Politics

Modern liberalism from a personal perspective

János Kis · 1 March 2016

In what follows, I will offer an annotated list of works in modern liberalism. The selection will be in one sense subjective. Not in the sense of offering works “of my liking”, but rather in the sense that it will be organized around the way the encounters with them has shaped my development towards intellectual maturity. So I have to begin by telling something about myself.

My career as a philosopher started in communist Hungary in the 1960s. In those times, a young Hungarian with a secular Enlightenment outlook had Marxism as the only philosophical language to speak. Even the criticism of Marxism had to proceed by way of turning Marx against the official Marxist ideology or turning some parts of Marx’s theory against other parts of it. So I began as a revisionist Marxist of sorts. Gramsci, Korsch, Lukács (of the History and Class Consciousness) were my intellectual heroes; I should add Habermas and Kołakowski as the leading neo-Marxists in the early ‘60s. And, first and foremost, I should mention György Márkus whose influence on my intellectual formation was more important than anyone else’s. (It is a shame that his work is by and large unknown in Poland.)

Sometimes in 1969, Márkus proposed György Bence and me to co-author with him a book on Marx’s philosophy of history. Over the years, the subject shifted to the Marxian conception of socialism and the social bases of a socialist revolution. We intended our work to be a step towards updating Marxist theory – with hindsight, it proved to be the first step on the road away from Marxism. In any case, the book earned us exclusion from the academia and publication ban, and so I was made a dissident what I remained until the collapse of the communist regime.

Revisionist Marxists of my generation evolved in a variety of directions. Some of them embraced post-modernist relativism, deconstructionism, and the like. Some others ended up with conservatism or libertarianism. I found the first option intellectually frivolous, and rejected the latter on substantive moral grounds. I tried to rebuild my worldview within the broader Enlightenment tradition of which Marxism represented the radical left wing. The task was complicated by the fact that I continued to think that Marx had valid critical points against the mainstream Enlightenment view of man and society. So I had to face the question how the Enlightenment tradition can be rescued from those objections.

Since my education linked me to the philosophical lineage leading from classical German idealism to Marx and to post-Marxian critical theory, a sympathetic observer would have predicted a shift towards some kind of a social criticism freed from the view of modern society as a world doomed to collapsing on the on hand, and uncoupled from the Marxist utopia on the other.

This is not exactly what happened. Personal experiences, such as the rise of a democratic opposition to the communist regime and my participation in it, produced a change in the very questions that gave direction to my thinking. The task of redefining my relationship to the Enlightenment heritage was specified as one of redefining my relationship to liberalism, the political expression of the Enlightenment. Social theory yielded the place to political philosophy, German idealism to Anglo-Saxon contractualism (very broadly understood, accommodating many philosophers who, myself included, do not subscribe to the contractarian method of reasoning).

My matured views on the meaning of the liberal tradition in the 21st century are summarized in a long study entitled “What Liberalism Is?” (Mi a liberalizmus?) published in Hungarian in 2014. Here, I will give a very sketchy account of my intellectual transition from Marxism to liberalism. That transition was not an easy one. The account below will give glimpses of why it was not easy and how it was achieved in the end.

As I promised in the introductory sentences, I will proceed by commenting on a number of philosophical works that shaped my thinking. I will not discuss the way my ideas have been affected by the classics of modern moral and political philosophy from Hobbes through Kant, or by contemporary moral and political philosophers whose influence, great as it was, did not directly contribute to my coming to terms with the Enlightenment tradition (I should perhaps mention Bernard Williams, Thomas Scanlon, and Joseph Raz).

Most of the works I will address are landmark achievements. A few are relevant only in the context of my own intellectual journey.

 

*

 

I had encounters with 20th century liberalism before my parting company with Marxism. Karl Popper’s fame as a philosopher of science was at its zenith when I was a student; I encountered The Logic of Scientific Discovery and Conjectures and Refutations first; it was reading these works that drew my attention to Popper’s politically relevant works, The Open Society and Its Enemies, and The Poverty of Historicism. Similarly, I have read The Counter-Revolution of Science of Hayek before discovering The Constitution of Liberty. As to Isaiah Berlin, I have got to know him as an author of innumerable essays on the philosophy Enlightenment and Romanticism; his work in the history of ideas called, then, my attention to his highly important “Two Concepts of Liberty” and “Historical Inevitability”.

Popper, Hayek, Berlin were leading cold war liberals. Their main contribution to liberal theory consisted in a vigorous defense of liberalism and the liberal order against totalitarian and authoritarian challenges so virulent since the end of World War I. As sharp critiques of the communist idea, they drew my attention to such weaknesses of conventional Marxist theory that were not necessarily revealed by Marxism’s revisionist advocates.

 

*

Karl R. Popper: The Open Society and Its Enemies, I-II

London: Routledge & Kegan Paul 1945.

 

Popper turned to political philosophy in reaction to the rise of totalitarianism in the post-World War I era. He believed that, important as the role of the war, the ensuing peace, and the economic crisis played in bringing totalitarian movements to power, ideas had their distinct role to play in the process. In order to defeat totalitarianism, the spell of the totalitarian idea must be broken, Popper thought. The Open Society and its Enemies was written with this belief in mind. It was conceived as a critical interpretation of the work of three great philosophers: Plato, Hegel, and Marx.

Popper has not provided a precise description of what he meant by an open society, but here is the main idea: open societies accept diversity in cultural, religious matters and in matters of world view; they include a vast private domain within which individuals are free to pursue their own preferences and ideas about the good life; they make room for free debate on the common good in the public domain, treating everyone as bearers of equal political rights, and they subject the access to public power to free and fair competition. Closed societies are, then, on the opposite end of a scale starting with the ideal of an open society. The enemies of open society argue for the good of a closed society. Popper suggested that the defense of closed society was present in the history of philosophy since the antiquity; the aim of the book was to uncover the deep structure of the argument for it, and to debunk it.

 

Friedrich A. Von Hayek: The Constitution of Liberty

Chicago: Chicago University Press 1960.

 

Hayek’s central idea was that the utopia of a centrally planned society is not just unfeasible: it is unappealing, too. A free society, he argued, is one where the social order emerges from and is maintained by spontaneous processes. A spontaneous order is one where no individual or collective agency is in a position to bend the terms of human interaction to their plans and projects. Such a society is not created by design but emerges as an unintended consequence of myriads of individual choices and acts none of which is directed to the macro outcome they together bring about. In the domain of the economy, the model of a spontaneously created order is that of a self-regulating market, free of either public intervention by the government or of monopolistic intervention by big companies. In the domain of the law, the model is provided by the common law systems where legislation is largely the product of a cumulation of judicial precedents.

Hayek offers two distinct arguments in favor of the spontaneous order. First, its output in terms of human well-being is superior to the alternatives. Secondly, and more importantly for his contribution to liberal theory, the spontaneous order is an order of liberty. This is because unfreedom as he defines it means one person bending the will of another to his goals; a person is free to the extent that nobody is able to treat her in this way. And under a spontaneous order, nobody is in a position to dominate the will of others by manipulating the rules of social interaction.

The idea of a spontaneous order had an important corollary. Hayek famously argued that in a self-regulating market, all the actions can be based on the information the agents already have (about their own preferences, resources, and the prices they meet on the market). In a centrally planned economy, on the other hand, the Center has to collect information from the many separate agencies, and information gathering is a costly and tortuous process, likely to result in less than sufficient and possibly distorted data. In fact, this is a powerful reason counting in favor of the market and against central planning.

 

Isaiah Berlin: Four Essays on Liberty

Oxford: Oxford University Press 1969.

 

Berlin was a prolific writer in the history of ideas. In Four Essays on Liberty, he collected his major articles in theoretical political philosophy. These articles („Two Concepts of Liberty” in particular) propose a specific conception of liberal theory based on the idea of value pluralism. The term „value pluralism”, in Berlin’s understanding, describes the fact that there is a plurality of mutually independent values, each of them worthy of pursuit, but all of them impossible to realize simultaneously. Therefore, value conflict is unavoidable. Furthermore, the conflicting values are often incommensurable: one cannot tell which carries greater weight or whether they are equal in importance. Thus, individuals and societies have to make choices, and there is no rational method to decide which option should be taken.

It is important to note that Berlin’s view is neither subjectivist nor relativist. It is not subjectivist since Berlin believes that the values are objective and so is the fact of their incommensurability. It is not relativist because Berlin does not subscribe to the „anything goes” thesis: he distinguishes genuine values from putative values and disvalues, and the conflicts he speaks about are those of genuine values not conflicts between genuine values and putative values.

The commitment to liberty and to its interpretation as negative liberty follows, Berlin insists. The commitment to liberty follows because if the theory is true, then nobody can possess rational authority to tell others what values they should give priority, collectively or individually. The commitment to negative liberty follows if we add his analysis of the two concepts of liberty, or so Berlin believes. Negative liberty is freedom from interference, in this analysis, while positive liberty consisting in (individual or collective) self-mastery. According to Berlin, one cannot make sense of the idea of self-mastery without flouting value pluralism and, especially, value incommensurability. Individual self-mastery appears as the rule of the „true self” over the „lower self”, and something like this is presupposed by the idea of collective self-government, too. Freedom as self-mastery is a perversion of the idea of liberty, used for presenting oppression as liberating. This is Berlin’s core argument against the authoritarian and totalitarian thinking.

 

*

 

Important as I found the arguments of cold war liberals, I also had misgivings about them. Popper’s interpretations of Plato, Hegel, and Marx were not particularly refined and, admirable as I found much of the work of Hayek and Berlin, I had my reservations about their views.

As to Hayek, he believed that if a government interferes with the workings of the spontaneous order in the pursuit of collective goals, such as securing the means of a minimally decent human life to all, the effect will not be a mere reduction of liberty. It is wrong to think, Hayek insisted, that sacrificing some liberty can be justified by the gain in terms of a provision of basic goods to all. Attempts at creating a welfare state drive capitalism, unless the tendency is reversed, towards the establishment of a totalitarian regime. (This idea was most clearly formulated in an earlier book, The Road to Serfdom, first published in 1944.) The claim that the welfare state is but a first step on a slippery slope towards totalitarian dictatorship made me shake my head. (Whether it encounters difficulties of a different kind and how these are to be tackled is quite another matter.) I also felt that identifying the spontaneous order with perfect human liberty cannot be right.

Similarly, I found Berlin’s flat rejection of the idea of positive liberty less than convincing. I also recognized that Berlin was somewhat ambiguous in this respect: he sometimes seems to deny that collective self-government is a genuine value at all, at other times, while acknowledging its value, he seems to be claiming that it cannot be realized without sacrificing negative liberty.

In any case, the motivation to embrace liberalism came from elsewhere, not from the cold war liberals. Everything started with a personal experience that dramatically changed my attitude towards the idea of human rights.

As a Marxist, I used to be ambiguous about human rights. Marx thought that human rights are not universal as they are claimed to be: he argued that they are weapons in the hands of members of a particular kind of society, one based on division of labor and private property, a society the members of which are involved in irresolvable conflicts of interest with one another. I took Marx’s idea very seriously, and so I cannot tell when and how I would have recognized the underlying mistake but for the official decision to put me and my friends under an employment and publications ban.

I responded to that act with a strong moral intuition that a right of mine was violated. The authorities acted against me, I felt, in a way that was morally impermissible. This reaction raised a problem, though. If there are no human rights, then all rights I could possibly have must have been legal rights, awarded on me by the state. The communist authorities acted in conformity with the rules and practices in force, and so I had no legal right violated by the employment and publications ban imposed on me. For my intuition to be correct, it must have been true that I was a bearer of moral rights owned independently of any legal or institutional regulation – and precisely this is the core idea of human rights.

Not very much later I stumbled upon a paper by Richard Wasserstrom, an American philosopher.

 

*

 

Richard Wasserstrom: „Rights, Human Rights, and the Nature of Discrimination.” Journal of Philosophy 61 (1964) 628–641

 

Wasserstrom’s paper was not a piece of a uniquely powerful philosophical analysis. But it has been written in a clear and vivid manner, and its argument was sound. It helped me to understand what exactly my response to the official ban was based upon and why the Marxian claim that moral rights aren’t but ideological veils for class interests was wrong. The paper was written in the early 1960s, at the time of the “rights revolution” that transformed the public political thinking in the US. In explaining the nature and importance of human rights, it started out from the bewilderment with which some white Southerners reacted to the civil rights movement. These were people with benevolent attitudes towards “Negroes”. They would have never inflicted pain or suffering needlessly on them. They even undertook special obligations to relieve them from hunger or disease. And they failed to understand why, rather than reacting to beneficence with gratitude, “Negroes” took up the adversarial discourse of rights.

Suppose, Wasserstrom said, “Negroes” were indeed treated as benevolently as these white Southerners claimed they were. Even so, the bewilderment at the civil rights movement betrayed a lack of acknowledgment for their standing as the white man’s equals. A person who has a right to a certain treatment owes no gratitude to those who treat him or her in that way. And if s/he believes those rights are violated, s/he can protest against the violation. S/he can ask for justification or excuses, for apology, compensation, and redress.

So rights are normative constraints that protect their bearer’s status. They put others under a duty not to do what amounts to a rights-violation. But they are constraints of a particular kind. Any moral duty acts as a normative constraint on action. But not all duties are grounded in a correlative right. Consider the duty of beneficence. It is a freestanding duty, not grounded in a right of the beneficiary. If the bearer of the duty fails to act as he is mandated by the duty, that is merely a matter between him and his conscience. But if someone is held under a duty as a consequence of another person’s having a right, the former is morally accountable to the latter. To have a right is to be in control of the normative constraints that protect the interests which the right declares inviolable. To be deprived of rights is to depend on the judgment and dispositions of others. Call this the rights thesis.

The rights thesis helped me to understand why communism, whether in the form of the Marxian utopia or in that of the “really existing” communist regime was morally unacceptable. In the last decades of its existence, the communist regime grew more and more permissive, at least in my country. But the boundaries between the permitted and the prohibited remained arbitrarily drawn, and could be unpredictably redrawn at any moment. More fundamentally, the party-state claimed authority to grant as a permission things that citizens had a moral right to have and to do.

The idea that humans as persons are bearers of rights, that as rights-bearers they have standing to be and act in certain ways whether the law makes such action permissible or not, to demand that those rights are respected and to protest against violations came to inform my identity as a dissident. I began to see what my friends and I have done on the analogy of the activists of the civil rights movement in the US as Wasserstrom has described them: we do not ask for a permission to exercise our basic liberties nor do we apologize for acting against the law if it violates our pre-legal rights or bear a duty of gratitude if the oppressive law is not applied. This amounted to a variant on the theme of “the power of the powerless”, formulated in different terms in Havel’s celebrated essay.

 

Joel Feinberg: Social Philosophy

Englewood Cliffs, NJ: Prentice-Hall, Inc. 1973.

 

My attention was drawn to Wasserstrom’s paper by Joel Feinberg, a distinguished liberal political and legal philosopher. My attention was attracted to his book by the rigorous analysis of the nature and value of rights it offered, but it included more: a careful examination of the idea (or, more exactly, ideas) of liberty, and an extensive discussion of the grounds and limits of coercive state power.

As Feinberg explained, rights are complex bundles of normative properties: liberties (a liberty consisting in an absence of duty not to do certain things), claims (a claim being the ground for a duty of others not to interfere with the rights-holder’s doing whatever he is at liberty to do), powers (a power in this sense is the moral capacity to change one’s own or someone else’s normative position, e.g., the capacity to undertake obligations towards others or to award claims and liberties on them by, for instance, giving them a gift or consenting to their authority over oneself), immunities (someone enjoying immunity towards another person if the latter has no power to change the normative status of the former), and disabilities (a disability amounting precisely to the lack of power to change someone else’s normative status). Some rights entail a complete list of liberties, claims, immunities, and disabilities; other rights are of a more or less incomplete structure. For instance, the right to marry entails a liberty but it includes no claim that the desired partner accepts the marriage offer. But if the two partners make a common decision to marry, they have a claim against third parties not to be prevented from doing so. (It is the claim component of rights that explains Wasserstrom’s observation that a rights-holder has the standing to demand that his rights are respected and to protest against violations.)

Feinberg himself attributed great moral value to this property of rights: a rights-holder is, he insisted, an equal of those against whom he has rights, and a person having the normative capacity to act autonomously. This conception is now called the “choice theory of rights”: rights provide individuals with normative tools that protect their liberty to make first-order choices (such as one between moving from A to B and staying in A), and enable them to make second-order choices, i.e. choices regarding their first-order choices (e.g., the right to engage in a contractual relationship enables the individual to bind himself to do C on condition that his partner does D).

As to liberty, Social Philosophy offers a good introduction into the richness of its idea. Liberty is not just one particular concept but a family of concepts, it argues, which together should make up a theory of freedom. There is liberty as freedom from coercive intervention, liberty as absence of a duty not to act in certain ways, liberty as the opportunity to do certain things, liberty as the capacity to do what one has the opportunity to do, liberty as autonomy, liberty as the status of a free person, and so on. Feinberg provided an admirably clear analysis of all these dimensions of the idea of liberty, and a view of how they hang together.

As a next step, he turned to the problem of when and on what grounds coercive interference with one’s liberty is morally permissible. The chapters on coercion anticipate Feinberg’s magisterial four-volume work on The Moral Limits of Criminal Law. They give a modern and rigorous account of John Stuart Mill’s celebrated harm principle according to which the only justification for exercising coercive power against an individual is when the action that is coercively interfered with is poised to cause harm to others. Harmless violations of the community’s ethical code or acts of a competent person that harm only the agent and no one else should not be prevented, stopped or punished by either private persons or the state. They are ruled out as moralism and paternalism, respectively.

Reading Feinberg provided me with a solid view of the structure of liberal political theory and its moral foundations. It greatly facilitated my engagement with difficult theoretical issues at the center of the debates within contemporary liberalism.

 

*

 

After these first encounters, I started reading liberal political philosophy systematically, with a focus, first, on the idea of rights. I have read Joseph Raz who proposed an alternative to the choice theory: he interpreted rights as normative protections of interests of a particularly great importance. (I came to think that, in reality, the two theories are complementary rather than each other’s competitors, the interest theory providing the grounds for having a right while the choice theory explaining what normative capacities the rights-bearer is endowed with by having a right.) I have read Robert Nozick who offered an interpretation of rights as side-constraints on the choices and acts affecting the rights-bearer: rights, Nozick argued, do not compete with other values – they set limits within which those values can be permissibly pursued. I have read Ronald Dworkin who interpreted rights as trumps that normally override reasons of collective benefit.

The book on Marx I co-authored ended with the conclusion that the utopia of a classless society, free from markets, the rule of law, the state and representative democracy would grossly violate the very principles Marx hoped it to fully satisfy. The understanding that having a set of rights is part of the human person’s moral status made it clear to me that some of the Marxian principles themselves must be dropped. One might think that, given the intricate links between the idea of rights and liberalism, the way was now open for me towards embracing liberal theory. I rather found myself to be confronted by a dilemma I didn’t see how to resolve. I thought the commitment to rights made liberalism incapable of responding to class inequalities that are systematically produced by the capitalist economic order, and I continued to share Marx’s view that those inequalities are unacceptable. So I felt I either take seriously the rights thesis and, then, I am led by the force of logic to endorsing social inequalities I was convinced are unacceptable, or I stick to my convictions regarding those inequalities and, then, I cannot take the rights thesis seriously.

 

*

 

Robert Nozick: Anarchy, State, and Utopia

Oxford: Blackwell 1973.

 

Reading Nozick helped me to formulate my worry more precisely. According to Anarchy’s main thesis, the justice of a distribution depends entirely on the history of its creation. Nozick has built his conception of political legitimacy and justice on an austere moral background theory. He believed the relevant moral principles consist in a set of negative rights such as the right to life, to bodily integrity, to freedom of movement, the right to acquire private property and to exercise the powers of a property owner. As long as the acts of a person do not violate anybody’s rights, they are morally permissible, s/he is at liberty (from the moral point of view) to perform them. A robust consequence follows. A distribution is just if and only if it arises from a just prior distribution by just steps of production and transfer. Whatever one should make with what one has, the action is just if down the road nobody’s rights are violated. The same judgment applies to the prior distribution, and so on. This backward reconstruction leads, by the force of logic, to a point where nobody owns anything yet. Until that point is reached, all the steps are judged against the standards of justice in production and transfer. At that point, the issue becomes that of justice in acquisition. With some qualifications that I have no room to render here, justice in acquisition depends on the same standard of rights as justice in production and transfer. We have now a complete rights-based theory of justice in the distribution of holdings. Since the only moral resources political theory has at hand are negative rights, the question of distributive justice is reduced to the question of whether the distribution under investigation results from a process in the course of which every agent acted within the constraints of the rights of the others or not. There are no criteria against which one could assess the structure of a distribution separately from the way it was created. As Nozick puts it: The principles of justice are exclusively historical; there are no independent structural principles. The outcomes of a process inherit its justice or injustice. Any distribution is just if it has been created by rights-respecting acts.

Nozick was fully aware that capitalist societies are very far from satisfying the historical standards of distributive justice. In his view, this would justify massive one-off redistribution with the aim of rectifying past injustices. But suppose that after the rectification is completed, all acts of production and transfer are carried out within the constraints of rights. Then no matter how large the resulting inequalities should be, justice does not require their reduction. Nor does it permit the state to impose taxes with the aim of reducing inequality.

If this was correct, my dilemma was irresolvable.

 

 

Ronald Dworkin: “The DeFunis Case: The Right to Go to Law School”

The New York Review of Books, February 5, 1976. (Republished as “Reverse Discrimination” in Dworkin’s Taking Rights Seriously, London: Douckworth 1977.)

 

A Sunday morning in 1976, I visited one of my closest friends. Every Sunday, there was open house with him; the guests were people about to launch what later was called the democratic opposition. This time, I didn’t come early; when I entered the room, there was already noisy discussion. But something else captured my attention. On the table, I saw a recent issue of New York Review of Books. My gaze was attracted to the title “Ronald Dworkin: The DeFunis case”. I haven’t heard about that case before, nor have I encountered the name of the author. Nevertheless, I opened the journal, and began to read the article, not even caring about finding a place to sit down. I may have read it for about 20 minutes, then asked my friend to lend me the copy, and went home.

Dworkin’s argument was of great complexity; I had to reread the text a number of times to get the point. But the main idea was simple. DeFunis applied to the University of Washington Law School. He was rejected although his test scores were not lower than those of black or other minority applicants. He asked the Supreme Court to declare that the procedure – informed by affirmative action considerations – violated his rights under the US Constitution. Dworkin argued that public universities are morally and constitutionally permitted to pursue admissions policies that give preferential treatment to underprivileged minorities, and nobody has a right that the admissions criteria focus on individual performance alone, disregarding the aim of equalizing opportunities.

This was years before Dworkin began publishing his magisterial pieces on the nature and demands of equality. His discussion of the DeFunis case did not attack head-on the general problem of the relationship between distributive equality and rights. It was dedicated to the special problem of the relationship between higher education admissions policies and the applicants’ rights. But it was clear that the approach lent itself to extension. Rights and distributive claims should not be seen as defined independently from each other. The correct political theory defines them simultaneously. Rights set constraints on what may be done to an individual, but they are determined against the background of a certain distributive ideal. And vice versa, the proper standards of equality are determined against the background of individual rights.

Dworkin’s four-part “What is Equality?” which he began publishing five years later, gave a more detailed and systematic shape to the basic idea of the DeFunis paper. One of its important conclusions consisted in mounting a challenge to the conventional view on the relationship between markets and equality. The conventional view is that markets are vehicles of efficiency but their contribution to the rise of well-being comes, as a matter of logical necessity, at the cost of sacrifices in terms of equality. Nothing was farther from Dworkin than denying that the actually existing markets tend to generate morally unacceptable inequalities. But the actual markets are structurally imperfect. If, as a mental experiment, we free them from their imperfections (externalities, bargaining asymmetries, insufficient information, and so on), we get to an ideal market as an analytic device. “What is Equality?” points out that the ideal market is not merely not anti-egalitarian. It plays a constitutive role in specifying what distributive equality is. It also explains why liberals should be committed to equality of opportunity (in an interpretation Dworkin called “equality of resources”) rather than to equality of outcomes, and how equality so understood presupposes liberty on the one hand, and informs liberty on the other.

The dilemma that haunted me was dissolved. My thinking was finally on track.

 

John Rawls: A Theory of Justice

Oxford: Oxford University Press 1971.

 

Once I recognized that liberalism, on an interpretation that I found attractive and convincing, is capable of accommodating concerns of distributive equality, I had to set myself to study John Rawls, for the distributive turn in liberalism was initiated by his seminal work, A Theory of Justice.

Theory is a landmark in many different ways. First, over the half century or so before its publication, political philosophy was an outlier in the philosophical discipline, at least in the Anglo-Saxon world. Political philosophy is a normative discipline, part of moral philosophy. Its central questions are what is right, permissible, obligatory, or impermissible – what should and should not be done. Logical positivism that dominated the scene for about 50 years identified the meaning of propositions by the empirical facts that make them true, and so it held that normative propositions are meaningless. Rawls rejected this view and proposed a method of rational argument in moral matters (he called it the method of reflective equilibrium). Second, he changed the perspective on justice. Historically, justice was seen as a standard that applies to individual conduct (or character). Rawls boldly announced that the primary subject of justice is not individual conduct but the institutional system of a society (its “basic structure” as he called it). Third, he revived the contractarian tradition of political theory. He proposed to establish the principles of justice against which to assess alternative institutional systems by asking the question what principles individuals would accept for regulating their social cooperation if they were adequately informed about the distribution of material assets and personal talents in their society but were completely ignorant on their own place within that distribution. (He called the hypothetical situation in which the foundational choices are made the “original position”, and the device that screens the available information the “the veil of ignorance”.) The significance of the veil of ignorance is that it eliminates personal bias: since choosers do not know their own position in the social structure, it is impossible for their choices to be affected by partial considerations. Fourthly, and most importantly for contemporary liberalism, Rawls argued that a liberal theory of justice built from the hypothetical original position necessarily includes, besides principles about basic individual liberties (civil and political rights) distributive principles as well: a principle of equality of fair opportunity condemning inequalities from the initial social position of different individuals and a principle he called “the difference principle”, holding that an increase in social inequality is just if and only if without it the position of the worst-off members of society cannot be improved. His idea was not that distributive principles compete with principles of basic liberties to reach some kind of a compromise. He claimed that basic liberties are prior to distributive considerations (and, furthermore, that fair equality of opportunity is prior to the difference principle); basic liberties constrain the acts that the state or private individuals can permissibly perform in order to achieve equality of opportunity or to satisfy the difference principle.

Rawls’s idea was that as citizens who cooperate under the guidance of the institutions of their society, people owe more to each other in terms of justice than they do considered as private individuals who engage in particular transactions with one another. At the level of the individual transactions, the duties of justice are limited to not violating each other’s rights, not taking advantage from their superior bargaining position, etc. But people are not just private individuals: they are also citizens who bear a duty to support and comply with the institutions of their society (provided those institutions are just). And the standards of justice applying to those institutions, Rawls claimed, are more demanding than those that apply to persons directly.

Social institutions must treat all members of society as equals. Treating all members of society as equals entails not to allow the differences in their life prospects to be dominated by morally arbitrary facts about them. That a fact is morally arbitrary means that it cannot justify the inequality produced by it. A fact about an individual is morally arbitrary if s/he cannot be held responsible for that fact. The contingencies of one’s social position at birth and of the natural hazards of one’s inherited talents are morally arbitrary in this sense, Rawls argued.

He resisted the simple idea that a just society offsets all the consequences of morally arbitrary differences. For instance, he argued that inequalities due to differences in persons’ native productive talents are not just merely in virtue of the more productive individual refraining from violating the rights of the less productive or from taking advantage of his superior bargaining position. But he denied that the individuals with inferior productive talents should earn just as much as those with superior talents. The difference principle holds that the more talented are permitted by justice to enjoy the extra benefits from his superior talents provided that the resulting inequality is necessary for making the less talented as well-off as possible.

You may not be attracted to the difference principle or to other specific parts of the Rawlsian theory. But if you are a liberal, you should not ignore the challenge his theoretical turn poses to those committed to liberalism as a philosophical tradition.

 

Thomas Nagel: Equality and Partiality

Oxford: Oxford University Press 1991.

Reading Rawls left me with many questions. Prominent among these was the one related to the duality, of crucial importance for the Rawlsian theory, of the institutional rules applying directly to individuals in their capacity as private persons and those applying to them collectively, through the political institutions. This duality seemed to identify, in different terms, the same phenomenon that Marx described as a split between the Bourgeois and the Citoyen, and what he judged to be a symptom of alienation characteristic of the liberal order.

Nagel helped me to put the Marxian critique in proper perspective. He pointed out that the duality in question is an irreducible feature of human ethical outlook. Individuals lead their own lives; they have their personal aims, desires, projects, and attachments. It is an ethically significant fact about them that they each have their own personal perspective from where they assess the options open to them. It matters that they lead the life of their own, that they have the final authority over the way they live. It matters that an individual can lead a life they affirm and have good reason to affirm. But this is equally true about all of them. If it matters that my life goes well, than it matters equally that your life goes well. Recognizing this amounts to adopting an impersonal perspective. From this perspective, I am just one individual among the many; it has no significance that I am I, this particular person, or that my life is mine. Everybody have their own perspective on the world, and everybody is an I from that perspective.

Both perspectives are ethically significant, Nagel argues; neither one is supposed to supersede the other. But their duality raises a problem of reconciliation. On the one hand, Rawls proposes a kind of moral division of labor between human persons and social institutions: individuals are left free to pursue their personal aims within the constraints of the duties of forbearance, since securing equal opportunity and the satisfaction of the difference principle is a task of the institutional order. On the one hand, Nagel insists, the moral division of labor runs into a motivational difficulty. As long as individuals are left free to pursue their partial aims, the duties they owe to each other collectively as citizens are threatened to become motivationally inert. Nagel rejects the Marxian utopia of abolishing the distinction between the personal and the impersonal, but he agrees that the integration of the two perspectives into a coherent ethical outlook is a political task, and an unfinished one at that.

 

*

The question of whether and how the values of liberty and equality can be reconciled was at the center of my theoretical interests in the 1970s and ‘80s (and remained one of the main philosophical problems I am engaged with ever since). But it was not the only question. As I have told you earlier, my transition to liberalism began by embracing the idea that rights are constitutive of the moral status of human persons: that they set constraints to the way individuals are morally permitted to be treated by the state and by other individuals. That idea helped me to interpret the dissident form of life and action, and to publicly justify them. At the same time, it determined a political ideal: the ideal of the political organization of society where people have the institutional tools to exercise their rights without running great risks to themselves. This brought me to the problems of constitutional democracy, to the question, in particular, of how the relationship between majority rule and the constitutional constraints imposed on it should be understood.

 

*

 

Václav Havel: “The Power of the Powerless.” Samizdat 1978

Republished in English in John Keene, ed.: The Power of the Powerless, Citizens Against the State in Central-Eastern Europe. London: Hutchinson 1985.

 

As I said earlier, my view of rights-based dissident politics was a variant of on the theme of “the power of the powerless”. No wonder Havel’s celebrated essay exerted a great influence on my political self-understanding. I took inspiration from it, but I also had certain doubts as to its conception.

The democratic opposition was a non-violent movement, and it lacked avenues for a peaceful change of government, or so it looked at the times of its beginning. So it was a movement of the powerless. But although powerless, Havel argued, dissidents had a kind of power, specific to them. It was a power stemming from their ethical choice to live in truth.

The communist system drew for its stability on pressuring virtually everyone into accepting to live in lie, so the argument went. Its ideology expressed an aspiration radically to change man and society, but it abandoned quite early that revolutionary aspiration. The subjects were, however, expected to pay lip service to the ideological tenets neither the rulers nor the ruled believed any more. Lack of belief was not seen to be a defect. It rather was understood to contribute to cementing the regime. People who were ready publicly to pronounce statements they held and were known to hold false diminished themselves. Demoralized people do not rebel. Nor do they expect each other to rebel. They assume that submissiveness is the general norm, and they readily follow the norm.

The dissident movement showed, according to Havel, that this commonly held assumption was false. The power of the powerless resided precisely in their giving testimony that living in lie is not the normal way for a human being. Living in truth came at a price, to be sure. But, Havel insisted, for someone who chose it, the dignity of taking responsibility for oneself and for the world had a value no benefits offered in exchange for accepting living in lie was capable to outweigh. Because humans are finite, imperfect beings, they can be made resign to living in lie. But since they are, deep in their heart, moral beings, everybody can have their moment of breaking with the life led in lie. This essential openness of the human nature to the appeal of living in truth is what makes the example set by people who have already chosen such a life extremely dangerous for oppressive regimes.

I found Havel’s claim that the opponents of the communist system can rely on the motivating force of moral reasons extremely important. But I was troubled by the view, lurking in the background of his position, on how moral and non-moral reasons are related in general and how they are related in politics in particular. I found it unhelpful to view human beings as moved either by motives that bring them to choose living in lies or by redeeming motives that direct them towards the choice of living in truth. I thought that when people choose wrongly, this is not, in general, because they are indifferent to the claims of morality. That the moral motives may be defeated when the non-moral costs are too high is no evidence that they make no work at all. Lower the costs of being moral and morality gains the chance to win. (This is a point on which I decades later elaborated in some detail in my book, Politics as a Moral Problem.)

So I was unwilling to subscribe to the proposition that people ought to stop participating in the system of lies by simply taking a radical choice to live in truth no matter how high the costs should be. I rather thought dissident politics ought to aim at showing that the costs of acting in accordance to one’s moral and political beliefs are already lower than past experience made the subjects of the communist state believe they were, and at contributing to reducing those costs even further.

This brought me to abandon another idea dear to Havel. He was hoping that the politics of living in truth, beyond contributing to undermine the communist regime, would provide a blueprint for political action that, unlike the politics in Western democracies, is through and through moral, and takes no guidance from “consumerist” interests at all. Since I did not share the dismissal of the desire of citizens to have access to the material means of living well as individuals, underlying Havel’s hope, the encounter with his essay gave an impetus to me to commit myself to an ideal of democracy as a political system that makes the government responsive to the citizens’ concerns about not just the general good but their own well-being as well.

 

 

Ronald Dworkin: “The Moral Reading and the Majoritarian Premise”

Introduction to Dworkin: Freedom’s Law. Cambridge, Mass.: Harvard University Press 1996.

 

The significance, for democratic politics, of the aspirations of citizens regarding their welfare straightforwardly supports legislation by elected representatives rather than by learned mandarins. The citizenries of modern states are, however, divided on matters of principle and policy. Rarely if ever does the “will of the people” express unanimous agreement. Ultimately, disagreements must be resolved by some kind of a vote, and political equality seems to require that the decision is made following the majority rule (the majority rule excluding that the minority, be it the largest possible one, carries the day).

There is a problem, though. The majority may refuse to recognize the rights of the minority. Or they may prefer maximizing aggregate welfare at the expense of those rights. Whenever this is the case, democratic equality undermines liberal equality, i.e., the equality of citizens as rights-bearers. It seems to follow that the rule of the many must be restricted by provisions protecting the rights of the few. This leads to a constitutional conception of democracy. In constitutional systems, individual rights and the principles of equal treatment are entrenched in a higher-order legal document, and ordinary legislation by elected representatives is subjected to judicial review in light of that document.

But how should we understand the relationship between the constitutional and the democratic components of constitutional democracy? Originally, my views were fairly simplistic. I tended to think about constitutional democracy as a compromise between democratic equality embodied by the procedural principle of majority rule, and liberal equality ensured by the constitutional restrictions imposed on the rule of the many through their representatives. Dworkin’s various papers, including this particular piece, written as an introduction to Freedom’s Law, made me understand that the compromise view was unappealing and mistaken. If majority rule is a correct specification of what democratic equality requires, then the compromise brings with it a moral loss and so constitutional democracy is morally tainted even at its best. Rather than stopping at a view of constitutional democracy as a dubious combination of apparently incompatible principles, one should challenge the identification of democracy with majority rule.

The core idea is that the law of a polity purporting to be democratic is not made and enforced in the name of the majority, large as it may be, but rather in the name of the citizenry as a whole, including the dissenting minority. The law must be justified to each individual citizen to whom it is coercively imposed. It must be shown to everyone that they have an equal status as full members of the political community, even when their views are defeated.

According to the majoritarian conception, the requisite justification is provided by the fact that, under the majority rule, each voter has an equal voting power. Dworkin answers that the one person-one vote principle symbolically affirms the status of citizens as equals, but it is insufficient for fully establishing civic equality. It is of moral significance that the procedure in which the law is intrinsically egalitarian. But procedural equality is not the whole thing. Suppose I have an equal vote, but the vote counting tips the balance in favor of a legal provision that violates my rights: then, the law fails to treat me as an equal. Political equality does not obtain if the law fails to treat those in the minority as equal members of the political community, if their interests are not given equal consideration, if their dignity is not equally respected, even if their vote counts no less than that of the citizens who end up forming the majority. In this case, the minority individuals have good reasons to disown the state and its laws. The claim that the law is made in the name of all has no legitimacy. And to the extent that this is the case, the political system is not merely illiberal: it is also non-democratic. The conclusion is that there is no necessary conflict between democratic equality and liberal equality. The compromise view I naively adopted is false.

If democratic equality entails (rather than is limited by) the requirement that the law respects individual rights, does it immediately follow that majority legislation must be limited by constitutional safeguards and made open to review for its constitutionality? Freedom’s Law and Dworkin’s other works on constitutional democracy suggest that it does. Critiques of Dworkin, most notably Jeremy Waldron (see his Law and Disagreement, Oxford: Oxford University Press 1999) insist that it does not. I am tending to side with the critiques in this debate. It is one question whether the rights of individuals remove certain ways of promoting the good from the menu of morally permissible options. And it is quite another question, whether a community whose members disagree on pretty much everything, including the question of the scope, content and status of individual rights, should remove those disagreements from the ordinary democratic decision-making process. The first question is a moral question, the second is an institutional question. The proper conception of political equality determines the answer to the moral question but it leaves the answer to the institutional question underdetermined. In order to answer the question of whether democracy, properly understood, implies constitutionalism, some further arguments are needed.

 

*

 

Waldron’s criticism of Dworkin’s position does not stop at proposing the methodological distinction between the moral question and the institutional question. It makes a passionate case against the appropriateness of judicial enforcement of constitutional rights against legislative mistakes. Advocates of judicial review tend to argue that since majorities and minorities disagree, vulnerable minorities must be protected against the tendency of powerful majorities to enforce their own controversial beliefs on rights. But Waldron objects that if the disagreement is genuine, then the constitutional restrictions, rather than protecting the rights the individuals really have, simply give ascendancy to the beliefs of past majorities and present minorities over those held by present majorities on the nature and scope of those rights. The fact that disagreement is pervasive leaves us with no alternative but to adopt a decision procedure that is fair, and fairness privileges majority rule over its rivals.

I am doubtful about this conclusion. But how I would argue against it belongs not to what I have learned from contemporary liberals. And this paper is not an attempt to lay out my own thoughts about the moral foundations of liberalism and the way they connect to the claims liberalism makes about the preferable institutional order. In it, I merely tried to offer a sketch of the works whose influence marked my intellectual journey from revisionist Marxism to liberalism. The fact that precisely these works and not others exerted formative impact on my thinking tells a lot about me, to be sure. And, yet, this is meant to be the story of the impact, not one of the way I myself tried to form, in response to it, a coherent view of liberal theory.