Legitimacy, unanimity, and perfectionism

Philosophy and Public Affairs

Volumn 29, Issue 1, 2000, Pages 5-42

  Chan, Joseph ^a  

^a NONE

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EID: 0344529731     PISSN: 00483915     EISSN: 10884963     Source Type: Journal    
DOI: 10.1111/j.1088-4963.2000.00005.x     Document Type: Article

References (82)

1. A number of traditions of Eastern political thought are also perfectionist, a clear example of which is Confucianism.
2. Perfectionism has appeal also to politicians. A contemporary example is Vaclav Havel, president of the Czech Republic. See his Disturbing the Peace (London: Faber and Faber, 1990), especially pp. 13-18.
3. For an interesting argument for the naturalness of perfectionism, see Joseph Raz, "Facing Up: A Reply," Southern California Law Review 62 (1989): 1230-32.
4. Some neutralists confine the scope of neutrality to issues about the basic structure of society, leaving ordinary laws and policies unconstrained by the principle of neutrality. See note 7 for further discussion.
5. This distinction is from Will Kymlicka, "Liberal Individualism and Liberal Neutrality," Ethics 99 (1989): 895.
6. For another similar view, see Stephen Holmes, "The Permanent Structure of Antiliberal Thought," in Nancy Rosenblum, ed., Liberalism and the Moral Life (Cambridge, MA: Harvard University Press, 1989), p. 248.
7. There can be different versions of liberal neutrality. The one I discuss here, commonly adopted and defended by liberals, holds that the state's constitutions or policies should not be grounded on any particular conception of the good life. An implication of this is that the implementation and promotion of valuable conceptions of the good life are not a legitimate matter for state action, and hence antiperfectionism. For simplicity sake, I shall interchangeably use "liberal neutrality" and "antiperfectionism." For discussion of versions of liberal neutrality, see Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), ch. 5;
8. John Rawls, Political Liberalism (New York: Columbia University Press, 1993), pp. 192-95;
9. Charles Larmore, Patterns of Moral Complexity (Cambridge: Cambridge University Press, 1987), pp. 42-47.
10. Liberals disagree among themselves on the proper scope of the principle of reasonable agreement or the principle of neutrality. Rawls, for instance, takes a narrow view. For him, the requirement of reasonable agreement applies only to "constitutional essentials" and questions of basic justice, and not to laws and public policies such as those which protect environment, establish national parks, and regulate property. See his Political Liberalism, p. 214. Rawls claims that as far as the former type of issues is concerned, there may not be any reasonable disagreement. As for the latter type of issues, while there may be reasonable disagreements, this does not violate Rawls's requirement since the requirement does not apply to this type of issues. My response to this narrow version of the scope of neutrality is threefold. First, the distinction between "constitutional essentials" and other lower-level political matters is vague to say the least, and many issues do not clearly fall on either side of the line. This is especially so if a country, the United States for instance, adopts in its constitution a bill of rights, which has the effect of bringing political issues that are lower-level but highly substantive and controversial, such as abortion, employment opportunities, and school curriculum, up to the constitutional level. Second, it is not at all clear that there is no reasonable disagreement over constitutional essentials and questions of basic justice. For example, whether to entrench a bill of rights and empower the courts to overrule any other agency that violates individual rights is clearly a very controversial constitutional issue over which reasonable persons may disagree. Third, Rawls gives no reason to support the limit of the scope of reasonable agreement. He writes, "my aim is to consider first fundamental matters. If we should not honor the limits of public reason here, it would seem we need not honor them anywhere.
11. Should they hold here, we can then proceed to other cases" (Political Liberalism, p. 215). However, one could begin the search from the other end - if one can show that the requirement of reasonable agreement should not apply to laws and public policies, what reason can one give to think that it should nonetheless apply to constitutional matters, even though both types of issues involve the power of the state and the use of public resources? Rawls owes us a reason of principle, not one of tactic, to explain the apparently artificial limitation of the principle of reasonable agreement. Note that Thomas Nagel, whose views will be examined in the next section, does not observe such a limitation. Neither does my case for perfectionism to be defended here. In my view, it may be legitimate for a state to make decisions with which reasonable people may disagree, whatever the subject matter into which these decisions fall (except certain subject matters like religion).
12. For further discussions on the proper scope of neutrality by defenders of perfectionism, see Steven Wall, Liberalism, Perfectionism and Restraint (Cambridge: Cambridge University Press, 1999), pp. 41-42;
13. George Sher, Beyond Neutrality: Perfectionism and Politics (Cambridge: Cambridge University Press, 1997), pp. 31-34.
14. Even though Rawls is perhaps the most self-conscious liberal in dealing with the notion of the good, his definition and its associated arguments are only effective in excluding an extreme version of perfectionism, leaving intact a more plausible version that I outline. See the second section of this article.
15. See Thomas Nagel, Equality and Partiality (hereafter EP) (New York: Oxford University Press, 1991), ch. 14.
16. For this tendency, see, for example, Rawls, Political Liberalism, pp. xxii-xxv, 58-59,
17. Nagel, EP, pp. 154-55,
18. Brian Barry, Justice as Impartiality (Oxford: Clarendon Press, 1995), pp. 168-73.
19. The distinction between agency good and prudential good is adapted from Aristotle, who uses the term "external good" instead of "prudential good." For Aristotle, any good that does not belong to the good of human virtue or capability of the agent is classified as external good. See Nicomachean Ethics 1099b 1-8;
20. T. H. Irwin, "Permanent Happiness: Aristotle and Solon," Oxford Studies in Ancient Philosophy, vol. 3 (New York: Oxford University Press, 1985).
21. For a modem list of prudential values, see James Griffin, Well-being (Oxford: Clarendon Press, 1986), pp. 67-68.
22. The lists of agency and prudential goods are not exhaustive, though they already cover a wide variety of goods. These goods are generally not specific to particular cultures and traditions but are widely accepted by human beings across cultures.
23. Although it is possible that certain items might be questioned by some people.
24. Sher directly argues for the claim that a perfectionist theory of value is superior to subjectivism in his Beyond Neutrality, chs. 8-9.
25. See Thomas Nagel, The View from Nowhere, (New York: Oxford University Press, 1986), ch. 8;
26. Ronald Dworkin, "Foundations of Liberal Equality," in Grethe Petersen, ed., The Tanner Lectures on Human Values, 11. (Salt Lake City: University of Utah Press, 1990), pp. 1-119;
27. Thomas Scanlon, "Value, Desire, and Quality of Life," in Martha Nussbaum and Amartya Sen, eds., The Quality of Life (Oxford: Clarendon Press, 1993), pp. 187-207,
28. Rawls, Political Liberalism, pp. 62-64.
29. For an interesting argument to this effect, see Joseph Raz, "Liberalism, Scepticism, and Democracy," in his Ethics in the Public Domain (Oxford: Clarendon Press, 1994), ch. 5;
30. see also Will Kymlicka, Liberalism, Community, and Culture (Oxford: Clarendon Press, 1991), pp. 17-19.
31. See Rawls, Political Liberalism, pp. 48-54, p. 395.
32. One important exception is Brian Barry, who argues that all conceptions of the good are inherently uncertain, and that this skeptical claim is the only way to establish liberal neutrality. See his Justice as Impartiality, pp. 168-73.
33. For criticisms of Barry's skepticism, see Simon Caney, "Impartiality and Liberal Neutrality," Utilitas 8 (1996): 276-80.
34. See Rawls, Political Liberalism, p. 59.
35. This example is from Caney, "Impartiality and Liberal Neutrality," pp. 277-78.
36. What is the reason for preferring the noncoercive version to the coercive one? One is that directly coercing people to conform to rules of conduct or to lead a certain way of life would often be ineffective and could even backfire. Another reason is that this kind of coercion would undermine personal autonomy, which is a valuable good. But notice that on the view of moderate perfectionism, personal autonomy is neither the only good nor the best good among others, rather it admits of degree. So an endorsement of this value does not necessarily lead one to reject mild forms of legal restriction if the latter proves to be necessary in securing other important goods but without diminishing in significant degree the value of personal autonomy. This is a complex issue that I have no space to enter into. For valuable discussions see Sher, Beyond Neutrality, pp. 56-60.
37. Politics 1288b 22-1289a 25.
38. For a good discussion of a mixed perfectionist reading of Aristotle, see David Charles, "Perfectionism in Aristotle: Reply to Martha Nussbaum," Oxford Studies in Ancient Philosophy, Supp. Vol. (New York: Oxford University Press, 1988).
39. Note that I do not claim that the comprehensive aspect of extreme perfectionism is logically connected to other aspects such as pure and state-centered. Similarly, there is no logical connection between different aspects of moderate perfectionism - they may just tend to go together.
40. Rawls, Political Liberalism, pp. 36-40.
41. Joseph Raz has expressed this point well: "[Perfectionism] is the view that whether or not a particular moral objective should be pursued by legal means is a question to be judged on the merit of each case, or class of cases, and not by a general exclusionary rule, as the so-called 'neutralists' would have it." See Raz, "Facing Up: A Reply," p. 1231.
42. See, for example, Rawls, Political Liberalism, pp. 35-40,
43. Nagel, Equality and Partiality, ch. 14,
44. Charles Larmore, "Pluralism and Reasonable Disagreement," Social Philosophy and Policy 11 (1994): 61-79.
45. Vaclav Havel, Disturbing the Peace, p. 15.
46. For a similar discussion on this point, see James Bernard Murphy, The Moral Economy of Labor: Aristotelian Themes in Economic Theory (New Haven: Yale University Press, 1993), especially pp. 225-34. Murphy argues that "government should be concerned with the distribution of meaningful work . . . simply because meaningful work is so fundamental to human happiness and well-being" (p. 228). He further argues that restoring the unity of conception and execution in the design of jobs is compatible with our economic interests in efficient production and is required by our moral interests in human flourishing.
47. See also Charles Larmoie: "The norm of equal respect holds that political principles - that is, principles to which compliance may be effected by force, if need be - mustbe justifiable to all who are to be subject to them, for otherwise persons would be being treated only as means (as objects of coercion) and not also as ends in themselves (as beings whose distinctive capacity of thinking and acting on the basis of reasons is engaged directly)." Larmore, "The Limits of Aristotelian Ethics," Nomos 34 (1992): 193-94.
48. See also Rawls, Political Liberalism, p. 137.
49. It may be asked why this statement about respecting people as ends is needed. Why can't we just start with a statement that simply says that laws and policies must be justifiable to all who are subject to them? The answer is that Nagel and other neutralists (such as Larmore, as previously noted) see the need to base the justifiability requirement on certain basic moral principles, and for them the most plausible one is Kant's second formulation of the categorical imperative - "that one should treat humanity never merely as a means, but always also as an end" (EP, p. 159).
50. We shall see that Nagel recognizes that this principle, as it stands, is too ambitious and its scope needs to be limited.
51. Joshua Cohen is another liberal who explicitly tackles this problem. The line of what he calls the bootstrapping argument is that while egalitarian principles of justice may be controversial, they can be shown to be logically required by commitment to uncontroversial ideals such as freedom and equality before the law. See Joshua Cohen, "Moral Pluralism and Political Consensus," in David Copp, Jean Hampton, and John Roemer, eds., The Idea of Democracy (Cambridge: Cambridge University Press, 1993), pp. 270-91. For the reason of space, I cannot enter into a proper discussion of Cohen's argument. Michael Sandel also discusses the asymmetry problem and responds to a possible liberal reply similar to that of Cohen. Sandel argues that it may be true that a certain principle of justice (Rawls's difference principle) is the only reasonable principle, but it is also likely true that only a certain moral or religious position (for example on the moral status of homosexuality) is reasonable. There is no a priori reason to exclude this possibility, and whether it is possible "to reason our way out to agreement on any given moral or political controversy is not something we can know until we try."
52. See his "Political Liberalism," Harvard Law Review 107 (1994): 1783-88.1 thank Simon Caney for drawing my attention to Cohen's and Sandel's articles. Both of the articles, however, do not discuss Nagel's two arguments to justify the asymmetry.
53. Neither do Wall's Liberalism, Perfectionism and Restraint
54. Sher's Beyond Neutrality discuss these arguments.
55. Nagel, Equality and Partiality, pp. 164-65.
56. I thank Simon Caney for helping me construct this principle.
57. Assuming that it does not violate individual rights of course.
58. This relaxed approach, as we shall see, is generated not simply by the example of aesthetic values but also by the need to justify the traditional tasks of the state.
59. For similar approaches to conditions for legitimacy, see, e.g., Amy Gutmann and Dennis Thompson, "Moral Conflict and Political Consensus," Ethics 101 (1990): 64-88;
60. Simon Caney, "Anti-perfectionism and Rawlsian Liberalism," Political Studies 43 (1995): 255-56.
61. And so my following argument that the broader version can be turned into a defense of state perfectionism does not simply rely on an unprincipled element of perfectionism found in Nagel's account.
62. For an interesting argument for the claim that standard liberal rights can provide adequate protection to citizens without making the state neutral, see Sher, Beyond Neutrality, pp. 111-14.
63. Will Kymlicka, Contemporary Political Philosophy (Oxford: Clarendon Press, 1991), p. 219.
64. For an argument to this effect, see Robert Goodin, "Liberalism and the Best-Judge Principle," Political Studies 38 (1990): 189.
65. For a statement of this distinction and its importance, see Thomas Hurka, "Indirect Perfectionism: Kymlicka on Liberal Neutrality," Journal of Political Philosophy 3 (1995): 36-57.
66. See Amy Gutmann, Democratic Education (Princeton: Princeton University Press, 1987), pp. 258-63,
67. as cited in Hurka "Indirect Perfectionism," p. 37.
68. For an account of this argument, see Joseph Chan, "Does Aristotle's Political Theory Rest on a 'Blunder'?" History of Political Thought 13 (1992): 189-202.
69. Similarly, state neutrality is compatible with both philosophical perfectionism and philosophical neutrality as justification. Perfectionist justifications of state neutrality include, for instance, an autonomy-based justification, which says that the respect for personal autonomy as a valuable good implies that the state ought to remain neutral toward conceptions of the good life. For criticism of the soundness of this argument, see Hurka, "Indirect Perfectionism,"
70. Sher, Beyond Neutrality, chs. 3-4. Neutralist justifications of state neutrality include contractualist arguments such as Nagel's. This article is precisely aimed to argue that Nagel's contractualist argument not only fails to justify state neutrality but can lend support to state perfectionism.
71. This objection is not considered in Hurka's "Indirect Perfectionism."
72. For comparison of proceduralist and deliberative conceptions of democracy, see Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Cambridge, MA: Harvard University Press, 1996), ch. 1.
73. It is important to note that the contractualist argument itself is not perfectionist. Rather, it is the application of this argument to the case of the good life that makes use of considerations about the good life. The application of the contractualist argument in other cases such as education and health services need not appeal to perfectionist considerations. Nagel's use of the argument in these cases is not guilty of smuggling in perfectionism (except, arguably, his example of aesthetic values), and thus my critique of the contractualist rejection of perfectionism does not rest on a soft target.
74. In fact Rawls acknowledges this: "Some decision concerning these background arrangements [regarding the basic structure of society] is fundamental and cannot be avoided. In fact, the cumulative effect of social and economic legislation is to specify the basic structures. Moreover, the social system shapes the wants and aspirations that its citizens come to have. It determines in part the sort of persons they want to be as well as the sort of persons they are. Thus an economic system is not only an institutional device for satisfying existing wants and needs but a way of creating and fashioning wants in the future.... Since economic arrangements have these effects, and indeed must do so, the choice of these institutions involves some view of human good and of the design of institutions to realize it. This choice must, therefore, be made on moral and political as well as economic grounds." A Theory of Justice (Oxford: Oxford University Press, 1971), pp. 259-60.
75. For another similar view, see Brian Barry, Political Argument (New York: Harvester Wheatsheaf, 1990), pp. 75-78.
76. See Nagel, EP, p. 116;
77. Rawls, Political Liberalism, pp. 192-94.
78. The following offer good analyses and criticisms of other antiperfectionist arguments: Wall, Liberalism, Perfectionism and Restraint, chs. 3-5;
79. Sher, Beyond Neutrality, chs. 2-5;
80. Caney, "Anti-perfectionism and Rawlsian Liberalism";
81. Caney, "Impartiality and Liberal Neutrality";
82. Hurka, "Indirect Perfectionism."