they agreed with it)” (Walzer 1977, xiv). The members of this larger community inhabit a common moral world not because they adhere to the same doctrines or make the same judgments but because they share a moral vocabulary in which to express their agreement or disagreement. Just war theorizing not only describes the arguments people make; it dissects those arguments, uncovers their presuppositions, and exposes the hypocrisy of those who invoke shared principles to justify acts that violate those principles. Second, the principles govern our judgments even when they fail to govern conduct. They are historically embedded, not permanent or unchanging, though many are recognizable in di erent times and places. Because Walzer’s aim is ultimately practical—to identify moral principles for use—he is concerned with the present structure of the moral world. His just war theory, in other words, is a slice in time across a slowly changing tradition of just war discourse. That discourse enables arguments that are mutually comprehensible even when their context is di erent or they contradict one another. Like the Athenians at Melos, whose cynical dismissal of the vocabulary of justice is betrayed by their appeals to honor and to their empire as a good that justi es their ruthlessness, we cannot escape the common moral world within which our conduct is judged, even if we deny its reality or its application to ourselves. We will be judged, and those judgments will—like the judgments that Henry V’s massacre of prisoners of war at Agincourt was incontinent, ungallant, excessive, brutal, murderous— reverberate down the centuries. “The clearest evidence for the stability of our values over time is the unchanging character of the lies soldiers and statesmen tell,” for these lies depend on principles that everyone to whom their justi cations are o ered may be presumed to acknowledge. Therefore, “whenever we nd hypocrisy, we also nd moral knowledge” (19)—that is, a moral world su vocabulary su

ciently real and a moral

ciently stable to enable shared moral judgments.

The Moral Standing of States A state is a legally de ned community. Peoples de ned by their nationality or ethnicity, that is, in terms of a common ancestry, race, religion, customs, or collective experiences, are not as such states. As an association on the basis of common laws, a state claims authority and imposes duties. It can make these claims and impositions justi ably only if in doing so it respects the moral rights of its citizens. Walzer makes an argument of this sort when he says that just war theory rests on a morality of human rights (1977, xvi). It rests above all on one’s right to make choices for oneself, which means not having other people’s choices imposed on one except as consistent with having a common system of laws within which similar rights for all are recognized and secured. Using law to impose the arbitrary will of some on the choices of others violates the latter’s independence; it constitutes “tyranny” or domination. The right of a state, through its government, to exercise sovereign powers derives from this basic individual right to independence or non-domination. States as well as persons have a right to make their own decisions: the right of self-determination. And since states as well as persons occupy physical space, states have a right to territorial integrity corresponding to a person’s bodily integrity.

Just war tradition a

rms the right of states not be victims of aggression, the crime of violating their

rightful independence and territorial integrity. Under the principles of jus ad bellum a state may defend itself against aggression when it takes the form of an actual or imminent armed attack. It may also defend another state that has been unjustly attacked and may even use force inside the territory of a state in certain circumstances, such as to protect a edgling political community against imperial oppression (1977, 94) or rescue victims of genocidal violence (1977, 107). The scope of these rights has been the subject of many challenges to Walzer’s reconstruction of just war tradition. The main line of criticism is that only legitimate states can exercise sovereign rights and only states that fully respect human rights are legitimate. But because human rights are violated in and by every actual state, the question becomes one of deciding when those violations have reached a level that justi es the use of force to resist them. Walzer thinks the just war tradition is correct in setting this level rather high. Force is justi ed to resist armed aggression against a state and, if su

ciently grave, by a state against its

own people. Many critics set the level much lower. They think that any signi cant violation of human rights by or within a state casts doubt on its legitimacy and therefore limits its sovereign rights. According to one such critic, a signi cant violation is one that infringes “socially basic” human rights, which he de nes as rights to security and subsistence. “Any proportional struggle for socially basic human rights is justi ed, even one which attacks the non-basic rights of others” (Luban 1980a, 175). Sovereignty and law are unimportant in this argument. If there were famine in one state, a war to secure food that is plentiful in a neighboring state would be just, for example. Such reasoning has been used, however, mainly to challenge Walzer’s views on intervention, which (it is argued) are insu

ciently permissive because a regime can

violate the basic rights of its subjects in ways that fall short of genocide or other crimes against humanity but nevertheless warrant foreign intervention. Walzer’s response to such objections is to assert the importance of the state in protecting the rights of “political communities.” The tension between state and political community arises, when it does, because there are forms of community whose claims might in certain circumstances justify political independence. A political community, in this sense, is a community that has a right to national self-determination. A “nation” or “people” might acquire rights of self-determination and territorial integrity that at some point trump those of the state that governs it. This might occur in a state that encompasses two political communities, one of which uses the apparatus of the state to dominate the other. In such a case, the state loses its presumptive legitimacy. A tyrannical state is presumptively illegitimate and is subject to intervention if its oppression is su

ciently grave. The bar is set high—its oppression must involve crimes

against humanity, not less substantial violations of human rights—and not only on cost-bene t grounds but because interference in the jurisdiction of a state violates its sovereign rights unless those rights are exercised in a way that undermines its claim to represent a community. The reason is political, not philosophical, however: it cannot be the case that a political community is immune from intervention only if its struggles to shape its own laws and institutions “have a single philosophically correct or approved outcome” (Walzer 1980, 225; Nardin 2013). Such a requirement would displace politics, which is never entirely rational or legitimate. Judging from the subsequent history of this debate over the moral standing of states, Walzer seems to have had the best of the argument. Not only has his “statism” (to use the pejorative term applied by critics) gained defenders, but the critics have had to progressively qualify their objections. Those objections are grounded in a decreasingly attractive “political moralism,” the application to politics of moral principles with insu

cient attention to considerations of law and politics (Williams 2005). The complaint that the

idea of consent, which Walzer invokes to justify political authority, is meaningless in non-democratic states (Doppelt 1978; Beitz 1980) ignores the di erence between agreeing with the policies of a government and acknowledging its authority. The claim that he privileges the state over other forms of community ignores the di erence between people’s identities as citizens and legal subjects and their identities as members of

other groups or associations. The suggestion that the claims of states must diminish as global norms and institutions develop (Beitz 2014) indirectly a

rms that states have moral standing by acknowledging the

defects of the international state of nature on which just war theory is premised. The moralism of Walzer’s critics has been moderated by a political realism that allows that a state can be legitimate, that its legitimacy does not rest solely or directly on moral principles, and that political arguments are a matter of persuasion and agreement rather than of certainty and proof.

The Moral Equality of Soldiers Movement from political moralism toward political realism is also evident in criticism of Walzer’s account of justice in the conduct of war, jus in bello. A state’s decision to wage war can be just with respect to its cause but unjust in execution, and vice versa. The two kinds of judgment are independent. One implication of this independence is that soldiers ghting in war for an unjust cause have the same rights as soldiers ghting in a just war. The injustice of the cause they serve does not make them war criminals, though they can become criminals if they violate the rules governing military conduct, and they are no less entitled to the status of prisoner of war if captured than soldiers serving a state whose cause is just. This “convention,” which rests on widespread agreement although its moral basis is contested, seems at odds with the common sense that divides the world into good guys and bad guys. That common sense nds expression in philosophical criticism of the war convention’s principle of moral equality. Why should soldiers ghting an aggressive war have the same protections as those ghting to resist aggression? It is not a matter of self-defense. A bank robber commits murder if he shoots and kills a guard reaching for his gun: he cannot plead that he shot in self-defense. Nor is it a matter of excuses. One cannot say that the soldier ghting in an unjust war is excused from blame for killing enemies because he has no choice; he does have a choice, even if it is a constrained one. Rather, it is because the soldier, unlike the bank robber, kills in accordance with law—in this case, the positive laws of war found not only in international law but also in the military law of every state (128; McMahan 2004, 699). Excuses like ignorance or duress apply only in particular cases, not across the board to all those ghting a particular war. The argument against the moral equality of soldiers is plausible only if we ignore the claims—and point—of political authority. Soldiers have rights and duties as citizens of a state. To substitute morality for law in determining the obligations of soldiers is to bring moral uncertainty inside the state, thereby reproducing the very problem the state is supposed to resolve: how to enable people to co-exist under known, common, and enforceable laws, and thereby avoid the violence and injustice that must otherwise be their lot. It has been argued, against the distinction between jus ad bellum and jus in bello, that only a morally legitimate state can have authority over individuals. Obligations to obey the law “arise only in the case of institutions that are genuinely just and important,” so if a government is illegitimate, or a particular war “lacks democratic authorization,” soldiers serving that government are not obligated to obey its commands: “they have no institutional obligations that can justify their ghting” (McMahan 2004, 705), though there may be other considerations such as duties to fellow soldiers that justify doing what would otherwise be wrong. Without further treading the winding paths of this argument, one can see that it puts the ordinary soldier in an impossible position. In place of positive law it o ers an ill-de ned set of criteria including morality, loyalty, and judgments regarding “the importance of an institution in securing social goods” (McMahan 2004, 733). People—soldiers—cannot be expected to combine such criteria to reach consistent and defensible conclusions. The argument substitutes private judgment for the public judgment found in positive law, not only in special cases, but in all cases. It not only invites disorder, but denies the very idea of a common public order.

Recognizing this defect, McMahan proposes a solution in the form of an ethical court—a court of morality, sta ed by moral philosophers, not a court of law—to devise and apply an improved jus ad bellum to determine when a war is unjust and when those who ght in it might be excused for doing so (McMahan 2014, 242). Where Walzer’s account reveals the logic of the war convention, McMahan’s substitutes a rationalist and utopian proposal that ignores that logic. It is, however, a half-hearted substitution, for as soon as he pays attention to the claims of law and politics that have shaped the tradition, reason and custom converge. There are practical reasons, he thinks, why the laws of war should be upheld “as a convention to which all combatants are bound.” Soldiers cannot be punished for participating in an unjust war because the procedures for determining the punishment are unlikely to be fair, and the prospect of being punished might deter soldiers from surrendering (McMahan 2004, 730–731). Most importantly, the convention lessens the savagery of war because its rules, which have been shaped by the experience of many centuries, are well-adapted to regulating military conduct. Walzer’s error, it seems, is only to present the convention as being grounded on morality rather than on utility. The war convention is in fact morally grounded, not directly on human rights, but on the responsibility of the state as their guarantor. Actual states frequently neglect that responsibility. They may fail to respect human rights, sometimes grossly, but this does not undermine the rationale for civil authority as a solution, however imperfect, to the moral uncertainty of the state of nature. People can know and enjoy rights only in a system of authoritative and e ective laws. The just war tradition recognizes the moral standing of states, and its corollary, the moral equality of soldiers, because it rests on this rationale for political authority. The error of much political philosophy is to treat political authority as if it derived directly from moral legitimacy. If this were the case, there would be no need for authority, which is required because legitimacy is contested and therefore uncertain. The moral equality of soldiers re ects this rationale for political authority and for the claims of law and politics in applying moral principles.

The Limits of Sovereignty The distinction between moral and political justi cation is illustrated in the debate over humanitarian intervention. Just and Unjust Wars restates the common understanding of the non-intervention principle as a corollary to sovereignty and therefore as fundamental to international order, but also as admitting a number of exceptions including intervention to resist massive violations of human rights (101). Humanitarian intervention must be distinguished from e orts to liberate a people from a tyrannical regime, imperial or homegrown. Genocide justi es intervention to suppress it; ordinary oppression does not. A state, even a tyrannical one, represents the will of its people so long as people continue to acknowledge its authority, which is always a matter of current belief. That authority is the basis of its claim to sovereignty. Misconduct weakens the claim, but discontinuously: a state loses its rights to self-determination and territorial integrity only when its crimes cross a threshold marked by phrases like “crimes that shock the conscience of mankind” or “crimes against humanity.” Many critics of the book challenge this claim. If outsiders can intervene to end gross human rights violations, they ask, why not to end lesser violations? One answer is pragmatic: military intervention is justi ed in principle but may be too costly, or unlikely to succeed. Another is principled: states have moral standing and therefore sovereignty, which entails rights that are lost only if they are grossly misused. Just war theory acknowledges the right of states to govern, which means enacting laws that displace moral judgments and making decisions that might be morally objectionable. The authority to govern therefore sets up a normative barrier to external intervention even when a government is oppressive. Intervention is justi ed only when oppression becomes extreme. Allowing military intervention as a way of dealing with ordinary human rights violations would deny political communities the right to govern themselves. Intervention to suppress abuses that fall short of crimes against humanity is wrong in principle, then,

because it denies states the rights of political self-determination and territorial integrity to which they are morally entitled. Subsequent debate has modi ed but not overthrown these arguments. It has also identi ed other issues. One arises from the objection that intervention is always selective. But interventions are risky and therefore warranted even in the face of genocide only if they are likely to succeed (Walzer 2000, xiii). States must consider the bene ts and costs of intervening as well as questions of legal authorization. They must consider not only the ethics but also “the politics of rescue” (Walzer 2004). Another debate goes beyond the right to intervene to whether there might be a duty to intervene. This question became the focus of discussion post-Rwanda, leading to the idea that there is a duty to protect that must be performed by outsiders if a state cannot itself perform it. This “responsibility to protect” rests with the international community, which may intervene if necessary. As a matter of international law, the Security Council must authorize military intervention. But if the international community cannot act, individual states might have a moral duty to do so. But which states? The problem, as Walzer and many others observe, is that the duty doesn’t clearly belong to anyone in particular. “Somebody ought to intervene, but no speci c state … is morally bound to do so” (Walzer 2000, xiii). The problem may have no evident solution, but that does not mean that the principle is empty. States have a duty to support an international legal order with institutions to deal with crimes against humanity, but they also have a moral duty to act unilaterally in the absence of such an order if they can do so e ectively and at reasonable cost. But if there is a duty to protect, we can ask whether rescue is enough, for even if an intervention succeeds in ending a massacre, it may leave a murderous regime in power and expose its people to renewed violence after the intervening force is gone. In Just and Unjust Wars, Walzer argued that once the violence that invited intervention has been suppressed the intervening power must withdraw, as India did after invading East Pakistan in 1971 to suppress the slaughter of those supporting independence (1977, 105). But India could withdraw because East Pakistan had a government as the new state of Bangladesh; continued occupation was unnecessary and therefore unwarranted. If the intervening power departs too soon, it may leave in place conditions for renewed violence. When a regime commits crimes against humanity, it must be overthrown and a new, more civilized regime established. Those who intervene may have to replace that regime with a new one of a di erent, possibly more democratic but certainly less murderous, character (Walzer 2006, x–xi). This is as close as Walzer ever comes to the argument for “reform intervention,” the argument of his critics that intervention might be justi ed not only to halt a massacre but to replace a tyrannical regime with a democratic one (Beitz 1980; Luban 1980b; Tesón 2005). But he does not share their view that only morally legitimate or democratic states have sovereign rights.

The Limits of Justice A theory of just war is a theory of justice in the circumstances of war, but at some point, realists argue, justice must give way to necessity. For the moral skeptic, this point comes as soon as the word justice is breathed because there is no such thing as justice: what we call justice is, in the words of Plato’s Thrasymachus, the interest of the stronger—nothing more than ne words to mask what the Athenians at Melos claim we all know, that the powerful do what they can and the weak su er what they must (5). But claims like these are themselves mere words: acts defended as necessary are never, from the perspective of the agent, inevitable. There are always choices, even if the alternatives are not attractive ones. Nor are acts ever indispensable: not only can an agent never know that a given act is the only one that can produce a desired result but the claim presupposes some end, such as victory or national independence, for which an unjust act is said to be necessary. This reopens the question of justice by calling attention to whether that end justi es the means proposed for achieving it (8).

Those who are not moral skeptics, who acknowledge that justice has a place in politics and even in war, identify some other point at which the claims of justice must yield to those of prudence or utility. The argument that the rules of war do not hold when they are an obstacle to victory or increase the costs or risks of ghting sets prudential or utilitarian calculation against moral obligation. But the point of the latter is always to put a limit to calculation: we are permitted to calculate within the bounds of justice, permitted to act to achieve our ends provided we do not violate rules that protect others from being forced to serve our ends instead of their own. That is why “military necessity” operates within the jus in bello, not as an exception to its rules. Soldiers are permitted to use as much force as is reasonably needed to subdue the enemy, but they are not permitted to attack non-combatants deliberately, as an end in itself or a means to an end. Similar reasoning applies at the level of jus ad bellum: prudence can justify an action consistent with the principle that aggression should be forcibly resisted. The argument for military action to forestall an invasion depends not only on evidence that the action is expedient but also that it falls under the principle of self-defense. It is an argument within the jus ad bellum, not one that repudiates it. The German argument for violating Belgian neutrality in 1914 did, however, repudiate the idea of justice in war by justifying aggression to reduce costs by achieving a quick victory in the west before turning to ght the Russians in the east. It was an argument for aggression, not for resisting it (240–241). Walzer makes a similar point about Churchill’s argument for violating Norwegian neutrality in 1939 (1977, 242–250). These are not genuine arguments about the limits of justice but arguments that purport to justify injustice. That way of putting it reveals a paradox, however, for how can injustice ever be “just”? Perhaps an unjust act can be shown to be warranted on grounds other than justice, but so long as the word “justice” has meaning it cannot be shown to be just. The issue is brought into focus in cases of emergency, where (it is argued) morality must at last give way to necessity. Often, however, the claim of necessity is overblown. A crisis, though real, may not require statesmen to act unjustly because their responses can be justi ed on the basis of just war principles. Military intervention to suppress genocidal violence, for example, requires injustice only if sovereignty is viewed as absolute. But the moral argument for humanitarian intervention is not an argument for injustice. An intervention to rescue the victims of mass murder perpetrated or permitted by a regime does not violate the latter’s sovereign rights because that regime has forfeited its right against foreign interference. A genuine (“supreme”) emergency, Walzer suggests, is one that might call for a response that really is unjust because it involves a danger that is unusual and horrifying. It occurs in war, he thinks, not when a country is facing defeat but only when defeat would mean the triumph of barbarism—of a “domination so murderous, so degrading” that it represents “evil objecti ed in the world, and in a form so potent and apparent that there could never have been anything to do but ght against it” (253). Walzer argues that such an emergency would warrant a state in violating the rules of war; he is reluctant to say that it can “justify” violations because justi cation, strictly speaking, shows conformity to principles of justice, not good consequences or excuses from responsibility. The British bombed German cities starting in 1940 not because those cities contained military targets but to terrorize the country into surrender. Here, he argues, is a case in which justice must yield to consequences. Critics have suggested several problems with this argument. It does not belong in just war theory because it is an argument for injustice, based on expediency rather than on moral principle (Nardin 1983, 300). It equivocates between state-centric realism, which concerns the fate of a particular political community, and utilitarianism, which concerns the good of human beings everywhere, as members of the “civilized community.” But Walzer concludes, “not without hesitation and worry,” that the rights of innocent people can be overridden to preserve a particular political community. Even if it were only Britain whose survival was at stake in 1940, the choice would be brought “under the rule of necessity”—and (genuine) necessity knows no rules. Walzer’s theory of just war, then, ultimately collapses into political realism, understood not as moral skepticism but as reason of state (Nardin 1983, 302). And even if given a broader utilitarian

interpretation, the theory o ers a bifurcated ethic in which morality governs ordinary situations and utility the extreme ones. But “if utilitarianism is what gets us out of our moral di

culty in the hardest case we can

conceive, then it may perhaps be a serviceable doctrine in cases that are not so extreme” (Cameron 1977, 13). A quite di erent objection is that calling Nazism an ultimate evil turns just wars into holy wars, in which ordinarily forbidden means can be used. This raises the question whether an ultimate or transcendent threat can be recognized in history, by nite human beings (Johnson 1981, 25). Walzer sees the problem: people are all too likely to err in distinguishing ordinary evils from ultimate ones. “Emergency” and “crisis,” he acknowledges, “are cant words, used to prepare our minds for acts of brutality” (1977, 251). We need criteria like imminence and seriousness to distinguish genuine emergencies from lesser crises. Nevertheless, he defends the judgment, made in Britain after the war, to withhold honors from those who participated in the terror bombing. This was appropriate, he thinks, because those people were murderers, even though in a good cause. They “killed unjustly … for the sake of justice itself, but justice itself requires that unjust killing be condemned” (323). Behind this doctrine of “dirty hands” is the Weberian ethic of responsibility, which holds that to lead in dark times means sinning for the sake of the collective. That ethic expresses the romanticism and hubris from which Nazism itself emerged (Cameron 1977, 15). A state is constituted as a political community by its laws. When political leaders act unjustly in its name, do they protect or destroy that community? One can argue that by violating its laws, they deny the principles that make it a community. One does not defend civilization by barbaric means, even against barbarians (Donagan 1977, 180–183). This is why, as Walzer acknowledges, those who sin for the community must be dishonored or punished: those who do wrong must in the end be judged. It is also why, in reconsidering his arguments in Just and Unjust Wars on what has since come to be called “asymmetrical warfare,” he a

rms

the possibility as well as the moral importance of ghting justly (Walzer 2015).

Conclusion Just and Unjust Wars is a classic because it thoughtfully and engagingly explores issues in the morality of war that arise whenever military force is used. It has shaped subsequent discussion of the topic, and even those who dispute its conclusions treat it as the standard statement of the just war tradition they wish to challenge. The philosophical abstraction and practical implausibility of much of the criticism that the book has attracted, together with the fact that even the more radical critics eventually revert to traditional positions, suggest that Walzer has got it more or less right. The issues on which his judgments seem most open to objection, such as the utilitarianism of extremity, reveal conceptual fault lines that divide moral from other kinds of practical reasoning, and make clear that the just war tradition is not only marked by internal disagreement but also by tensions with other ethical traditions such as paci sm, holy war, and political realism. If there is a larger lesson for political philosophy in the debates provoked by this book, it is that ethics cannot be usefully divorced from engagement with politics or from the history of that engagement. One puzzle posed by Just and Unjust Wars is why, if just war theory is the result of political as well as philosophical arguments, Walzer is so dismissive of what he calls the “paper world” of positive international law (1977, xiii). To support its claim to count as law, and for its institutions to exercise authority justi ably, a legal system must impose reciprocal limits on those it governs that are compatible with their rights and those limits must be authoritatively ascertainable and enforceable. These conditions are ful lled in civil society, which has institutions to recognize, interpret, and enforce common laws. In international society, however, such institutions are rudimentary and international law therefore uncertain and ine ective. Just war theorizing articulates principles of rightful coercion that are morally justi able in

the absence of a robust international legal order. But its principles are no more e ective than those of positive international law, nor are they, on Walzer’s account, any less political. Each provides a vocabulary for debating the rights and wrongs of war, vocabularies that overlap signi cantly. Perhaps the solution to the puzzle is that just war theory is the result of e orts to nd a stable ethic between too much philosophy on the one hand and too much politics on the other.

References Beitz, Charles R. 1980. “Nonintervention and Communal Integrity.” Philosophy and Public A airs 9(4): 385–391. Google Scholar WorldCat Beitz, Charles R. 2014. “The Moral Standing of States Revisited.” In Reading Walzer, edited by Y. Benbaji and N. Sussmann, 61–82. London: Routledge. Google Scholar Google Preview WorldCat COPAC Boyle, Joseph. 1997. “Just and Unjust Wars: Casuistry and the Boundaries of the Moral World.” Ethics and International A airs 11: 83–98.

Cameron, J. M. 1977. “Morality and War.” New York Review of Books, December 8, 24(20): 8–15. Google Scholar WorldCat Donagan, Alan. 1977. The Theory of Morality. Chicago: University of Chicago Press. Google Scholar Google Preview WorldCat COPAC Doppelt, Gerald. 1978. “Walzerʼs Theory of Morality in International Relations.” Philosophy and Public A airs 8(1): 3–26. Google Scholar WorldCat Hendrickson, David C. 1997. “In Defense of Realism: A Commentary on Just and Unjust Wars.” Ethics and International A airs 11: 19–53.

Johnson, James T. 1981. Just War Tradition and the Restraint of War. Princeton: Princeton University Press. Google Scholar Google Preview WorldCat COPAC Luban, David. 1980a. “Just War and Human Rights.” Philosophy and Public A airs 9(2): 160–181. Google Scholar WorldCat Luban, David. 1980b. “The Romance of the Nation-state.” Philosophy and Public A airs 9(4): 392–397. Google Scholar WorldCat McMahan, Je . 2004. “The Ethics of Killing in War.” Ethics 114(4): 693–733.

McMahan, Je . 2014. “Walzerʼs Radicalism.” In Reading Walzer, edited by Y. Benbaji and N. Sussmann, 233–255. London: Routledge. Google Scholar Google Preview WorldCat COPAC Nardin, Terry. 1983. Law, Morality, and the Relations of States. Princeton: Princeton University Press. Google Scholar Google Preview WorldCat COPAC Nardin, Terry. 2013. “From Right to Intervene to Duty to Protect: Michael Walzer on Humanitarian Intervention.” European Journal of International Law 24(1): 67–82. Google Scholar WorldCat Orend, Brian. 2000. Michael Walzer on War and Justice. Cardi : University of Wales Press. Google Scholar Google Preview WorldCat COPAC Tesón, Fernando. R. 2005. “Ending Tyranny in Iraq.” Ethics and International A airs 19(2): 1–20. Google Scholar WorldCat

Walzer, Michael. 1977. Just and Unjust Wars: A Moral Argument with Historical Illustrations, 1st edn. (1977); 2nd edn. (1992); 3rd edn (2000); 4th edn (2006); 5th edn (2015). New York: Basic Books. Google Scholar Google Preview WorldCat COPAC Walzer, Michael. 1980. “The Moral Standing of States.” Philosophy and Public A airs 9(3): 209–229. Google Scholar WorldCat Walzer, Michael. 1987. Interpretation and Social Criticism. Cambridge, MA: Harvard University Press. Google Scholar Google Preview WorldCat COPAC Walzer, Michael. 2004. “The Politics of Rescue.” In Arguing about War, edited by M. Walzer, 67–81. New Haven: Yale University Press. Google Scholar Google Preview WorldCat COPAC Wasserstrom, Richard. 1978. “Review of Just and Unjust Wars.” Harvard Law Review 92(2): 536–545.

Williams, Bernard. 2005. In the Beginning Was the Deed: Realism and Moralism in Political Argument. Princeton: Princeton University Press. Google Scholar Google Preview WorldCat COPAC

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Michael Walzer, Spheres of Justice  Margaret Moore https://doi.org/10.1093/oxfordhb/9780198717133.013.45 Published: 05 October 2016

Abstract This essay examines the ideas and in uence of Michael Walzer’s Spheres of Justice. It argues that Walzer’s in uence on the discipline has taken a di erent form than many other writers on justice, such as Rawls, where the central ideas have been taken up and argued about in essentially Rawlsian terms. Walzer’s in uence has operated on di erent levels, of which we can distinguish at least three. There is a micro level, with numerous authors picking up fruitful ideas, lines of inquiries or suggestions, found in Walzer’s work, and appropriating them or using them to pursue further arguments. There is a more general social justice level, where ideas that are central to his understanding of social justice have been appropriated by diverse thinkers, often in quite di erent ways. He has been also in uential on a very general, methodological level, where theorists have adopted his method and style of doing political theory.

Keywords: Justice, relational equality, relativism, membership, markets and justice, contextualism Subject: Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Michael Walzer is widely regarded as one of America’s foremost political theorists and public intellectuals. His work has spanned many of the most important topics in political thought: theories of just war, terrorism, toleration, distributive justice, democracy, multiculturalism, the rules of international society, as well as methodological questions relating to how to do normative political theory. His work on distributive justice, Spheres of Justice (1983) (SJ), is a rich and compelling defense of a particular idea of equality, which marked a signi cant departure from most Rawlsian-inspired political thought at the time. Most of these writings aimed to elucidate an abstract and general theory of distributive justice and were marked by thought experiments such as Rawls’s (1971) original position, Nozick’s (1974) experience machine, Ackerman’s (1980) spaceship, and Dworkin’s (1981) island auction of seashells. These heuristic devices were designed to assist the reader in thinking about problems of justice or the state free from irrelevant considerations, and so enable the reader or philosopher to hone in on key features without distraction. By contrast, Walzer’s political theory proceeds through the use of examples, usually historical or drawn from the news, and involve a richly drawn characterization of the context in which the case arises. This is one of

the distinctive aspects of SJ. The book analyzes an incredibly rich set of social practices ranging through health care in the medieval Jewish community, gift exchange in the Western Paci c, the Chinese examination system, and a short history of the vacation. No other book in the literature on social justice has even begun to approach this. Although Walzer claims that his method of doing political philosophy is to “interpret to one’s fellow citizens the world of meanings that we share” (xiv), he does not con ne himself to examining only “our” social practices: he applies this interpretive technique to a number of social practices, to illustrate the meaning embedded in them for the people engaged in them. The core ideas of SJ were formulated in a series of lectures given at Harvard, co-taught with Robert Nozick, in which they alternated giving a lecture and responding to the other’s lecture while articulating their own conception. It was conceived as a particular defense of egalitarian and welfare state practices against a libertarian alternative. Indeed, throughout his career, Walzer has been politically active, seeing himself as a democratic socialist. This left-of-center positioning isn’t headlined, but a large part of the book includes defenses of the welfare state, public schools, and worker democracy. These discussions operate within an overarching egalitarian theory, which focuses on domestic justice or the justice of particular states toward their members (in contrast to justice between states). In Walzer’s view, human beings have a capacity to create justice: to establish and maintain rules, practices, and institutions of justice speci c to their particular communities. By “community,” Walzer means the territorial states in which people live. In contrast to the universalist aspirations implicit in the Rawlsian original position or utilitarian modes of reasoning, Walzer emphasizes that we can expect human societies to develop and endorse di erent ideas of the good life, di erent principles, and di erent institutions and organizational rules. In his view, “every substantive account of distributive justice is a local account” (314). These accounts will vary from community to community and so it is important in analyzing justice to unearth the shared understandings that they represent. As Walzer emphasizes, “Justice is rooted in the distinct understandings of places, honors, jobs, things of all sorts, that constitute a distinct way of life” (314). Communities, on this view, embody richly articulated ethical cultures. Their modes of life and patterns of behavior re ect a “substantive life” that is, or ought to be, representative of the shared understanding of the members of that community (313). Walzer’s theory is pluralist not only in endorsing a number of di erent ethical communities, but because he thinks that there are a number of di erent goods valued in di erent spheres within particular communities; and that these di erent goods have their own internal logics of distribution. This is at the heart of Walzer’s endorsement of “complex equality” and the related idea of separate spheres. Against libertarian and postmodernist critiques, Walzer seeks to rescue the principle of equality by dissociating it from ideas of “sameness” and uniformity, characterizing these as connected to a vision of “simple equality.” Simple equality is identi ed with a single principle which is formulated in general terms and applied as a kind of master principle to obtain a just (egalitarian) distribution. Theories of this type are addressed to the “equality of what?” question and often end up balancing equality with other considerations, such as liberty or e

ciency. Walzer defends equality by articulating a more convincing conception, which he calls complex

equality, which both re ects the normative core of why equality matters and is faithful to the complex, plural normative understandings of di erent goods. This normative ideal has two di erent elements: (1) the idea of goods internal to distinct spheres of distribution; and (2) the idea of separation of spheres, with the implicit ideal of non-dominance. I will take these in order. In Walzer’s view, there are a number of di erent spheres of life, and it is possible to discern the good or goods internal to (and relative to) the di erent spheres. Each social good or set of social goods has a criterion or criteria of distribution internal to it, which is derived from the social meaning of the good. Equality is achieved not by equalizing some particular good, but in an overall sense, through diverse distributive principles applied in di erent spheres of life, which are not necessarily egalitarian themselves, but which we can think of as achieving equality overall. For example, we can think of medical care as a

sphere of life; the good that is internal to it is that of health; and the appropriate distributive principle is the principle of “need.” Distribution by need is di erent in the case of health care than other (needed) things, since it re ects the idea of health, which in turn is a somewhat elastic concept: a healthy eighty-year old is di erent from a healthy twenty-year old. In the economic sphere, “need” is not an appropriate distributive principle. As Walzer writes, “It would … be odd to ask a search committee looking for a hospital director to make its choice on the basis of the needs of the candidates” (25). The appropriate distributive principle in this and other cases can be determined by analyzing the meaning and kind of social good that is central or operative in the sphere under consideration. To take another example: political power is a sphere of life appropriately governed by the idea of equality of status in the sense that no person has the natural authority to rule over another. Hence, Walzer argues, the appropriate principles of distribution are equal citizenship and the capacity to persuade. It might be thought that, since Walzer has not identi ed a metric that can be employed to equalize any value or basket of values across di erent people’s lives, equality has dropped out of the picture: as described so far, he has simply articulated a range of di erent goods which have to be analyzed in accordance with the internal normative logic of the sphere of life in which they operate. It is possible that equality is not the appropriate distributive principle in many or indeed any of the spheres. How then can his account be egalitarian? The answer is that Walzer believes that the basic normative concern of most people who defend equality is concern with the status of their relations with others. They are concerned that their social relations should be marked by the belief in the moral equality of persons in the society; that everyone should be seen as fundamentally the equal of anyone else; that their interactions not be marred by relations of domination and subordination, or based on views of the inherent superiority of some over others. As Walzer argues, in a society characterized by complex equality, in which people stand in di erent relations with one another, there is no “bowing and scraping” (xii); people are viewed as having equal moral worth. While there may be di erent distributive principles in di erent spheres, the overall e ect is to support a society based on social relations of equality, and on a fundamental belief in the moral equality of its members. It is important to Walzer’s conception of complex equality that the autonomy of spheres is maintained. While di erent people in a society characterized by complex equality may be di erently related in di erent spheres, and receive di erent distributions of di erent social goods, their relations with each other can be characterized as broadly equal because they cannot convert advantages from one sphere to another. As Walzer writes, In formal terms complex equality means that no citizen’s standing in one sphere or with regard to one social good and be undercut by his standing in some other sphere, with regard to some other good. Thus, citizen X may be chosen over citizen Y for political o

ce and then the two of them will

be unequal in the sphere of politics. But they will not be unequal generally so long as X’s o

ce

gives him no advantages over Y in any other sphere—superior medical care, access to better schools for his children, entrepreneurial opportunities, and so on. (19) On this view, the idea of equality, when applied to a society as a whole (rather than a particular good in society), does not require us to equalize the distribution of any one good. The term “equality” applies to a society organized such that there are a number of di erent principles of distribution and di erent spheres of life, each with goods relative to the particular sphere. The state has a role to play in ensuring the “autonomy of spheres” by blocking exchanges that involve applying the principle of distribution of one sphere to another, but should otherwise allow di erent (appropriate) distributive principles to govern di erent spheres of life. On his view, the principal threat to equality in contemporary societies is the overweening in uence of money which threatens to subvert the internal logic of each sphere. Wealth and income should not be able to determine who has political power; goods such as health care or education

should be distributed according to the principles that make sense, on an analysis of the social meaning of the goods internal to the sphere, rather than in accordance with who has more money. Although Walzer’s examples run together a number of di erent reasons why we might want to block certain kinds of transactions (Waldron 1995, 144–170; Andre 1995, 171–196), the basic idea in all cases is that the principle of distribution of each social good should be implicit in an interpretation of the meaning of the good within the context of the society’s overall values, conceptions, and meanings. How does the autonomy of spheres relate to the equality of society? Walzer seems to think that a society characterized by complex equality (by di erent distributions of di erent social goods) will place people in relations of social equality, where relations are characterized, not by domination and subordination, but by the principle that each person is a moral equal of any other. This poses the question whether the relationship between separation of spheres and equality is an empirical (sociological) claim about the tendencies inherent in a society that functions in this way, or a normative claim. There is a problem with viewing the relationship between separation of spheres and equality as a purely empirical or sociological matter. It is possible, perhaps even likely, that the same characteristics—good memory, good analytical skills, self-discipline, ability to work to a deadline—that facilitates success in one sphere of life (say, education) may also lead their possessors to succeed in other walks of life. Merely requiring that distribution be according to principles internal to each sphere may not, as a matter of empirical fact, lead to a society in which people have roughly equal life chances, or lead to multiple uncorrelated hierarchies in which di erent people are at the top of each. State action in blocking certain kinds of exchanges will go some way toward limiting the ability of the rich and powerful to ensure access to other kinds of good: they are prevented from using their money to subvert the criminal justice system, or buy political o

ce; but blocked exchanges will have only limited e ect on equalizing overall life chances,

for example. This suggests that Walzer is not focusing on an empirical relationship but a normative one: that respecting the internal logic of each sphere is a way of respecting and preserving people’s basic status as moral equals, and a

rming that no one is inherently morally superior to another. This is suggested by

the word “merely” in Walzer’s key de nition of the principle of sphere-separation: “No social good x should be distributed to men and women who possess some other good y merely because they possess y and without regard to the meaning of x” (20).

Criticisms of Spheres Walzer’s vision of social justice in SJ has been the subject of considerable debate and criticism. Some of the criticisms have focused on his method, which, it was claimed, was too relativist, too supportive of the status quo, or both. Other criticisms focused on speci c parts of his ideal of complex equality—the idea of social goods relative to spheres, the idea of separation of spheres—or argued that his method and sphere argument are in serious tension. I will discuss these in order, before considering the impact of his theory. One initial negative reaction to Spheres was criticism of its apparent relativism. In SJ, Walzer endorsed what seemed to be a relativist position with respect to the relationship between justice and particularist moralities: at one point, he claimed that “a given society is just if its substantive life is lived in a certain way —that is in a way that is faithful to the shared understandings of its members” (313). Subsequently, and in large measure in response to the storm of criticism of this aspect of his theory (Arneson 1995, 226–252; Dworkin 1985, 214–220; Barry 1991, 9–22; Bader 1995, 211–245), Walzer clari ed that he accepts a basic minimalist morality, characterized by “prohibitions on murder, deception, betrayal and gross cruelty” (1987, 33–34). This moral minimalism involves toleration of diverse ways of life and understandings, unless these ways of life threaten to harm others (individuals inside the community, or other peoples). This clari cation (or change of position) was developed in some subsequent articles and especially in

Interpretation and Social Criticism (1987) (ISC), whose impact has to be considered alongside SJ, since it grew out of Walzer’s attempt to clarify the earlier book’s methodological argument. Although Walzer accepts universal prohibitions on some actions, he also argues that they do not begin to capture the richly textured moral life of the members of community; they represent only constraints on local justice. As he said in a reply to a critical commentary devoted to SJ: “Murder, torture and slavery are wrongful features of any distributive process—[Rules against them] set the basic parameters within which distributions take place” (1995, 293). Walzer’s method, which places importance on interpreting communal understandings, was criticized by Susan Moller Okin, a former student of Walzer’s at Harvard, in her in uential book, Justice, Gender and the Family (1989). She identi ed his theory as communitarian and thereby excessively conservative (see also Barry 1991; Dworkin 1985). The main point raised by Okin is that most communities’ or cultures’ understanding of women is profoundly patriarchal, so that any theory of morality or justice that begins from an interpretation of community understandings is at risk of replicating these prejudices. In ISC, Walzer attempts to respond to this charge, mainly by trying to elucidate how the social critic in fact operates, arguing that the point is not to accept the current organization of power or current practices, but to examine beliefs about the practices, and consider whether our beliefs are in fact coherent or well supported. This, Walzer contends, can result in quite radical interpretations of practices. It was important for Walzer to refute the charge that his method is conservative, not only because he himself saw his book as a contribution to a social democratic understanding of American society, and as a response to libertarianism, but also because, if Walzer’s method is fundamentally conservative yet he does not arrive at conservative conclusions, it suggests that he is somehow cheating. At the heart of Walzer’s response to Okin’s challenge is the question of the content of social meanings. Walzer questions whether women and other oppressed groups really do su er from false consciousness (he accepts that they su ered from oppression); he thinks that women themselves did not, at a fundamental level, share the (majority or male) view that they were necessarily inferior, or rightly subordinate. He seems to hold that there are forms of resistance that oppressed people employ against domination; and therefore that the social critic would have access to their resistance and di ering interpretations. Other criticisms focus on speci c aspects of Walzer’s vision of social justice or complex equality. One line of criticism raises concerns about the idea that there is a particular social good for each sphere. In SJ, Walzer seemed to suggest that each sphere has a distinctive social good that is discrete, in some ways separable from other spheres, and discovered through interpretation of the meaning and practices of the society. This is clearly far too simplistic. As Amy Gutmann (1995, 99–119) pointed out, in many cases, there is considerable debate about what exactly the appropriate distributive principle is, even if we have agreement on what the appropriate good is. It is not just that we may have more than one likely candidate, but that some normative principles seem to cut across spheres. For example, individual responsibility is a deeply rooted idea, one that may have applications in spheres of criminal justice (or punishment), the economic sphere, welfare, and so on. It is also sometimes unclear what a particular sphere’s social meaning or the appropriate distributive principle derived from that meaning might be. In the case of health care, for example, a simplistic view might be that “need” is the operative principle, but we might want to qualify that to distinguish between responsible and irresponsible behavior leading to ill health, as Gutmann’s point above suggests; and there may also be disagreement between those who have a su

cientarian understanding of “health care needs”

and those who do not. It is also not always clear who ought to pay for a particular good. Even if we agree that the good is to be distributed according to “need,” it doesn’t follow that we all agree on who is responsible to provide that good, and the level of social or state responsibility that should be undertaken. Another criticism of SJ concerns the tension between two core ideals—(1) the ideal of separation of spheres, each with its own criteria of distribution; and (2) the idea that the appropriate criteria of distribution is

given by the meaning of the social good de ned by members of the society. Brian Barry has argued that the latter has the potential to subvert the former: in his words, “If the members of some caste, race or ethnic group manage to persuade enough other people in their society that their birth entitles them to wealth, power, education, spiritual superiority, and pleasant occupations, then that is what justice calls for in that society” (Barry 1995, 75). The locally prevailing ideas about justice may not be consistent with the separation of spheres, nor with a view that social goods are distributed in accordance with the internal logic of the spheres: the conventional understanding might be that goods should be distributed in accordance with the view that one group or people is entitled to rule over another. Indeed, Walzer acknowledges this possibility in his own discussion of the Indian caste system (SJ, 313–315), though he emphasizes that justice could only demand the system’s maintenance if those in subordinate castes were to genuinely a

rm and

share its social meanings. As in his reply to Okin about the subordination of women, he suggests that this is unlikely. Finally, the picture on which Walzer relied, according to which within societies there are shared meanings and agreement on distributive principles, but, at the international level, there is disagreement about values and distributive principles, has been criticized as relying on a sharp and empirically false dichotomy between the two. On the one hand, existing political communities do not in fact have a full consensus on domestic distributive justice; and, on the other, there is some agreement at the international level, on international human rights norms, for example, as well as some convergence on institutions, policies, and practices, such as multilateral lending institutions that support subsidized loans to the poor; multilateral treaties on natural resources; and regulating the use of outer space and the Antarctica (Buchanan 2004, 205–206; Miklós 2009, 109–115). In response to this criticism, Walzer could reply that he does not present a dichotomy: all he needs to argue is that there is a signi cant di erence between level and range of agreement at the domestic and global levels, which is, in part, institutionally created, through having agreed-on procedures to make social decisions in the state, and therefore a preceding conversation about the facts and considerations that are relevant to that social choice, which is lacking at the international level.

Influence Not everyone responded critically to SJ, of course. There have been many attempts to defend his work, most notably Agnafors (2012), Miller (1995, 2007a), and Gavison (2014). Still more appropriate some part of it. The in uence of SJ extends beyond people who directly follow directly its method or apply the theory of complex equality wholesale. The number of citations to SJ is very large, but there are relatively few “followers.” This suggests that Walzer’s in uence on the discipline has taken a di erent form than Rawls’. In Rawls’ case, the central idea of the original position has been appropriated by multiple authors and applied and argued about in essentially Rawlsian terms. By contrast, Walzer’s in uence has been more di use, both across debates and in types of transmission. It is spread across a number of di erent debates— methodological debates about how to do political theory; debates in ethics of migration; on commodi cation and money; and on membership, goods, justice, and equality. It has also operated on di erent levels, of which we can distinguish at least three. There is (1) a micro level, with numerous authors picking up fruitful ideas, lines of inquiries, or suggestions, found in Walzer’s work, and appropriating them or using them to pursue further arguments. There is (2) a more general social justice level, where ideas that are central to his understanding of social justice—such as social goods relative to particular spheres or complex equality—have been appropriated by diverse thinkers, often in quite di erent ways. (3) He has been also in uential on a very general, methodological level, where theorists have adopted his method and style of doing political theory.

Let me illustrate each of these in turn. The micro level involves theorists picking up particular principles or particular suggestive ideas in SJ, which are separable from the general idea of the work as a whole, and taking these in directions that Walzer didn’t anticipate or didn’t pursue. For example, Walzer is cited by almost everyone writing in the normative literature on immigration, most typically in terms of his treatment of refugees and guest-workers. There are debates about the state’s duties toward asylum-seekers or refugees, and the participants in them (Carens 1992; Seglow 2013; Altman and Wellman 2009) engage with Walzer’s position: that although refugees are entitled to asylum in general, there exists discretion on which ones to admit. Walzer’s views of the obligations toward those admitted are also widely cited and have an almost hegemonic status. His position is that, even if a guest-worker program would be helpful to the receiving society by lling labor gaps and allowing larger number of people to enter, and also advantageous to the migrants themselves, by providing more of them with opportunities which would improve their situation, it would have the (undesirable) e ect of creating two classes of residents, and so entrenching inequality, which would be damaging for liberal democracy and for the general commitment to equality of status that characterizes these societies. In Walzer’s view, “To the extent that immigrants who live and work within the national community are not recognized as members, they are subject to nothing short of ‘tyranny’” (59). This is inextricably connected to his ideal that citizens should stand in relations of equality with one another; indeed, he argued that a democratic community is undermined when some of its residents are subject to an “ever present threat of deportation” (58). These thoughts on the undesirability of two classes of residents—some with full citizenship rights, some with a lesser standing or fewer rights— have been hugely in uential; the “hard-on-the-outside and soft-on-the inside” view of citizenship is now dominant (Bosniak 2006, chs. 1, 5, 6). The in uence of Walzer’s work on those writing on the SJ between markets and democratic society is also hard to over-state. In Spheres, Walzer described an ongoing struggle between markets and other spheres of life that are organized around (non-market) values. Walzer pointed out that we often resist inappropriate commodi cation. Included in his list of goods whose social meaning requires that they not be exchanged for money are: human beings, basic liberties, political power, the right to emigrate, procreation rights, criminal justice, love and friendship, and any illegal activities. Waldron notes that sometimes—as in the case of murder or heroin-tra

cking—the exchange is blocked because the activity itself is wrong or illegal (which

holds independently of whether money is involved or not). Sometimes it is the conceptual meaning of the good—love or friendship—that precludes exchange for money; and sometimes it is the social meaning of 1

the good that precludes such an exchange. Drawing on Walzer’s general picture of the power of the market in capitalist societies and the struggle to resist commercialization in domains that have other values or social goods, there is now a small industry of thinkers focused on ethics and the market and inappropriate commodi cation (Anderson 1993; Radin 1996; Sandel 2012; Satz 2012; Lindblom 2001). Sandel argues that the balance that Walzer brilliantly characterized between market and non-market goods is no longer in evidence: many di erent aspects of American society have become (inappropriately) penetrated by market norms, and inequality poses a serious threat to human freedom. Both Anderson and Satz, too, explicitly draw on Walzer’s analysis. Although Satz is critical of Walzer’s analysis of the social meaning of goods, focusing instead on the problem attached to “the standing of the parties before, during and after the transaction” (Satz 2012, 93), this emphasis on relative standing is not far from Walzer’s own concerns: it mirrors Walzer’s own discussion of the need for relative autonomy amongst spheres in order to achieve complex equality. Beyond these theories, which pick up some interesting aspect of Walzer’s discussion without necessarily drawing on his whole theory, there are others who have been in uenced by central aspects of Walzer’s discussion. Here we can think of relational egalitarianism, which received systematic expression in the works of Sche

er and Anderson, but which are clearly indebted to Walzer’s earlier discussion of democratic

equality; and Miller’s ideal of social justice, which draws on Walzer’s idea of di erent spheres or domains of justice, of goods relative to them, which are di erent for di erent communities.

Although in SJ, Walzer referred to democratic equality, and many theorists refer to relational equality, the basic idea is the same: the reason why we care about equality is because people in a democratic society should stand in roughly equal relations with each other. Indeed, in her well-known article on relational equality, which proceeds as a criticism of the rival luck egalitarian conception of equality, Anderson claims to be motivated by the concerns of the politically oppressed, and of those who oppose the inequalities that they see in their daily lives: inequalities of class, race, and gender. Why, she asks, do these count as forms of oppression? What is the basic concern motivating social movements that seek to overcome them? This concern to interpret currently political struggles is also a marked feature of Walzer’s work: he is also interested in equality and inequality to the extent and for the same reason that ordinary people are concerned about inequality. The relational egalitarian ideal draws on Walzer’s earlier theory in signi cant ways. Against the more abstract ideal of luck egalitarianism, which attempts to be choice-sensitive and endowment-insensitive, famously associated with the works of Dworkin (1981), Arneson (2006), Cohen (2008), and Otsuka (2002), amongst others, Anderson articulated a vision of relational egalitarianism, according to which people in an egalitarian society should relate to one another as equals and enjoy the same fundamental status. And, harkening back to Walzer, Anderson identi es the ideal of relational equality with the requirements of equal democratic citizenship. She argues—like Walzer—that in an egalitarian society, all permanent adult members are equal citizens, with equality of rights and duties. Even when there are diverse ways in which they may be unequal, the public culture of the society is one in which all are equal in status and relate to one another on a footing of equality. Like Walzer, she both explicitly grounds this ideal in the requirements of a democratic society, and does not extend the principle of equality beyond the state, beyond the political communities that we share and in which our relations with one another give us reason to be concerned about equality. Like Walzer, relational egalitarians have a pluralist view of the appropriate scope of distribution; they argue for equality in the political realm and a broadly su

cientarian approach to global

distributive justice (combined with non-exploitation principles and the protection of human rights) (Sche

er 2010; Anderson 1999). As Sche

er has argued, echoing some of the concerns of Walzer, in the

context of human relationships within domestic society, we have serious concerns about the corrosive e ects of inequality amongst people related together in speci c ways: “we believe that there is something valuable about human relationships that are, in certain crucial respects at least, unstructured by di erences of rank, power, or status” (Sche

er 2010, 225).

Some of these themes are explored also in David Miller’s work, which run parallel to Walzer’s, particularly in its insistence on the plurality of goods in society and the equality ideal implicit in democratic citizenship. Tracing the connection with Walzer is clearer in this case, since Miller explicitly re-interprets Walzer’s theory of pluralism of goods in a democratic direction and explores the implications of this in numerous other works, on nationalism, social justice, and global justice (Miller 1995; 2007b). Like Walzer, Miller emphasizes equality of citizenship, the basic idea that in di erent spheres, di erent distributions may be appropriate. In solidaristic communities such as the family, need may be an appropriate principle of distribution, but, in the political sphere, equality of citizenship, which is conceived of as a status, is the most important. This view of the scope of the principle of equality also has impacts on the view taken of global justice. Like Walzer, Miller rejects global equality and does so on similar grounds, namely, that there is no cross-community metric of goods or values, but rather di erent communities will legitimately de ne and distribute goods in di erent ways. Because no neutral, overall ranking or metric is available to know when equality is achieved, simply ensuring that di erent states have equal amounts of some good is not necessarily fair or just. As with Walzer, the commitment to a pluralism of goods is used to reject both a topdown distributive theory, and to argue for the view that within each society there needs to be a conversation amongst people connected to the relative weight and meaning of social goods; and these are both important in distinguishing between social justice (within a society) and global justice.

Finally, Walzer has been very in uential at the macro level—the level of methodology and general approach to political philosophy. Prior to Walzer’s writings, most work in political theory proceeded either historically or analytically, and in the latter case, through ambitious theories of justice, like Nozick’s and Rawls’s. (Of course, at an even earlier time, political philosophy was contextually situated: it was primarily a philosophical reaction to political events, so in some ways Walzer’s method represents an invocation of an earlier tradition.) In the quite recent past—the last twenty years—political theory has moved away from broad theories of distributive justice to focus on more de ned issues such as justice in migration, just war theory, justice and the environment, justice and children, justice and health, multiculturalism, and many of these cases can be explored in the manner suggested by Walzer, by examining the goods at issue, and making progress on the issue in question without presupposing or spelling out a full philosophical theory of value. Often, these issue-based theories begin with an example or a case drawn from real life or from the news, in a manner reminiscent of Walzer’s approach to political theory. Sometimes this is a device picked up from Walzer and those in uenced by him, and serves to motivate the discussion, but is not integral to the analysis. However, in other cases, it’s used to test principles, to analyze what is at stake, the goods involved, and the relevant stakeholders. Consider as an example Joe Carens’ (2000) argument about gender fairness, which proceeds in a way that is deeply reminiscent of Walzer’s framework. Carens (2000, 102–103) points out that there is often a long queue outside women’s public toilets and not outside men’s, so even if there is the same number of toilets in men’s and women’s facilities, this still might not be fair or even-handed. If the relevant good that we seek to equalize is waiting time, then, this might require that more women’s toilets be built. In this example (and elsewhere in the book) Carens deploys Walzer’s method: although he remains agnostic on the question of relativism and the status of these values, he proceeds on the assumption that we do not always need an overall theory of value to resolve problems of disagreement, but what we do need to have a shared conception of the good that is at stake, which in this case is waiting time, and which might be di erent in di erent situations. There are two further ways in which Walzer’s method has in uenced contemporary political philosophy. One bears on the importance of empirical or sociological research in thinking about justice. Theorists like Swift (1999) and Miller (1999) have both argued that everyday beliefs about distributive justice ought to be taken seriously, and they’ve argued for this, not merely because it’s clearly a constraint on what, politically, can be achieved, but because in certain cases it is part of the content of justice. This is particularly so if society is committed to democratic practices or has democratic procedures as a constituent part of its conception of a just society. Finally, perhaps one of the most distinguishing features of Walzer’s work is its concern with social power. The motivation behind the complex equality ideal and the relative autonomy of spheres is a recognition that the state is not the only source of power; there is social power, which often stems from economic inequality but is not reducible to it. Concern about the corrosive e ects of di erential social power distinguishes Walzer’s theory from some of the “grand” theories such as those advanced by Rawls and Nozick. It is also a feature of a number of contemporary accounts since SJ, such as the work of Iris Young (1990), Charles Beitz (2009), and Carole Pateman and Charles Mills (2007), all of whom theorize justice and injustice within a particular domain and in a way that is sensitive to various facets of social power. Although it is possible to trace the impact in political theory of Walzer’s concern with social power, I think on this dimension his work has been under-appreciated. There are, as Armstrong (2000) has noted, many contemporary theorists —feminists, social theorists, people who are in uenced by post-modernist and post-structural critiques— who share Walzer’s rejection of the value of analyzing equality in strictly distributive (equality of what?) terms, and have been struck by the ways in which power operates on a eld, within structures, and pervades human relations (Hayward 2000). Amongst these theorists, Walzer has been less in uential than he should have been. Given the degree of common ground, it is striking how little he is cited or referred to amongst

these theorists, probably because the conservative and communitarian charge leveled against him by Susan Okin has stuck to some extent. But it is a measure of Walzer’s insights on power and domination that his initial theorizing on this area is now accepted by many di erent people in many di erent elds and traditions, even though, in this domain at least, there is little evidence of direct in uence.

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Note 1

See Waldron 1995, 144–170; Andre 1995.

The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Robert Paul Wol , In Defense of Anarchism  Anna Stilz https://doi.org/10.1093/oxfordhb/9780198717133.013.7 Published: 11 February 2016

Abstract This chapter examines Robert Paul Wol ’s arguments in In Defense of Anarchism about state authority and individual autonomy, and how plausible they are for philosophical anarchism. According to Wol , the authority of the modern state cannot be justi ed because it con icts with the autonomy of the individual. The presumptive clash between state authority and individual autonomy that Wol highlights remains central to the philosophical anarchist critique of the state, a position that has gained prominence—and widespread acceptance—in contemporary political philosophy. The rest of this chapter comments on Wol ’s views in more detail, including those concerning compliance with the state, a state’s right to rule, unanimous direct democracy, and majority rule. It also discusses JeanJacques Rousseau’s assertion that persons must remain free in obeying the state.

Keywords: Robert Paul Wol , In Defense of Anarchism, state authority, individual autonomy, philosophical anarchism, state, compliance, right to rule, direct democracy, majority rule, Jean-Jacques Rousseau Subject: Political Theory, Political Institutions, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Robert Paul Wol

holds that the authority of the modern state cannot be justi ed, because it con icts with

the autonomy of the individual. As he summarizes his argument: The de ning mark of the state is authority, the right to rule. The primary obligation of man is autonomy, the refusal to be ruled. It would seem, then, that there can be no resolution of the con ict between the autonomy of the individual and the putative authority of the state. Insofar as a man ful lls his obligation to make himself the author of his own decisions, he will resist the state’s claim to have authority over him. That is to say, he will deny that he has a duty to obey the laws of the state simply because they are the laws. In that sense, it would seem that anarchism is the only political doctrine consistent with the virtue of autonomy (18, emphasis in original).

Wol ʼs Influence The presumptive clash between state authority and individual autonomy that Wol

highlights remains

central to the philosophical anarchist critique of the state, a position that has gained prominence—and widespread acceptance—in contemporary political philosophy. A core principle of a liberal society is that each person should make her own moral decisions about how to live and to act. But is this principle compatible with the state’s putative claim to tell people what to do? Philosophical anarchists argue that it is not. Building in part on Wol ’s work, A. John Simmons has prominently argued that the only way the hierarchical relationship of state authority might be made consistent with subjects’ autonomy is through their explicit and voluntary consent to that authority. Since very few citizens have consented, Simmons holds that all existing states are illegitimate (Simmons 1979 and 2001; other contemporary philosophical anarchists include Smith 1973 and Green 1988). While philosophical anarchists hold that there is no obligation to obey the state, they do not generally hold that it should be abolished as an institution. Thus, Wol

stresses that his argument does not necessarily

imply that subjects should refuse compliance with the state, deny it their support, or engage in militant or revolutionary action. Even if Wol ’s thesis is correct, a subject still has many good reasons for complying with his government’s laws and policies. Among these are: a state authority might direct me to do something I already have independent moral reason to do, the costs of non-compliance might give me good prudential reason to comply, or the authority might be uniquely well placed to solve social coordination problems (16). Indeed, Wol

describes the anarchist’s relation to the government of his country as rather

like the relation a tourist has to the government of a country he is visiting. When vacationing in Great Britain, I obey its laws out of prudence, and also “because of the obvious moral considerations concerning the value of order, the general good consequences of preserving a system of property, and so forth” (19). If philosophical anarchism is the right attitude to take toward claims of political authority, then “my obedience to American laws … must proceed from the same considerations which determine me abroad” (19). Embracing philosophical anarchism simply means denying that I have any duty to obey the law because it is the law. It is perfectly compatible with recognizing that having and upholding a system of law is, on the whole, a morally desirable thing. This di erentiates philosophical from political anarchists, who tend to take a much stronger line, arguing that the state should be abolished, and replaced with non-statist political forms. For a political anarchist, individuals have a moral obligation to oppose the state and, so far as it lies in their power, to try to eliminate it. (For a recent argument that philosophical anarchism should lead us to political anarchism, see Huemer 2013.) Wol

adopts a particularly strong view of legitimate state authority, of which there are various competing

de nitions (for a good overview, see Christiano 2012). “Authority,” he writes, “is the right to command, and correlatively, the right to be obeyed” (4). Wol

suggests that if the state has authority over me, then I

must obey it, “whatever may be commanded.” (40, emphasis in original). We should note three features of this de nition. First, the right to rule on the part of the state, if it exists, is meant to be correlative to a content-independent moral duty to obey on the part of the subject (Raz 1986). A legitimate authority’s commands create binding obligations for subjects to comply, obligations that do not depend on the substance of these commands. Second, for Wol , the domain of this duty is in principle unlimited: the state has the right to issue me binding directives not only in some areas (say, property and contract law), but in all areas, and I have a duty to obey. Third, Wol , argues that the duty to obey is owed to the state itself, and not to fellow citizens, or to other individuals with whom one might interact. In the years since the publication of Wol ’s book, there have been many attempts to respond to his thesis that state authority is incompatible with individual autonomy. A common strategy is to defend an account of state authority that is more limited than Wol ’s own, in the hope one that this might harmonize better with autonomy. Joseph Raz, for example, holds that the state has authority over its subjects when obeying its

directives helps them to act for reasons that apply to them anyway (Raz 1986). State authority is justi ed, according to Raz’s Normal Justi cation Thesis, when subjects would “do better” at complying with the reasons that they have by following the general rules laid down by the state, rather than by acting on their own judgment case-by-case. While Raz’s view provides a partial rejoinder to Wol ’s concerns, by suggesting that some people will better conform to reason by overriding their autonomous judgment rather than by following it, it does not rule out that for many citizens in many cases, it is still best to decide autonomously. This raises the possibility that a state might have some authority, in some domains, over some subjects, but its authority could be piecemeal. Ordinary American citizens might better secure their health, for example, by obeying the rules issued by the US Food and Drug Administration, but pharmacology experts might not. On Raz’s view, while the state can in principle have a right to rule, it may lack authority over its citizens much of the time. A second possibility explored in the years since Wol ’s book is that a state might have a right to rule without any power to impose a duty to obey on its subjects. Some theorists have rejected altogether any aspiration to justify the state’s authority, settling instead for a weaker notion of legitimacy. To be legitimate, on this account, is to be justi ed in making law and policy for a society, in preventing others from interfering with one’s carrying out these functions, and in using coercion to secure compliance with the rules one has issued. Note that a state might be legitimate in this sense without its subjects having any content-independent moral duty to comply with its rules (Buchanan 2005, 2011). Their obligations to comply might be purely prudential (i.e., to avoid the costs associated with non-compliance), or perhaps content-dependent (i.e., to comply only after morally assessing the substance of the rules). A state that is legitimate in this weaker sense would still be justi ed in performing state-like functions, but it would have no authority in Wol ’s sense. Still other theorists have argued that though there is a duty correlative to the state’s right to rule, it is substantially weaker than a duty to obey: it might instead be a duty not to interfere with the authority’s issuing and enforcing its rules (by, say, unilaterally engaging in vigilante justice), or a duty to support the authority in carrying out its functions (by paying taxes, say). A nal possibility is that the extent of even a legitimate state’s authority could be limited: there might be some directives a state cannot issue without undercutting its right to rule, such as directives that required citizens or state o

cials to violate basic rights (Christiano 2008; Stilz 2009; Altman and Wellman 2009). As

autonomous citizens, individuals must judge whether their state satis es these conditions for having a right to rule in the rst instance. This position is often endorsed by those who take a natural duty view of state legitimacy. Rawls, for example, holds that we are subject to a Natural Duty of Justice (NDJ) that “requires us to support and comply with just institutions that exist and apply to us … and … to assist in the establishment of just arrangements when they do not exist, at least when this can be done with little cost to ourselves” (Rawls 1999, 99). On a natural duty argument, the state’s authority is justi ed because it helps us to resolve problems of indeterminacy and disagreement about our duties of justice to others, providing a binding interpretation of those duties and impartial third-party mechanisms for enforcing them. On this view, however, there could be no duty to obey “whatever may be commanded,” (40, emphasis in original) because the issuing of certain commands would demonstrate that the state is not a legitimate authority to begin with. No natural duty of justice can give us reason to comply with a scheme of law that clearly and obviously fails to aim at justice. (For other approaches to natural duty, see Quong 2010, 126–131; Waldron 1993; and Wellman 2005).

Assessing Wol ʼs Argument How plausible is Wol ’s argument for philosophical anarchism? The above discussion highlights that Wol begins with a very strong conception of what it would mean for a state to have authority over its members. To prove that the state has authority, it is not su

cient, for him, that the state be morally justi ed in

performing its core functions, or that its subjects have some duties to support the state’s performance of those functions, and to comply in most cases. Rather, it has to be shown that the subjects have a special moral obligation, owed to the authority, to comply in all cases, across all domains, without regard to the substantive content of what has been commanded. This makes justifying the state’s authority a particularly tall order. It is not surprising that such robust state authority, if it existed, would con ict with the autonomy of the individual. Wol

de nes autonomy as rooted in the assumption “that men are responsible for their actions”

(12). This responsibility is given by two core capacities of persons. First, persons have the ability to choose how they are to act: they are not instinctually determined, but can exercise some control over their own impulses and desires. Second, persons also have the ability to appreciate the various reasons (especially moral reasons) that bear on their choices, and to act in accordance with those reasons (12–13). These two features give every person a duty to engage in personal re ection and inquiry about the moral constraints that should govern his actions. Wol

describes the exercise of this capacity to judge moral constraints for

oneself as self-legislation: “since the responsible man arrives at moral obligations which he expresses to himself in the form of imperatives, we may say that he gives the law to himself, or is self-legislating” (14, emphasis added). Since each person has a responsibility to judge the moral constraints he should live by, he cannot allow an external agent like the state to require him to abide by its directives, independent of his personal evaluations. Since autonomy is a capacity that persons possess in virtue of their capacity for reason and free will, we might wonder whether it could ever be given up. How could we fail to possess autonomy, since—so long as we remain persons—we can always form and act on our own judgments, if we choose? Wol

suggests that

autonomy cannot exactly be given up, but it can be forfeited. We forfeit our autonomy when we refuse to take up the challenge of determining for ourselves what is right and wrong, and simply obey the command of another person without regard to its content. In de ning autonomy, I believe that we should distinguish—as Wol

does not—between a weaker and a

stronger version of that idea. On the weaker version, an autonomous person has a capacity, and therefore a duty, to make up her own mind about how she is to act, by assessing the reasons that bear on her choice. If she decides to cooperate with an immoral state directive, the decision is her responsibility, and she is not absolved from responsibility because the state ordered her to do it. Thoughtlessness, failure to deliberate, or forfeiture of judgment is no excuse. This conception of autonomy entails that each subject has an important responsibility to evaluate the state’s directives, and to refuse compliance with those directives that are wicked, or gravely harmful or unjust. But Wol

generally operates with a stronger conception of autonomy. The stronger conception holds that

an autonomous subject must refuse compliance with all authoritative directives unless those directives correspond to her own rst-order personal judgment about what to do. This echoes Thoreau’s oft-quoted statement, “The only obligation which I have a right to assume is to do at any time what I think right” (Thoreau 1849 [1996], 2). But it may be too simple to say—as the strong conception of autonomy does— that what I think right must be at all times to act on my rst-order judgment of what should be done (see Simmons 2001, 111, who notes that this strong view is incompatible with the binding force of past promises or contracts). Sometimes I think it right to override my rst-order judgments. That is, sometimes I

autonomously form a second-order judgment in favor of disregarding my rst-order judgments, and I do so because I see good reasons for not acting on my own views. To clarify, consider an example. Princeton University’s administration requires all professors to have nal papers for their undergraduate courses due on a particular day. This policy is an exercise of authority, and it takes the form of a directive, addressed to me and other faculty members, about when to set our due dates. This is not a policy I would have independently chosen to institute: I like some exibility in my due dates. So it does not re ect my rst-order judgment about what to do. Does this mean that, in complying with this policy, I forfeit my autonomy? No. I am perfectly autonomous in complying with this policy. I am able to deliberate about what to do, to re ect on the moral acceptability of this policy, and I could choose not to comply if I wished. I decide to adhere to the due date policy because I think it is generally a good thing to have the administration coordinate the smooth functioning of the university, and I see no pressing moral objection to this particular decision. I am therefore weakly autonomous when I comply with the policy: I am acting on my own (second-order) judgment, not the judgment of someone else. Wol

suggests that there is only one kind of political rule that would successfully reconcile authority and

autonomy: unanimous direct democracy. “Under unanimous direct democracy, every member of the society wills freely every law that is actually passed. Hence, he is only confronted as a citizen with laws to which he has actually consented” (23). Since only unanimity would ensure that all citizens obey their rst-order judgments, only unanimity can guarantee (strong) autonomy. The obvious worry is that unanimous direct democracy is infeasible. But Wol

suggests that it may be less

infeasible than we think. A unanimous direct democracy, he stresses, is compatible with many con icts of private interest among citizens. Citizens might choose principles to regulate compulsory arbitration among their competing economic interests, for example. So long as the person whose interests were disadvantaged under these principles can recognize and regard them as fair, her autonomy would be preserved (25). Indeed, in a passage ahead of its time, Wol

puts forward a proposal for a direct deliberative democracy in

the United States. Everyone would have a voting device installed in his or her television set, and the evening news would be replaced by “a nationwide all-stations show” (35), devoted to debating the issues before the nation. Every Friday, after a week of debate, each citizen would vote on that week’s issues, and the nation would instantaneously record its preferences (35). If the citizens vote unanimously, then in obeying the decision, they obey only themselves. Wol

regards the reconciliation of autonomy and authority as at the heart of classical democratic theory.

That project, as he interprets it, was to extend the attractions of unanimous direct democracy to more workable forms of government, like representative or majoritarian democracy. Indeed, Wol

refers to this

at several points as “the fundamental problem of political philosophy.” In this formulation, Wol

is heavily

in uenced by Rousseau, who similarly argued that the fundamental problem of the social contract was to Find a form of association which defends and protects with all common forces the person and goods of each associate, and by means of which each one, uniting with all, nevertheless obeys only himself and remains as free as before (Rousseau 2011, 164). Like Wol , Rousseau appeals to considerations of moral autonomy to make the case that persons must remain free in obeying the state. Since we cannot genuinely abdicate responsibility for our actions, we ought not to alienate our freedom: Pufendorf says that just as one transfers his goods to another by conventions and contracts, one can also divest himself of his liberty in favor of someone. That, it seems to me, is very bad reasoning; for, in the rst place, the goods I give away become something utterly foreign to me,

and it is a matter of indi erence to me whether or not these goods are abused; but it is important to me that my liberty is not abused, and I cannot expose myself to becoming the instrument of crime without making myself guilty of the evil I will be forced to commit … (Rousseau 2011, 84). If I voluntarily abdicated my autonomy, then I would be obliged to do the will of a master, to carry out anything my superior told me to do. And if that master obliged me to do something morally evil, then ex hypothesi, I would be required to do it. Rousseau argues, however, that in this situation I would still be unable to see my master, rather than myself, as responsible for the crime I commit. That means I cannot really absolve myself of the responsibility to act in accordance with my own moral judgments, by taking someone else’s judgments as my own. Like Wol , Rousseau argues that autonomy is required if we are to take ourselves to be moral agents. Wol ’s book in many ways builds on this Rousseauian idea. Unlike Rousseau, however, Wol

suggests that

the attractions of unanimous direct democracy cannot be extended to other political forms. He argues that there is no regime other than unanimous direct democracy that can reconcile authority and autonomy, suggesting that classical democratic theory is therefore doomed to fail. Wol

rejects representative

democracy on grounds that the representative can never adequately re ect the judgments of his constituents. Even if the representative is viewed strictly as an agent who is given an explicit mandate, new issues will inevitably arise in an assembly that have not been considered in his constituency at the moment of election (28–29). When this happens, the representative will not be able to canvass each constituent, and so he will inevitably be required to make choices for his constituents, choices they themselves would not have made. In a representative system, citizens are also bound to guess at which representative would be most likely to vote as they themselves would, taking cues from his general “platform” and personal characteristics. Yet this kind of “guessing” is a very imperfect method for choosing a representative who shares one’s rst-order judgments. So long as there are a large number of issues under debate, and so long as these issues can be arrayed on various dimensions, no voter will have a representative who accurately re ects all his views. In living under laws that have been enacted by their representatives, then, voters will not be acting autonomously. A similar problem arises for majority rule: what are we to say about the autonomy of the minority in this scenario? The majority who voted for a law can be autonomous in living under it, since they willed its passage, and presumably it re ects their rst-order judgments. But the minority cannot say this. The member of the minority appears to be in a position of being ruled by someone else’s judgments. Wol examines and criticizes various “ xes” that Rousseau suggests for this problem, such as the argument that the majority is likely to be correct about the true general will. Since the minority voter is presumed to be public-spirited, Rousseau argues that she ought to obey the true general will (re ected in a majority vote) rather than the proposal that she preferred to enact. Wol

rejects this conclusion, because it unjusti ably

assumes that “the majority is always right in their opinion concerning the general good” (55). If that is not so, then according to Wol , there is no reason to believe the minority remains morally autonomous in living under laws passed by the majority. Thus, Wol

is drawn to the conclusion that—outside unanimous direct democracy—autonomy and

authority simply cannot be reconciled. Classical democratic theory fails to live up to its own aspirations. The best remaining explanation for why a democratic state might have authority over its members, according to Wol , is that those members have unanimously consented to obey. This explanation from actual consent is common in the social contract tradition. If we promise to obey an authority, then Wol

concedes that we

might acquire a content-independent moral obligation to comply with its directives. Yet this answer does not solve Wol ’s fundamental problem: it does not show how the authority of the state might be compatible with our autonomy. “Insofar as democracy originates in such a promise, it is no more than voluntary

slavery” (42). Indeed, on this consent-based view of political obligation, we might acquire exactly the same kind of obligation by consenting to obey a monarch or a group of aristocrats: there is nothing special about democracy. According to Wol , this leaves us disappointingly lacking a solution for how to combine autonomy with political authority. Is Wol

correct to conclude that—outside the case of unanimous direct democracy—Rousseau’s

fundamental problem lacks any solution? To begin, we might wonder whether unanimous direct democracy itself solves Rousseau’s problem. Does unanimous direct democracy reconcile authority and autonomy? Or does it simply do away with authority? Unanimous direct democracy, it seems to me, is a kind of limit case in which a group of individuals, each acting on his independent judgment, all converge on doing exactly the same thing. But there is no relation of authority constituted here. If the results of the collective political process for some reason failed to track a citizen’s personal judgment, he would experience no moral pressure to override that judgment at the moment of action. Yet it is exactly this kind of obligation that is constitutive of an authority relation. I believe that Rousseau’s fundamental problem may be easier to solve, however, if we rely on the weak, rather than the strong, account of autonomy outlined above. Individuals may sometimes see good reasons for autonomously forming a second-order judgment in favor of compliance with authority, even when that authority does not re ect their rst-order views. If all citizens judge that such second-order reasons in favor of compliance exist, then their many free decisions will support a stable political order. In supporting such an order, they are not abdicating their autonomy. Rather, they decide that their political principles, on balance, tell in favor of compliance with law. Of course, there is no guarantee that the weakly autonomous individual will always decide this way, nor should there be. Sometimes an autonomous person’s political principles may support disobedience, or even militant or revolutionary action. Still, a compliant citizen can remain weakly autonomous, in a modern state, in obeying a decision that does not re ect her rst-order judgments, so long as she does so on the basis of a second-order judgment that favors willing compliance. To illustrate what I have in mind, consider the case of an everyday group, for example a group of friends running a co ee shop together. As they cooperate over time, this group will likely develop some shared commitments about how their enterprise should run. This does not mean that the partners will spontaneously converge in all their rst-order judgments. More probably, they will divide on some issues, such as whether or not to stay open on Sundays, how much vacation time to take, whether to rent a larger or smaller space. However, even when they do not converge, partners are often able to generate shared commitments—not reducible to their own judgments—about how their joint venture should go. Indeed, if we lacked this ability to participate in shared commitments of this kind, everyday cooperation would be impossible for us. One such joint commitment is the decision to govern the group’s a airs by majority rule. Other commitments include the various policies they derive on the basis of majority voting, for example, the decision to close on Sundays. Say that Amy thinks it best that the co ee shop stay open Sundays for the extra business. But after hearing the views of her partners and noting that a majority favors a day o , she decides to go along with a Sunday closure policy. Amy can freely accept her group’s decision, though it di ers from her rst-order judgments. She values her participation in this venture, so she is happy to license the policy, though she does not personally favor this course of action. When she complies with the majority decision, Amy is weakly autonomous. She is not forced to go along, and her processes of deliberation, evaluation, and choice are in no way short-circuited. Instead, she chooses to willingly comply because she values her participation in this joint venture, and that is more important to her than her rst-order policy preferences. For the weak autonomy account to make sense, there must be good reasons in favor of overriding our rstorder judgments, in some cases, and we must be able to recognize and act on these reasons. What might these reasons be? Let me suggest three. I believe authoritative institutions are required to do justice to

others because: (1) some moral rights are indeterminate in the absence of legitimate institutions to de ne them; (2) even where moral rights are determinate, individuals may disagree about justice in particular cases, and these disagreements must be fairly resolved; and (3) since individuals lack the proper standing to coerce other individuals to submit to their judgments, they cannot engage in fully just enforcement of their rights. I believe that in many cases, citizens are able to recognize and act on these reasons, forming a stable intention to comply with a reasonably just political authority. When they willingly comply on the basis of such recognition, they are (weakly) autonomous. To motivate this account, consider brie y the case of property rights. It is a requisite of a minimally decent life that each person be able to claim possessions essential for his survival. But how do we know exactly which possessions these are? There are many possible and di erent schemes of property rules that would ensure each person’s survival. But in order to say which particular goods a person has a right to, it seems essential to refer to some institutional rules and the legitimate expectations they create. Partly the problem is one of coordination: for example, even if each person has a basic interest in the goods necessary for his survival, that does not by itself determine any answer as to how to structure many other issues, including property in the means of production, rights to transfer (subject to tax? at what level?), or rights of bequest. It is unlikely that individuals could coordinate on one resolution to these problems without granting authoritative institutions a signi cant role in de ning many of their rights. Without authoritative institutions, individuals would also face a second problem in doing justice to each other: a problem of moral disagreement. Even where their moral rights are determinate, often individuals will not share a fully common understanding of these rights in particular cases, so that each person’s goodfaith attempt to do justice to others may not lead him to respect the precise claims other persons take to be signi cant. In circumstances of disagreement, it is di

cult for individuals to recognize one another as

attempting to do justice in their interpersonal behavior, simply by acting on their rst-order moral judgments. Consider an example: almost everyone agrees, at a very abstract level, that individuals have a right to life. Many people believe this can ground a claim to material resources essential for one’s survival. And many in turn believe this grounds a claim of justice to adequate health care. But not all who agree on the abstract importance of the right to life support these conclusions. For example, Christian Scientists think that poor health is actually a sign of erroneous spiritual beliefs that must be corrected through faith healing. And libertarians believe that while the right to life is important, it imposes only negative duties, not positive duties, on others. In a preinstitutional situation, these Christian Scientists and libertarians would not recognize any duty to contribute to securing others’ interests in medical care. When people lack a common understanding of their rights in particular cases, then their attempts to respect the rights that, by their lights, other individuals have will not strike these others as an e ort to respect their rights. These divergent moral understandings will lead to injuries and con ict. Since individuals can be expected to disagree on what their moral rights are, how these interests should be protected by coordinated rules, and which is the best of the many possible schemes that could protect these interests, they must not only ask themselves substantive questions about justice—for example, what rights and duties do we all have, on my best understanding of justice? Instead, they face an equally important procedural question of justice, namely: when we disagree about our rights and duties, how are we to do justice to one another? The natural duty view of legitimate authority I endorse holds that amidst these conditions of indeterminacy and disagreement, we have a responsibility of justice to commit ourselves to one interpretation of rights and duties which is collectively “ours,” to designate it as the one on which we will together coordinate. In circumstances of disagreement, we cannot do justice through our personal behavior. So the duty to do justice to others itself gives individuals a second-order reason to coordinate their interpretations and to set up one common and univocal set of rules. This means we ought to recognize a moral reason in favor of complying with a legitimate authority.

If this is correct, then a natural duty theory can provide some support for citizens’ weakly autonomous judgments in favor of compliance with laws they personally disagree with. First, and most basically, where one’s state protects basic rights and aims at enforcing justice, one’s natural duty gives one an obligation not to use private coercion against one’s fellow-citizens or to undermine the state by force. Second, one’s natural duty also gives one a duty to obey the just laws laid down by a legitimate state, as well as those laws that while not ideally just, are at least pursuing a just objective (by one’s own lights). For an example of the latter, consider someone who thinks that basic health care for all citizens is a demand of justice and that the most just scheme is a single-payer system. On the natural duty view, she should still contribute her tax dollars to the recently passed US health care plan even though it is not ideally just by her lights, simply because doing justice to others requires settling on and abiding by a community view of what justice requires. Third, I think natural duty can also impose a demand to obey laws that one considers unjust, especially when other people’s legal entitlements are involved, as long as these laws do not violate core human rights and freedoms, because of the important expectations of the rightholders in having others coordinated around a common view of their rights. I may simultaneously have a duty to protest laws I nd unjust, working to establish a substantively better community view by convincing others to adopt it. Finally, I think we have no duty at all to obey laws that violate basic human rights. Our duty to obey rests on our more basic reason to recognize and respect a common view of others’ rights and freedoms; it is not a reason to collaborate in the oppression of others. All of the above reasons to obey the law rest on a strong coordination reason to do justice to others through a unitary legal institution. Though this coordination reason can be trumped by a law’s substantive injustice, it is still a very strong reason and may outweigh substantive injustices in many cases. So in my view we ought to respond to Wol ’s powerful challenge by holding that the reconciliation of weak autonomy and authority is both an attractive and a feasible political goal. Though there are limits to the state’s authority, there is an important area within which a citizen can have reason to comply with the state’s requirements—and can recognize and act on that reason—even when those are not the requirements the individual would identify as just on independent grounds.

Wol ʼs Continuing Relevance Wol ’s work remains an enduring in uence on contemporary debates. Despite my arguments above, philosophical anarchism remains very widely accepted, indeed perhaps the dominant position among political philosophers. A substantial part of philosophical anarchism’s appeal derives from our strong intuition that it is wrong to follow authority blindly. The Milgram experiments of the 1960s illustrated just how willing ordinary people are to commit immoral acts under the in uence of authority: in this case, to administer what seemed to be life-threatening electric shocks to a subject merely because they were directed to do so by a person in a lab-coat. Philosophical anarchism serves as an important corrective to these dangers by emphasizing individuals’ responsibilities to critically re ect on the directives they are presented with, and to make up their own minds about whether those directives are justi ed on a case-bycase basis. Moreover, even if in the end we reject philosophical anarchism as a matter of pure theory— holding that it is possible for a su

ciently just state to have the right to rule—there is still an important

question as to whether we should adopt the orientation in practice. The poverty, corruption, rightsviolations and other severe injustices characteristic of even current liberal–democratic states should give us pause, and may mean we should conclude, after re ection, that all existing states are in fact illegitimate. If this is right, then perhaps—as Wol

suggests—we should adopt a skeptical relation to the state, refusing to

obey the law simply because it is the law. Thus, the debate between philosophical anarchists and defenders of state authority—and its implications for our political practice—remains unresolved.

Wol ’s work also takes up important questions about the justi cation of democracy that continue to be hotly debated in recent literature. Most people believe that democracy is a key component of a just society, and that the authority of a democratic procedure gives us some reason to comply with its decisions, even when they con ict with our own views. Yet there is little consensus about what exactly makes democracy a uniquely authoritative political procedure. While Wol

explores the thought that democracy’s authority

might be rooted in the value of autonomy, recently, other theorists have taken up the idea that this authority might derive from other values, especially equality. Jeremy Waldron, in this vein, argues that democracy is grounded on individuals’ claims to be treated as a “particular intelligence,” with a unique view of justice worthy of equal consideration (Waldron 1999). Charles Beitz argues that democratic procedures are necessary to guarantee recognition of each person’s equal status as a citizen (Beitz 1989). Thomas Christiano claims that democracy is necessary to ensure that all individuals can publicly see that they are being treated as equals (Christiano 2008, 46). And Niko Kolodny has argued that democracy is an important constituent of a society without distinctions of rank, status, or hierarchy (Kolodny 2014). Still, these equality-based justi cations for democratic authority remain controversial. Other theorists argue for democracy largely on the basis of instrumental considerations, holding that democratic procedures are justi ed only insofar as they have a tendency to produce better outcomes than other alternatives. This leaves it open that democracy might, in some circumstances, prove inferior to other political forms (like monarchy, technocracy, or benevolent dictatorship). Still others reject the whole idea that a decision’s procedural pedigree could give us any special reason to comply with it. Like Wol , they argue we can never have an obligation to obey a decision—even a democratically made decision—that con icts with our rst-order moral judgments about justice. Wol ’s investigation of classical democratic theory and its prospects for success thus remain at the center of contemporary debates.

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The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Sheldon Wolin, Politics and Vision  Lucy Cane https://doi.org/10.1093/oxfordhb/9780198717133.013.41 Published: 05 October 2016

Abstract When Sheldon Wolin’s Politics and Vision was rst published in 1960, the dominance of liberalism, democratic pluralism, and behavioralism had thrown the discipline of political theory into an existential crisis. Politics and Vision interpreted the history of political thought as a series of visions of commonality (of “the political”), ultimately arguing that modern liberalism had disavowed this dimension of experience in dangerous ways. In urging readers to o er new political visions, and particularly to re-imagine equality through the concept of citizenship, it galvanized theorists of the Left at a crucial moment. Indeed, the text continues to inspire newcomers to the eld, exemplifying the power of historically engaged political thought to expose contemporary dilemmas. When the book was reissued with new chapters in 2004, however, Wolin had moved beyond his early appeal to citizenship to envision a theory of radical democracy at odds with corporate capitalism and the modern state.

Keywords: Liberalism, pluralism, behavioralism, the political, commonality, equality, citizenship, radical democracy, capitalism, state Subject: Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

Introduction You can’t depend on your eyes when your imagination is out of focus. Mark Twain When Sheldon Wolin’s Politics and Vision: Continuity and Innovation in Western Political Thought was rst published in 1960, the academic discipline of political theory in the United States was in the midst of an existential crisis. By the 1950s, a tendency to de ne liberalism in opposition to totalitarianism had created a seeming consensus around fundamental values, while aggregative conceptions of democracy such as pluralism seemed to legitimize extant institutional arrangements. Moreover, the “behavioral revolution”

saw many scholars of politics turn to supposedly value-free modes of scienti c investigation, making the ongoing role of political theory especially unclear. In this climate, Politics and Vision (PV) o ered a riveting interpretation of the history of political thought as a series of visions of commonality (of “the political”), ultimately arguing that modern liberalism had disavowed this dimension of experience in dangerous ways. Wolin’s narrative suggests that theorists have a vital role to play in re-imagining the political, and more speci cally that they might do so through a richer conception of equality than liberalism can o er; a conception of “citizenship.” Accordingly, some political theorists of the Left still remember how PV gave them an identity and purpose at a crucial moment, and demonstrated the value of engaging past theories for their enterprise. Indeed, the text continues to inspire newcomers to the eld, exemplifying the power of historically engaged political thought to expose contemporary dilemmas, particularly the limitations of liberalism. Yet the ongoing signi cance of PV cannot be well understood without also examining the “expanded edition” of the book. The 2004 edition (PV2) reproduces the original ten chapters without change, adding seven new chapters that encapsulate Wolin’s attempts to re-imagine the political in the intervening years. Like PV, PV2 advances a conception of “the political” as the expression of commonality, and entreats theorists to engage past thinkers in re-envisioning the common. However, PV2 replaces the tentative notion of “citizenship” o ered in PV with a theory of democracy at odds with corporate capitalism and the modern state. Whereas PV is still fondly remembered, PV2’s radical theory of democracy met a more skeptical reception. Yet this democratic theory can be understood as exposing and confronting the rarely discussed tensions within PV. The expanded edition not only puts to work Wolin’s in uential understanding of the imaginative task of theory, but also attempts to honor the commitment to equality rst expressed in PV, through a more unyielding diagnosis of modern and post-modern power. While in 1960 Wolin o ered his conception of the political to a eld widely understood to be dying, in 2004 the eld had proliferated with forms of theorizing that did not meet his standards for visionary thought.

Political Theoryʼs Existential Crisis Through the rst half of the twentieth century, “liberalism” crystallized, in contrast to totalitarianism, as the dominant framework for understanding societies such as the United States and Britain. Societies widely understood to rest on individual rights, limited government, and a capitalist economy were increasingly referred to as “liberal” and opposed to the totalitarian regimes producing atrocities on the continent. In the 1950s, the Cold War consolidation of this antithesis led some commentators to claim that American political culture had reached consensus around supposedly non-ideological principles of individual liberty on which its institutions were understood to be based (e.g., Bell 1960). Others read this apparent consensus back into history, with Louis Hartz (1955) arguing that Americans had always been largely incapable of thinking beyond the individualist principles that he associated primarily with John Locke. Of course, this characterization of America as uniformly liberal was, as the racial apartheid in America’s South should have su

ced to show, highly misleading. Nevertheless, among many in the academy during the relatively

peaceful and prosperous 1950s, there was an increasing sense that American political institutions and culture had converged on liberal principles as they had come to be de ned in contrast to totalitarianism. The tendency to de ne liberalism in contrast to totalitarianism led not only to the assessment that societies such as America were liberal but also to a desire amongst some to defend liberalism against the totalitarian threat. Karl Popper (1945) in uentially championed this binary view of modern political possibilities, arguing that liberal or “open” societies are consonant with reason and scienti c method, whereas closed totalitarian societies are the irrational outcomes of unscienti c philosophies of history. Within the discipline of political science in the United States, this rationalistic liberalism was seemingly legitimized by modest aggregative theories of democracy, which, resisting the unifying impulses of totalitarianism,

critiqued previous conceptions of democracy as the expression of the will of the people through the state (Gunnell 1993). Particularly in uential in Wolin’s milieu was a theory of “democratic pluralism” which understands democracy as a process of compromise between competing interests groups (Truman 1951; Dahl 1961b). Since liberalism and aggregative theories of democracy seemed roughly consonant with extant institutions, the increasing acceptance of these normative ideals provided a ripe intellectual setting for a turn away from further theorizing and toward empirical studies of behavior within the extant system. Scholars of politics who were disappointed with their eld’s apparent lack of concrete achievements, and driven by a Popperian urge for scienti c progress, sought tangible results that might be used in the service of incremental policy reform. Thus the 1950s “behavioral revolution” mimicked the methods of the natural sciences in order to generate supposedly value-neutral knowledge about politics (Dahl 1961a). Concurrent with these developments, many in the academy began to question the ongoing relevance of political theory. If fundamental values were settled, and science was now the proper mode of political inquiry, normative theorizing began to look like mere ideology. Bemoaning this inhospitable environment, many theorists questioned whether their eld still existed and some concluded that it did not (Laslett 1956; Shklar 1957; Strauss 1957; Berlin 1979 [ rst published 1961]). Empirical political scientists also expressed apparent concern about the decline of theory, and suggested that normative theorists might “assimilate to” or “cooperate with” the dominant scienti c methods of studying politics by providing theories they could test (Easton 1951; Key 1958). Theorist Norman Jacobson, Wolin’s colleague at Berkeley, argued that these calls to put political theory in the service of science were really attempts to slay the sub eld once and for all, and called instead for an appreciation of theory as an independently valuable enterprise (Jacobson 1958).

Visions of the Political For some, the publication of Sheldon Wolin’s Politics and Vision in 1960 demonstrated the ongoing value of political theory at the moment that this was most needed. Wolin’s interpretation of the history of political thought revolves around a conception of “the political” as the expression of “what is ‘common’ to the whole community” (4). The opening chapter outlines this conception, suggesting that political theories o er innovative visions of the common and thus generate critical perspectives on a society’s central values and institutions (7–8). This association of the political with the common, and embrace of political theory as radical critique, resists the liberal individualism and reformism popular in the postwar period. Indeed, PV goes on to trace not only how the political was invented and transposed in premodernity (chs. 2–6), and demythologized in early modernity (chs. 7–8), but also how it was eroded by modern liberalism (chs. 9–10.) Troubling any simple dichotomy between liberalism and totalitarianism, PV further suggests that we must re-imagine a healthy form of commonality in order to ward o

the perverse totalitarian version. If a

disavowal of the political could lead to totalitarian disaster, perhaps political theory cannot be dismissed as mere ideology and has a crucial role to play in confronting the pathologies of modernity. In this way PV o ers a powerful conception of what political theory is, develops an explanation of how it came to appear redundant, and makes a case that its revitalization is urgently important. The readings of past thinkers in PV hinge on how each negotiates the apparent tension between the political and “politics.” This problematic allows the reader to identify a coherent narrative, and substantiates Wolin’s claim that political theory is a tradition of discourse characterized by continuity as well as innovation. Whereas the political is an expression of human commonality, Wolin understands politics conversely as the con ict between competing interests (11). Premodern thinkers frequently rejected politics altogether by appealing to a transcendent order that could guarantee unity. Thus, while Plato (ch. 2) was the “inventor” of political theory, the rst thinker to view human society “in the round,” he attempted to mold political phenomena to a conception of the Good that lay outside the mortal realm (31, 19). In other words, Wolin argues, he obscured the distinctiveness of the political by denying it autonomy from morality. By

imposing on the social body a socially strati ed yet harmonious vision drawn from a stable realm of Forms, Plato sought to ensure unity and overcome “politics.” In a di erent fashion, premodern Christian thought also attempted to eschew politics through an appeal to a transcendent political vision (chs. 4–6.) Although early Christian thinkers such as Augustine considered religion to be above the political, Wolin argues that they actually reinvented political thought in a religious guise by advancing a comprehensive vision of collective life. Furthermore, through the Lutheran radicalization of the notion of religious society, Christian thought came to assert a limited kind of human equality and in this sense to o er a greater realization of commonality than Plato’s hierarchical vision. However, this was merely “an equality of mutual subservience” according to which all followers were powerless in their deference to divine power (138). Christian thinkers, from Augustine through Luther to Calvin, o ered visions of harmony that depended on a subordination of the political to the theological to ensure unity and were inherently hostile to politics. It was therefore left to modern thinkers to envision commonality without relying on the authority of revealed moral or religious truth, and this would require them to come to terms with politics in new ways. Wolin identi es Machiavelli as the rst modern theorist to attempt such an “autonomous” political theory (ch. 7). While Machiavelli understood the con ictual, interest-ridden nature of politics, he appealed to worldly institutions and to notions of civic virtue and national feeling to cultivate a strictly political sense of commonality in the absence of a transcendent vision of unity. Alas, Wolin claims, these sources of cohesion failed to constitute a “comprehensive principle” or “sense of a common life” (214–215) because they were poor “substitutes” for economic, social, and political equality (209). Here Wolin seems to intimate that the ideal way for moderns to realize commonality amidst politics would be through a su

ciently rich

appreciation of equality. The other key harbinger of modernity to gure in PV is Thomas Hobbes, who sought to develop an autonomous political theory even more thoroughly de-mythologized than Machiavelli’s (ch. 8). Given the reality of human con ict, Hobbes considered it necessary for citizens to relinquish most of the rights belonging to them in the “state of nature” and submit to a sovereign by signing a ctional social contract. In this fashion he hoped that politics might be kept at bay in a community that was, unlike the natural religious community, “constructed through human art” (216). Wolin chides Hobbes, and social contract theory more generally, for failing to acknowledge that such a construction can never create a genuine sense of collectivity: “A contract may establish relationships, but it is not a source of unity nor the expression of commonality” (248). Moreover, although Hobbes’ theory of natural right generated a distinctively modern conception of human equality that was absent in Machiavelli, this was a thin conception based merely on individuals’ equal freedom and sel shness in the state of nature. It enabled him to order all people equally subservient, not to God, but to centralized state power. And, because he lacked insight into economic matters, he failed to see that “a sovereign who sought to overawe the wealthy by waving the sword” might not be as mighty as envisioned (256). In the nal two chapters of PV, on “Liberalism” and “The Age of Organization,” the purpose of the preceding narrative in framing Wolin’s critical intervention into the present comes into focus as he identi es the decline and sublimation of the political. Like his graduate school advisor, Hartz, Wolin traces the origins of modern liberalism to Locke (ch. 9). While Locke largely adopted Hobbes’ view of human nature as full of con ict, fear, and pain, he resisted his absolutist conclusions and instead sought to preserve individual liberty through parliamentary government and the rule of law. Wolin argues that, whereas Hobbes was insensitive to economic power and sought an autonomous political theory, Locke’s liberalism was closely connected to an acceptance of early capitalism, his civil government tasked with protecting individual life, liberty, and, crucially, property. While Locke was innovative in his attempt not only to recognize but also to preserve individual rights, his notion of equality was a thin Hobbesian one, based on negative liberty. His appreciation of political participation involved only voting to defend one’s

individual interests and preserving the right to overthrow an illegitimate government. For this reason Wolin claims that Locke’s liberalism was opposed not only to conservatism but also to the richer notion of equality that one might realize through democratic radicalism (263). Indeed, for Wolin, this liberalism buys individual liberty at the cost of developing any conception of the political, whether through religion, virtue, sovereign authority, or radical democracy. Instead, liberalism makes only a “desperate e ort” to substitute for genuine commonality with social conformity (315). In sum, Locke conceived government in the service of economic and social forces. While Wolin is at pains to show that classical liberalism was not as rationalistic as later variants, his reading of Locke is clearly intended to illuminate how the complacent liberalism of the postwar period and its legitimizing theories such as “democratic pluralism” could come to obscure the political and, thus, de ate visionary political theory. His nal chapter explores how liberal societies are transformed by industrialization and the rise of large-scale bureaucratic and corporate organizations (ch. 10). It claims that, in such societies, the urge toward collectivity is not altogether absent but rather is “sublimated” and di used as citizens acquire membership to an array of hierarchical organizations secondary to the central government. In its liberal denial of forms of collectivity, pluralism does not recognize this partial rebirth of the political. Pluralism thus fails to acknowledge that, because “organization and equality [are] antithetical ideas,” the interest groups competing for government favors perpetuate a distinction between mass and elite rather than realize their purported ideal of democracy (338). Moreover, because membership of organizations is only a parochial rather than comprehensive form of commonality, Wolin warns that the ongoing absence of a bona de vision of the political in liberal societies could have disastrous consequences. He reads totalitarianism as a regression to premodern conceptions of unmediated unity, now unleashed by the awesome potentialities of modern organizational power: “Totalitarianism has shown that societies react sharply to the disintegration wrought by the fetish of groupism; that they will resort to even the most extreme methods to re-assert the political in an age of fragmentation” (389). Of course, Wolin did not need to look as far as the totalitarian regimes of Europe to observe undesirable assertions of commonality emerging out of, or within, an ostensibly liberal regime. Again, like Hartz, Wolin focuses on American political culture and reads it as largely liberal. He thus neglects America’s white and male supremacist traditions, and any of the garden-variety nationalisms, which assert unity at the expense of the degraded and excluded, even if they do not necessitate a full break from liberal institutions. Yet this omission does not automatically invalidate Wolin’s conclusion that, to avoid the emergence of unwelcome forms of commonality, “the task of non-totalitarian societies is to temper the excesses of pluralism” by developing a form of the political that still allows for politics. As I have attempted to illustrate, Wolin indicates at various points in his treatment of past thinkers that such a source of commonality is to be found through a commitment to a richer form of equality. His “highly tentative pointer” for how this is to be achieved is that we ought to more actively participate in our shared “citizenship,” an experience that integrates an individual’s various roles (385). While PV’s individual readings of past thinkers are compelling, the greatest impact and ongoing appeal of the book lies in the way Wolin drew these disparate historical readings together in order to o er a subversive critique of the liberal and pluralist assumptions of his milieu. In accomplishing this synthesis, Wolin both gives political theorists a vital purpose in re-imagining the political, and illuminates the value of engaging and drawing connections between past ideas for this task. The text not only demonstrates the general capacity of past ideas to put contemporary ideas in perspective, but also shows the power of understanding these ideas diachronically as part of an intellectual inheritance that shapes the present. It is because Wolin regards this kind of overarching historical sense as a precondition of theoretical imagination that he portrays political theory as a continuous tradition of discourse developing over time (23). This understanding of “the tradition” is distinct from some other modes of reading historical texts, such as the strict contextualism later championed by Quentin Skinner and the Cambridge School, a mode averse to

postulating theoretical narratives across time and space (see, e.g., Mandell 2000; Robin 2015.) It contrasts even more sharply with scienti c modes of studying politics, which Wolin worries are wholly incapable of generating imaginative insight into values and institutions. For the eloquence and timeliness with which PV traces this path out of political theory’s existential crisis, William Connolly credits it with having “revivi ed the energy, con dence, and vision of an entire generation of political theorists” (Connolly 2001). In subsequent decades, students and admirers of Wolin were heavily in uenced by the way in which PV harnesses historical texts in order to expose contemporary dilemmas, especially the limitations of liberalism. Indeed, PV continues to inspire newcomers to the eld by making that task appear exciting and purposeful. To be sure, Wolin was not the only academic political theorist of the postwar era to engage historical texts in order to o er a powerful alternative to liberal–pluralist complacency. In addition to thinkers such as Judith Shklar and Isaiah Berlin, who sought to develop more theoretically rich defenses of liberalism, several theorists o ered critiques of liberalism similar in form to Wolin’s. Such thinkers, most notably Leo Strauss (1953) and Hannah Arendt (1958), also suggested that liberal thought eclipsed the political in problematic ways. In advancing this argument, they too challenged any simple antithesis between liberalism and totalitarianism. However, while the critiques of liberalism developed by Arendt, Strauss, and Wolin shared some features, such as a concern about the apparent inversion of public and private realms, their notions of the political were in other respects quite di erent. PV’s particular understanding of the political as commonality, and its aspiration to re-envision the political through an egalitarian conception of citizenship, appealed especially to theorists on the Left seeking a path between mere liberalism on the one hand and revolutionary Marxist or anarchist thought on the other. Strauss, in contrast, critiqued liberalism from a conservative perspective and, relatedly, argued that great theoretical texts held hidden meanings that only skilled interpreters could identify (Strauss 1952). Without naming Strauss, Wolin includes a footnote in the rst chapter of PV contrasting his own notion of the political with “esoteric doctrines,” insisting that the latter have no place in a discourse of political theory (608). Wolin’s distaste for Strauss’s attempt to revive political theory became more explicit in a scathing 1963 book review co-written with Berkeley colleague Jack Schaar (Storing 1962; Wolin and Schaar 1963; Barber 2006.) While Wolin’s appeal to popular participation in PV is more compatible with Arendt’s conception of political action, the divergence between his radically egalitarian impulses and her agonistic politics became increasingly evident in the years that followed (Wolin 1977, 1983). After the publication of PV in 1960, America experienced an unprecedented decade of political resistance, with the escalation of the civil rights movement, the anti-war movement, second wave feminism, and Black Power. These events quickly dissolved the mood of consensus that pervaded the academic study of politics in the 1950s, dramatically exposed behavioralism’s lack of predictive power, and validated PV’s call for a more participatory appreciation of citizenship. While PV suggests only that scienti c methods are unable to o er the imaginative insight of political theory, by the end of the decade Wolin viewed the relationship between political theory and political science more antagonistically. In uenced by Thomas Kuhn’s The Structure of Scienti c Revolutions (1962), Wolin argues in his seminal “Political Theory as a Vocation” (1969) that social science is not only unimaginative but also tends implicitly to validate the political status quo. Behavioralism, for example, had reinforced the liberal–pluralist paradigm, using the claim of valueneutrality to evade responsibility. In contrast, Wolin casts the political theorist as Kuhn’s “extraordinary scientist,” her “epic” task being to o er a radically new paradigm “with its own cognitive and normative standards.” This plea to recognize political theory as a distinct vocation appeared to be answered as three major journals were launched between 1968 and 1973 (Polity 1968, Philosophy and Public A airs 1972, Political Theory 1973) and numerous others followed in subsequent decades. However, the revival was driven in part by theoretical developments elsewhere in the discipline, and Wolin would go on to chide much contemporary theory for failing to live up to his standards for the vocation.

Democracy and its Enemies The expanded edition of Politics and Vision (PV2) is the culmination of Wolin’s attempts to re-envision the political over the intervening four decades. In PV2 Wolin preserves his general understanding of the political as an expression of commonality, and remains convinced that close readings of other theorists are invaluable for sharpening and defending a political vision. However, while Wolin claims in a preface that the new edition “puts to work” the ideas of PV, he also explains that his thinking was “substantially a ected” by subsequent experiences, yielding a “strikingly di erent” perspective (xv). Whereas PV seeks a path out of the dilemmas it identi es through a tentative notion of citizenship, PV2 instead o ers a theory of radical democracy fundamentally at odds with contemporary formations of power. Wolin’s unusual decision to publish the unchanged 1960 chapters alongside the new material makes these discontinuities plain, and can be taken as an invitation to explore why he came to regard the earlier conclusions as inadequate. Although PV expresses an intention to envision the common through a richer understanding of equality, it is not clear how fully the notion of citizenship ful lls this ambition. Indeed, a careful reading reveals two perplexities central to Wolin’s conclusions in 1960. First, PV does not explain how a heightened appreciation of the role of the citizen could adequately confront modern economic power. While Wolin critiques Hobbes’ autonomous political theory for its insensitivity to economic power, his concern that liberalism puts government in the service of economic activity leads him to impose his own rm distinction between political and socio-economic realms. Wolin seems disturbed by the inequalities of political power that a liberal–capitalist system allows, and in his account of “The Age of Organization” critiques the business corporation for its hierarchical structure. However, his re-assertion of the independence of the political from the economic hinders him from developing a deeper critique of corporate capitalism as the system of power that generates these political inequalities. Second, although in PV Wolin claims that the representative form of democracy associated with liberalism rests on a thin notion of equality and even “reduces citizenship to a cheap commodity,” he o ers no speci c challenges to the central institutions of the American political system (316). Indeed, in his anxiety over the sublimation of political urges into various organizations, he insists that the state is and should remain the “central referent of the political” through which citizenship is to be experienced (372). But if the modern liberal state is as fundamentally awed as Wolin suggests, how does merely replacing liberal and pluralist ideas with a political vision of citizenship compensate for its de cits? Wolin’s defense of the state as the central referent of the political certainly sits uneasily with his claims in the same chapter that “constitutional theory is a variant of organizational theory” and that “organization and equality [are] antithetical ideas” (351, 338). After PV, Wolin clari ed that the egalitarian vision of commonality he sought was to be achieved not through a mere a

rmation of citizenship, but rather through a radical form of democracy, locally oriented

and at odds with both corporate capitalism and the sham electoral democracy of the liberal state. In PV2 Wolin unambiguously concludes that corporate capitalism is a system of power “essentially impenetrable to, and unincorporable with, democracy,” rejecting his earlier distinction between the political and socioeconomic as obscuring this incompatibility (517; Wolin 1983). He comes to see not only liberal political thought but also the extant institutions of the liberal state as “wedded to capitalism and only co-habitating with democracy for reasons of legitimation” (576). In fact, as PV’s sweeping critique of “The Age of Organization” already intimates, Wolin considers the anti-democratic tendencies of modernity to run deeper than any particular economic or political system: equality is simply inconsistent with the scales of modern life that have made corporate and bureaucratic power possible. Thus, Wolin concludes in PV2, “small scale is the only scale commensurate with the kind and amount of power that democracy is capable of mobilizing” (603). Whereas in PV Wolin worries that secondary forms of association constitute a troublesome “sublimation” of the political, he comes to believe that the revitalization of democracy must

occur primarily outside state-oriented institutions. While such democratic activity expresses common grievances and aspirations, it di ers from premodern, Hobbesian, totalitarian, and nationalistic forms of commonality in not suppressing con ict or “politics.” Despite Wolin’s criticism of the state institutions often understood to mediate con ict, he claims that democratic grievances and aspirations ought to be expressed through “deliberation,” a mode of action that is consonant not only with equality but also with diversity (Wolin 1983). Thus, democratic commonality is not discovered to wholly pre-exist political action, but rather is forged through a “continual self-fashioning of the demos” (1996). Wolin’s conception of the concrete practice of radical democracy was undoubtedly in uenced by political events in the 1960s, and especially by his rst-hand experience of the Free Speech Movement at Berkeley. Re ecting on these events decades later, in the years leading up to the publication of PV2, Wolin concludes that the movements of the 1960s initiated an astonishing de-authorization of state institutions and left behind “the experience of democratic possibilities outside and often against the system” (Wolin 1998). Wolin remembers this era as eradicating the “liberal innocence” that had allowed him in to maintain hope in PV that we might realize a richer form of citizenship through extant state institutions (Wolin 2000.) Wolin’s further realization that democratic experience ought to be centrally concerned with resisting corporate capitalism was also shared by elements of the New Left and Black Power movements. In this respect, however, the Berkeley protestors were less exemplary. Such unrest on campuses “which dares not go into the streets, the factories, and (increasingly) the ghettos,” is radical in its appetite for political action, but not in its objectives (Wolin and Schaar 1969; Wolin 1997). Nevertheless, the 1960s prompted Wolin to recognize and attempt to retrieve various radically democratic moments in history, a departure from the Hartzian thesis that “the political” was entirely lost amidst America’s uniformly liberal culture. While in PV Wolin had only gestured toward his conception of citizenship in the nal pages, in PV2 he approaches other theorists with his standard of democracy clearly in mind and with the explicit intention of showing how they do or do not live up to this ideal. This shift in tone is announced in an epigram to the new chapters, which states that any reader of history brings to it his own voice, driven by “interests of his own time and place,” and ought to be forthright about his interpretive motivations (393). Although neither Karl Marx nor John Dewey play a major role in PV, Wolin comes to appreciate them in PV2 as grasping certain aspects of democracy. Marx is praised for his critique of capitalism as a system of power, a crucial element of Wolin’s own understanding of radical democracy. Wolin even claims that in “ending the divide between the political and the social and the inequalities it promoted,” Marx “restated the nature of the political in broadly democratic terms” (426, 411). Alas, Marx also harbored anti-democratic tendencies, as his hope that proletarian revolution would create a classless society eschewed deliberation for unmediated unity and capitulated to centralized power. While Wolin considers Marx’s notions of class and revolution to be untenable and potentially totalitarian, he insists that the critique of political economy must remain central to democratic thought. Wolin contends that, unlike Marx, Dewey did not o er a su

ciently radical critique

of capitalism, ultimately “leaving economic questions unresolved” (517). Nevertheless, he appreciates Dewey for his understanding of democracy as a way of life that ourishes outside of major institutional channels, and for his attempt to maintain a notion of the public in era of liberal pluralism (512). Wolin’s other treatments of political theorists in PV2 are largely critical, as he claims that recent liberal and post-modern thought has failed to meet his standards for democracy. For some, Rawls’ A Theory of Justice (1971) showed that political thought could again be visionary, as he attempted to give the previously undertheorized social liberalism of the New Deal a moral justi cation. Indeed, perhaps more than any other book, A Theory contributed to the revival of political theory (Laslett & Fishkin 1979). However, Rawls’ understanding of justice as, in Wolin’s words, “state-administered philanthropy,” is a moral vision that scarcely acknowledges the existence of politics (534). When Rawls turns in his later work Political Liberalism (1993) to confront politics, he develops a deliberative theory of democracy that attempts to manage con ict by allowing public expression only to views that are “reasonable.” His notion of public reason is closely tied

to an acceptance of the existing framework of representative government and constitutional law and does not sustain his earlier concern with economic justice, let alone o er a more fundamental critique of capitalism. While Rawls’ conception of public reason may provide a vision of a common project that is lacking in earlier pluralist theories of democracy, Wolin objects that it fails to grasp adequately the antidemocratic e ects of the modern state and corporate capital because it does not imagine a more radical notion of democracy as the egalitarian sharing of power. Wolin is equally perturbed by “postmodernism,” an intellectual trend that he associates with “antipathies towards essentialism, centered discourse, foundationalism, and historical narrative” (567). While his critique of post-modernism is uncharacteristically lacking in rigor, rarely referring to any speci c thinkers, his perception of this trend appears to have been especially shaped by Michel Foucault’s relational understanding of power as pervading all areas of life (Wolin 1988). As critics have noted, Wolin’s theory of democracy may have more than he admits in common with some of the ideas he associates with postmodernism (Connolly 2001, Dallmayr 2001). PV2’s attempt to look for the political outside major institutional channels, and its view of democracy as a process of “continual self-fashioning,” are both features of post-modern thought as Wolin understands it. Thus some admirers of Wolin, such as Connolly, seek to bridge the gap between his democratic critique of liberalism and post-modern insights into the complexities of power relations and the potential of epic theorizing to reinforce them. Nevertheless, Wolin worries that post-modernism’s “decentered” notions of power and discourse go too far as they have “served to disable its theorists from confronting the basic characteristics of contemporary powerformations,” particularly the state and corporate capitalism (567). Without centering these forms of power, insisting that the political is concerned primarily with commonality, and engaging history, post-modern discourse cannot sustain a conception of democracy as the egalitarian sharing of power, and retreats into a phony notion of democracy as “cultural expressiveness” (584). In other words, the risk of post-modern discourse, radical as it claims to be, is that it will repeat the failure of earlier liberal and pluralist thought to articulate a vision of the political. For Wolin, then, the ability fully to grasp the anti-democratic e ects of state and corporate power is closely tied to a willingness to imagine a radically di erent vision. We have seen that Wolin came to view PV’s critique of capitalism and the state as inadequate, as he exchanged his naïve notion of citizenship for a radical theory of democracy. PV2 not only details how other theorists have failed to grasp these modern forms of power, but also traces how power formations have transformed over the intervening decades. It suggests that, from the 1970s onward, the globalization of capital and increasing dependence of politicians on corporate interests created a novel kind of “postmodern power” that is even more threatening to democracy. While in the post-modern era centralized state power remains strong, it is now fused with transnational corporate power that bursts through constitutional constraints. This kind of power, “simultaneously concentrated and disaggregated,” subjects citizens to forces out of their control and comprehension, further curtailing any limited opportunity they had in a standard liberal regime to mount democratic counter-forces (xxi). Wolin also identi es cultural shifts concurrent with these developments, as democratic values give way to values of economic e

ciency, and a high-technology ethos that thrives on

novelty erodes the historical memory that he considers essential to the revitalization of democracy. In the face of this new kind of power, Wolin reiterates that genuine democracy is inconsistent with the scales of modern, and now post-modern, life: democracy cannot be a complete political system and should instead be reconceived as an experience of resistance that is “condemned to be oppositional” (Wolin 2000). Given how threatened this experience has become, Wolin characterizes democracy as “fugitive.” Indeed, at times, PV2 goes further and suggests that, because institutions inevitably impose hierarchy, democracy is essentially a momentary phenomenon that cannot be given form (see also Wolin 1994). Wolin does not explain how this characterization of democracy as ephemeral relates to his alternative emphasis on the cultivation of local democratic practices. Regardless of this unresolved perplexity, however, it is clear that

PV2 o ers only a critique of contemporary institutions, not suggested modi cations to or replacements for them. This signals a signi cant departure from PV where Wolin suggests that institutional orders are essential components of political visions (9). Although PV2’s vision of democracy challenges liberal and post-modern thought in crucial ways, it also raises signi cant quandaries. For example, it is not clear how local, perhaps even ephemeral, expressions of democratic aspirations can e ectively confront the anti-democratic forces that Wolin identi es and thus achieve an egalitarian sharing of power. While democracy in its purest form may be profoundly at odds with modern and post-modern power, democrats who wish to e ect change must use their radical vision of equality to engage productively with, rather than wholly reject, contemporary institutions. Wolin admits this, even claiming that democrats must make use of state power. However, his hostility toward mere reformism prevents him from further bringing his radical perspective to bear on debates over the democratization of state and global governance (see, e.g., Shulman 1983; Kateb 2001). Additionally, while Wolin claims that radical democracy depends upon citizens forging a common commitment to equality, he says little about how this is to be achieved. For example, he fails ever fully to confront the central role that white supremacy plays in inhibiting radical democratic aspirations in the United States. Nor does he explore questions of global solidarity (Euben 2001). Reviewers of PV2 have noted some of these issues, but few have engaged with them in a sustained fashion or attempted to assess the remaining value of Wolin’s conception of democracy. While PV is still widely praised for its defense of visionary political theory, Wolin’s vision in PV2 met a tepid reception. In fact, some critics recommend that we largely dismiss Wolin’s democratic theory and return to the conclusions of PV. Ronald Beiner recalls the “strong normative attraction” of Wolin’s earlier idea of citizenship, worrying that his later view is simply too “depressing” and lacks an account of the “pleasures of resisting,” a “crucial element of jouissance” (Beiner 2004 and 2006; Warren 2006; Wiley 2006). It is worth reminding such critics that Wolin’s conclusions in PV are by his own admission highly tentative and contain perplexities that he felt could only be resolved through the radical critique of capitalism and state power o ered in PV2.

The Legacy of Politics and Vision In PV Wolin makes a case for the ongoing relevance of political theory as he understands it and attempts to illuminate the value of engaging past thinkers for this enterprise. If the increase in journals and jobs in the eld is any measure, political theory has indeed ourished since the 1960s. According to some, however, this has been at the expense of theory becoming an inward-looking academic discipline with only tenuous connections to contemporary politics. John Gunnell and Je rey Isaac suggest that Wolin’s in uential early work played a part in this alleged insularity of theory, particularly through its strict separation of theory from empirical political science and its recommendation that theorists pursue close readings of canonical texts (Gunnell 2006; Isaac 1995). To be sure, Wolin’s concerns regarding the political complacency of behavioralists may lead him to neglect ways that empirical research can productively inform theory. Moreover, his attempt to cast political theory as a coherent tradition of discourse may produce an overly conventional understanding of the canon. However, as Gunnell and Isaac also acknowledge, Wolin’s insistence that theory be distinct from science was never intended to imply a retreat from practical concerns, and he values past texts not as mere historical artifacts but rather always for their capacity to illuminate the present (e.g., Wolin 1968). Indeed, while Wolin insists that there is a rightful place for theory in the academy, he also considers theory to be a civic enterprise, and attempted to reach a broader audience by launching the interdisciplinary journal democracy and publishing commentary in the New York Review of Books, The New York Times, and The Nation.

Despite Wolin’s view that theory ought to be “relentlessly and ruthlessly concrete,” Isaac charges that PV nevertheless “licensed” other theorists to disengage from contemporary events (Wolin 1977, 93; Isaac 1995, 652). Yet to blame Wolin for what others have done with the newfound autonomy of political theory is unjust, especially given that Wolin expresses dismay at these developments. In addition to exploring how recent liberal and post-modern thought fails to confront contemporary power, Wolin is even more concerned about the “theoretic theory” to which these schools of thought have given rise: theory which responds primarily to problems in texts rather than problems in the world (Wolin 2000). Wolin worries that this “overtheorization” amounts to a new form of esotericism that thrives on minute textual distinctions and lacks the imaginative power necessary to yield new visions of the political. Even some of Wolin’s selfidenti ed admirers may not be immune from this charge. Yet the di erence in tone between Wolin’s defense of the discipline in 1960s and this criticism of it in his later years should not give the impression that his view of the task of theory fundamentally changed. While he discards the assumption that political visions must include an institutional component, Wolin continues to understand theory as an imaginative enterprise that engages historical texts in order to grasp the big picture and challenge a society’s central values and institutions. This conception of the theoretical vocation will be an enduring legacy of Politics and Vision. The further question of whether Wolin’s vision of radical democracy ought to generate secondary commentary depends, from his perspective, entirely on whether it helps to illuminate or address the most pressing of contemporary political challenges.

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Wiley, James. 2006. “Sheldon Wolin on Theory and the Political.” Polity 38(2) (April): 211–234. WorldCat Wolin, Sheldon. 1968. “Political Theory: Trends and Goals.” In International Encyclopedia of the Social Sciences [vol. 12] 318–331 edited by David Sills. New York: The Macmillan Company and Free Press. Google Scholar Google Preview WorldCat COPAC Wolin, Sheldon. 1969. “Political Theory as a Vocation.” American Political Science Review 63(4) (December): 1062–1082. WorldCat Wolin, Sheldon. 1977. “Hannah Arendt and the Ordinance of Time.” Social Research 44(1) (Spring): 91–105. Google Scholar WorldCat Wolin, Sheldon. 1983. “Hannah Arendt: Democracy and the Political.” Salmagundi 61 (Spring–Summer): 3–19. Google Scholar WorldCat Wolin, Sheldon. 1988. “On the Theory and Practice of Power.” In A er Foucault: Humanistic Knowledge, Postmodern Challenges, edited by Jonathan Arac, 179–201. New Bruswick: Rutgers University Press. Google Scholar Google Preview WorldCat COPAC Wolin, Sheldon. 1994. “Norm and Form: The Constitutionalizing of Democracy.” In Athenian Political Thought and the Reconstruction of American Democracy, edited by Peter Euben, 29–58. Ithaca: Cornell University Press. Google Scholar Google Preview WorldCat COPAC Wolin, Sheldon. 1996. “On Rawlsʼ Political Liberalism.” Political Theory 24(1) (February): 97–142. WorldCat Wolin, Sheldon. 1997. “The Destructive Sixties and Postmodern Conservatism.” In Reassessing the Sixties: Debating the Political and Cultural Legacy, edited by Stephen Macedo, 129–156. New York: W. W. Norton & Company: New York. Google Scholar Google Preview WorldCat COPAC Wolin, Sheldon. 1998. “A Look Back at the Ideas that Led to the Events.” The New York Times (July 26). WorldCat Wolin, Sheldon. 2000. “Political Theory: From Vocation to Invocation.” In Vocations of Political Theory, edited by Jason Frank and John Tambornino, 3–22. Minneapolis: University of Minnesota Press. Google Scholar Google Preview WorldCat COPAC Wolin, Sheldon. 2004. Politics and Vision: Expanded Edition. Princeton: Princeton University Press. Google Scholar Google Preview WorldCat COPAC Wolin, Sheldon and John Schaar. 1963. “Essays on the Scientific Study of Politics: A Critique.” The American Political Science

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The Oxford Handbook of Classics in Contemporary Political Theory Jacob T. Levy (ed.) https://doi.org/10.1093/oxfordhb/9780198717133.001.0001 Published: 2015

Online ISBN: 9780191785894

Print ISBN: 9780198717133

CHAPTER

Charles W. Mills, The Racial Contract  Inder S. Marwah https://doi.org/10.1093/oxfordhb/9780198717133.013.62 Published: 13 January 2022

Abstract Charles Mills’ The Racial Contract (TRC) was a landmark intervention that set itself no less a task than raising the topic of race up to mainstream philosophical investigation. As remarkable in its scope as in its perspicacity, the book re-envisions modern political theory by centering its racialized constitution and imbrications in Euro-American practices of racial exploitation. Taking a half-millennium of global white supremacy as its point of departure, it both exposes racial divides encoded within social contractarianism and lays the groundwork for a non-ideal theory of justice, conjoining a penetrating critique of white domination with a methodologically innovative liberalism. This chapter (a) situates TRC’s main arguments within their contexts of emergence, (b) considers certain lines of criticism to which it has been subjected, along with Mills’ adaptations to them, and (c) re ects on its downstream impacts, in terms of Mills’ own trajectory and of the discipline’s grappling with race.

Keywords: justice, racial justice, Charles Mills, The Racial Contract, global white supremacy, non-ideal theory, liberalism, race, social contract, contractarianism Subject: Political Theory, Politics Series: Oxford Handbooks Collection: Oxford Handbooks Online

It’s a testament to The Racial Contract’s (TRC) success that many of its most trenchant critiques of racial injustice appear today entirely uncontroversial, having migrated, for leftists of various stripes, to the terrain of unobjectionable truth. A landmark exposition and penetrating critique of white supremacy’s global reach, TRC’s theoretical precision, intellectual breadth, and polemical tenor made it an instant classic, forcing a reckoning with race in political theory that has, in the intervening years, only gained greater traction. It pulled race to the center of many strands of political theory and drew the insights of the Black radical tradition into more conventional disciplines, with the notable exception of the one at which it aimed, philosophy. Its endurance lies less in its novelty than its compass, drawing colonialism, empire, slavery, Indigenous dispossession, economic exploitation, liberalism, social contractarianism, ethics, epistemology, and much more under a unifying analytical grid unveiling the actual—non-ideal—basis of political modernity. That is, of course, the racial contract, the theoretical heart of Charles Mills’ very compact magnum opus – 133 pages, plus notes—whose details he has spent most of his career elaborating.

What critics described as an “extended essay” (McCarthy 1999, 451)—or, in Mills’ words, “a short, punchy book” (1997, x)—continues for very good reason to be read and debated, lauded and critiqued, and even treated as a methodological tool, now a foundation of political theory rather than an outlier to it. In what follows, I’ll begin by sketching TRC’s main arguments, situating the book and its contributions within the contexts of its emergence. I’ll then consider major lines of criticism to which it’s been subjected, some more or less fair, along with Mills’ immediate and longer-term adaptations, some more or less convincing. I’ll conclude by thinking through TRC’s downstream impacts in terms of Mills’ own trajectory and of its broader ambition to raise race up to serious philosophical re ection.

Outside the Nowhere Towers In an early symposium, Lewis Gordon observed that TRC’s premise was not unfamiliar, white domination long the target of nonwhite social criticism (2010, 217). Its impact lies, rather, in the lucidity and forcefulness with which Mills makes the case, centering race as a category—the category—of theoretical interest for humanistic inquiry. It’s less in the facts it conveys than in its location, “the framework in which I have situated these facts” (2010, 241). In retrospect, its novelty seems ultimately to have been making its subject matter no longer novel at all in much mainstream scholarship, which was always the point. Published in 1997, TRC self-consciously took its cue from Carole Pateman’s The Sexual Contract, adopting what Mills would later characterize as the “subversive” contractarian tradition (2016, 486). “[S]howing how gender could be theorized within a modi ed contractarian framework,” The Sexual Contract was “an eye-opener … inspired by Pateman, I was trying to follow suit for race” (2017a, 65). Contractarianism was an opening to plant race into the terrain of philosophy, and more narrowly, into the tradition of Enlightenment self-criticism to which Mills cleaves. Against post-modernism and deconstruction’s “epistemological and theoretical dead end,” TRC operates “in the spirit of a racially informed Ideologiekritik and [is] thus pro-Enlightenment” (129) and, to the consternation of much of the critical left, rmly and unapologetically anchored in liberal contractarianism. For all the criticism he’s received over it, Mills’ liberalism is, however, heterodox to its marrow, borrowing heavily from Black Marxist, radical, and nationalist thought and retaining the materialist traces of his early-career Marxism (in one exchange (2003a, 37–38), he describes TRC as translating Black radical theorizations of white supremacy into mainstream philosophy). Mills’ most consistent foils—contractarians, Rawls, and Kant in particular—are, then, also his guiding lights, intellectual companions, and sparring partners. TRC advances a deceptively straightforward argument sca olding distinctive political, epistemological, moral-ethical, methodological, and disciplinary claims. In this sense, it’s a vertical book rather than a horizontal one, starting from a clear (if controversial) premise that gains depth and texture over ten theses spanning three chapters. The central argument is political and it serves, most basically, as a corrective. If the social contract models the basis of politics as consent between equals, TRC advances a racially-in ected alternative that better tracks the historical record. In Mills’ recasting, modern social organization is, in fact, the product of a racial contract, an agreement among whites generating political institutions based on the exclusion, domination, and exploitation of nonwhites. Against the social contract’s abstract and universalistic egalitarianism, the racial contract exhumes the foundational asymmetry of modern socio-political life, as a “system of domination by which white people have historically ruled over, and in important ways, continue to rule over nonwhite people” (3–4). TRC is a clari cation, illuminating the racialized constitution of modern politics by dissipating the fog of the standard contract’s idealizations. In their stead, Mills uncovers global white supremacy, “a particular power structure of formal or informal rule, socioeconomic privilege, and norms for the di erential distribution of material wealth and opportunities, bene ts and burdens, rights and

duties” (4). The thesis rests on an existential claim (that white supremacy exists), a conceptual one (that it comprises a political system), and a methodological one (that it can be theorized as a contract) that, taken 1

together, radically reformulate contractarianism by placing race at its core (7). The racial contract thus more faithfully renders the actual basis of the modern polity as an intentional arrangement of racially structured, group-based domination, rather than an egalitarian order falling short of its principles. TRC refocuses our eld of vision in a few ways. As an analytical frame, it captures the spectacular scope of global white supremacy over 500 years, encompassing the colonization of the Americas, the trans-Atlantic slave trade, the dispossession of Indigenous populations, nineteenth-century empire-building in Asia and Africa, the twentieth century’s Mandate and Trustee systems, Jim Crow, all the way down to educational, social, and economic policies ensuring the continuing marginalization of Black and Indigenous populations. It gets us past the ne grain to see the bigger picture’s constancy: no matter the particulars, whites’ moral and political superiority justi es their rule over nonwhites. It also exposes race’s arti ciality and political swings, the contract producing “not merely racial exploitation, but race itself as a group identity” (63), continuously shifting “to create di erent forms of racial polity” (72). A common thread runs through them: in all its guises, the racial contract “is calculatedly aimed at economic exploitation” (32), manifest not only in centuries of despoliation, but in its lingering e ects—notably, the wealth gap between white and Black 2

Americans, and between the Global North and Global South.

Global white supremacy rests on a distinctive epistemology that is, to me, the racial contract’s lynchpin. A certain form of epistemic conditioning—an acceptance, more or less tacit, of white superiority, a kind of shared bad faith—is a precondition for stomaching the carnages of white supremacy. The Herculean selfdelusion required for whites to dispossess, enslave, colonize, exterminate, and segregate over a halfmillennium while retaining a conviction in their institutions’ basic fairness depends on “an epistemology of ignorance … producing the ironic outcome that whites will in general be unable to understand the world 3

they themselves have made” (18). This cognitive dysfunction operates at two levels. First is a historical amnesia cleansing Euro-American collective memory of its foundational racial violence and upholding the ction of its political systems as just, if historically warped by regrettable, episodic, and long-past instances of racial injustice. As Ralph Ellison and James Baldwin observed, the white world operates under a pall in which “[e]vasion and self-deception become the epistemic norm” (97) and racial inequality, along with race, evaporates. Second are its downstream e ects, in white commitments to di erence-blind laws, institutions, and policies that, under the guise of egalitarian neutrality, maintain white privilege. The nonwhite world labors under no such epistemic illusions, acutely “aware that European civilization rests on extra-European barbarism” (103). Enduringly captured by Du Bois, the nonwhite citizen inhabits “a world which yields him no true self-consciousness, but only lets him see himself through the revelation of the other world” (Du Bois 1996, 5). Little surprise, then, that nonwhite cognition issues in “a di erent moral topography” (113) centered on the actualities of socio-political life. This bifurcation is re ected in the contract’s moral and ethical grounding, “a two-tiered moral code with one set of rules for whites and another for nonwhites” (23). This is, again, an exigency of power: liberalism’s moral universalism coheres with a racially-calved world only if its scope remains restricted to the relevant actors. Most bluntly articulated in J. S. Mill’s (not Mills’!) admonishment that extending “the same rules of international morality … [to] civilized nations and barbarians, is a grave error” (Mill 1984, 118), white philosophy rests on “a partitioned social ontology … a universe divided between persons and racial subpersons, Untermenschen, who may variously be black, red, brown, yellow—slaves, aborigines, colonial populations—but who are collectively appropriately known as ‘subject races’” (16–17). Personhood is white personhood; nonwhites fall short, the moral claim to the equality of persons maintained by hiving the category o

from darker intruders. The counterpart is Herrenvolk ethics, the “racially structured moral

code” (111) di erentially applied to di erent strata of sub/persons, less a particular ethics than a mutable 4

type of ethics—Kantian, Lockean, utilitarian—where race is a compositional element.

Widening out from the book’s contents to its impacts, TRC is maybe best known for its methodological commitment to radicalizing liberal contractarianism. Despite Mills’ devastating indictments of Hobbes, Locke, Kant, and Rawls, TRC remains stubbornly wedded to contractarianism, holding rm that it not only can serve racial justice, but o ers the best possibility of doing so within political philosophy. Against the better judgment of critical race theorists, historians of race and empire, and many liberals themselves, Mills champions the highly contested view that contractarian liberalism can be radicalized, historicized, and racialized, a recuperative project that has taken up his last two and a half decades. TRC put the claim on the map. The book’s pivotal move is to push liberalism out of the province of ideal theory, long its natural habitat, and into the decidedly non-ideal circumstances of racialized modernity. Rather than designing principles of justice from the conjectural non-place of the state of nature (or original position)—“the Nowhere Towers” (2010)—TRC both demysti es the basis of racial injustice and determines what liberal justice might require once we factor it in. The advantage is perceptual: where ideal theory’s abstraction obscures modernity’s constitutive racialization, the non-ideal standpoint registers its e ects, positioning liberal theory to recognize—and correct—its failures. The whole point of ideal theory’s detachment is, of course, to generate impartial moral norms; but the problem of racial injustice has never been the norms, but their uneven application. Non-ideal theory starts from just this: racial justice doesn’t require us to rethink liberal equality, but to redress its asymmetrical instantiations. TRC’s contractarianism thus shifts from Kant to Rousseau, taking the Discourse on Inequality’s chronicle of inequality’s consolidation into xed socio-political divisions as its point of departure. If the ideal contract establishes norms of justice and fair government, “this nonideal/naturalized contract explains how an unjust, exploitative society, ruled by an oppressive government and regulated by an immoral code, comes into existence” (5). Non-ideal theory redraws the cartography of liberal justice, redressing contractarianism’s ahistoricity by accounting for systemic, trans-generational domination to which Rawlsianism is notoriously insensate (Valls 2018). That shapes the contours of justice: it’s hard to argue for racial redress, Mills ironizes, when the theoretical architecture occludes the harm being corrected for. TRC also introduces “an ontology of groups in relation to privilege and subordination” (2017c, 246), an implication of its historicization: by recognizing white supremacy’s dependence on group ascription, TRC takes it as fundamental to justice. In a racialized Rawlsian original position, one would weigh the possibility of belonging to a nonwhite minority, equipped with the knowledge of its historical and downstream implications, in xing principles of justice. Finally, and widening still further, TRC aimed to jolt philosophy out of its sclerotic slumber on race. In this, by Mills’ own estimation, the book failed. Despite record sales over twenty- ve years, its omnipresence on syllabi, its uptake in various streams of political theory, and innumerable critical exchanges, liberal political philosophy has remained obdurately silent on TRC. At least part of the problem, Mills has long argued, is demographic, as the “Arctic whiteness (pre-global warming anyway) of the profession” (2015, 549) belongs 5

to the background conditions shaping what philosophers consider worthwhile objects of investigation. “The silence of mainstream moral and political philosophy on issues of race,” then, “is a sign of the continuing power of the [Racial] Contract over its signatories, an illusory color blindness that actually entrenches white privilege” (77). That privilege consists precisely in the disinclination to see race as

philosophically interesting, of not having to pay attention to it at all. Not so for nonwhites. Because it “is most transparent to its victims, nonwhite interest in white moral and political theory has necessarily been focused … [on] the unacknowledged Racial Contract that has usually framed their functioning” (110). While race is central to nonwhite cognition, and so, to nonwhite political-philosophical interests, it remains “puzzling alike to a white liberalism predicated on colorless atomic individuals and a white Marxism predicated on colorless classes in struggle” (110–111). This is especially apparent in liberalism’s embrace of

ideal theory, for Mills a kind of ideological gate-keeping dissolving race’s philosophical cogency and keeping the discipline carefully cloistered from nonwhite concerns. All of that in 133 pages.

A Lonely Figure TRC has invited wide-ranging and often penetrating criticism from across the ideological spectrum, most 6

often and most penetrating from factions of the critical left to which it contributes. Mills’ responses have in large part shaped his career, lending a direction to the constructive e ort promised but undelivered in TRC —that is, a properly race-conscious liberalism. I want to trace out some of these questions and answers to show how Mills has shored the project up. An early line of criticism concerned the book’s ostensible over-simplicity or under-development, that its scope and ambition exceeded its analytical purchase. As Thomas McCarthy put it in an early review, “the racial contract is at best a highly condensed and stylized model of the endlessly variegated and shifting reality of centuries of liberal political practice” (453), better able to pinpoint liberalism’s racial blindness than to rectify it. Marxist critics took its overly schematic gloss as insu

ciently historical and materialist

(ironically enough), missing race’s entanglements with larger structures of class-based domination (Marxists, Mills countered, simply reduced racial injustice to those structures). David Theo Goldberg 2002 charged that “complex social phenomena require a more complex theoretical account than o ered here” (37) and Bat-Ami Bar On took “the theory of the Racial Contract [a]s painted with too wide brush strokes” (160). Race is categorically expansive but analytically under-granular, the objection goes, made to cover too much while explaining too little. For Christopher Lebron 2013, the same at-footedness bedevils Mills’ account of white supremacy, which “under-speci es the mechanics of racial power” (36). Critics were similarly unsparing on the details, pointing to TRC’s cursory treatments of classical contractarians as “distort[ing] the manner in which the social contract was presented during the sixteenth and seventeenth centuries” (Mosley 1999, 229) and as insu

ciently attentive to their nuances (Nagel 2003; Valls 1998).

There’s certainly some truth here. TRC’s sprawling scope—geographically, temporally, conceptually— couldn’t help but run up against its own limitations, since what it aimed at in breadth it had to relinquish in depth and theoretical precision. But the criticism is overblown when one weighs TRC’s objectives. In its opening pages, Mills characterizes it as a “book that would be accessible to an audience of nonphilosophers” (x), intended to open a theoretically-informed discussion on race, not systematically work it out. In numerous interviews and exchanges, Mills emphasizes that TRC aimed “to establish a kind of beachhead on [the] inhospitable terrain” (2010, 239) of mainstream philosophy, a rst word rather than a last one. Taking issue with TRC’s imprecision is not incorrect, then, but misdirected. A second rejoinder is that Mills has, since TRC’s publication, done little else but ll out the details. His voluminous essays since the late 1990s have carefully elaborated his positions on contractarianism, corrective justice, the ideal/nonideal theory split, classical contractarians, white supremacy, intersectionality, racialized/radicalized liberalism, and much more. Mills has also been taken to task for his steadfast commitment to contractarianism, most prominently and most pugnaciously by his inspiration and occasional co-author, Carole Pateman. In Contract and Domination, Pateman’s and Mills’ groundbreaking co-authored volume on race, gender, colonialism, and political theory/philosophy, Pateman nds little in “contractualism to make the kind of case that you and I want to make for democratization” (Pateman/Mills 2007, 26). Anthony Bogues is similarly skeptical, as “the social contract theory was constructed and implemented in a conscious manner to exclude blacks” (225). Given contractarianism’s historical and theoretical baggage, its track record on race, and that it

doesn’t appear necessary—or even particularly useful—for capturing the relevant injustices, why hold onto it (Jagmohan 2015, 498; Valls 1998; Zack 2003)? Part of Mills’ rationale, which recurs in his defense of his liberalism, is pragmatic (maybe even strategic). As the dominant device of liberal theory, itself the dominant idiom of political philosophy at the time of TRC’s writing, it only made sense to address the discipline on its own terms. “[T]he overwhelming rationale for seeking to engage with contract theory,” Mills replies to Pateman, “is that it’s already there, and hegemonic” (2007, 23). But more substantively, Mills sees two virtues in the contractarian approach, one descriptive and one normative. The rst, borrowed from Jean Hampton, is that the contract captures the modern vision of civil life as conventional, a product of choice rather than an outgrowth of human nature (2007, 85; 2017a, 66). It follows that the social contract need not be a racial contract, even if that’s historically been the case. The second is that the contract models “the moral equality of the contracting parties and its normative implications for sociopolitical structures” (2007, 85–86). While conceding that women and nonwhites aren’t typically counted among “the contracting parties,” Mills locates such exclusions “at a lower level of abstraction” (86) so that the broader moral ideal—societies as arti cial constructions that ought to weigh equally the interests of all citizens—remains untouched. This is, for me, somewhat unpersuasive: pitched at this level of generality and so quali ed, few modern political theories wouldn’t come to the same conclusion. The single greatest source of opposition that TRC faced—and that Mills continues to face—is its allegiance to liberalism. “Mills’ tightrope walking between liberalism and radicalism,” Jack Turner notes, “makes him a lonely gure,” (2015, 471) one of a handful of philosophers—Bernard Boxill, Tommie Shelby, Howard McGary Jr., Andrew Valls, and a few others—endeavoring to bridge race and liberalism. While strands of political theory, like the scholarship on empire/colonialism and on comparative political thought, address race, liberal political philosophy has not followed suit. TRC, Mills estimates, “has had no impact at all on how mainstream ‘white’ political philosophy in general, or ‘white’ social contractor and Rawlsianism in particular, are done” (2017a, 73). He thus faces pressure from both directions: liberal philosophers appear as uninterested in race as scholars of racial justice are in liberalism. There are two principal avenues of criticism. From an externalist standpoint, Bogues, Gordon (2010), and others question liberalism’s viability, its entwinements with racial capitalism, empire, and white supremacy rendering it a suspect source for normative insight and corrective justice. From an internalist standpoint, Mills came under re for failing to develop the constructive vision of a racially just liberalism toward which TRC gestured (Turner 2015; Valls 1998; Bar On 1999), even if he explicitly stipulates that he does “not follow up such a program in this book” (1997, 137). So—why liberalism? Mills’ reckoning spans low, middle, and high notes. The low note, re ecting TRC’s temporal location, is that liberalism was the only game left in town post1989 (2010, 242), a position to which Mills migrated from his early-career Marxism (Sullivan 2017). By the late 1990s, Mills came to see Marxism as “moribund in the absence of an attractive socialist project, historically weak on normative issues, and in any case arguably parasitic on liberal values” (2007, 102). Despite this, his liberalism has always been Marxisant, taking social transformation as moved by material forces and struggle rather than lofty notions of liberty and right. Against liberalism’s atomism, it advances an “ontology of groups” (2017b, 104) where membership—racial rather than class-based, but nevertheless —is politically primary. It is also irreducibly historical, both analytically (regarding the constitution of racial injustice) and normatively (regarding the demands of justice given past racial injustice). Even if his ruminations on Marxism’s demise today appear somewhat premature, he never strays too far from its commitments.

The middle note is, as above, pragmatic: liberalism is there, and hegemonic (2007, 23). The high note concerns the substance of liberal commitments. “[W]hat’s wrong,” Mills asks, “with moral equality, autonomy, self-realization, equality before the law, due process, freedom of expression, freedom of association, voting rights, and so forth?” (2007, 102). These are attractive values whose historical shortcomings are not “a result of its intrinsic features” (2007, 104); “egalitarians, feminists, critical race theorists, and progressives” should, then, not “conced[e] the contract to mainstream theorists, but … appropriate it and turn it toward emancipatory ends” (2007, 104; also 2017c). The e ort here is less to transform liberalism than to show that it can live up to its universalist pretensions against master’s-tools critiques suggesting otherwise—to radicalize liberalism by drawing it closer to its promise. Finally, critics assailed TRC’s insu

cient attention to class and/or gender’s intersections with race, along

with Mills’ polemical stance that racial inequalities trumped those of class and gender (2007, 184; Sullivan 2017, 6; Gines 2017, 24). As regards gender, TRC dedicated little attention to the overlap of race and gender beyond a relatively cursory treatment of Black women’s experiences—surprising, Methchild Nagel noted, given Mills’ debts to Pateman (13–14). As Keisha Lindsay 2015 observes, for all the acuity of its analysis, TRC’s intersectional features were largely relegated to a single footnote (531). Mills took up the challenge in Contract and Domination by developing an intersectionalist contractualism, taking “racial patriarchy” (2007, 169), a socio-political order built on the asymmetrical subjection of women and nonwhites, as the starting point for theorizing justice. His “intersecting contracts” capture the graduated standings conferred by social identity and social location, widening TRC’s person/contractor-subperson/subcontractor split into four distinctive status positions within the “white-supremacist patriarchal polity”: white men (full persons and full contractors), white women (subpersons and subcontractors in relation to white men, but dominating nonwhites), nonwhite men (subpersons and subcontractors in relation to whites, but dominating nonwhite women), and nonwhite women (nonpersons and noncontractors, dominated by all) (2007, 173–175). “[I]f The Racial Contract sketched a one-dimensional white blindness,” Mill avers of his reformulated schema, “here one has simultaneous insight and sightlessness, the racia-gendered cognitive interplay of oppression and privilege” (183) co-existing within the same populations. While undoubtedly improving on TRC’s singularity, Shannon Sullivan and Kathryn T. Gines still detect a certain additive, “pop-bead logic” (Sullivan 2017, 7) at work, treating “race, gender, class, sexuality, and other axes of existence to be fundamentally distinct and separable from each other … precisely the position that intersectionality challenges” (Sullivan 2017, 7; Gines 2017, 27). Mills’ response to the Marxist challenge is, perhaps unsurprisingly, somewhat less fulsome. Critics saw TRC as putting the cart before the horse by foregrounding race over capital, “remov[ing] the possibility of connecting white supremacy, a political-cultural structure, to its underlying economic base” (Young 2006) and eliding the social di erences between modes of production (Cohen 1999, 103). To some extent, Mills’ defense lies in his own Marxist moorings. But he also clari es that he “do[es] not see the ‘racial contract’ as competing with classical political economy approaches but rather, in a theoretical division of labor, as operating in a di erent conceptual space” (2007, 260; 2017c, 7–8). Mills basically turns the tables. Against the “class-reductionist Marxism that has historically been prevalent on the white left,” TRC argues that “race achieves a causal e cacy of its own” (2007, 261) that Marxism misses, a distinctive genre of oppression in need of its own theoretical space not reducible to an aftere ect of capital or class. This is, of course, only the briefest sketch of the rich currents that have, over the years, owed around TRC, a testament to the depth of its provocations. It not only charted the course of Mills’ career, but etched out a question to which political theory, gladly, has had no choice but to respond.

More Contracts, a Deeper Liberalism Mills’ own part in that response hasn’t departed from TRC’s framework so much as thickened it, working out its details. Since 2007, he’s shifted to the “domination contract,” a more explicitly Rousseauian apparatus conjoining the insights of Hampton (1987), Pateman (1988), and Susan Moller Okin (2007, 92). Hampton imparts the baseline assumptions (that social organization is conventional and ought to recognize all persons’ moral equality), Pateman, the non-ideal realities, and Okin, the normative commitment to a suitably adjusted Rawlsianism (93). The domination contract thus eshes out TRC’s germinal elements— the contract’s value, the descriptive/normative split, the realities it models, and its fuller conception of justice—and shores up its intersectionalism. If this speaks to the descriptive side, “Black radical liberalism,” resting on the theoretical tripod of Kant, Marx, and Du Bois, lls out the normative end. From Kant, it adopts deontological egalitarianism, from Marx, materialism and political economy, and from Du Bois, race as the primary object of in/justice. Together, they form the basis of a “synthesizing, reconstructed black liberalism that draws upon the most valuable insights of the black nationalist and black Marxist traditions and incorporates them into a dramatically transformed liberalism” (2017c, 202)—so dramatically transformed, in fact, that it appears barely liberal at all, as Marx and Du Bois impart its substance and direction. Liberalism’s value-added, according to Mills, is (a) that “it is the most successful political philosophy of modernity and is now globally hegemonic” (203), and (b) that its emphasis on “the ourishing of the individual and the repudiation of ascriptive hierarchy are very attractive” (204). For all my sympathies for Mills’ project, neither claim is entirely convincing. It is by no means clear that liberalism, as a political philosophy, is globally hegemonic rather than hegemonic among liberals themselves. The e

orescence of more radical scholarship, advanced in no small part by TRC—whiteness

studies, critical race theory, postcolonial theory, settler colonial studies, disability studies, cultural studies —suggests that in academic circles concerned with social justice, liberalism may in fact be in decline. Political theory is, today, too splintered to be susceptible to such hegemony, and liberalism’s real-world collapses further erodes its currency. Still more questionable is liberalism’s capacity to pro er a viable theory of racial justice given, as Mills has spent a career demonstrating, the white epistemologies shaping it. As for the ideals, ourishing individuals and rejected hierarchies are not the exclusive purview of liberalism, and are entirely compatible with Marxism. Few current notions of justice wouldn’t include these and cognate components, and don’t need Kant to get there. Many non-liberals, as well as some liberals themselves, rather de ne the doctrine in relation to the normative primacy of individuals and to a defense of free markets, neither of which, gladly, gures in Mills’ radicalized liberalism. As he notes, Black radical thinkers have for two centuries advanced an egalitarian politics centered on racial justice and “mainstream scholarship is now beginning to catch up with them” (204). It would seem advisable, then, to simply let it catch up. Mills shows that liberalism can be contorted into compatibility with Black Marxism and Black nationalism but it’s not clear, at least not to me, what it adds to them. Drawing on the Rawlsian architecture, Black radical liberalism does, though, generate principles of corrective justice centered on ending racially unequal citizenship, racial exploitation, and racial disrespect (214), alongside an argument 7

for reparations (2007, 130). But again, claims to racial redress and corrective justice have long emanated from more radical sources—Fanon, Naoroji, Samir Amin, Eric Williams, Nkrumah—so it’s not clear what the normative footwork contributes, beyond demonstrating that they might also be derived from, or translated into, liberal commitments. However, these criticisms may be somewhat unfair as Mills acknowledges that Black radical liberalism remains in its early stages of theorization.

Finally, TRC has evolved well beyond Mills himself into, if not a full- edged method of theorizing injustice, at least a distinctive approach to it. Mills’ analytic has been taken up across a range of contexts to illuminate pervasive, systemic socio-political inequalities, such as those stemming from white supremacy’s entanglements in American history (Jagmohan 2015) and schooling practices (Smith 2015). The contractarian apparatus has served to expose political exclusions surrounding intellectual disability (Simplican 2015) and, conversely, the democratic potential of the “postcolonial social contract” (Keating 2011). It has been pressed into Indigenous critiques of Australian public institutions (Bargallie 2021) and into an examination of race and power in Palestine and Israel (Abu-Laban and Bakan 2019). Against all odds, skeptics, and detractors, one of Mills’ most contested propositions has been borne out: contractarianism holds the critical potential he saw in it some twenty- ve years ago. Looking back on it, TRC’s initial ambition— nding a language in which to theorize race, and getting us talking about it—appears to have yielded the most fruit outside of its intended destination. Given the book’s near-ubiquity in critical scholarship, its re ection in the wave of political theory on race, colonialism, and empire, and the multitudinous elaborations following in its wake, that ambition is unquestionably ful lled. It may be, as Gordon suggests, that Mills shouldn’t have aimed at philosophy in the rst place (2006, 115), which turns out to have been too limited a container for this punchy little book. Little though it may be, its lessons are anything but small. As I write this, a year after George Floyd’s murder and a day after the discovery of 751 unmarked graves on the site of the Marieval Indian Residential School, they also remain no less urgent. The racial contract remains.

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Notes 1

For some of Millsʼ elaborations on white supremacy, see 1998, 2003b, 2017b, 2019. As Millsʼ books have, since TRC, consisted of essay collections, his work is typically cited by the essay (not the book). I break from the convention here only to economize on space.

2

For some of Millsʼ elaborations on racial exploitation, see 2003b, 2007, 2017c.

3

For some of Millsʼ elaborations on race and epistemology, see 1998b, 2017c.

4

For some of Millsʼ elaborations on subpersons, 2017c; on Herrenvolk ethics, 1998b.

5

For some of Millsʼ elaborations on whiteness in philosophy, see 2017c.

6

Beyond book reviews and authors-meets-critics sessions too numerous to list, TRC has been subject to three published symposia: Bogues et al (2010, originally published in 1998), Nagel (2003), and Jagmohan (2015). Contract and Domination (2007) is, to some extent, a response to criticisms leveled at TRC. A symposium on intersectionality in Millsʼ work appears in Critical Philosophy of Race (2017), which touches on TRC. Mills also reflects on TRCʼs legacy in 2017b and 2019.

7

For Millsʼ elaborations on corrective justice, see 2015, 2017a, 2019, and Mills and Flikschuh 2018.