PUBLIC REASON

Journal of Political and Moral Philosophy

Public Reason is a peer-reviewed journal of political and moral philosophy. Public Reason publishes articles, book reviews, as well as discussion notes from all the fields of political philosophy and ethics, including political theory, applied ethics, and legal philosophy. The Journal encourages the debate around rationality in politics and ethics in the larger context of the discussion concerning rationality as a philosophical problem. Public Reason is committed to a pluralistic approach, promoting interdisciplinary and original perspectives as long as the ideal of critical arguing and clarity is respected. The journal is intended for the international philosophical community, as well as for a broader public interested in political and moral philosophy. It aims to promote philosophical exchanges with a special emphasis on issues in, and discussions on the Eastern European space. Public Reason publishes two issues per year, in June and December. Public Reason is an open access e-journal, but it is also available in print.

Editors

Advisory Board

Editor in Chief

Radu J. Bogdan, Tulane University

Romulus Brancoveanu , University of Bucharest

Paula Casal, University of Reading

Sorin Baiasu , Keele University

Fred D’Agostino, University of Queensland

Associate Editor

Rainer Forst , Goethe University, Frankfurt am Main

Thomas Pogge , Yale University

Gerald Gaus, University of Arizona

Axel Gosseries Ramalho, Catholic University of

Editorial Team

Louvain

Assistant Editors

Alan Hamlin, University of Manchester

Mircea Tobosaru, Politehnica University of

John Horton, Keele University

Bucharest

Janos Kis , Central European University, Budapest

Cristina Voinea , University of Bucharest

Jean-Christophe Merle , University of Tübingen

Carmen-Viviana Ciachir, University of Bucharest

Adrian Miroiu , SNSPA Bucharest

Editorial Board

Adrian W. Moore , University of Oxford

Ovidiu Caraiani, University Politehnica of Bucharest

Philippe Van Parijs , Catholic University of Louvain

Luigi Caranti, University of Catania

Mark Timmons , University of Arizona

Radu Dudau, University of Bucharest

Mircea Dumitru , University of Bucharest

Adrian - Paul Iliescu, University of Bucharest

Ferda Keskin , Istanbul Bilgi University

Valentin Muresan, University of Bucharest

Constantin Stoenescu , University of Bucharest

Ion Vezeanu, University of Grenoble

Public Reason is available online at http://publicreason.ro

ISSN 2065-7285

EISSN 2065-8958

© 2017 by Public Reason

PUBLIC REASON

Journal of Political and Moral Philosophy

Vol. 9, No. 1-2, 2017

Methods in Normative Political Theory/Philosophy

ARTICLES

Ruhi Demiray & Aaran Burns

Introduction: Methods in Normative Political Theory/Philosophy . . . . . . . . . . . 3

Clayton Chin

Challenging Political Theory: Pluralism and Method in the Work of Bernard

Williams . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Avigail Ferdman

From Inevitable Establishment to Mutual Exclusion: The Challenge for Liberal

Neutrality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29

Christopher Murphy

‘What might Scheler say to Rawls?’: A Schelerian critique of Rawls’s Concept of

‘the Person’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49

Luca Costa

Context Dependence in Gaus’s Evolutionary Account of Public Reason . . . . . 61

Boaz Ahad Ha’am

Deafness as Disability: Countering Aspects of the Medical View . . . . . . . . . . . .79

M. E. Newhouse

In Defense of Liberal Equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .99

BOOK REVIEWS

Bernard Harcourt, Exposed. Desire and Disobedience in the Digital Age . . . . . . . .109

Reviewed by Anda Zahiu

Public Reason 9 (1-2): 3-7

© 2017 by Public Reason

Introduction: Methods in Normative Political

Theory/Philosophy

Ruhi Demiray

University of Siegen

Aaran Burns

Keele Univesity

This special volume of Public Reason consists of the papers developed out of the

delegates` presentations in two subsequent ECPR Summer School on Methods in

Normative Political Theory/Philosophy at Keele University organized in 2014 and 2015.

They reflect the diversities of the problems and the richness of the discussions concerning the methodologies in contemporary philosophy, as they were discussed deeply in

the foregoing events. In other words, they well il ustrate the multi-layered and multi-

dimensional problems of the contemporary political theory.1

One fundamental debate in political theory is, of course, the one concerning what

kind of normativity the political activity as such inheres. One can argue that the entire

tradition of the political philosophy, starting from Plato, has rightful y presumed that

politics is a normative activity and tried to figure out the nature of this normativity. Even Machiavel i, who raised his voice dismissively against the ancient tradition of political

philosophy preceding him, was indeed not chal enging the idea of politics as a normative

activity, but the kind of moral normativity he thought mistakenly attributed to politics

by others preceding him. Whether one likes it or not, the Machiavel ian idea that politics has a normativity peculiar to its own would then be influential for the certain strands

of western political thinking. These strands, which sometimes show themselves as

radical y left-wing (e.g. Marxist political theory) and sometimes radical y right-wing (e.g.

Carl Schmitt`s political theory), deserve to be cal ed “political realisms” by virtue of the Machiavel ian inheritance they have. Interestingly, however, a particular contemporary

strand of political theorists from the Anglo-American world employ the realist conception

of politics from a liberal standpoint. Bernard Wil iams, one of the most influential figures in the 20th century British Philosophy, stands also as a representative of this liberal school of political realism.

Clayton Chin’s paper, “Chal enging Political Theory: Pluralism and Method in the

Work of Bernard Wil iams,” is concerned with the appropriate approach to theorizing

about politics and examines the methodology of Bernard Wil iams in this vein. Chin

offers a new interpretation of Wil iams’s political work extracting resources from it

1] For a compact and systematic overview of the major problems in normative political theory, see Baiasu, Sorin. 2014. Normative Theory. In The Encyclopedia of Political Thought, edited by Michael T.

Gibbons, Diana Coole, Elisabeth El is, Kennan Ferguson, pp. 2576-85. London: John Wiley & Sons.

4

Introduction: Methods in Normative Political Theory/Philosophy

that can be used to provide a significant chal enge to “contemporary political thought’s

treatment of method and pluralism.” Prior readings of Wil iams have emphasized his

conceptual approach and his attempt to ground politics in stability, and Chin criticizes

these ideas for over emphasizing stability to the exclusion of other elements. Chin reads

Wil iams in the light of his work on Historicism and Naturalism the result of which is a

mode of socio-political criticism of our present political practices and ideas which enables a thorough democratic pluralism.

While Chin draws on a strand of political theory that advocates for a specific form

of normativity for political practice, Avigail Ferdman, in her article “From Inevitable

Establishment to Mutual Exclusion: The Chal enge of Liberal Neutrality”, can be argued

to be going through the reverse direction towards a robustly ethical normativity for

politics. She revisits the debate between liberal neutrality and perfectionism, which is

indeed a debate about the possibility of drawing a distinction between ethical normativity and political normativity, with the intention of showing certain limitations of liberal

neutrality.

As Avigail elaborates in her paper, the principle of liberal neutrality requires that

the state not take a stand on matters of conceptions of the good life, and therefore no

conception of the good is to be endorsed by the state based on its intrinsic value. The

Principle is supported by some because failure of the state to observe it results in privileging the norms and values of select groups and ultimately in failing to treat all groups with

respect. She draws a distinction between domains in which the principle might be

thought applicable, namely, between domains in which rival options can coexist with one

another and domains in which such options are mutual y exclusive. She then argues that

neutrality is plausible with respect to the former but “heavily restricted” with respect to the latter. This entails, she argues, that even if neutrality is moral y required, it is conceptual y impossible in mutual y exclusive domains. That is, it is conceptual y impossible for the

state not to endorse some particular conception of the good when dealing with domains

in which the options are mutual y exclusive. She argues this by considering one kind of

coexisting domain and one mutual y exclusive domain – language regulation and spatial

organization. Taking for-granted that language-regulation is compatible with neutrality,

Avigail argues that spatial organization is different in ways that prevent the principle of liberal neutrality from being observed.

It is clear that in pointing out the limits of liberal neutrality regarding, at least, certain domains, Avigail`s argument has an impact that has to do with the communitarian critique

of liberalism. Communitarian critique, which has come to the fore towards the end of the

20th century, raised against liberal thought the objection that it has a shal ow and shaky ground for normativity. For the communitarians, not only the liberal understanding of

political institutions and processes is deficient; but also liberalism cannot account for

peoples` deep commitments which make life meaningful for them. A recurrent theme

in this critique is the “cold,” even “inhumane,” moral rationalism attributed to such

founding figures of liberal philosophy as Immanuel Kant, who are al eged to recognize

Ruhi Demiray&Aaran Burns

5

no importance for feelings and emotions, which make us authentic beings. In this regard,

Christopher Murphy`s article “What might Scheler say to Rawls?” conducts an important

discussion, for it seeks for an accommodation between Rawls`s Kantian liberalism and

the communitarian sensitivities concerning emotional attachments and commitments of

human beings.

Murphy`s work deploys Scheler’s concept of the person both for a communitarian

critique of Rawls and as a way to strengthen his philosophy by addressing a minor flaw in

its foundation. We thus consider, what Scheler might have said to Rawls. Murphy ascribes

to Rawls an analysis of the ordinary concept of a person – which Rawls says is devoid

of metaphysical baggage. The analysis which Murphy gives to Rawls is one on which a

person is “first and foremost a rational agent as opposed to an emotive agent”. To this,

Scheler would have argued that Rawls`s picture of the person is simply inaccurate, and

Murphy argues that there are two ways in which this Schelerian insight might interact with Rawls`s philosophy. On the first, essential y negative, development of the issue, Scheler’s insights can be used to straightforwardly criticize Rawlsian philosophy for presupposing

a conception of the person devoid of all of its emotive aspects. Murphy favours a second

means of understanding Scheler’s insights: using Scheler’s more accurate conception

of the person to plug holes in the Rawlsian philosophy. This involves replacing Rawls’s

conception of the person with Scheler’s own whilst retaining the bulk of Rawls’s political theory in order to accommodate the criticisms of Rawls mentioned above.

As Murphy ponders on the possibility of a stronger relation between political theory

and metaphysics, there is also the question of how political theory should be related to

empirical sciences. Even though one might think that political theory concerns primarily

principles and ideals which cannot be grounded on empirical facts, one might still

contend that political theory should take into consideration empirical facts at the level

of application. Otherwise, what the philosopher produces at the abstract level of pure

theoretical construction would be mere contemplation in the Ivory Tower, which is

not capable of providing orientation and guidance in the practical world. Luca Costàs

“Context Dependence in Gaus’s Evolutionary Account of Public” inquires for the

possibility of a better use of empirical facts in normative political theory.

The paper by Luca Costa discusses Gaus’ evolutionary account of public reason. Gaus

has argued that individuals have a tendency to cooperate when enough others are already

cooperating and to punish those who transgress social rules. Costa discusses the empirical support available for Gaus’s thesis in several sections. The first aims to explain how it is that cooperating with others even when this means accepting rules not real y in one’s own

interest can possibly be supportive of one’s own ends. An individual who unconditional y

adheres to social rules and punishes those who do not, even at a cost to themselves is

dubbed a Rule-Fol owing Punisher, and the explanation of the first section depends on

the assumption that a sufficient number of us are in fact Rule-Fol owing Punishers. In

the second section, therefore, Costa begins to discuss the empirical studies conducted

with the aim of testing this hypothesis. A brief sketch of each study and its conclusions is

6

Introduction: Methods in Normative Political Theory/Philosophy

provided in the second section, before Costa moves on to discussing their methodological

soundness in the third and fourth wherein the main criticisms are developments of (a) the

claim that the studies use unrepresentative sample populations to make generalizations

about the human race, and (b) that the experiments conducted artificial y isolate people

from social factors which might otherwise have made a significant difference to the results.

Despite these flaws, Costa concludes that Gaus’s thesis has decent empirical support and

that since any normative political theory begins with assumptions about what humans are

like, future normative theory can and should take note of Gaus’s thesis.

As Costàs paper indicates that political theory should be a kind of endeavour

producing insights applicable to the existing social-political structures, there are debates concerning what fundamental normative orientation the political theory should have

vis-à-vis existing social and political structures. One could say that on the one hand,

many modern and contemporary strands of political theory, e.g., the Frankfurt School,

share the conviction that the social-political theory should have a critical (progressivist or emancipatory) orientation towards the existing structures, which more or less reflect

historical-cultural asymmetries produced by unjustified power inequalities, and thus

forms of explicit or implicit subordinations and discriminations. On the other hand,

however, there are also the strands of political theory, e.g., certain conservative variants of communitarianism, which seem to take the elaboration and justification of an authentic

and integral way of life in a particular society as the main orientation of political-

theoretical-activity. Boaz Ahad Haàm`s “Deaf in Need of Ideology,” which questions the

prevalent mind-sets and institutional structures producing explicit and implicit forms of

injustice against deaf people in our contemporary societies, clearly fol ows the conception of political theory with an orientation to social-political emancipation.

Ahad Ha'am argues that deafness is not a disability. His argument has both a positive

and a negative component. In the negative part, Ahad Ha'am explicates two arguments

widely presupposed in the popular view that deafness is a disability. The first argument is one which claims that deafness is 'unnatural' for human beings and thus in need of medical treatment, or 'curing'. The second argument claims that deafness, regardless of whether it is natural or not, stops a person from properly integrating into society because it stops

them from communicating effectively with people with hearing, and this puts them at a

great social and practical disadvantage – it is a social disability. The arguments are related in important ways and Ahad Ha'am traces the relationship and offers a powerful critique

of both. The positive stand of Ahad Ha'am's case appeals to 'the experience of deafness as an intimate existential condition utilizing sign-language' – an experience shared by many

deaf people. He uses this to il ustrate that people who are deaf are neither 'unnatural' nor social crippled by their deafness; they are doing perfectly well without being 'cured'. He concludes that despite all of this, the view that deafness is not a disability continues to be a minority one because it lacks 'a coherent set of ideas that provide political justification'

or an 'ideology'.

Ruhi Demiray&Aaran Burns

7

In the final paper, Marie Newhouse reconsiders the debate between Rawls and

Libertarianism in a novel way. She focuses on Rawls’s much debated contention concerning

the arbitrariness of the distribution of natural attributes within the political-society. On the one hand, this contention seems to ground Rawls’s famous “difference principle,” and

thus his egalitarian liberalism. On the other hand, Newhouse argues, Rawls contention

is usual y misunderstood by Libertarians, as they seem to suppose that Rawls’s claim is

simply about a person’s relationship to her own attributes. In her view, this is mistaken.

Rawls does not mean that a person’s relationship to her own attributes is moral y arbitrary, but that social distribution of position within a society in accordance with natural assets is arbitrary. Having defended Rawls at the point he was targeted by Libertarians, Newhouse

suggests that her reading has, at least, one important implication which makes visible

the arbitrariness of Rawls’ preference for a system of democratic equality over a system

of liberal equality. Employing insights from the debates on “human capital externality”

in economics, she contends that risk-averse individuals, namely maxi-minimalist rational

actors in Rawls’ original condition, would opt for a system of liberal equality consisted

in distribution in accordance with market processes, rather than a system of democratic

equality based on the difference principle. There is, yet, a proviso Newhouse emphasizes.

It is that the risk-averse rational individuals would also opt for a social safety net which will function to safeguard social bases of self-respect. We would like to note that Newhouse’s

paper is not only thought-provoking as an argument on Rawls’ theory, but also it il ustrates well that methodological y relevant questions of accurate and ful y-fledged elaboration

of decision-deliberation models are as important as substantive premises concerning

human beings and rationality in political philosophy.

All in al , we think, the reader of this special issue will find a glimpse of major

methodological concerns in contemporary political theory provided by young and

promising political theorists. We would like to end by thanking to European Consortium

of Political Science (ECPR), ECPR Kantian Political Theory Standing Group, ECPR

Political Theory Standing Group, Keele-Oxford-St Andrews Kantian Research Centre

(KOSAK), which all contributed to the organization of the summer school events in the

first place and thus to the coming out of the works in this volume.

ruhi.demiray@uni-siegen.de

a.s.burns@keele.ac.uk

Public Reason 9 (1-2): 9-28

© 2017 by Public Reason

Challenging Political Theory: Pluralism and Method in the

Work of Bernard Williams

Clayton Chin

University of Melbourne

Abstract: This article focuses on the recent surge of reflection within political theory on methodological issues and the emergence of new approaches in that discipline. Situating itself in a discussion of New Realism and its critiques of/divergences from the ideal approach of

“high liberalism”, it engages the dominant reading and use of the work of Bernard Wil iams in that literature. Il ustrating how the framework of political realism in this reading is plagued by a narrowing of the political and exclusive focus on stability, it turns to a series of resources within Wil iams’s larger thought in order to draw out an alternative reading of his model of political theory. Focusing on his methodological reflections on naturalism and historicism, it il ustrates a conception of political thought as a form of situated socio-political criticism which stands in stark contrast to the “conceptual analysis of the political” that he overtly offers and has been the central object of focus within recent discussions. Arguing that the former avoids the pitfal s the latter encounters, this article il ustrates how Wil iams’s naturalistic and historicist conception of political thought is more thoroughly pluralistic, both methodological y and political y.

Final y, it il ustrates how this reading brings him much closer to another position within the current surge of methodological reflection within political theory that takes him away from new realism. Turning to James Tul y’s “public philosophy” reveals a similar emphasis on the democratic and pluralistic conditions of political thinking.

Key words: Bernard Wil iams, realism, naturalism, historicism, criticism, James Tul y.

Political theory is experiencing a great surge of methodological reflection. Whether

in debates over the requirements of critique or the strength of “ideal” forms of normative reflection, there is a persistent turn to the broad question of the nature of the discipline and the appropriate approach to theorizing politics. Flowing from this situation, there is also the emergence of clusters of new approaches with their own priorities, methods and

definitions of politics. Importantly, some of these new groups have broken traditional

barriers between some of the dominant, and historical y opposed, traditions of recent

political thought. From the traditions of liberal normative political theory, pragmatism and Continental genealogy there is an emerging cluster of sub-trends which together constitute a situated turn prompted by a common set of problems and a common response to them (Chin 2016). This article examines the work of Bernard Wil iams, a key figure within

the new realist trend emerging from within liberal theory, to address the various possible avenues of this methodological situation.

All of these recent groups confront, in some form, the problem of justification which has plagued political thought since the twentieth century. Variously articulated as the

problem of foundations or metaphysics (amongst others), this problem flows from the

widely accepted premise that knowledge and validity are always linguistical y, social y, and historical y mediated. These debates have made it increasingly difficult to refer to context-transcending criteria in the pursuit of diagnostic and normative conclusions within political

10

theory. This is the problem of how to justify the explicit normative claims and implicit

normative assumptions that guide both socio-political criticism and reconstruction. On

the one hand, we are forced to recognize the historicity of knowledge and normative claims.

On the other, we must be capable of political action in an increasingly globalized world;

this requires being able to raise claims to the validity of those decisions and the critical and normative frameworks that serve them. In the post-war period within political theory

this problem manifests particularly as a problem of pluralism. If absolute foundations and standards are unavailable, there seems little way to speak (specifical y, to make justificatory claims) across the differences that characterize late-modern liberal democracies. Edward

Said has dubbed this “the fundamental historical problem of modernism” (1989, 223).

Western political thought has widely accepted the need to ‘take the Other seriously’, to

speak political y to those from different systems of justification without merely prioritizing our own values and categories (Berlin 1999; Rawls 2005; Benhabib 1996).

In their critique of the ideal forms of abstract normative theorizing that characterize

contemporary liberalism, the recent surge of realism focuses on the specific connection

between these two issues. It criticizes the failure of ideal methods to take the problem of justification seriously. Further, it criticizes their understanding of the nature of difference and political contestation. Especial y prominent in this literature is a rereading of the work of Bernard Wil iams that focuses on the methodological resources of his thought that can

aid political thinking in coping with these lacunas. This article confronts this emerging

literature by offering an alternative critical reconstruction of his work, one that exposes a different set of possibilities. Situating its discussion in a critical account of the dominant reading of Wil iams’s realism and its critiques of divergences from the dominant ideal

approaches of “high liberalism”, it il ustrates how the model of political thinking developed here constricts politics and political theorizing. The point here is not to undermine the

“validity” of this reading but only to expose an alternative use of Wil iams’s thought that presents a more effective and significant chal enge to contemporary political thought’s

treatment of method and pluralism. Thus, in contrast, it reconstructs Wil iam’s late turn to political theory in light of the methodological insights of his earlier work (particularly his theorization of a naturalistic and historicist political method) to il ustrate how his thinking can contribute to a mode of political theory as situated and pluralistic socio-political criticism, rather than realist as it is currently framed. This article bears out these positive possibilities by linking Wil iams’s resources to other methodological trends, specifical y the work of

James Tul y, il ustrating how the former might alternatively contribute to these ongoing

debates within contemporary political thought.

I. LEGITIMACY AND JUSTIFICATION: NEW REALISM READING BERNARD WILLIAMS

In recent years, the identification of a rising tide of critical literature within liberal political theory has thrown that tradition into a period of sustained methodological

discussion. Where previously the analytical ideal approach of normative political theory,

Clayton Chin

11

or “high liberalism” as Wil iam Galston has dubbed it, reigned relatively unchal enged in

liberal political thought, presently there is significant contestation of its basic method for political theorizing. While there has always been external criticism of this tradition, “new realism” is a (partial y) internal chal enge that stems from the problem of justification

and pluralism, discussed above, which bridges the different traditions of contemporary

political theory. Initial y, it is important to emphasize that new realism is very much an emerging movement that has yet to ful y flesh out its perspective.1 The work of Bernard

Wil iams, whose realism is a starting point for many recent commentators and thus, along

with Raymond Geuss, is one of the central points of orientation of the literature. Wil iams provides both one of the most ful y fleshed out critiques of the ideal method and, at least implicitly, alternative sets of questions and concepts, a “realist political theory”. However, while his critique is an incisive application of the problem of justification to liberal

normative thought, Wil iams’s alternative model fails to break with many of the elements

for which he himself criticizes ideal theory. Further, many commentators within new

realism have taken up his problematic projects around legitimacy and consensus. This

section clarifies this reading and its dominance within this literature while the next shifts the attention to a set of methodological resources within Wil iams’s larger thought that

push his political theory towards other responses to the problem of justification.

Wil iams’s model of political realism is prompted by a critique of analytical ideal

theory. While he did make forays into politics at several points in his career, he only

turned overtly to questions of political theory and its method in a final set of essays,

posthumously published as In the Beginning was the Deed (Wil iams 2005c). Here he

argues that the dominant approaches of liberalism all participate in the error of an “ethics-first” model of political thought. Both utilitarians and modern social contract theorists, in slightly different ways, give particular moral theories priority to politics resulting in a model of political theory that turns that discipline into ‘applied morality’. The charge here is that they both use moral frameworks as explanatory and normative schemas for

understanding and assessing actual political situations, making “the moral prior to the

political” (Wil iams 2005e, 1-3). This means that political acts, institutions, and ideas

are understood only by the demands of morality and that the normative prescriptions

that flow from these analyses are ultimately based on moral stipulations that are outside

and prior to politics. For Wil iams this ignores the distinctive nature and conditions of

politics and, as a result, turns political thought into a form of moral theory that attempts to evade or displace the human activity of politics. This argument, articulated by Wil iams well before the recent self-conscious identification of new realism, has been particularly influential in that literature and has been reiterated and developed by most of the major

voices there (Galston 2010, 386).

1] Rather than a unified method or perspective, it is composed of a series of common themes and critiques that have been defined in recent years in the secondary literature (Galston 2010; Philp 2012; Rossi and Sleat 2014; Horton 2010).

12

While not general y framed as such, Wil iams critique of political moralism is a

version of the problems of justification and pluralism, that is, of the critique of what is often cal ed ‘foundationalism’. This wide term catches all positions that assume that

society and politics are somehow grounded by principles that are 1) undeniable and

immune to revision (i.e. universal) and 2) exterior to the realms of society and politics

(i.e. transcendent, in some sense). These foundations assure stability in the social and

political structures built on their principles. The issue Wil iams identifies, the critique of making the moral prior to the political, is the charge that the ideal analytic method

assumes that moral categories are both universal and transcendent with respect to

political activity; that they ground our politics. While it is not commonly articulated as an issue of foundationalism, Mark Philp has argued that the critique of moralism and turn

to realism is a critique of philosophical foundationalism, of the idea of an Archimedean

moral foundation to ground politics (Philp 2012, 7-8, 11-12). What is key here is a hostility to external standards (non-political ones) as measures for political analysis and normative reconstruction. Wil iams’s argument rejects ideal theory’s subordination of politics

to foundational moral theories and asserts the autonomy of politics as a sphere and

activity. Further, for Wil iams and realists, it is a sphere defined by the absence of rational moral consensus. Rather, the political is characterized by value pluralism, persistent

disagreement, historical contingency and only pragmatic (temporary) stability (Wil iams

2005a, 77-78). While it is only implicit and emerging in these essays, there is a method

within Wil iams’s reflections on political theory. Briefly, his focus was on providing a

mode of political theorizing which gave autonomy to the political, while attending to

the conditions of politics mentioned above. This, he hoped, would leave his approach

untainted by the external normative standards liberalism relied on. It is important to

emphasise that Wil iams’s reputation as a philosophical sceptic belies the fact that he

was only sceptical of the manner in which the task of moral and political thought was

pursued, not the task itself. Thus, he was committed to a true explanation of moral and

political practice through conceptual analysis. As we will see in the next section, he only wanted to supplement this with other philosophical resources. His project remained a

theorization of the political without external normative standards. As Matt Sleat has

observed, “Wil iams sought to address this by engaging in what was in effect a conceptual

analysis of the political, the conditions and claims inherent in there being such a thing as politics” (Sleat 2010, 494).2 This is an important claim. Despite Wil iams’s noted emphases on naturalism and historicism (examined in detail subsequently), his method here is

focused on making universal claims about politics. This is not to say that an attention to historical change is not present in these analyses, but that it is not the main architecture of this project. Instead, Wil iams tries to draw out a structure to the sphere of politics, one 2] Hence, the structure of Wil iams’s political essays in (Wil iams 2005a) is to move through various core concepts within Western Political Thought, attempting to rid them of their idealized notions and, through his historical conceptual analysis, ascertain their aporias and conditions.

Clayton Chin

13

attentive to historical development, and from that, to understand how normative claims

about particular forms of politics can be made.

Principal y, Wil iams pursues this through setting out a structure of politics within

which historical and cultural variation occurs. Thus, for him, the ‘first’ question of the political is that of “the securing of order, protection, safety, trust, and the conditions of cooperation” (Wil iams 2005e, 3). This question has priority for Wil iams in the sense

that it is a precondition of every other political issue. In fact, Wil iams builds from this to a reconstruction of the liberal theory of legitimacy that, rather than flowing from a

moral conception of the individual, he claims flows from the conditions of the political

itself. For him, if stability is the first question of politics, it is also a necessary condition for the legitimacy (LEG) of a state. As a result, Wil iams formulates what he cal s the

“Basic Legitimation Demand” (BLD), a test which determines legitimacy by whether

the given state a) solves the first political question to a sufficient degree, and b) does so in a way that is acceptable to the given polity. The latter is an important contextualism

that Wil iams inserts to acknowledge that the political question, as clearly seen in history, can be solved in a variety of ways. It is his acknowledgement that there is no special sense in which liberalism is more justified than any other mode of government, irrespective of

context. This being the case, he does still argue for the particular legitimacy of liberalism in the present. Due to a series of social and historical conditions, including the manner in which modernity has undermined previous legitimations, for Wil iams LEG + Modernity

= Liberalism. This sensitivity to historical context is something we will return to in the subsequent section. Presently, what is important are the problems these claims result in.

Two linked lines of critique have emerged from this framework in the brief time

since its publication. First, several commentators have charged that while Wil iams

clearly makes an insightful critique of liberal legitimacy, offering a realist reconstruction of that concept, his model seems to share many of the normative assumptions for which

he criticizes political moralism. For example, it assumes a consensual view of politics.

For Wil iams, the nature of politics demands that meeting the BLD “implies a sense in

which the state has to offer a justification of its power to each subject” (2005e, 4). Such a requirement, like Wil iams critique of ideal theory, narrows the ground of politics to

that which broadly would fit within the tradition of modern liberalism. In contrast, part

of realism’s insight is to argue that a basic reading of political history and current political practice il ustrates how quite a bit of political life does not assume this requirement and its absence, in many contexts, has engendered no claims to a lack of legitimacy (Sleat 2010,

496-97, 499-500; Freeden 2012, 5-7). Building on this, Wil iams assumes the presence

of political consensus in modernity, despite his repeated and notable championing of

pluralism. The only way LEG + Modernity = Liberalism, would be if modernity was a

relatively uncontested period. However, a brief look at the diversity within which political theory has conceived the modern period (let alone the diversity of actual cultural, social and political practices) il ustrates the myopia of this view.

14

Second, implicitly extending this, Bonnie Honig and Marc Stears have argued that

Wil iams’s positing of stability and order as the first political question constricts politics and his method for political theorizing. This represents a serious criticism of new realism which general y prioritizes the question of stability. For Honig and Stears, as in Wil iams figuring of modernity, his priority of stability contradicts his overt pluralism in a narrowing of political action. These two elements, pluralism and stability, for them constitute the

main internal tension within Wil iams’s work. Again and again in Wil iams’s realism,

then, the potential chaos of radical pluralism is anchored in an architecture of time and

space that stabilises things and enables the priority of order prized by Wil iams Honig

and Stears 2011, 193). The result of this is a limitation of pluralism and a failure to attend to the manner in which it conditions our politics, and importantly our attempts for stability, in our contested modernity. What Wil iams essential y does, for Honig and Stears, is

generalize one important feature of politics into its essence, ignoring how pluralism,

change and disruption constitute the pole against which stability is always pursued. In

this manner, this second criticism builds on the narrower first, revealing how Wil iams’s

realism fails to address the problem of justification and pluralism which he himself

deploys against political moralism.

It is important to clarify that the above elements of his political realism have, by far,

been the dominant objects of discussion within his reception in new realism. In fact many

commentators there have taken up his project around conceptual y outlining a realist

understanding of the political, and focusing on issues around stability, legitimacy and

consensus (Sleat 2013; Rossi 2010; Bavister-Gould 2011; Forrester 2012). While this is by

no means a problem as such, as the next section reveals, this literature ignores important methodological resources that address these two lines of criticism around Wil iams’s

relation to pluralism in his realism, some of which have come from within their own

ranks. Thus, presently, new realism suffers from a disproportionate focus on (and positive use of) what I would argue are the most problematic elements of his work. Instead, this

analysis will now turn to these implicit resources and how they il ustrate the possibility of an alternative path away from the problem of justification and pluralism.

II. WILLIAMS’S SUBTERR ANEAN METHOD: NATUR ALISM, HISTORICISM AND

POLITICAL THEORY

Running alongside the dominant concerns around stability, legitimacy and

consensus within Wil iams’s political realism, is an alternative possibility for political thought after moral foundationalism. This section argues that when you read his wider

methodological arguments around naturalism and historicism and his later turn to the

question of political theory in conjunction with the critique of foundationalism and

problems of justification and pluralism, a conception of political theory as an embedded

activity of socio-political criticism emerges. This model stands in stark contrast to the

quasi-foundational activity of a conceptual analysis of the political we saw above and,

Clayton Chin

15

as the next section il ustrates, brings Wil iams much closer to alterative responses to the contemporary surge of methodological debates in political theory.

Initial y, it should be noted that this account builds significantly on the work of

Colin Koopman, who has been offering thorough re-readings of Wil iams’s historical

method and its political virtues in recent years. In a series of publications, Koopman has il ustrated Wil iams’s genealogical and historical method, and its significance for an anti-foundational approach to political normativity (Koopman 2010; 2011; 2013, chap. 2).

However, he has consistently ignored the naturalistic framework for this method, and the

importance of that for making those normative claims within the context of political and

social pluralism.3 As I argue below, this is necessary to identifying how Wil iams’s thought addresses the problems of justification and pluralism. Nonetheless, the account below is

indebted to his preceding work.

The hostility to external standards which stands behind Wil iams’s critique of

political moralism and its ethical foundationalism leads to the possibility of a very different understanding of politics and method for political thought within Wil iams’s late work.

What emerges here is a series of conditions or attributes of political life that Wil iams

thinks pertinent to understanding the limits of political theorizing and the role it can have in both academic reflection on politics and within politics itself. There is no definite list here, however, a series of conditions are present. Thus, for him, our politics seem to be

a product of our historical development; our beliefs, passions, and interests; our limited agency and judgement; persistent disagreement and contestation, especial y in relation

to claims to legitimacy, resulting from value pluralism; and the practices of normativity

which are always embedded within our political practices. As several commentators

have argued, what we are left with after this is a fairly inchoate potential methodology

with several possible avenues of exploration. However, by looking back through two

key themes of his larger work, and how they participate in this final political phase, an

alternative methodology and project for political thought can be discerned within his

final set of political essays.4 Specifical y, the method for political thought Wil iams was offering was defined by strong commitments to naturalistic and historicist conditions on theoretical enquiry, and it is from within these that his conditions of the political must be understood.

Wil iams’s method emerges from a balancing of naturalism and historicism.

Together, these two themes set conditions and imperatives on the nature and capacities

of a theoretical form of enquiry into the human social practice of politics. Wil iams’s

focus on history has often been noted in the philosophical literature on him. However,

3] Further, mainly embedded within debates within philosophy, he has also not sufficiently engaged his reading with recent debates in political theory. This is not so much a flaw but a limitation.

4] This method of fleshing out his method for political theory by reading this text in conjunction with his earlier contributions to moral philosophy is not unproblematic but it is necessitated by this reticence to overtly lay out a method. He preferred throughout his works to give examples of applying his approach rather than stipulating its key tenets.

16

while it is often acknowledged it is rarely engaged in any detail, especial y in terms of its consequences for the methodology of political theory within recent realist reflections

on him. The situation is only compounded with his naturalism which is entirely ignored

within that literature. I will examine each of these themes in turn and their effects on his model of political theory.

For Wil iams, historical reflection has a distinct value for the explanatory and critical

task necessary to political thinking.5 However, he did not always hold this position. Early in his career, Wil iams rejected history as irrelevant to the task of philosophy. Further, his later turn toward a historical method must be understood with one very important

qualification. History does not replace philosophy. Rather, historical resources are

necessary for the traditional philosophical project to prove fruitful. As briefly mentioned above, Wil iams’s general notoriety as a philosophical sceptic often belies the fact that

he was only sceptical of the manner in which the task of moral and political thought

was pursued, not the task itself. Thus, he was just as committed to a true explanation of

moral and political practice.6 His turn to history was not a rejection of philosophical

conceptual analysis but a supplement to it in broad favour of its explanatory goals. His

noted commitment to an understanding of truth and practices of truthfulness testifies to

this. For him, “philosophy, in order to do its business, must move into history” (Wil iams 2002, 173; see also Koopman 2011, 15).

Yet, the question remains of what history offers philosophy. Why is a historical

method special in relation to other humanistic or social scientific disciplines? The answer is found in its focus on temporal development. History, in its singular concentration on

this development, gives us unique insight into the advance of our practices and concepts.

It reveals to us their “developmental rationality”, not from an ahistorical foundation but from the internal set of reasons that have moved our various shifts in practices. It is in this way that history helps us “make sense” of ourselves, a technical phrase Wil iams used to

il ustrate the internal, complex and contingent nature of our practices and their movement through time (Wil iams 2002, chap. 10). In this manner, historical enquiry in fact aids the project of conceptual analysis by revealing the development of our ideas up to and including their present place in the existing moment and its complexity (Koopman 2010, 10-11).

Already in the focus on the level of practice and its development, there is an

implicit naturalism. Naturalism here is understood, not as a law-like model of the natural sciences, but as a situated account of the social practices of normativity and critique

which understands them only as dependent on communal practices of justification

and conversation. Wil iams approaches morality and politics as sets of practices to be

5] Wil iams follows Nietzsche in enquiring not into the truth of history but its value. The best example of this emphasis is in his genealogy of truth, which itself is concerned with the value of truthfulness not the nature of something cal ed truth (Wil iams 2002).

6] A key point for distinguishing him from other noted “sceptics” like Richard Rorty, who had far more revisionary intentions in terms of the task and role of philosophical thought (Sleat 2007). However, against Wil iams own protestations, there are many points of accord between Rorty and his own thinking.

Clayton Chin

17

examined and bettered; and he does so from within a perspective that emphasizes their

historicity. Further, throughout his career he consistently argued for the importance of

culture in explaining the human condition.7 Culture is the source of human variation and

complexity; it is also the origin of our unique ability to engage in reflexive development.

For Wil iams, this centrality has important methodological consequences for theoretical

disciplines. “We cannot be in a position to give a biological explanation of any phenomenon that has a cultural dimension, however widespread the phenomenon is, unless we are

also in a position to interpret it cultural y” (1995a, 81). “Making sense of humanity” in

Wil iams’s terms, and its political practices, requires a turn to the social.

This results in an explicit attempt to develop a naturalistic perspective. The real

insight here is Wil iams’s observation that while there is wide support for a naturalistic understanding of humans (at least from some philosophical corners), beyond seeing

them as “being part of nature” in some sense there is very little agreement as to what this involves. Most theories tend either to rule out too much, reducing humans to biological

machines (which excludes culture), or include too much, attempting to naturalize complex

cultural ideas (e.g. ascribing a capacity to intuit the structure of moral reality to human nature). This quandary of naturalism is systematic for Wil iams. It tends either to include too much, and so become reductive, or so weak as to include nothing. The fault he claims

is in the assumption that naturalism is a top-down approach “under which we are already

supposed to know what terms are needed to describe any «natural» phenomenon”

(Wil iams 1995b, 67). Instead, he offers a bottom-up naturalistic minimalism.

In response to this quandary, Wil iams turns to Nietzsche for a naturalistic attitude

and set of injunctions.8 Considering the specific case of human moral psychology, the

preconditions that al ow humans to be moral creatures, he notes two aspects of this

attitude. First, it must demand minimalism. The less traits ascribed to humanity to

explain a human social practice, the better in this attitude. However, this seems only to

repeat one pole of the above quandary; for without some sense of what materials can be included in these “economical interpretations” this minimalism risks meaninglessness.

So, Wil iams turns to a second aspect of this attitude. Fol owing Nietzsche, the strategy

is to appeal to “what an experienced, honest, subtle, and unoptimistic interpreter might

make of human behaviour elsewhere.” While he does not cast it as such, what Wil iams

is offering here is a humble form of holism, whereby we judge our assumptions about

humanity in relation to some practice by how that accords with other areas of behaviour.

This results, for him, in a realistic and naturalistic perspective that is not “the application of an already defined scientific programme, but rather an informed interpretation of

some human experiences and activities in relation to others” (Wil iams 1995b, 68).

7] In fact, it is an important feature of his naturalism that there is a human condition, but no human nature (Guignon 2009, 174).

8] This connection of Nietzsche and naturalism is not in fact uncommon within analytical spheres now. However, Wil iams, along with Rorty, pioneered both the reading of Nietzsche and such a naturalistic perspective (Rorty 1991a; Leiter 2002; Janaway and Robertson 2012).

18

Chal enging Political Theory: Pluralism and Method in the Work of Bernard Wil iams

These methodological injunctions, which are admittedly mostly negative in character, do

constitute a “hermeneutics of suspicion”. However, he qualifies that while this method

does call for suspicion, it is not suspicious of everything. Rather, implicitly fol owing the fal ibilism of such pragmatists as Richard Rorty, doubt and belief both require reasons for Wil iams (Rorty 2007).

It is important to emphasize here that Wil iams’s naturalism is explicitly opposed

to scientistic forms of physical reductionism.9 His question is not whether social and

political elements are reducible to nature, but only whether they can be explained in terms of other aspects of our present set of experiences and practices (i.e. nature in some broad sense). The first is a transitive relation while the second is a strategic anti-foundationalism.

Rather, Wil iams explicitly rejects such reductionism. For him, the significance of culture is how it has pervaded all aspects of our existence. As a result, we cannot divide living

under culture (i.e. with an ethical system, a set of social practices, a language, etc.) from whatever capacities al ow us to live under culture in general. Instead, we must engage in

the type of naturalistic holism described above (Wil iams 2000, 150-53). Importantly,

and this brings us full circle, this requires a historical form of enquiry.

For Wil iams there are several methodological and political virtues to this model

of naturalistic and historical enquiry into the development of our concepts and social

practices. Principle among these is an explicit rejection of reductionism. Rather,

historical naturalism exposes the contingency of our ideas and actions. Importantly,

this is not solely a matter of historical interest; it shifts our understanding of the present and its necessity. “Above al , historical understanding – perhaps I may now say, more

broadly, social understanding – can help with the business, which is quite certainly a

philosophical business, of distinguishing between different ways in which various of our

ideas and procedures can seem to be such that we cannot get beyond them, that there is no

conceivable alternative.” (Wil iams 2006, 492-93).

A historical mode of philosophical enquiry has the unique potential to help us

understand the present, how we have come to it, and why it seems to be the limit to our

experience and thought. Essential y, it helps us see the limits of our present sets of concepts and practices and how these participate in making our present social and political lives

seem necessary. This gives us a unique, internal understanding of our present socio-

political arrangements and the potential to criticize them.

It is important to be clear here. A historical and naturalistic philosophical approach

is essential to Wil iams for both of the tasks essential to a critical socio-political theory: explanation (or understanding) and normative critique. While these elements are by

no means discrete, they are both addressed by this approach. As I just argued, it helps us understand the development of our practices and ideas up to and including the present

(explanation). This rich understanding of the complexity of those ideas and practices

then serves as a basis for their evaluation (normative). In fact, Wil iams’s main critique of 9] This, of course, did not stop his critics from accusing him of this anyway, e.g. (Taylor 1985, 1).

Clayton Chin

19

analytical moral and political thought is that conceptual analysis is not a sufficient basis for these types of normative claims. Where moral life in history is seen to be complex,

contextual and evolving, ideal theorists posit it as clear, simple, and reducible to a set of universal and transcendent principles. In contrast, a historical and naturalistic approach al ows us to enquire into the concepts and practices that are such engrained parts of our

lives that we simply lack the ability to question them (Koopman 2010, 12-15).10 While I

would argue that this may not be a complete theorization of an approach to normative

reconstruction, Wil iams is identifying an important necessary element here.

All of this has important consequences for how we go about thinking the nature of

politics. As I mentioned, Wil iams came to specifical y apply these methodological insights to political theory in his final essays. There, it is clear that a naturalistic understanding of humans and their social practices, and a historical understanding of development and

contingency should shift our focus within political theory from the ideal, transcendent

and universal to “what is platitudinously politics” (Wil iams 2005e, 13). This somewhat

opaque phrase summarizes the level at which political explanation and normative

reconstruction should occur. What Wil iams is indicating here is that political theory

should “descend” to the everyday level of actual political practice and concept-use, to the historical situations we find political actors already engaged in. This is the meaning of his repeated use of Goethe’s Faustian maxim: in the beginning was the deed.

This phrase, which Wil iams gets via Wittgenstein, summarizes his bottom-up

naturalism; it asserts the primacy of practice within moral and political thought, that it is the languages we use and the practices we engage in that should be the primary locus

of critical and normative exchange in politics. Thus, rather than foundational moral

standards, or universal conceptual conditions of the political, we work out from within

particular socio-political situations and their specific sets of meanings and practices.

What the Wittgensteinian idea does mean for politics is that foundationalism, even

constructivist foundationalism, can never achieve what it wants. Any such theory will

seem to make sense, and will to some degree reorganize political thought and action,

only by virtue of the historical situation in which it is presented, and its relation to that historical situation cannot ful y be theorized or captured in reflection. Those theories

and reflections will themselves always be subject to the condition that, to someone

who is intel igently and informedly in that situation (and those are not empty

conditions), it does or does not seem a sensible way to go on (Wil iams 2005b, 36).

Political projects are conditioned not just by intel ectual but by historical conditions.

However, this restriction raises a danger, especial y in relation to pluralism. For Wil iams, the dominant reaction to this insight within the history of political thought has been

conservative. The shift to social practices seems to suggest that political and social change is necessarily slow and piecemeal. Speaking and acting differently is a slow process which does not occur, until it occurs, to use Wil iams’s formulation. The language of what “makes 10] His examination of the concept of truth and the moral will seem to be the best examples of him engaging in this type of analysis himself (Wil iams 2002; 1995b).

20

Chal enging Political Theory: Pluralism and Method in the Work of Bernard Wil iams

sense” within a context seems to embrace a conservative acceptance of whatever set of

social practices currently exist and invalidate the entire project of a critical and normative form of philosophical thought.

Yet, for Wil iams there is a very significant mistake within this conclusion. Socio-

political criticism is itself a practice, something we engage in, irrespective of philosophical foundations. “Practice is not just the practice of practice, so to speak, but also the practice of criticism” (Wil iams 2005d, 36). While Wil iams is somewhat opaque regarding this

emerging idea, he is arguing that socio-political criticism should be understood, not as a philosophical discipline requiring grounding in universal and rational principles, but as

a practice that does and has emerged from within our given set of languages and social

practices. As such, it is conditioned by our contexts, by the set of resources available in its moment, and requires attention to these situations in order to be efficacious. This is why the previously mentioned holism is no conservatism and is in fact key to this model of

political theory. On Wil iams’s reading one of the principle features of our late-modern

condition is a pluralistic reflexivity that offers new capacities for social critique. In contrast to other moments (and places), modern ethico-political life is confronted with the diversity of past and present alternatives to its way of being. This offers a strong sense of the situated nature of our practices and ideas which undermines the idea that they represent any kind

of privileged position.

Once the resultant picture of ethical thought without foundationalism is made

historical y and social y realistic, in particular by registering in it the categories

of modernity, it provides a possibility of deploying some parts of it against others,

and of reinterpreting what is ethical y significant, so as to give a critique of existing

institutions, conceptions, prejudices, and powers (Wil iams 2005d, 37).

Critique on this understanding, is a situated practice of deploying some practices

and ideas, and plausible extrapolations from them, against widely accepted, though

problematic, ones. It is a localized, naturalistic, and holistic practice of employing the possibilities within our historical situation against practices and ideas which were perhaps once unproblematic but have become harmful.

It is in this vein that Wil iams cal s in these final essays for a “Left Wittgensteinianism”

to take up the project of this non-foundational situated form of socio-political criticism.

Importantly, it is a method that is responsive to its historical moment and the general

condition of pluralism we live under within late modernity. This reading has exposed

a series of resources within Wil iams’s model of political realism. Specifical y, he offers the broad sketches of a naturalistic and historicist method for political theorizing that is fundamental y responsive to the contemporary condition of pluralism. Importantly, this

implicit model pushes Wil iams closer to another contemporary tradition within political

thinking that has also emerged as a response to the problem of justification. Further,

engaging this version of Wil iams with this reading has the potential not only to clarify

this dynamic within his theory but to advance their shared projects for the methodology

of political theory.

Clayton Chin

21

III. CONTEMPOR ARY REVERBER ATIONS: PUTTING WILLIAMS TOGETHER WITH TULLY

FOR A DEMOCR ATIC PLUR ALISM

This reading of Wil iams’s naturalistic historicism and implicit model of political

theory as socio-political criticism pushes him away from New Realism and toward an

alternative model of growing significance in contemporary methodological debates

within political thought: James Tul y’s “public philosophy”. Along with David Owen,

Paul Patton, and Amy Al en, Tul y is part of a group of theorists employing genealogical

resources in the critical discussion of fundamental questions within contemporary

democratic theory. Further, in a much more overt way than his compatriots, Tul y has

formulated a methodology for political theory that responds to the problems of pluralism

and justification, seeking to identify critical and normative capacities from within these conditions. He is linked to Wil iams in this method by an equal emphasis on a naturalistic and historicist model of socio-political criticism. This section bears out their similarities and the positive methodological advantages of Tul y’s theory in order to il ustrate the

potential of this reading of Wil iams to advance methodological trends inside and

outside of New Realism. Particularly, it offers insights into how realists could draw on

other methodological trends in political theory, similarly situated, to pursue developing

alternative models to liberal moralism (Chin 2016).

Tul y describes his public philosophy as a practical, critical and historical approach

that focuses on the practices of governance experienced as problematic in the present.

He rejects the foundational task of a normative theory of justice, equality or democracy

and its imperative to identify background conditions that transcend the everyday world

of politics.11 Instead, his approach is a practical philosophy, a “way of living” oriented to the problematic aspects of the present. It attempts to establish the conditions of

possibility of a specific practice in the present. Importantly, the purpose here is not just

“thick” description, but “to characterise the conditions of possibility of the problematic form of governance in a redescription (often in a new vocabulary) that transforms the

self-understanding of those subject to and struggling with it, enabling them to see its

contingent conditions and the possibilities of governing themselves differently” (Tul y

2008b, 16). Thus, the purpose of this method is to enable political actors. It redescribes a problematic practice, il ustrating its contingency to expose the nature of the present

set of limits and open up alternative manners of col ectively organizing that form of

cooperation. It does this through three elements. First, it asserts the primacy of social

practices. This approach is a form of philosophical reflection that both begins by reflecting on practices of governance experienced as problematic in the present, and localizes its

discussion (contestation and negotiation) in the past and present forms of this regime of

practices. This leads to its second and third elements that comprise a two-step process

of intervention. Second, this approach enacts a critical survey of the existing languages

11] Implicitly rejecting the dominant reading of Wil iams in new realism too.

22

Chal enging Political Theory: Pluralism and Method in the Work of Bernard Wil iams

and practices in which the struggles arise and the various ways of addressing conflict and problems already existing there. The point here is to understand which forms of thought

and action are already taken for granted in this realm and so function as the constitutive limits of present thought and action. Third, this initial enquiry is broadened into a history (genealogy) of the formation of these languages and practices. Together, these two surveys give us a manner to understand the nature and limits of a current language and/or set of

practices, treating them as a kind of provisional bounded whole, al owing us to call them

into question and raise claims to alternative modes of organization (Tul y 2008b, 19-37).

The point of this is to enable political actors to “think and act differently” and, importantly, within a framework that does not assume external normative or critical standards.

This admittedly brief characterisation of Tul y’s approach reveals several points of

contact that clarify the minority reading of Wil iams and, importantly, a few points of

difference.12 In the first instance, there is a clear connection between Wil iams’s bottom-up naturalism and Tul y’s primacy of social practices. Both shift our attention to the sets of social practices and languages that communities actual y employ. They work out from

this base, the present socio-political world, in order to address political problems. What Wil iams distinctly offers is the potential of a significantly more developed understanding of that social-practice based naturalism, one that may serve to flesh out the tradition

of public philosophy Tul y sees as implicit within western political thought since the

Enlightenment. It is in this sense that while Tul y does not use the term, these approaches are linked in a common naturalism defined by, as Rorty has aptly observed, a rejection

of the notion of politics as a bounded whole outside of which rest some set of absolute

conditions or moral standards. Rather, politics is only “a set of indefinitely expansible

social practices” (Rorty 1991b, 57). The consequences of this are both disabling (of a

certain sort of approach) and, for these theorists, profoundly enabling (of an alternative).

With Wittgenstein, they both take the notion that doubt and critique, once naturalized in

this manner, cannot be “a suspicion of everything”. Rather, both focus on how capacities

for critique and normativity reside within social practices and languages themselves.

For example, for Tul y, fol owing Wittgenstein, while one cannot question all the rules

of a language game at once, we can always bring particular rules and practices (spaces of

freedom) into contestation (Tul y 2008b, chap. 2).13

Both Wil iams and Tul y also turn to history as a key resource for a political theory

bounded by this naturalism. For Wil iams, history reveals the development of our thought

and practices. This has the important consequence of revealing how the elements of our

present that seem natural and necessary came to be, and of giving us critical distance to

them. Tul y too, in a slightly more nuanced and worked out fashion, employs history in

order to de-naturalize a set of practices and ideas and to raise the possibility of alternatives.

12] For a general look at Tul y’s relation to realism, see (Honig 2014; Honig and Stears 2014).

13] There are of course important differences too. Tul y is much more suspicious of truth, as discussed below, and Wil iams is much more suspicious of Wittgenstein’s framework (Wil iams 2005d).

Clayton Chin

23

In both thus, it is a key resource for the critical and normative practice of socio-political critique. This has an important consequence only real y identified in Tul y’s more overt

method. Historicizing our practices in this manner democratizes them. It exposes them

to contestation and agon, to a process of democratic exchange (in a variety of forms)

that is explicitly obscured within ideal methods (Tul y 2008a, 242). This is, perhaps,

not a consequence Wil iams (especial y the Wil iams of new realism) would support;

prioritizing the question of stability as he did. However, the alternative, more pluralistic Wil iams would have endorsed this level ing of the epistemological and political fields.

This brings us to the question of the mode of political thought offered here. From

this is should be clear that Wil iams and Tul y are both offering situated modes of

political theorizing, that work out from the present set of practices and languages, and

reject external sources of standards. These approaches formulate strategies for drawing

on the existing set of social practices and languages in order to deploy some part against others (in a naturalistic holism) that we seek to meliorate in light of their problematic

natures.14 As we have just seen, this is profoundly democratic. Further, this democratic naturalistic historicism leads to a political theory that is also fundamental y pluralistic, both methodological y and political y. Tul y bears this out. The historical method is

intended to raise the possibility of “perspectival seeing” where alternative possibilities for some set of practices arise out of the enquiries into the present and past of this set of practices. Such perspectivism is the product of a naturalism that cannot rely on some

set of absolute standards. This changes the nature of political theories, as well as other languages and practice regimes within our situated political contexts. All of these “are

approached, not as rival comprehensive and exclusive theories of the contested concepts,

but as limited and often complementary accounts of the complex uses (senses) of the

concepts in question and the corresponding aspects of the problematic practice to which

these senses refer” (Tul y 2008a, 29; see also Tul y 2014, 223). In this sense, both political theories and embedded political languages are sets of practices of reasoning that offer

partial clarification of a range of concepts and practices, but never are able to exhaust that process or its possibilities. They are thus “conditional perspectives” situated within some set of claims and concerns. Such a position stands in stark contrast not only to the ideal method, but to the emerging approach of new realism, which as we have seen, despite its

historicism, continues to attempt to universalize about politics from within a realistic

account of the conditions of that sphere.

The product of these methodological shifts is a deep level ing and democratizing of the

field of languages and actions. In this manner, Tul y specifical y, and Wil iams potential y, respond to the problem of justification not with the attempt to overcome its paradox but

to work within its conditions. They provide for the possibility of a deep methodological

14] Tul y’s use of the Common-Law tradition to critique the more dominant tradition of Western Constitutionalism for its understanding of and relation to diverse groups is perhaps the strongest example of the potential of this method. It significantly affected the understanding of contemporary Multiculturalism after its publication (Tul y 1995).

24

Chal enging Political Theory: Pluralism and Method in the Work of Bernard Wil iams

pluralism in contemporary political thought, where previously rival approaches can be

framed within this non-hierarchical discursive field and paired in strategic combinations

as needed for particular situated issues, and a deep political pluralism in contemporary

democratic politics, where the process of political deliberation is not implicitly based on one group’s practices or languages. In both spheres the principle question becomes, “how

do we attend to the strange multiplicity of political voices and activities without distorting or disqualifying them in the very way we approach them?” (Tul y 2008b, 89). While much

of this is only implicit in Wil iams and his brief turn to political theory, his naturalistic and historicist methods, and his commitment to addressing the problem of foundationalism

and the political problem of pluralism, make this a plausible extension of his thought.

In this manner, his overt combination of these methods can advance current debates

through Tul y and the wider turn to situated forms of political theorizing.

IV. CONCLUSION

The history of contemporary political theory has struggled with the fact and idea

of pluralism. From Berlin raising the question of value pluralism, Rawls re-framing it in

a procedural distinction between the right and the good within liberal politics, and the

fall of the Berlin Wall dramatical y shifting our understanding of political divisions,

political thought has repeatedly returned to the project of understanding the fractured

nature of late-modern polities (Rawls 2005; Berlin 1999; Benhabib 1996).15 Just as these

returns each resulted in intense methodological reflection, as political theorists attempted to equip their discipline with the tools to explain diversity and the conditions it sets for democracy, in recent years this pattern has repeated. Currently, new realism and the wider situated turn it is a part of are offering new ways of thinking pluralism in light of continued concerns around the universalist assumptions of the existing models. In this manner,

pluralism (epistemic, ontological, political, etc.) continues to be the singular question of contemporary politics.

The reading of Bernard Wil iams presented above intervenes in this debate by

offering a different potential within his work to the dominant reception it has received

within recent literatures. These commentators have emphasized Wil iams’s conceptual

method, conception of politics as grounded in stability, and framework for questioning

legitimacy, leading to a series of problems with the model of political thought this entails.

New realism, amongst others, has criticized traditional ideal theory for relying on a moral foundationalism to ground its normative claims. However, as some critics have identified,

Wil iam’s conceptual approach to the political produces a model of politics focusing too

much on stability to the exclusion of other elements. The result is a narrowing of political theorizing and action. These represent serious concerns that have not, as yet, been

adequately addressed.

15] For an analysis of these transitions, see Moon 2004.

Clayton Chin

25

In contrast, there remains a pregnant, and yet unacknowledged, alternative set

of potentials in Wil iams’s work. Reading his later political theory in conjunction with

his explicit work on naturalism and historicism, reveals a set of resources to reframe

political thought as a mode of socio-political criticism of our present practices and

ideas. Confronting Wil iams with Tul y bears out these positive methods and il ustrates

the type of direction a more thorough version of Wil iams naturalistic and historicist

realism could take. This offers the important lesson to contemporary realism that a realist philosophy need not run roughshod over the problems of justification and pluralism that

have structured recent political thought. Rather, the resources exist to frame a mode of

political theorizing that attends to the real, to our actual situated languages and practices, without assuming external standards and returning to universalistic claims. Further, this

potential method has the benefit of providing for a more thorough methodological and

political democratic pluralism. In this way, political theory could once again become a

discipline that speaks actively to the actual political world.

clayton.chin@unimelb.edu.au

Acknowledgements:

An earlier versions of this article was presented as a paper at both the ECPR 2014

Summer School on “Methods in Normative Political Theory” and the University of Keele.

I would like to thank the organizers of both events (Sorin Baiasu et al.) for graciously

including the paper in those sessions and all the participants for their helpful comments

and ideas. I would also like to thank Ana Carbal o for sacrificing her time reading drafts of this work.

REFERENCES

Bavister-Gould, Alex. 2011. Bernard Wil iams: Political Realism and the Limits of Legitimacy.

European Journal of Philosophy 21 (4).

Benhabib, Seyla, ed. 1996. Democracy and Difference: Contesting the Boundaries of the Po l i t i c a l .

Princeton: Princeton University Press.

Berlin, Isaiah. 1999. Does Political Theory Still Exist?. In Concepts and Categories: Philosophical Essays, edited by Henry Hardy. Princeton: Princeton University Press.

Chin, Clayton. 2016. Between Analytic and Continental in Contemporary Political Thought:

Methodological Pluralism in Pragmatism and the Situated Turn. European Journal of

Political Theory 15 (1).

Forrester, Katrina. 2012. Judith Shklar, Bernard Wil iams and Political Realism. European Journal of Political Theory 11 (3).

Freeden, Michael. 2012. Interpretative Realism and Prescriptive Realism. Journal of Political Ideologies 17 (1).

Galston, Wil iam A. 2010. Realism in Political Theory. European Journal of Political Theory 9: 385-411.

Guignon, Charles. 2009. Wil iams and the Phenomenological Tradition. In Reading Bernard Wil iams, edited by Daniel Cal cut. Oxon: Routledge.

26

Chal enging Political Theory: Pluralism and Method in the Work of Bernard Wil iams

Honig, Bonnie. 2014. ‘[Un]Dazzled by the Ideal’ - James Tul y’s New Realism. In Freedom and Democracy in an Imperial Context: Dialogues with James Tul y, edited by Robert Nichols and Jakeet Singh. Oxon, UK: Routledge.

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. Cambridge: Cambridge University Press.

———. 2014. James Tul y’s Agonistic Realism. In On Global Citizenship: James Tul y in Dialogue.

London: Bloomsbury Press.

Horton, John. 2010. Realism, Liberal Moralism and a Political Theory of Modus Vivendi.

European Journal of Political Theory 9 (4).

Janaway, Christopher, and Simon Robertson, eds. 2012. Nietzsche, Naturalism, Normativity.

Oxford: Oxford University Press.

Koopman, Colin. 2010. Bernard Wil iams on Philosophy’s Need for History. The Review of Metaphysics 64.

———. 2011. Bernard Wil iams on Pluralism, Liberalism, and History. Theoretical & Applied Ethics 1 (3).

———. 2013. Genealogy as Critique: Foucault and the Problems of Modernity. Bloomington: Indiana University Press.

Leiter, Brian. 2002. Nietzsche on Morality. London, UK: Routledge.

Moon, Donald. 2004. The Current State of Political Theory: Pluralism and Reconciliation. In What Is Political Theory? , edited by Stephen K. White and Donald Moon, 12-29. London: Sage.

Philp, Mark. 2012. Realism without Il usions. Political Theory 20 (1): 1-21.

Rawls, John. 2005. Political Liberalism. Expanded Edition. New York: Columbia University Press.

Rorty, Richard. 1991a. Introduction: Pragmatism and Post-Nietzschean Philosophy. In Essays on Heidegger and Others. Cambridge: University of Cambridge Press.

———. 1991b. Wittgenstein, Heidegger and the Reification of Language. In Essays on Heidegger and Others. Cambridge: Cambridge University Press.

———. 2007. Naturalism and Quietism. In Philosophy as Cultural Politics. Cambridge: Cambridge University Press.

Rossi, Enzo. 2010. Modus Vivendi, Consensus, and (Realist) Liberal Legitimacy. Public Reason 2 (2).

Rossi, Enzo, and Matt Sleat. 2014. Realism in Normative Political Theory. Philosophy Compass 9 (10): 741-44.

Said, Edward. 1989. Representing the Colonized: Anthropology’s Interlocutors. Critical Inquiry 15 (2).

Sleat, Matt. 2007. On the Relationship between Truth and Liberal Politics. Inquiry 50 (3).

———. 2010. Bernard Wil iams and the Possibility of a Realist Political Theory. European Journal of Political Theory 9 (4).

———. 2013. Liberal Realism: A Realist Theory of Liberal Politics. Manchester: Manchester University Press.

Taylor, Charles. 1985. Human Agency and Language, Philosophical Papers, Vol. 1. Cambridge: Cambridge University Press.

Tul y, James. 1995. Strange Multiplicity: Constitutionalism in an Age of Diversity. Cambridge: Cambridge University Press.

———. 2008a. Public Philosophy in a New Key Vol. 2 Imperialism and Civic Freedom. Cambridge: Cambridge University Press.

———. 2008b. Public Philosophy in a New Key Volume 1: Democracy and Civic Freedom.

Cambridge: Cambridge University Press.

———. 2014. Responses. In Freedom and Democracy in an Imperial Context: Dialogues with

James Tully, edited by Robert Nichols and Jakeet Singh. London: Routledge.

Clayton Chin

27

Wil iams, Bernard. 1995a. Making Sense of Humanity. In Making Sense of Humanity and Other Philosophical Papers: 1982-1993. Cambridge: Cambridge University Press.

———. 1995b. Nietzsche’s Minimalist Moral Psychology. In Making Sense of Humanity and

Other Philosophical Papers: 1982-1993. Cambridge: Cambridge University Press.

———. 2000. Naturalism and Genealogy. In Morality, Reflection, and Ideology, edited by Edward Harcourt. Oxford: Oxford University Press.

———. 2002. Truth and Truthfulness: An Essay in Genealogy. Princeton: Princeton University Press.

———. 2005a. From Freedom to Liberty: The Construction of a Political Value. In In the

Beginning Was the Deed: Realism and Moralism in Political Argument. Princeton: Princeton University Press.

———. 2005b. In the Beginning Was the Deed. In In the Beginning Was the Deed: Realism and Moralism in Political Argument, edited by Geoffrey Hawthorn. Princeton: Princeton University Press.

———. 2005c. In the Beginning Was the Deed: Realism and Moralism in Political Argument. Edited by Geoffrey Hawthorn. Princeton: Princeton University Press.

———. 2005d. Pluralism, Community and Left Wittgensteinianism. In In the Beginning Was

the Deed: Realism and Moralism in Political Argument, edited by Geoffrey Hawthorn.

Princeton: Princeton University Press.

———. 2005e. Realism and Moralism in Political Theory. In In the Beginning Was the Deed, edited by Geoffrey Hawthorn. Princeton: Princeton University Press.

———. 2006. Philosophy As A Humanistic Discipline. Edited by A. W. Moore. Princeton: Princeton University Press.

Public Reason 9 (1-2): 29-49

© 2017 by Public Reason

From Inevitable Establishment to Mutual Exclusion:

The Challenge for Liberal Neutrality

Avigail Ferdman

The Hebrew University of Jerusalem

Abstract: One of the chal enges that liberal neutrality faces in diverse societies is how to maintain neutrality towards conception of the good life, when establishment of a particular conception of the good and exclusion of other conceptions is inevitable, as in the case of language regulation. A possible solution is to justify this establishment by appealing to universal reasons, thus refraining from endorsing the intrinsic value of the established conception. This paper argues that such a solution is limited, as it does not cover all inevitable-establishment domains. This is because there is a distinction within inevitable-establishment domains:

domains in which rival options can coexist, such as language policy, and domains in which

options are mutual y exclusive, such as land-use policy. The paper argues that language policy is a coexistence domain, since it al ows for a degree of personal agency, and it can refrain from making value judgments about the language that is endorsed by the state. Spatial organization and land-use policy, on the other hand, must rest on value judgments about the good life

and cannot accommodate neutral justifications. The distinction has important implications

for the scope of neutrality: neutrality turns out to be applicable in coexistence domains, and inapplicable in mutual y-exclusive domains. Ultimately, it may be the case that neutrality may not be applicable even in language policy, since language policy exhibits characteristics of a mutual y-exclusive domain.

Key words: liberalism, neutrality, multiculturalism, language policy, land-use, intrinsic value.

The principle of liberal neutrality has been subject to much criticism, both normative

and conceptual.1 The neutrality principle requires that the state not take a stand on

matters of conceptions of the good life, and therefore no conception of the good is to be

endorsed by the state based on its intrinsic value (Dworkin 1985; Rawls 1996; Klosko

2003).2 One of the chal enges that liberal neutrality faces is how to maintain neutrality

when establishment of a controversial conception of the good is inevitable, as in the case of language regulation, or policies towards minorities. Liberal neutralists like Will Kymlicka and Alan Patten have been defending a version of neutrality that is grounded in the ability to justify establishment on universal grounds, even in inevitable-establishment domains

(Kymlicka 1995; Patten 2003, 2014).

In this paper I argue that neutrality is not applicable in all inevitable establishment

domains. Specifical y, I argue that sometimes inevitable establishment cannot be justified on universal grounds, making neutrality infeasible in these cases. To demonstrate this, I

1] For normative criticisms see Arneson (2003), Hurka (1995) and Raz (1986). For conceptual criticism see Wall (2001). Steven Wall shows that when egalitarian ideals are concerned, the boundaries between neutrality of justification – general y the acceptable version of liberal neutrality – and neutrality of effects – general y opposed to in liberalism, collapse to a significant degree.

2] Conceptions of the good are treated here as overall views of what is valuable in life, whether they originate from moral, religious, philosophical or other beliefs (Klosko 2003, 168).

30

From Inevitable Establishment to Mutual Exclusion: The Chal enge for Liberal Neutrality introduce a distinction within inevitable establishment domains: domains in which rival options can coexist and domains in which options are mutual y exclusive. This distinction

has important implications for the scope of neutrality: neutrality is feasible in coexistence domains, and infeasible in mutual y-exclusive domains. I argue that language policy is a

coexistence domain, whereas spatial organization is a mutual y-exclusive domain. The

upshot is that even if neutrality is a compel ing moral principle, in mutual y-exclusive

domains, like land-use and spatial organization, it would be conceptual y inapplicable. In turn, to the extent that the neutrality principle does not cover mutual y-exclusive domains, we need alternative moral principles for such domains to replace the neutrality principle.

I employ a comparative method in order to gauge the relevant differences between

language regulation and spatial organization, which will in turn justify why neutrality

could work in the former and not the latter. A comparative approach could theoretical y

lead to any of the three possible outcomes:

(1) Language regulation and spatial organization have enough relevant

commonalities. There already exists literature on language regulation which insists that

neutrality is moral y required and practical y feasible in that domain (Patten 2003, 2009; Blake 2003; Weinstock 2003). Therefore, conceptual y, if neutrality is feasible for language regulation it ought to apply equal y well to spatial organization.

(2) Language regulation and spatial organization have enough relevant

commonalities. Neutrality cannot be applied to spatial organization (for reasons

discussed throughout this paper). Therefore, conceptual y, if neutrality is infeasible for spatial organization we should not expect it to apply to language regulation (i.e., existing literature on the possibility of neutrality in language regulation is mistaken).

(3) Language regulation and spatial organization have enough relevant differences,

so that even though neutrality might be applicable to language regulation, we should not

expect it to apply to spatial organization.

In the first part of the paper I defend the third possible outcome. I will show that

spatial organization al ows for significantly less coexistence of competing options,

compared to language regulation, and that therefore neutrality is much less feasible for

the organization of spatial activities and spatial relationships. I choose to start with the third outcome because there already exists a body of literature insisting that language

regulation is compatible with the requirements of neutrality. Since my chief aim is to show that neutrality is conceptual y incompatible with spatial organization, I demonstrate how

and why spatial organization is relevantly different from language regulation. If it is indeed relevantly different, then even if neutrality can be applied in language regulation, it would not be applicable in spatial organization. In other words, the argument in the first part of the paper is that in both language regulation and spatial organization, establishment of

a particular conception of the good is inevitable. However, in the language domain this

establishment can be given neutral justification, and therefore neutrality is feasible. In spatial organization, on the other hand, establishment cannot be given neutral justification, and hence neutrality is infeasible. However, there is a lot that can be said in favour of the

Avigail Ferdman

31

second outcome, namely that language regulation and spatial organization are similar,

and since neutrality cannot apply for spatial organization we should not expect it to apply to language regulation. I discuss this possibility at the end of the paper. If either the second or third outcomes are convincing, i.e. neutrality is incompatible with (at least) spatial

organization, then the first possible outcome (neutrality should be compatible with both

domains) is logical y impossible, and therefore not in need of further discussion.

The paper is organized as fol ows: the first section explains why in certain domains

such as language regulation, multiculturalism and spatial organization, establishment of

certain conceptions of the good is inevitable. The fol owing sections present the relevant distinctions between language regulation and spatial organization: I start by demonstrating that language regulation al ows for a greater degree of coexisting options, whereas in

spatial organization options are mutual y exclusive; I then show that language regulation

al ows for a greater degree of personal agency; the subsequent section describes why any

land-use decision must rest on value judgments about the good life, whereas language

regulation can refrain from them. Each of these essential differences provides a distinct

reason to chal enge the applicability of neutrality in the spatial domain. Taken together, they mount a powerful case against the possibility of neutrality in spatial organization, and by extension – in mutual y-exclusive domains more general y. The final section explores

the possibility that neutrality may be inapplicable for language regulation as wel .

I. NEUTR ALITY IN INEVITABLE ESTABLISHMENT DOMAINS

Liberal neutralists regard the principle of state neutrality towards conception of the

good as moral y compel ing because in its absence, the state is forcing persons to adopt or live by values and norms which are foreign to them, and as such fails in its duty to treat all persons with equal concern and respect (Dworkin 2000; Rawls 1985; Nagel 1987). Furthermore,

there is no way to universal y determine the truth of any of the competing conceptions of the good that are held by reasonable persons in pluralist societies, providing another reason to insist on neutrality (Nagel 1987; Rawls 1996, xxi ). Practical y speaking, the state is moral y committed to disestablish conceptions of the good life: either exercise ‘benign neglect’ or even-handedness towards rival conceptions (Kymlicka 1995, 3; Patten 2012).

However, complete disestablishment is often unavailable. This is so because

disestablishment is possible when the state can leave matters that pertain to the good life in the hands of individuals, to be determined according to their own private moralities

(Nagel 1987). Religious disestablishment, for example, means that the state does not

support any religion, and leaves matters of faith to be pursued individual y. In the case of language policy, this sort of disestablishment is impossible. The state cannot replace the use of an official language with no language (Kymlicka 1995, 111). While “the state should not recognize, endorse, or support any particular language or language group any more

than it should recognize, endorse, or support a particular church or religion”, there is no way of disengaging language choices from public service provision, courts and legislature

32

From Inevitable Establishment to Mutual Exclusion: The Chal enge for Liberal Neutrality and public education, hence linguistic establishment is a fact (Kymlicka and Patten 2003,

32). Especial y in multicultural societies, the state needs to decide between establishing monolingualism or plurilingualism.

What is more, the establishment of an official language(s) is an establishment of

a particular conception of the good life. Language matters to persons for a variety of

reasons which cannot be reduced to instrumental reasons. Rather, people care about their

language because language and culture are interdependent.3 Many people care about the

survival and flourishing of their language. People are proud of their first language and

of the cultural achievements that have been expressed through it. They may take great

pleasure in using their first language and in encountering others who are wil ing to use

it (Patten, forthcoming). To the extent that language and culture are interdependent,

language is a normatively-laden system of thought and meaning. Different languages,

therefore, embody different systems of thought and meaning. Choosing to conduct the

state’s official business in one language over another is to impose on citizens a particular system of thought and meaning rather than another. To il ustrate that different languages

carry different normative meanings, consider the word freedom. Peled and Bonotti

argue that “The English concept of ‘freedom’ cannot be easily translated across linguistic boundaries, since it is rooted not simply in the English language but also in the particular political culture in which it has emerged, which can hardly be described as universal in any empirical sense.” (Peled and Bonotti 2016, 801) So for example, a constitution that uses

the English word ‘freedom’ carries a particular normative interpretation of the term. This interpretation becomes the established term, pertaining to all persons who live under that constitution, even if in their native language the term carries a different meaning.

Another way to il ustrate that language establishment is an establishment of a

conception of the good is to consider the argument that holds that linguistic diversity is a good in itself. Some proponents of language diversity hold that just like biodiversity is good, so is language diversity: it makes for a world that is more colourful, richer and more interesting (Crystal 2000; Maffi 2000). Therefore, if the state establishes plurilingualism, it promotes the good of diversity. The upshot is that by establishing an official language (or languages), the state is promoting a system of norms and values that pertain to the good

life, over which individual moralities have little control.

By the same token, the state cannot disestablish culture or spatial organization.4

It cannot replace the distribution of, say, a city-suburb land-use organization with no

distribution. Further, benign neglect is conceptual y incoherent in the domains of

language, spatial organization and multiculturalism, because it just obscures the fact that non-decisions are themselves a form of establishment.5 However, Alan Patten holds that

3] For an analysis of this interdependence and its implications for justice see Peled and Bonotti (2016).

4] Kymlicka makes a similar observation with respect to policies towards minorities (1995, 108).

5] This is because there are cases where the distinction between the state doing and al owing collapses (Wall 2001), and non-decisions in the domain of spatial organization represent such a case.

Avigail Ferdman

33

neutrality can be maintained in language policy if this inevitable establishment is justified by universal reasons: justifications that do not appeal to the merit or superiority of a

controversial conception of the good (2003, 2014, forthcoming). Inevitable establishment,

therefore, can be justified by neutral reasons if it leaves an adequate range of options for individuals to exercise autonomy and self-determination about the good life.

But what if inevitable establishment limits the range of options such that it constrains

autonomy and self-determination? I argue that within inevitable establishment domains

there is a distinction between two types of domains. The first type leaves an adequate

range of options for autonomy. Language regulation belongs to this category. In the

second type, options are mutual y-exclusive and effectively constrain the opportunity for

autonomy. Spatial organization belongs to this category.

Spatial organization is different from language policy in the fol owing way: while

both are domains in which establishment is inevitable, there is a difference between these domains, which has to do with the degree of personal choice that each domain al ows.

In language policy, establishment can be justified by neutral reasons, because it al ows a decent degree of personal autonomy with regards to the good life. In spatial organization, on the other hand, establishment cannot be justified by universal reasons, because in

spatial organization, as I argue below, there is little room for individual autonomy and

self-determination. This makes neutrality infeasible in spatial organization, even if it is otherwise moral y compel ing.

II. ‘BOTH/AND’ VS. ‘EITHER/OR’

What makes neutrality feasible in dis establishment domains? Answering this

question provides a benchmark from which we can determine if these conditions

obtain in inevitable establishment domains as wel . Religion is a paradigmatic case of

disestablishment. Religious disestablishment is moral y required because a state-endorsed

religion leads to domination, hierarchy, subordination and disrespect of non-adherents

(Nussbaum 2008, 20, 24, 226; 2011, 35). More general y, the ‘humanistic freedoms’ –

freedom of speech, freedom of association, the right to vote according to one’s conscience, freedom of sexual conduct, the right to have an abortion, the right to privacy, the right

to marry regardless of sexual orientation (Raz 1986, 254-56) – prescribe neutrality for

similar reasons that obtain for religion.

Each of the humanistic freedoms contains the potential for individuals to choose

between competing, incompatible options: whether to vote for this party or that; whether

to have an abortion or have the child; whether to speak out or stay silent; whether to

express an opinion in favour or against an issue; whether to join (or remain in) a voluntary association or break with it, and so on. All these possibilities represent a category of choice between ‘both/and’ options. Importantly, the implicit assumption is that in a liberal state these incompatible options can coexist, and it is therefore the responsibility of the state to ensure that they are indiscriminately available to every citizen. ‘Both/and’ outcomes are

34

From Inevitable Establishment to Mutual Exclusion: The Chal enge for Liberal Neutrality conducive to liberal neutrality since they enable the possibility for individual choice, for autonomous decision-making and self-determination. This is a crucial point: the state can

remain neutral because the alternative options can exist. Disestablishment domains are

therefore those in which competing options can coexist.

The distinction within inevitable establishment domains should therefore focus on

the degree of coexisting options that they can contain. In other words, when the domain

in question enables a significant degree of ‘both/and’ options in that domain, neutrality

will be feasible. I will argue throughout the first part of the paper that language regulation is a domain which can maintain a higher degree of competing options and the possibility

for autonomous choice making. Therefore, it is relevantly similar to the disestablishment

domains, and as such can comply with the requirement for neutrality. In contrast, spatial

organization, which is also a domain of inevitable establishment, is different in the relevant sense: it is a domain of ‘either/or’ choices (Harvey 2000, 196).

III. MUTUAL EXCLUSION

Spatial organization is characterized by mutual exclusion of options, meaning that

no two options (or more) can be accommodated within a single space, and therefore

even-handed treatment (supporting both options) is conceptual y impossible. Heather

Campbell observes that “‘both/and’ is not an option when either a road, factory, retail

‘experience’, or wind farm is built or is not” (2002, 276-77). Rather, planning decisions are ‘either/or’ decisions. Importantly, ‘either/or’ decisions are substantive; they are the manifestation of a certain conception of the good. The act of zoning – fixing the function and sense of a place – is an inevitable commitment to some value (King 2004; Campbell

2006; Wachs 2013). For example, as soon as the local government issues a zoning

ordinance for, say, minimum lot size or minimum parking standards, it inevitably imposes

certain values on the area. Issuing zoning ordinances based on minimum lot size invokes

the ideal of private homeownership. Al owing two parking spaces per residence promotes

the model of an auto-dependent society, which rests on the ideal of separation between

home, work and other activities (Wil iamson 2010, 5-6).

The regulation of languages al ows for a greater degree of coexistence of rival options.

At the macro-level, empirical observations show that multilingualism is on the rise in the modern world (Edwards 2012). At the individual level, multiple linguistic identities can

and do overlap, both intra-personal y and col ectively (May 2003, 143). This means that

persons are able to possess knowledge of two or more languages simultaneously. From a

social point of view, this means that societies are accommodating of multiple languages

within a single territory. The point is that linguistic reality in liberal conditions admits more coexisting options and therefore offers more choice. For example, immigrant

parents can deliberately choose whether to speak to their children in their native language or in the majority language. The choice may be constrained by other considerations, such

as the desire that their children be competent in the dominant language in order that they

Avigail Ferdman

35

obtain a better starting position in life, or an opposite desire that their children experience in a meaningful way their native culture. Either way, the absence of state coercion in this private realm means that the parents are making an authentic choice between two readily

available – coexisting – options.

To take another example, even if the state establishes an official monolingualism

policy, the liberal-neutralist argument is that there still remains a significant degree

of personal choice. Alan Patten holds that a such a policy can be moral y legitimate if it serves to increase social mobility. In a state which has only one viable “societal culture”6

– a culture where minority speakers do not have sufficient opportunities or options to

operate in their own language – a common language will ensure that these speakers have

sufficient “access to an adequate range of economic, social political, and cultural options and opportunities” (Patten 2003, 381). So even if the common language is formal y

established (to the detriment of endangered minority languages), persons can still exercise a significant level of choice within this background of opportunities. In this respect,

a minority-speaker who is proficient in the common language has more disposable

opportunities in the employment market, than a “ghettoized” minority speaker who

cannot find adequate work due to insufficient knowledge of the common language. When

a minority culture cannot be reconstructed or revived by public policy, proficiency in the common language enables more access to opportunities compared with remaining in a

cultural ghetto (Patten 2003, 381).

The fact that individuals have more linguistic choice than spatial choice is closely

related to the idea of agency. Spatial organization is more restrictive of personal agency than language regulation. When the state institutionalizes a language, it creates a background

context within which persons live their lives. As such it obviously determines a lot of what persons will be able to do. Nevertheless, liberal institutionalization of a language does not affect negative liberties directly: it does not tell persons what to think or how to express what they think. Persons retain a significant degree of control over their personal usage of language, they are still free – no one is legal y prohibited – to speak whichever language they choose.

Yet the same degree of freedom is not attainable with respect to spatial organization.

When institutions zone an area as, say, homogenous-residential, it undermines the

agency of those who (fundamental y) prefer another pattern.7 They are not free to

exercise their preferable spatial organization. While they are not legal y prohibited from exercising it, they are nevertheless unfree because the ability to actual y do it is simply unavailable or incredibly difficult.

One reason for this is that the degree of personal effort that individuals or groups

need to invest with respect to preserving minority language is somewhat lower than the

6] A societal culture is “culture which provides its members with meaningful ways of life across the full range of human activities” (Kymlicka 1995, 76).

7] This type of preference is fundamental in the sense that it pertains to persons’ final aims and goals, not to superficial desires such as ice cream flavours (Scanlon 2006, 6-7).

36

From Inevitable Establishment to Mutual Exclusion: The Chal enge for Liberal Neutrality efforts that individuals need to put into creating spatial alternatives. When institutional support for minority language is absent, minority speakers can pay for tutoring, for

cultural activities and so on. These are things that can be done at the personal level or at the community level. Changing spatial patterns requires much more resources – money,

organization skil s, lobbying abilities, access to decision makers – than individuals or even communities can muster. This point helps strengthen the case that individual agency is

somewhat more pronounced in the language domain compared to the spatial domain.

The implication is that it is possible to exercise neutrality in language policy so long

as there is a significant degree of individual choice that individuals can exercise in their private lives regarding language. This will be much less feasible in spatial organization.

As mentioned above, it is conceptual y impossible to accommodate competing land uses

in the same place. Persons cannot real y exercise the same degree of individual choice

regarding spatial organization as they would in the domain of language. The neutrality

principle, which rests on the ability of persons to exercise autonomy and self-determination in their private lives, is therefore less applicable in domains such as spatial organization where personal agency and choice making are limited. The implication is that although

inevitable establishment is a feature of both language regulation and spatial organization, the degree of coexisting options in language regulation is higher, al owing for neutrality, whereas mutual-exclusion of options in spatial organization precludes neutrality.

IV. INTRINSIC-VALUE JUDGMENTS

The second relevant difference between language regulation and spatial organization

is that in language regulation, policy decisions can refrain from intrinsic-value judgments, whereas in spatial organization this is impossible. Since intrinsic-value judgments are

inherent to spatial decisions, not only to the outcomes but to the decision-making process as wel , they are inevitably non-neutral.8

Language regulation can refrain from intrinsic-value judgments: according to

the liberal viewpoint, policies that debate whether to prefer a common language or to

preserve minority language need to be fair to the speakers, not to the languages they

speak (Patten 2003, 372). The assumption is that all languages have similar societal

and cultural functions.9 What is important for the liberal is not the intrinsic value of a particular language but the role it plays with respect to ensuring political, civic and cultural 8] Intrinsic-value judgments in this context refer to the intrinsic value of the good, but they also apply to conceptions of the right. Since there is no reason to assume universality with respect to controversial conceptions of the right, judging between competing conceptions of the right is equal y non-neutral (Arneson 2003, 195; Chan 2005, 22; Hurka 1995, 56; Caney 1998, 102-5).

9] Languages endow persons with a sense of identity; they are indispensable for a stable “societal culture”, a culture that provides for its members meaningful ways of life that embrace the full range of human activities, and they enable a ‘shared vocabulary of tradition and convention’ (Kymlicka 1995, 76, 82; Dworkin 1985, 231).

Avigail Ferdman

37

opportunities. Therefore, where there is a clear majority language, it doesn’t matter which language it is, what matters is that minorities will be proficient in it so that they can enjoy an adequate ‘context of choice’ – a variety of options and opportunities that embrace

the full range of human activities (Patten 2003, 380). Crucial y, the intrinsic value of a language will not serve as justification for choosing it over other languages.

By contrast, debates about spatial policies require assessing the consequences of the

suggested policies, and in many cases applying value judgments regarding the preferable

option. The reason is that spatial policies, due to mutual exclusion, limit the applicability of universal justifications. This argument requires some explanation, which will be made

clearer using a hypothetical metropolitan planning board. Imagine that this planning

board is debating the best way to promote mobility (a universal goal), and its members are weighing two options: promoting car travel through car subsidies and generous parking

supply (option A) and investment in public transport (option B).

Suppose that car transport (option A) is shown to promote mobility. Nevertheless,

there exists an important reason for inquiring into the intrinsic value of this policy, and that is that prioritizing car travel has a tendency to reinforce “automobility” – the culture of the solo-driver individual (Urry 2004; Gartman 2004).10 This shows that certain

aspects of spatial organization go to the core of conflicts over conceptions of the good.

Importantly, sprawled settlements are often associated with preferences for privatism

and consumerism (Wil iamson 2010, 4),11 making any policies that favour automobile

travel unevenly accommodating of that particular conception of the good. If indeed road

infrastructure helps create and reinforce a certain culture, it introduces an institutional bias in favour of this culture, and against others. The outcome is not an innocent by-product of the policy; when policy makers debate what kind of accessibility-policy to

promote, they are in effect debating the good life. Intrinsic-value judgments, therefore, are inherent to the debate, even when policy aims are discussed in universal terms.

V. CONFLICTING UNIVERSAL JUSTIFICATIONS

Applying intrinsic-value judgments for spatial policy is inevitable for another reason.

Very often, the appeals to universal justifications within the adequate ‘context of choice’

will pit two or more universal values in direct conflict. When this happens, we need a

criterion that will enable us to choose between them. In fact, the very concept of ‘context of choice’ and its adequacy is value-laden, especial y in mutual y-exclusive domains. For

we do not know what a proper adequate context of choice is until we determine what it

contains and what it excludes. Therefore, as Simon Caney notes, a neutral theory will

10] Shel er and Urry expand: “automobilization [. .] leads to the extension of human habitats, the dis-persal of places across space, the opportunities to escape certain locales and to form new socialities, and the fragmentation of temporal flows, especial y through suburbanization” (2000, 742).

11] See also Robert Kirkman (2010) on the genealogy of suburban preferences .

38

From Inevitable Establishment to Mutual Exclusion: The Chal enge for Liberal Neutrality not be able to supply us with such a criterion to determine the content of the context of

choice, or the universal values that justify its makeup, since the only criterion available is an appeal to ‘a more specific account of the good’ (1996, 102).

As such, the value of, say, accessibility, will have to be ranked and compared against

other values, and the resolution will ultimately have to be grounded on sectarian or

comprehensive reasons (Ferdman 2017). I il ustrate this by referring once again to the

planning board, whose members are now debating an accessibility policy that centers on

massive investments in public transport.

The board members have to take into account that implementing public transport,

especial y mass transit, requires substantial y more land in designated areas (along the

route itself and around the stations). Suppose that most of the designated land is currently privately held, and can be acquired only involuntarily (by expropriation/taking). Suppose

further that property owners oppose the taking, on grounds that it seriously interferes with their comprehensive conception of the good in a way which defies neutral justification.12

They could offer several universal counter-arguments: that it harms their freedom of

occupation; that it harms their autonomy; that it harms their integrity by withholding from them what is considered to be a basic human need – a home; that it is an affront to their

personhood (Radin 1982, 1006); that they’re being used as a means and not an end. On

the other hand, refusal to consent to the taking on the part of each property owner could

strike some as excessively egoistic. The homesteader’s preference that her home is kept

intact at the expense of other persons’ resources could be regarded as an expensive taste –

a taste (in the broad sense) that requires more resources to satisfy compared to resources that others have (Dworkin 2000, 48-59). We have to make a value judgment with respect

to whether losing an hour a day over a work-lifetime is merely an inconvenience or rather

a serious harm to one’s welfare13 or a reduction in one’s ability to practice their conception of the good.14 This is something that must include intrinsic-value judgments with respect

to what makes things central to one’s welfare and conception of the good.

The different arguments in favour and against the taking help to demonstrate that in

questions of justice, reasonable disagreement between citizens on matters of distribution

is bound to occur. Cecil Laborde notes that in conflicts over religious establishment

“[. .] citizens will reasonably disagree about the relative importance of such fundamental 12] Note that these persons cannot accuse the state of being non-neutral in the effects of the policy.

Non-neutral effects are a natural result of the relative attraction of different conceptions, that is determined purely (in ideal situations) by the preferences of free and autonomous persons. Recall that liberal policy towards languages does not promise the equal success of every language, but rather the equal background for each to strive for its success. Similarly, therefore, non-neutral effects of transportation policy will not gain the sympathy of the liberal.

13] Empirical evidence suggests that it is not a minor inconvenience: commuting for over 30 minutes a day – especial y by non-auto travel modes – significantly reduces welfare (Office for National Statistics 2014).

14] Supposing, arguably, that saving on commuting time could be spent with one’s family, or spent on other intrinsical y valuable activities.

Avigail Ferdman

39

values as freedom of religion and (more general y) of conscience, non-discrimination,

equal opportunities, parents’ and children’s rights, ‘compel ing state interests’ and so

forth” (2013, 11). In cases of profound disagreement, the liberal logic pul s towards

disestablishment, even if no constitutional freedoms are violated (Laborde 2013, 19-20).

However, disestablishment is conceptual y unavailable in spatial organization, and what’s

more, in order to reach a spatial decision the merits of each option have to be balanced

against each other. There is no way to avoid sectarian, non-neutral reasoning in this

decision-making process.

Further, the neutral even-handed approach (i.e. supporting all conceptions evenly)

cannot work for spatial organization, precisely because the intrinsic value of the competing options needs to be evaluated prior to the commitment to indiscriminately supporting

all of them. The even-handed approach in language policy aims to ensure that persons

have a fair opportunity for self-determination, through the preservation of an important

part of their personal and col ective identity. It offers recognition of minority languages whenever they are a local majority,15 including offering services in the minority language, and al owing parents to choose that their children be educated in their minority language

where such education exists.16 These services and accommodations cannot be replicated

in the spatial domain.

An example will help il ustrate the difficulty of applying this approach in the spatial

domain. Let’s say there are two rival conceptions in the city, one that reflects the desires to self-segregate into fortress-like enclaves (say gated communities),17 and the other which

prizes the values of community and solidarity and requires a more open and civil-oriented

spatial setting (along the lines of the idealized “traditional” neighborhood). The state

could al ocate space equal y between these two conceptions, so that a fortress city will

reside next to the traditional neighborhood. Prima facie, even-handedness is successful.

Nevertheless, there is something potential y problematic about the even-handedness

that is awarded to these conceptions, since it does not require of the conceptions to

be reasonable. We could find (as is in fact the case with respect to many instances of self-segregation), that the desire to retreat rests on an unreasonable desire to exclude

(Bickford 2000; Wil iamson 2010, 171; Kohn 2004; Young 2000, 204-10). One of the

possible justifications for ruling out unreasonable conceptions is that they do not uphold principles of justice that treat everyone as equal. In this case, not all instances of self-15] Michael Blake notes that not all minority languages can claim they have a right to language preservation; such measures should be reserved only to those policies of minority-languages that are vulnerable due to past discrimination ( 2003, 223-25).

16] This prerogative holds even if the child is completely fluent in the majority language (Patten 2003, 371-72) .

17] ‘Fortress communities’ are separate cities within the city. These urban quarters are differentiated along several dimensions: race, class, occupation and ethnicity, whether residential or commercial enclaves, these fortress-like neighborhood offer complete insulation from other quarters via physical boundaries such as wal s, gates and surveil ance (Marcuse 2002).

40

From Inevitable Establishment to Mutual Exclusion: The Chal enge for Liberal Neutrality determination will have gained an equal moral status. Those based on “offensive tastes”

will be a priori ruled out (Rawls 1999, 27-28). In the gated community case, the exclusion of non-members from the public spaces of the gated community is unreasonable, because

it does not treat them as equal moral agents.

Therefore to be reasonable, in the context of self-segregation, is to recognize that

privacy, seclusion and exclusion come at a price for others, and to relax the demand for

these amenities in the name of equal respect (Bickford 2000, 366). The upshot is that

before ‘blindly’ giving institutional support to any conception of the good in an even-

handed manner, it is moral y required of the state to look into the reasonableness of the

competing al ocative claims. Note that institutional support does not need to be limited

to monetary support. Zoning and regulations which permit gated associations and their

restrictive policies are also a case of institutional support. In any case, the need to examine the reasonableness of the al ocative claim requires a different sort of moral justification, substantive rather than neutral. In order to decide on spatial policy we need to make value judgments and inquire into the reasonableness of the rival ways of life, before making

policy decisions. Again, this would be unnecessary in the case of language, since languages are not categorized according to their reasonableness.

So far I have surveyed the reasons which distinguish spatial organization from

language regulation. This comparison shows that language policy al ows for a certain

degree of coexisting options. Spatial organization, on the other hand, is a domain of

mutual y-exclusive options. While in both domains establishment is inevitable, in

the mutual y-exclusive domain (e.g. spatial organization) neutrality is infeasible. This

is because neutrality can be maintained if the inevitable establishment is justified by

universal reasons, such that do not pertain to the merit or superiority of any conception of the good. While in the domain of language such justifications exist, in the domain of spatial organization, universal justifications are hard to come by. First, because in the mutual y-exclusive context there is a minimal degree of opportunity for individual choice-making

in the private sphere. Second, because ultimately the justifications for spatial policy rest, implicitly, on ideas about the good life. In the final section I examine whether despite the prima facie difference between language policy and spatial regulation, ultimately language policy rests on ideas of the good too.

VI. CAN LANGUAGE POLICY BE NEUTR AL?

Liberal language regulation requires that a language policy be justified by an

appeal to a value or values that is universal – should be able to respond to every citizen’s interests, regardless of their particular conception of the good. Alan Patten, for example, regards language regulation as neutral when it is justified by values such as social mobility or self-determination (Patten 2003). David Mil er appeals to the value of belonging to

a community that has some shared values, like its common language (2004, 138). Will

Avigail Ferdman

41

Kymlicka appeals to the idea of having a meaningful ‘context of choice’, language being

one of its basic elements (1995, 83).

What I want to defend in this section is the argument that these justifications

can come into direct conflict with other universal justifications. When this happens,

as discussed above, the policy resolution will have to rely on non-neutral, sectarian

arguments. Tradeoffs between universal arguments are common in all policy areas,18 and

justifying these tradeoffs requires ranking the conflicting universal justifications, in which case the criteria for ranking is inevitably sectarian, as I will briefly il ustrate below.

For example, when minority speakers are a local majority Patten proposes a minority

language maintenance model – official multilingualism – justified by the value of self-

determination (2003, 369-73). Importantly, official multilingualism requires a stable

linguistic and cultural background (Kymlicka 1995, 82-84). This background, however,

can be interpreted in two ways: one way is to provide an adequately rich and stimulating

linguistic and cultural background in the majority language. Another way, proposed by

Denise Reaume, is that this background has to include minority languages as wel . Reaume

holds that persons are entitled not merely to a language and a culture but to their language and their culture (2000). Languages have value independently from their instrumental roles, they are ‘an end in itself’; ‘cultural inheritance’ and ‘markers of identity’, and therefore bearers of intrinsic value (Reaume 2000, 250-51). Presumably Patten shares this view,

or he wouldn’t propose the language maintenance model for self-determination. The

moral implications of the second interpretation, however, may be problematic as Daniel

Weinstock notes: if minority languages are intrinsical y valuable then “minority languages themselves have rights against all others, including their own speakers, to have their intrinsic value affirmed” (2003, 255). As such they generate duties, even against their own speakers.

This would be a problematic consequence for liberals, because it could interfere with

persons’ autonomous preferences to assimilate into the common language (Weinstock

2003, 256; Blake 2003). So, on the one hand we have the value of self-determination,

prescribing a multilingual language-preservation model, whereas on the other hand we

have the liberal value of ensuring uncoerced choice. Any choice in the matter will have to appeal to a controversial conception of the good, either one that touts the intrinsic value of cultural heritage or one that extols moral individualism.19

Another point is that linguistic even-handedness may contain an arbitrary bias

that cannot be neutral y justified. A language policy that treats minority languages even-

handedly entails a per-capita distribution of resources language maintenance, recognition

of minority languages whenever they are a local majority, offering services in the minority language, and al owing parents to choose that their children be educated in their minority 18] I am grateful to George Sher for stressing this point.

19] Kymlicka’s ‘context of choice’ is vulnerable to the same chal enge: it can be either any combination of meaningful choices, or it can be the particular elements of one’s culture, with similar implications for individual autonomy.

42

From Inevitable Establishment to Mutual Exclusion: The Chal enge for Liberal Neutrality language where such education exists. However, not all minority languages can be

encompassed by such a multilingual policy. Certain languages have too little speakers and

would tax general resources disproportional y. Therefore, there must be a policy cutoff

somewhere, to determine which languages merit support and which require prohibitive

costs. This cutoff will inevitably be arbitrary, whether grounded on sheer numbers or on

relative power (Weinstock 2003, 261-62), and will not be universal y justifiable.

With respect to David Mil er’s justification – a common language as a shared

value that enables the community to function properly – one could claim that minority

communities require protection of their shared values precisely because the survival of

such values is vulnerable to begin with, and in their absence the minority community

might disintegrate. Here we need to make a value judgment with respect to the question:

what is more fundamental to persons-as-community-members: belonging to a stable

local cultural community or belonging to a stable national community. It looks like the

answer to this question can only be given by intrinsic-value non-neutral arguments.

VII. DISAGREEMENT OVER THE RIGHT AND OVER THE GOOD

As Patten himself notes, minority-language rights that are based on fair treatment –

ensuring fair background conditions for one to pursue her conception of the good – will

very often clash with other values (Patten 2009, 123-24). When this happens, in order to

maintain neutrality, the decision has to be taken through some procedural process that is

itself impartial: majority vote, a referendum, a lottery or an auction.20

Nevertheless, as certain writers have pointed out, these procedural processes themselves

are instances of controversial conceptions of the right (Arneson 1998; Chan 2005; Caney 1996).

Disagreement over conceptions of the right is therefore conceptual y similar to

disagreement over conceptions of the good (Arneson 2003, 195; Chan 2005, 22; Hurka

1995, 56). If neutrality is required for issues of justice then conceptual y it is impossible to see how it should not apply to other political controversies as well (Caney 1996, 102-5).

Beliefs about the right can be just as controversial as beliefs about the good (Arneson 1998, 77-78). Therefore, conceptions of the right with their respective procedural processes are bound to incite disagreement, since they could not be justified to dissenters. In this sense, institutional decisions on which value to prefer (fairness vs. other considerations), cannot appeal to an ‘impartial’ procedures, and will not be immune from charges of non-neutrality.

This is a general conceptual point about the legitimacy of neutrality as a political

morality and it pertains beyond language and spatial organization. The implication is

that if the state operates on a conception of the right that is non-neutral, without needing further justification, then it is equal y legitimate for the state to establish a non-universal conception of the good, without needing further neutral justification.

20] I am grateful to Hil el Steiner for raising this possibility.

Avigail Ferdman

43

There are two ways to approach this last point about the similarity between

conceptions of the good and conceptions of the right. One way is to accept that

disagreements over conceptions of the right are similar to disagreements over conceptions

of the good and that since neutrality is impossible for the latter, it fol ows that it is also impossible for the former. In other words, to reject neutralism completely. Let us call this the ‘symmetry approach’, as it holds that there is symmetry between disagreement over

the right and over the good. According to the symmetry approach, because neutralism

is conceptual y mistaken in general, then it would also be conceptual y mistaken in

particular in language and spatial organization. Defending the symmetry approach wil

require much more space than can be given here, and anyhow it is beyond the purpose

of this paper, which is to examine whether neutrality can be exercised, specifical y, in

inevitable-establishment domains.

Let us therefore consider the ‘asymmetry approach’, which denies that there

is a conceptual similarity over the right and the good. According to the asymmetry

approach, neutrality is required for arbitration about the good, but not about the right.

This approach aligns with the liberal commitment to exercise neutrality towards

(only) the good. This paper shows that even if one favours the asymmetry approach,

it nevertheless remains the case that neutrality is inapplicable in mutual y-exclusive

domains. According to the asymmetry approach, neutrality is regarded as a moral y

compel ing principle, yet one which is not feasible in spatial organization or language

policy, because justifications for policy are inevitably grounded in ideas about the good

life. Stated more general y, neutrality may be moral y compel ing, yet in domains of

mutual exclusion it is infeasible.

The chal enge that this paper raises has to do with the scope of neutrality. The

symmetry approach holds that there is a similarity between disagreements over the

right and disagreements over the good, and that therefore neutralism should be rejected

for both. The argument advanced in this paper is somewhat different. It does not cal

for a complete rejection of neutralism. Rather, it holds that the scope of neutralism is

limited. It may be applicable in disestablishment domains, and in certain inevitable

establishment domains, but it is not applicable in mutual y-exclusive domains. If one

accepts that language policy ultimately rests on non-universal justifications (that is,

rests on ideas that pertain to the good life), then language policy cannot accommodate

the principle of liberal neutrality, which makes the scope of neutrality narrower.

VIII. CONCLUSION

Neutrality towards conceptions of the good, even if it is moral y required, is not

achievable in each and every political domain. Certain domains require state establishment of conceptions of the good. Language regulation, policies towards cultural minorities and

spatial organization are such domains. Liberal neutralists hold that some instances of this establishment can be neutral y justified. If some universal justification for establishment

44

From Inevitable Establishment to Mutual Exclusion: The Chal enge for Liberal Neutrality exists, then neutrality towards conceptions of the good can be maintained. My aim in

this paper was to show that not all inevitable establishment can be justified neutral y, and this requires making distinctions within inevitable-establishment domains, to determine

when neutrality is feasible and when it is not. I argue that the scope of neutrality does not cover mutual y-exclusive domains like spatial organization, and there are good reasons to

argue that neutrality does not extend to language regulation either.

In the first part of the paper I compare spatial organization with language regulation

– both inevitable-establishment domains – to show why neutrality may be feasible in

language but not in spatial organization. Language regulation, even though it establishes

a certain linguistic outcome, still offers a certain non-trivial degree of coexistence of

competing options: persons can be proficient in more than one language, and they can

col ectively invest in language preservation should they choose to do so, at a relatively

lower cost compared to spatial organization. In spatial organization, the physical existence of one spatial conception precludes the existence of others. Furthermore, there is less

room for agency, since it requires enormous col ective efforts to change land-use patterns, markedly more than the efforts required for resisting linguistic assimilation.

In addition, institutional decisions regarding spatial organization require using value

judgments about the intrinsic merit of competing options. Where the societal background

is one of incompatible, controversial conceptions of the good, as is the case in pluralistic societies, resorting to value judgments is inevitably non-neutral, because competing

conceptions have to be ranked according to their intrinsic worth, but this ranking is

precisely what persons disagree about to begin with. In order to answer questions such as

what is the best transportation policy; what is the best residential arrangement, etc. one has to acknowledge that no straightforward answer can be given without explicitly discussing

the merits of sprawled vs. condensed neighbourhoods; without heeding to the implications

of contemporary western societies’ reliance on the private car vs. the socio-cultural effects of public transport. Language regulation, in comparison, need not appeal to the intrinsic

value of the different spoken languages in the society, it only needs to take account of their existence. This way, neutrality towards linguistic-cultural conceptions of the good can be a coherent requirement, whereas it cannot be for spatial conceptions of the good.

However, one can insist that the difference between language regulation and spatial

organization is in fact minor, making the establishment of language regulation more

like the non-neutral establishment of spatial organization. In the latter part of the paper I considered this possibility and showed that indeed there might be some truth to this claim, especial y considering that arbitrating between competing universal justifications for

language regulation is ultimately made by appeals to intrinsic value of either controversial conceptions of the good or of the right. Neutrality’s scope, therefore, might be even

narrower for language regulation than what liberal-neutralists would be content with.

While this paper focused on two specific domains – spatial organization and

language regulation – the conceptual conclusions regarding the chal enge for neutrality can potential y be applied to other domains that also feature a high degree of mutual exclusion.

Avigail Ferdman

45

Interestingly, this could involve a time dimension. Whenever initial options in a sequence of events generate path-dependence, they will exclude other potential alternatives from

their respective futures. Unfortunately, the scope of this paper precludes an elaboration

of this idea. Stil , as long as this is a consequence of state regulation and not of individual choice, neutralists have to consider this as a potential restriction on neutrality.

As for a normative conclusion, if indeed sectarian or comprehensive reasons

ultimately ground spatial policies, then these reasons should be made explicit.21 People

should be able to deliberate on these matters openly and with informed views, even if at the end of the day neutral justifications will not be available. This points to a higher-order plane of disagreement, about the proper content of public discourse: public reason theorists, for example, view disagreement as a problem to be impartial y contained. An opposing view

considers this concept of disagreement as a failure to show equal respect to those engaged in the debate. Receding from the disagreement is tantamount to paternalistical y treating

the reasons that persons bring to the discussion as mere preferences, rather than the

principled fundamental beliefs that they real y are (Enoch 2015). Therefore, it is necessary to both acknowledge that sectarian reasons ultimately ground (at least) spatial policies,

and, as important, to encourage an informed discourse on the right policy, even if neither the policy nor the procedure can ever be justified neutral y.

Final y, this paper has dealt with the question of what to do when there is a conflict

regarding two or more mutual y exclusive options. These options, at least as represented

in this paper, reflect existing preferences or beliefs. The discussion therefore revolved

around the impossibility of gaining universal agreement for policies in the face of existing competing conceptions. An important question that this paper has not dealt with is the

question of potential preferences. Potential preferences are those which given the right circumstances could emerge, and they therefore depend heavily on the institutional and

cultural background. A rich background will obviously do more for the emergence of

potential preferences than an impoverished one.

But do potential conceptions have the same moral force that existing conceptions

have? I believe that they do, and that social arrangements should make room for them.

Those concerned about the ability of cultures to provide a meaningful background

of options might be sympathetic to the necessity to incorporate potential preferences

alongside existing ones. Nevertheless, this view is very much a perfectionist, non-neutral, account of the responsibility of the state towards the good life, favouring variety and

diversity over ad hoc homogenous tastes. A defense of this proposal, however, will have to await another occasion.

21] Communitarians raise a similar point: people have local commitments that bond them together, without which society cannot function. As such, by distributing goods and resources, the state inevitably promotes certain values over others. Therefore, the state should not be indifferent to different conceptions of the good, but rather recognize them openly and make its decisions explicitly based on them (Pasternak and de-Shalit 2007, 176).

46

From Inevitable Establishment to Mutual Exclusion: The Chal enge for Liberal Neutrality Acknowledgments

I am grateful to Daniel Schwartz, Daniel Attas, Hil el Steiner, George Sher, Sorin

Baiasu, Luca Costa, participants of MANCEPT Brave New World 2014 conference,

participants of the Summer School on Methods in Normative Political Theory/

Philosophy at Keele University 2014, and to two anonymous reviewers for helpful

comments on earlier drafts of this paper.

avigail.ferdman@mail.huji.ac.il

REFERENCES

Arneson, Richard J. 1998. Priority of the Right over the Good. In Impartiality, Neutrality and Justice, edited by Paul J. Kel y, 60-86. Edinburgh: Edinburgh University Press.

———. 2003. Liberal Neutrality on the Good: An Autopsy. In Perfectionism and Neutrality, edited by Steven Wall and George Klosko, 191-218. Rowman & Littlefield Publishers, Inc.

Bickford, Susan. 2000. Constructing Inequality: City Spaces and the Architecture of

Citizenship. Political Theory 28 (3): 355-76.

Blake, Michael. 2003. Language Death and Liberal Politics. In Language Rights and Political Theory, edited by Will Kymlicka and Alan Patten, 210-29. New York: Oxford University Press.

Campbel , Heather. 2002. Planning: An Idea of Value. The Town Planning Review 73 (3): 271-88.

———. 2006. Just Planning: The Art of Situated Ethical Judgment. Journal of Planning

Education and Research 26 (1): 92-106.

Caney, Simon. 1996. Impartiality and Liberal Neutrality. Utilitas 8 (03): 273-93.

———. 1998. Impartiality and Liberal Neutrality. In Impartiality, Neutrality and Justice, edited by Paul J. Kel y, 87-107. Edinburgh: Edinburgh University Press.

Chan, Joseph. 2005. Legitimacy, Unanimity, and Perfectionism. Philosophy & Public Affairs 29 (1): 5-42.

Crystal, David. 2000. Language Death. Cambridge: Cambridge University Press.

Dworkin, Ronald. 1985. A Matter of Principle. Cambridge, MA: Harvard University Press.

———. 2000. Sovereign Virtue. Cambridge, MA: Harvard University Press.

Edwards, John. 2012. Multilingualism: Understanding Linguistic Diversity. London: Continuum International.

Enoch, David. 2015. Against Public Reason. In Oxford Studies in Political Philosophy, edited by David Sobel, Peter Val entyne, and Steven Wal , 112-42. Oxford: Oxford University Press.

Ferdman, Avigail. 2017. Should We Care about Neutrality in the City? Urban Research & Practice 18 (1). https://doi.org/10.1080/17535069.2016.1276616.

Gartman, David. 2004. Three Ages of the Automobile: The Cultural Logics of the Car. Theory, Culture & Society 21 (4/5): 169-95.

Harvey, David. 2000. Spaces of Hope. Berkeley, CA: University of California Press.

Hurka, Thomas. 1995. Indirect Perfectionism: Kymlicka on Liberal Neutrality. Journal of Political Philosophy 3 (1): 36-57.

King, Loren A. 2004. Democracy and City Life. Politics, Philosophy & Economics 3 (1): 97-124.

Kirkman, Robert. 2010. Did Americans Choose Sprawl? Ethics & the Environment 15 (1): 123-42.

Klosko, George. 2003. Reasonable Rejection and Neutrality of Justification. In Perfectionism and Neutrality, edited by Steven Wall and George Klosko, 167-89. Lanham, MD: Rowman & Littlefield Publishers, Inc.

Avigail Ferdman

47

Kohn, Margaret. 2004. Brave New Neighborhoods: The Privatization of Public Space. New York, NY: Routledge.

Kymlicka, Wil . 1995. Multicultural Citizenship: A Liberal Theory of Minority Rights. Oxford: Clarendon Press.

Kymlicka, Wil , and Alan Patten. 2003. Introduction: Language Rights and Political Theory: Context, Issues, and Approaches. In Language Rights and Political Theory, edited by Wil Kymlicka and Alan Patten, 1-51. New York: Oxford University Press.

Laborde, Cécile. 2013. Political Liberalism and Religion: On Separation and Establishment.

Journal of Political Philosophy 21 (1): 67-86.

Maffi, Luisa. 2000. Linguistic and Biological Diversity: The Inextricable Link. In Rights to Language: Equity, Power, and Education, edited by Robert Phil ipson, 17-22. Mahwah, NJ: Lawrence Erlbaum.

Marcuse, Peter. 2002. The Layered City. In The Urban Lifeworld: Formation, Perception, Representation, edited by Richard Plunz and Peter Madsen, 94-114. New York: Routledge.

May, Stephen. 2003. Misconceiving Minority Language Rights: Implications for Liberal

Political Theory. In Language Rights and Political Theory, edited by Will Kymlicka and Alan Patten, 123-52. New York: Oxford University Press.

Mil er, David. 2004. Justice, Democracy and Public Goods. In Justice and Democracy: Essays for Brian Barry, edited by Keith Dowding, Robert E. Goodin, and Carole Pateman, 127-49.

Cambridge: Cambridge University Press.

Nagel, Thomas. 1987. Moral Conflict and Political Legitimacy. Philosophy & Public Affairs 16 (3): 215-40.

Nussbaum, Martha C. 2008. Liberty of Conscience: In Defense of America’s Tradition of Religious Equality. New York: Basic Books.

———. 2011. Perfectionist Liberalism and Political Liberalism. Philosophy & Public Affairs 39 (1): 3-45.

Office for National Statistics. 2014. Commuting and Personal Wel -Being, 2014. UK. http://

www.ons.gov.uk/ons/dcp171766_351954.pdf (accessed 21 November, 2017).

Pasternak, Avia, and Avner de-Shalit. 2007. The Communitarian Chal enge to Rawls’s Theory.

In John Rawls and his Legacy, edited by David Heyd and Daniel Attas, 166-87. Jerusalem: Magness Press.

Patten, Alan. Forthcoming. Language and Distributive Justice. In The Oxford Handbook of Distributive Justice, edited by Serena Olsaretti. Oxford: Oxford University Press.

———. 2003. Liberal Neutrality and Language Policy. Philosophy & Public Affairs 31 (4): 356-86.

———. 2009. Survey Article: The Justification of Minority Language Rights. Journal of Political Philosophy 17 (1): 102-28.

———. 2012. Liberal Neutrality: A Reinterpretation and Defense. Journal of Political Philosophy 20 (3): 249-72.

———. 2014. Equal Recognition: The Moral Foundations of Minority Rights. Princeton, NJ: Princeton University Press.

Peled, Yael, and Matteo Bonotti. 2016. Tongue-Tied: Rawls, Political Philosophy and

Metalinguistic Awareness. American Political Science Review 110 (4): 798-811. https://doi.

org/10.1017/S0003055416000393.

Radin, Margaret Jane. 1982. Property and Personhood. Stanford Law Review 34 (5): 957-1015.

Rawls, John. 1985. Justice as Fairness: Political Not Metaphysical. Philosophy & Public Af airs 14 (3): 223-51.

———. 1996. Political Liberalism. New York: Columbia University Press.

———. 1999. A Theory of Justice, Revised Edition. Cambridge, MA: Harvard University Press.

Raz, Joseph. 1986. The Morality of Freedom. Oxford: Oxford University Press.

48

From Inevitable Establishment to Mutual Exclusion: The Chal enge for Liberal Neutrality Reaume, Denise G. 2000. Official-Language Rights: Intrinsic Value and the Protection of

Difference. In Citizenship in Diverse Societies, edited by Will Kymlicka and Wayne Norman, 245-72. Oxford: Oxford University Press.

Scanlon, Thomas M. 2006. Justice, Responsibility, and the Demands of Equality. In The

Egalitarian Conscience: Essays in Honour of G. A. Cohen, edited by Christine Sypnowich, 70-87. New York: Oxford University Press.

Shel er, Mimi, and John Urry. 2000. The City and the Car. International Journal of Urban and Regional Research 24 (4): 737-57.

Urry, John. 2004. The ‘System’ of Automobility. Theory, Culture & Society 21 (4/5): 25-39.

Wachs, Martin. 2013. The Past, Present and Future of Professional Ethics in Planning. In Policy, Planning and People: Promoting Justice in Urban Development, edited by Naomi Carmon and Susan S. Fainstein. Philadelphia: University of Pennsylvania Press.

Wal , Steven. 2001. Neutrality and Responsibility. The Journal of Philosophy 98 (8): 389-410.

Weinstock, Daniel M. 2003. The Antinomy of Language Policy. In Language Rights and Political Theory, edited by Will Kymlicka and Alan Patten, 251-70. New York: Oxford University Press.

Wil iamson, Thad. 2010. Sprawl, Justice and Citizenship. New York: Oxford University Press.

Young, Iris Marion. 2000. Inclusion and Democracy. New York: Oxford University Press.

Public Reason 9 (1-2): 49-60

© 2017 by Public Reason

‘What Might Scheler Say to Rawls?’: A Schelerian Critique of

Rawls’s Concept of ‘The Person’

Christopher Murphy

Keele University

Abstract: I argue that Rawls’s political philosophy relies on a moral conception of the person which he inherits from Kant’s conception of the person, despite Rawls’s claim that he is doing political philosophy first. Scheler’s critique of Kant contains a critique of his concept of the person and I apply this critique to Rawls’s use of it as a founding part of his political philosophy.

This is done not to argue against Rawls’s politics per se, but to argue, in the light of Scheler’s phenomenology, that its theoretical foundations may be unsteady. I claim that Scheler’s concept of the person may be used either for a communitarian critique of Rawls or for a foundation to strengthen Rawls’s political conception of the person.

Key words: Kant, Scheler, Rawls, Political Philosophy, Person, Personhood, Phenomenology.

In contemporary political philosophy, John Rawls is more famous than Max Scheler.

Anyone who is familiar with both thinkers may struggle to connect the two but they did

hold common concerns. One link can be found in the comparisons of their philosophical

anthropologies, by which I mean how they conceive of the person. Rawls and Scheler

conceive of the person in different ways and as part of very different projects. Scheler was a phenomenologist, who counted personhood, and the relation of values and ethics among

his concerns. Rawls had a concept of person as a part of his political theory. In this paper, I want to look at the two conceptions and compare them for their utility in a Rawlsian

political theory.

I use the term ‘conception of the person’ as a catch-all term to underlie the common

concerns of philosophical anthropology, normative anthropology, moral psychology, and

any other concerns to do with particular visions of people, what they are, and what they are like. A way of understanding the common ground between these two ideas is the notion

that political philosophy consists of a “normative anthropology” (White 2012, 8), or at

least “must begin in anthropology”, and that political philosophy is, at least in part, “an anthropological debate, or a series of interpretations of human and social anthropology”

(Schneck 1987, 76). I, fol owing White, understand a normative anthropology as a

conception of human functioning which has normative consequences. It is a way of

conceiving of what persons are in some sense, which may involve certain empirical or metaphysical claims, and from this saying what they should do, which is what either the

personal or social ‘good’ is for them (White 2012, 8).

Rawls attempted to create a political theory which is meant to be neutral with regards

to conceptions of the person and the good. I go over some arguments as to why that is not

the case, based on what Rawls wrote in various parts of his oeuvre. I argue that because

he claims that it is a moral conception, it has certain normative assumptions which are

questionable and, as it has these assumptions, it is therefore not neutral.

50

‘What might Scheler say to Rawls?’: A Schelerian critique of Rawls’s Concept of ‘the Person’

I then turn my attention to Scheler’s conception of the person, explained in the

context of his phenomenology. From here, I look at two possible ways that the Schelerian

understanding of the person can be applied to Rawls’s political theory. One is as a critique of it and the other is as a way to enhance that theory by substituting Rawls’s conception

for Scheler’s. I argue that accepting Scheler’s concept still al ows us to make arguments

for the ends that Rawls wanted to achieve but with the strength of non-moral conception

of the person. I argue that we can do this because, as Scheler’s is a specifical y non-moral conception of the person, we may be able to have a conception of the person which does

not make normative assumptions.

As a final note, this is not an attempt to write a political philosophy based on Scheler’s personalism.1 This is instead an attempt to argue that Scheler’s conception of the person

can be used in place of Rawls’s conception of the person. It is probably best described as an attempt to synthesise insights of Scheler’s and Rawls’s to see if they may be compatible.

I wish to argue that, if one accepts Scheler’s phenomenology of the person then, while one may use it for a critique of Rawls, one may also use it as a way to strengthen his philosophy by addressing a flaw in its foundation.

I. R AWLS’S CONCEPTION OF THE PERSON

I will begin by taking a closer look at Rawls’s concept of the person. In order to do this it will be useful to briefly recap Rawls’s overall theory of justice and the aims of his project before looking in greater depth at Rawls’s concept of the person. Being aware that details of Rawls’s views and arguments changed over time, especial y between the two editions

of A Theory of Justice (1971; revised ed. 1999) and Political Liberalism (1993; expanded ed.

2005), I quote from the later editions. For his concept of the person, I start with Rawls’s thought from Justice as Fairness: Political not Metaphysical (1985) and the works afterwards.

I start from here as it is in this paper that Rawls first explicitly addresses criticisms of his notion of the self or person, or in other words his normative anthropology. I want to show here that his background conception of the person, or normative anthropology, was a

moral rationalistic conception that does not satisfactorily take into account the role of

feelings in the constitution of the everyday conception of person.2

1] For that, see Schneck 1987.

2] I mention two caveats here:

i. Some Rawls scholars may see this as either an incorrect periodising of Rawls which is too neat of a division between the so-cal ed ‘early Rawls’ and ‘later Rawls’, or claims too much similarity between the

‘early’ and ‘later’ Rawls. I admit that it is possible that I do one or both of those but an extended discussion of it would be a digression. I will say that, in my reading of Rawls, I see nothing in Rawls that shows that he had radical y different background conceptions of the person in different works post 1971. My reading, of course, may be mistaken or may overlook some passages.

i . Others may object that I do not look at the (much earlier written but posthumously published) Brief Inquiry into the Meaning of Sin & Faith (with “On My Religion”). 2009 . Edited by Rawls, John and Thomas Nagel, Cambridge, Harvard University Press, and the possible religious and personalist ethical roots of

Christopher Murphy

51

Rawls’s concept of the person and the equality of people is one of the main starting

premises of his political philosophy. I say this for two reasons. First, this is because Rawls utilises the method known as political constructivism. This is a method for producing and

defending principles of justice and legitimacy. For Rawls, the principal “feature of political constructivism is that it uses a rather complex conception of the person and society to give form and structure to its construction” (2005, 93). I will expand on this further down.

Rawls’s “political conception of the person, that is, the conception of the person

as citizen” was meant for political arguments, and not metaphysical arguments about

personhood. Rawls believed that if any metaphysical presuppositions were involved, then

they would be “so general that they would not distinguish between the distinctive meta-

physical views [. .] with which philosophy traditional y has been concerned [. .] [and that]

they would not appear to be relevant for the structure and content of a political conception of justice one way or the other” (1985, 240). This claim is what I will take issue with.

For Rawls writes that “each person possess an inviolability founded on justice that

even the welfare of society as a whole cannot override” and justice is “the first virtue of social institutions”. Rawls also took questions of the “liberties of equal citizenship”

to be “settled” (1999, 3). Rawls’s project was to put forward an “egalitarian form of

liberalism” (2005, 6). This understanding of justice has elements of distributive justice

and commutative justice. Rawls wrote that all “social values – liberty and opportunity,

income and wealth, and social bases of self-respect – are to be distributed equal y unless an unequal distribution of any, or al , of these values is to everyone’s advantage” (1999, 54). Rawls also claims that the “existing distribution” of goods or values like “income

and wealth” is the “cumulative effect of prior distributions of natural assets” and that this distribution has been “improperly influenced” by “factors so arbitrary from a moral point

of view” (1999, 62-3). We see here that egalitarianism was taken as moral y fundamental

by Rawls and that moral concerns animated and gave character to Rawls’s philosophy.

For Rawls, we must have a “moral conception” of the person but this conception

is itself preceded by our “everyday conception of persons as the basic units of thoughts,

deliberation, and responsibility” (2005, 18). From that everyday conception, we move to a

moral conception. A moral conception of the person has nothing to do with how a person

acts or whether their acts are moral, immoral, or amoral. It instead means that a person

(in the everyday sense of the term) is able to be both ‘rational’ and ‘reasonable’, with

those two terms having specific definitions here. The term ‘rational’ means the capacity

Rawls’s conception of the person and his later political philosophy. I think this is the more pressing concern as I am making a comparison between Rawls and Scheler, another philosopher who had religious influences and personalist concerns in ethics, so its exclusion may puzzle. That work could be fruitful y read alongside Scheler’s philosophy and its absence may be seen by some as a missed opportunity. However, to discuss that work and expound on any potential links between that period of Rawls’s philosophy and his later work plus defending the appropriateness of doing so considering how far Rawls’s positions shifted, while doing that topic justice, would require an entirely separate paper, if not a whole book, and this would be a digression from what I want to discuss, which is Rawls’s political philosophy as he decided to publish it.

52

‘What might Scheler say to Rawls?’: A Schelerian critique of Rawls’s Concept of ‘the Person’

a person has for a conception of the good. A person is rational when they are capable

of identifying his or her particular ends and interests and the best means to attain or

advance them. ‘Rational’ in Rawls’s sense is not a synonym for egoism or self-concern.

Rational agents may have affections for persons and attachments to communities. The

term ‘reasonable’ represents the capacity a citizen has for a sense of justice (2005, 48-51).

According to Rawls, “we think”, that a reasonable person wil ingly proposes and honours

the fair terms of cooperation and acknowledges the burdens of judgment and accepts

their consequences. A person who has these qualities, an ability to conceive of the good

and has a capacity for a sense of justice, can be a person who can engage in politics. For Rawls, this “complex conception of the person”, means that when we say someone is a

person for political purposes, we say that they can be a “citizen, that is, a normal and ful y cooperating member of society over a complete life” (2005, 18).

Additional y, there are positive parts to the political conception of the person, or the

person as the citizen. Political persons, or citizens, are supposed to be free in three ways when put into the original position. The original position is an imaginary position where

agents choose principles of justice behind a veil of ignorance in which we are unaware of

our identities but do have a general knowledge of society. The original position is meant

to be limited to the basic structure of society, the moral relations between an individual and the state and between citizens through state structures, and not to all social relations.

First, citizens are free in that they conceive of themselves and others as having “the moral power” to have a conception of the good (1985, 240). Citizens can claim the right to view

their persons as not identified with and independent from any one conception of the good

or any scheme of ends. They can additional y change or revise their own conception of

the good (for example, by changing their belief system or religion) without altering their political citizenship or rights. Second, citizens are regarded as free in so far as they can

“regard themselves as self-originating sources of valid claims [. .] [which] [. .] have weight apart from being derived from duties or obligations specified by the political conception

of justice, for example, from duties and obligations owed to society” (1985, 242). That is, a citizen sees themselves as free to make claims which are not based on any other person

or state’s conception of the good or final ends. Third, citizens are regarded as free if they are capable of taking responsibility for their ends as being legitimate within a just system,

“given just background institutions and given for each person a fair index of primary

goods [. .] citizens are thought to be capable of adjusting their aims and aspirations in the light of what they can reasonably expect to provide for” (1985, 243).

As mentioned above, central to Rawls’s moral conception of the person is that they

can be both rational and reasonable, that is they can have a conception of the good and

a sense of justice. This has an implication for the distribution of goods in society. For the purpose of political structures goods “are seen as answering to their needs as citizens as opposed to their preferences or desires” (1999, xi i). In other words, the distribution of goods is to be done along the lines of what citizens need as opposed to what they would

want or desire. However in order to determine what people need one needs to have a

Christopher Murphy

53

conception of human good, or telos, or normative anthropology. Given Rawls’s emphasis on the two moral powers of human beings and the moral conception of the person, it is

probably fair to characterise Rawls’s human good as something like “to develop freely

one’s own life plan, in conformity with one’s own individual and concrete (rational

and reasonable) conception of the human good within a social-political context that

recognizes the moral equality of all citizens” (White 2012, 389). The primary goods for

Rawls are what of value to all citizens, but not things necessarily wanted by them, for

determining their own conception of the good. These goods are “rights, liberties, and

opportunities, and income and wealth” (Rawls 1999, 54) as well as self-respect or esteem

because without that “nothing may seem worth doing, or if some things have value for

us, we lack the will to strive for them” (1999, 386). Primary goods are teleological and

instrumental for discovering one’s own rational and reasonable personal conception

of the good. Rawls’s conception of the person, his normative anthropology, is as “an

autonomous self-maker and (so far as is consistent with respecting the same nature in

others) self-legislator” (White 2012, 392).

Rawls has two understandings of how one could argue that being the original

position leads to deriving his principles of justice. One is the argument in which principles of justice are derived in the original position on the supposition that envy, and other

complications such as feelings of shame, humiliation, or a lack of self-respect or feelings of personal valuelessness, do not exist and that people have mutual y disinterested rationality (Rawls 1999, 124-25). This rationality is of “persons in the original position [who] try to acknowledge principles which advance their system of ends as far as possible” and do

not aim to disadvantage others or themselves (1999, 125). This assumption is behind

the bulk of the arguments that Rawls makes. One could understand Rawls as simply not

accounting for the role of feeling or emotion in human beings but it would be dishonest to present him as not considering the role of feeling in human beings. While Rawls believes

that things such as self-respect, which is “the main positive good” (1999, 477, 484), and

happiness would lead to rational decision making in the original position, envy and other

“special psychologies” exist and do “need to be reckoned with” (1999, 465).

In his attempt to reckon with it, Rawls follows a Kant-influenced, rationalist

moral psychology. For example, Rawls states that he “pretty much followed” Kant’s

definition of envy as “one of the vices of hating mankind” (1999, 466). Rawls

understood envy as “not a moral feeling”, although resentment was and that what

“marks off envy from the moral feelings is the different way in which it is accounted

for, the sort of perspective from which the situation is viewed” (1999, 467). This

distinction is a part of Rawls’s moral psychology and his understanding of moral and

natural, or non-moral, sentiments. By sentiment Rawls means “permanent ordered

families of governing dispositions, such as the sense of justice and the love of mankind,

and for lasting attachments to particular individuals or associations that have a central

place in a person’s life”, by attitudes Rawls means “attitudes are ordered families of

dispositions either moral or natural, but in their case the tendencies need not be so

54

‘What might Scheler say to Rawls?’: A Schelerian critique of Rawls’s Concept of ‘the Person’

regulative or enduring” and by moral feeling and moral emotion Rawls means “the

feelings and emotions that we experience on particular occasions” (1999, 420). Rawls

assumes a cognitivist understanding of feelings or emotions in which the determinate

element of a feeling or emotion is the explanation one has for it rather than the somatic

changes one may experience alongside it.3 A necessary feature of moral feelings is that

a person’s explanation of them “invokes a moral concept and its associated principles.

His account of his feeling makes reference to an acknowledged right or wrong”

(1999, 421). There are numerous arguments for or against the cognitivist theory of

emotion, but I will not go into them here. All I want to do is bring to light that he holds a particular position on the topic and that it seems that Rawls’s ‘everyday notion of the

person’ is itself metaphysically loaded.

The notion of the political person derived, the citizen, is a political one meant

to apply only within the context of a democratic society. We can pick out that Rawls’s

vision of the citizen is based on the relation between the individual and the state. While Rawls claims that is still meant to be based on our everyday or common sense notion

of the person as a being which can think, deliberate, and be responsible, he assumes

a rationalist moral psychology and cognitivist theory of emotion. This conception

of the person is not metaphysically neutral. It seems to be limited among neutrality

between different kinds of rationalist conception, for in Justice as Fairness: Political not Metaphysical, Rawls’s claim to metaphysical neutrality among conceptions of the person only specifies rationalist philosophers for which this was the case (1985, 240).4

Additionally, Rawls does also assume a normative anthropology of his own. Therefore,

I believe that the concept of the person Rawls assumes is not our ‘everyday concept of

the person’ as it is a conception with specific philosophical baggage. Rawls’s claim that

he uses an ‘everyday conception of the person’ which is metaphysically neutral is a

non-starter. If Rawls believes that neutrality is needed for his political philosophy to

work then he has a problem. This is where I want to bring in Scheler’s philosophy.

3] I use the terms feeling and emotion as Rawls does, as terms which are either synonymous or close enough to it, while being aware that such usage may not be strictly accurate according to certain views on psychology or emotion.

4] I will put the full quotation here: “If metaphysical presuppositions are involved, perhaps they are so general that they would not distinguish between the distinctive metaphysical views – Cartesian, Leibnizian, or Kantian; realist, idealist, or materialist – with which philosophy traditional y has been concerned” (Rawls 1985, 240).

While Rawls does make a mention of realism, idealism and materialism as other metaphysical conceptions of personhood, he names no names. This is not to say that he was not aware of alternatives. That would be a ridiculously unfair claim to make. The entirety of Rawls, J.; Herman B. (ed) (2000) Lectures on the History of Moral Philosophy (Cambridge, Massachusetts: Harvard University Press) alone would be enough to put that to rest. So would Rawls’s numerous references to other philosophers throughout his work. The point is that Rawls skipped around the issue of presupposed conceptions of the person because, I presume, he thought of it as not a pressing concern.

Christopher Murphy

55

II. SCHELER’S POSSIBLE COMMENTS TO R AWLS

From Rawls’s conception of personhood, I believe that Scheler could have made

several possible coherent responses to Rawls’s claim that the conception of the citizen

was neutral of any grounding beyond the everyday. I will now briefly introduce Scheler

and then elaborate on Scheler’s conception of the person. I will do this so that we can

see whether, if it is a more accurate understanding of the everyday person, it could be

accommodated into a Rawlsian political philosophy.

To begin with, a bit of background on Scheler and his method which I think may

make clearer what I will argue further down. Scheler’s thought had various influences from its period, the early twentieth century and three dominant influences “Lebensphilosophie (philosophy of life), phenomenology and the so-cal ed ’revival of metaphysics’” can

be felt strongly in his work, to varying degrees, at different periods of it (Schneck 1987, 14). The variety of the influences leads to a variety of positions held by him during his

career. I want to focus on Scheler’s conception of the person as it was written about in

Formalism in Ethics and Non-Formal Ethics of Values. This conception was a part of Scheler’s phenomenology, which was at first spun off from Husserl’s early work. However,

without getting into many details about the differences between the two, it is important

to note that Scheler’s phenomenology had many differences. One is a distrust of any

preconditions to experiencing, especial y ideal or formal a priori.5 Scheler’s aim, which

was not primarily political philosophy, was a phenomenology which sought “an intensely

vital and immediate contact with the world itself” (1973b, 138-9). Scheler thought that

“epistemological concerns, even a most basic epistemological distinction as the truth-

falsity antinomy, are not resolvable prior to experience” and he “seeks the originary

experience of things prior to their manipulation in rational reflection” (1987, 34). Scheler’s phenomenology is based on being immersed in the world.

Part of Scheler’s phenomenological approach was focused on intentionality and our

ability to understand objects as having attached meanings which we perceived paying

close, almost meditative attention to the phenomena we wish to describe. His starting

point was that a formal, logical system itself must be based on the concept of ‘being’ or

‘is’ and that this concept derives from intuition. For Scheler, a phenomenon is a fact of

consciousness and consciousness is of facts whose foundation is their being in relation

to consciousness (1973, 52). The key parts of his approach consisted of the attempt to

suspend sensory data for intuition6 of essences, the view that consciousness presupposes

the being of the person, and the view that emotive intentionality was our primary way of

5] I note here that it is ‘formal a priori’ or ‘idea a priori’ that Scheler objects to and specifical y in relation to experience. Scheler does not object to the idea of the a priori in general and it is in fact a large part of his theory of ethics and his epistemology.

6] Intuition in “the sense of clear, plain, obvious, evident ‘seeing’” (Spader 2002, 56). In other words, Scheler meant a clear, self-evident understanding of something that cannot be broken down any further. An alternate term for essence that Scheler used was “whatness,” as in “the whatness of something” (Scheler 1973a, 48).

56

‘What might Scheler say to Rawls?’: A Schelerian critique of Rawls’s Concept of ‘the Person’

engaging the world. In other words that we are first emotional y affected by objects, that we feel things about them, before we make judgements about them (Frings 2001, 182-83).

In ethics, Scheler’s major aversion was to what he cal ed formalism. Formalism,

in Scheler’s vocabulary, refers to a “denial of the knowledge or conation of the ‘right’ or

‘good’ action itself, and an assertion that only the rightness or wrongness of the method

or process of choosing any given action can be known” (Schneck 1987, 98). Scheler put

forward a large critique of formalism, as he found it in Kantian ethics. I think Scheler’s critique can be applied to Rawls’s political philosophy in a pair of areas. I think that this point leads into two possible approaches to linking Scheler’s and Rawls’s philosophy. I

wil term them the Schelerian-Communitarian response and the Schelerian-Rawlsian

response. This is because they fall along those standard lines in arguments over Rawls.

First, Scheler would probably have said that Rawls’s everyday conception of the

person was an unexamined notion which was of limited or questionable accuracy. Recall

that Rawls described this everyday conception as a basic unit of thoughts, deliberation, and responsibility. Scheler would have said, I believe, that this presupposes that a person is first or foremost a rational agent rather than an emotive agent as no mention of feeling is made here. Scheler would probably have identified this as a continuation of Kant’s identification of personhood with reason, with reason understood as the faculty of the mind which

provides the a priori principles of cognition (Kant 1998, 134; 1999, 79). This is not to say that Rawls would be endorsing Kant’s metaphysics but instead what we may call Kant’s

phenomenology of personhood (setting aside the anachronism of that phrase). Rawls’s

conception of the person would appear to understand persons without taking their ability

to feel into account, let alone accounting the primacy of feeling in the structure of our

experiences. Rawls’s political person presupposes a kind of rationalist conception of the

person, to whom feeling was subordinate or contingent. This conception of the person is

not embedded in any particular context and is in fact contextless.

Here I enter into what I call the Schelerian-Communitarian response. I link this

to Scheler’s critique of formalism. Scheler’s critique of formalism was that they draw an

impassable gap between formal procedures and material facts. Rawls’s formal decision

making procedure, the device of the original position, seems to al ow for no room for

material facts and a specific kind of material fact that Scheler cal ed values. Material facts, as they are in Scheler’s philosophy are something that comes out of his phenomenology

and epistemology. Without going into too much depth on this, for brevity’s sake, this

is because for Scheler the formal-material distinction is relative, having to do with the

universality of concepts, while the a priori-a posteriori distinction is absolute, having to do with the acute difference in the kinds of contents fulfil ing the concepts and propositions concerned. For example, the a priori character of the proposition “‘A is B’ and ‘A is not B’

cannot be simultaneously true” is formal in respect of its universality, as any objects could stand for A and B, but it is material as it based on phenomenological insight into the fact that the being and non-being at the same time and in the same respect of some object are

irreconcilable in intuition (Scheler 1973a, 54).

Christopher Murphy

57

Additional y, Scheler would probably have objected to the basic structure of

Rawls’s liberal conception of personhood. For Scheler, liberalism in this mould would

reduce people to “less-than-human abstractions of themselves [. .] radical y equal units

of political demands and inputs” (Schneck 1987, 99). Even a Kant-inspired liberal

politics with the emphasis on treating people as means and not ends, such as Rawls’s,

still depersonalises. While Scheler agrees that a person “must never be considered a

thing or substance”, he argues that formalist systems can only regard a person as “the

X of certain powers” or “the X of some kind of rational activity” and we depersonalise

them because the X, “that ‘something’ which is the subject of rational activity, must be

attributed to concrete persons [. .] in the same way and as something identical in al

men” (Scheler 1973a, 371-72). The point here is that Rawls assumes a conception of

the person which is too thin. It is, to quote Sandel’s phrasing, “a pure subject of agency and possession, ultimately thin.” (1999, 94). The difference here though is that Sandel’s

critique is meant to apply to persons in the original position, whereas the Schelerian

critique is meant to apply to our everyday conception of the person which precedes that

kind of deliberation. This is like Sandel’s point on Rawls’s citizen, that it is “[. .] shorn of all its contingently-given attributes [. .] [and] assumes a kind of supra-empirical status”

(Sandel 1999, 94). The difference here is that, for Scheler, the underlying conception

of the person which Rawls holds is essential y wrong about what a person is and does

whereas Sandel is more concerned with Rawls’s idea of the citizen than the person

underlying it. Nevertheless from this position, one could make the standard argument

that Rawls had “an incoherent conception of personhood [. .] [as] essential y devoid

of constitutive attachments” (Mulhall & Swift 2003, 465). More importantly though,

Scheler’s conception of the person provides a firmer foundation for the critique of “the

desirability or feasibility of the kind of distancing of oneself from one’s values” that

Rawls’s philosophy may require of some people (Mulhall & Swift 2003, 476). These

include the presupposition of the value of autonomy and the idea that, in politics, some

persons may have to set aside their commitment to conceptions of the good (Mulhal

& Swift 2003, 476-77).

There is a paral el here to Scheler’s critique of Kant’s formal ethics. That was partly

on the grounds that Kant’s conception of the person was mistaken but more so on the

grounds that Kant was unable to account for the need for lawfulness in ethics without

recourse to feeling that lawfulness is valuable or a value itself, which lay beyond the

scope of his epistemology (Spader 2002, 37-40). Likewise, undertaking what Rawls’s

political liberalism may require of us cannot be justified expect by reference to the

ability to feel the values of political liberalism. However, as his conception of the person as an isolated unit of thought, deliberation, and responsibility, not existing in a context of essential meaning or significance, it excludes a priori feeling then Rawls himself is

unable to ultimately justify the values of his project. However, I believe that adopting a Schelerian conception of the person al ows a way out for Rawls and his project. I wish

to go into this below.

58

‘What might Scheler say to Rawls?’: A Schelerian critique of Rawls’s Concept of ‘the Person’

III. SCHELER’S CONCEPTION OF THE PERSON AND ITS LINK TO R AWLS

I believe that an alternate use of Scheler’s critique can be made. This is what I call the Schelerian-Rawlsian response. This is a synthesis of the two positions, in which Rawls’s

everyday conception of the person is replaced by Scheler’s phenomenological conception

of the person but in which Rawls’s later political philosophy may be kept intact. Rawls’s

conception of this citizen fits in well with Scheler’s description of persons. Rawls’s conception of rationality as having a capacity for a conception of the good is an essential part of the structure of experience for a person in Scheler’s account. If one’s conception of what one intuits as good changes then neither their political personhood nor essential personhood is changed. One remains a person, and therefore a citizen, as long as they can have a feeling of the good. One can also understand feeling and essential intuition as the grounds of individuals’

capacity to be self-validating sources of claims without endorsing any one conception of the good. Using Scheler’s account of the person al ows us to have a thicker conception of the

person within the epistemological and moral constraints of the original position. Scheler’s conception of the person is meant to describe our people as they actual y are in everyday life, how they are before we try to understand them via theoretical apparatus.

For Scheler, “the person is the concrete and essential unity of being of acts of

different essences [. .]” which precedes all acts and is their foundation (1973, 382-83).

Without understanding what an act is, in Scheler’s sense then this is a cryptic definition of what a person is, especial y in comparison to Rawls’s political definition. An act is an occurrence of bestowing meaning by the person that can have as its object both the real

and the ideal. The being of an act consists in its performance. Every act is individual and different to all other acts as acts are always towards some object, things which require acts to “bridge together their monad-like separateness” (Schneck 1987, 50). For Scheler, an

intentional act is a process where A grasps an essence of B. When we intend some object, we bestow a meaning on to it and this meaning is the essence that we have grasped from it

(Scheler 1973a, 390).7 For Scheler, consciousness was conscious of something, a relation

between one being (the subject) and another being where the subject bestows a meaning

(or a significance) on to whatever it is that they are conscious of. A relation between beings presupposes that there are beings to have a relation. One of those beings, if the relation is a conscious relation, must be a person. For Scheler, persons have non-substantial and

non-cognitive status as they have being only in the performance of acts. They are concrete centres of experience. To be a person, for Scheler, is to do.

Additional y, in our experience, our primary way of encountering objects is through

the emotional feeling we have of it. For example, empirical objects such as a human body,

or a work of art, or a room, could seem to us to be pleasant or unpleasant, agreeable or

7] Meanings for Scheler are meant to be non-temporal and ideal in a phenomenological sense, not a metaphysical one. Again, some of this presupposes his earlier phenomenology and epistemology as well as parts of Husserl’s Logical Investigations.

Christopher Murphy

59

disagreeable without our being able to demonstrate why this is the case without using ad

hoc reasoning (1973a, 12-17). In these situations, we do not know which properties may

have prompted this reaction. He wrote that “it is as if the axiological nuance of an object [. .]

were the first factor that came upon us” so that even if what is encountered is unclear to us, the value that we feel it embodies is not (1973, 18). This emotional perception is the initial act we perform upon encountering something; it is the first significant thing we recognise about it. It is done before we recognise the essence of the other being, which is to recognise it as what it is and nothing else. However, this does not preclude later thought, reflection, and reasoning about what we encounter in our experience. This kind of perception is of

material facts, noted above, and specifical y of values.

In sum, a person is a being of acts. That is, they are a subject which bestows significance to the other beings they encounter. This initial significance bestowal is the feeling which it gives to that subject, and then the subject intuits the other being’s essence (be it an object or another person). The subject who experiences consists of being in a context in which

persons and objects have an emotional significance to them which determines their value

to the subject. In Scheler’s ethics, this al ows individuals to have different intuitions of the values of other ideals and beings, their worth and so understand themselves as being wil ing to realise different a priori conceptions of the good. Individuals may intuit different values as being attached to different objects and actions but all must have some conception of the good as a part of the structure of their experience. This conception of the good is based on their intuition of values and their own a priori individual ranking of values.

So, one may ask, how does this relate to Rawls’s views or why can they be

accommodated around for it? I think there are several issues in which it may be. First,

there is the issue of neutrality. Rawls wanted to claim that his conception of the person

was neutral with regard to metaphysical and normative claims and sufficient to use for

moral and political thought, as I have gone over above. It, however, fails at this. I think that Scheler’s conception may be more useful for this for two reasons. One, it does not

assume any particular moral psychology or moral end for people but it still acknowledges

that different people may value different goods (both abstract and material) for reasons

we cannot understand (if they have any reason at al ). It also does not regard people as

abstract entities which must have certain rational powers but instead only as concrete

centres of experience engaged in a situation. No particular powers are presumed and

the person is also seen only as existing within a context of some kind. The immediate

advantage is that Scheler‘s account of the person al ows us to cut off the communitarian

critique of Rawls’s conception of the person at the pass, by replacing it with a conception of the person that accounts for the role of feeling in experience. In addition, it al ows us to dismiss the idea that putting ourselves as citizens in the original position requires us to think of ourselves as beings of pure agency or possession in which our contingently given

attributes are ignored. Why? This is because feeling and attachments between subjects

and other beings and ideals becomes an essential part of the conception of person, from

60

‘What might Scheler say to Rawls?’: A Schelerian critique of Rawls’s Concept of ‘the Person’

which start our political philosophy and so it can become a part of a Rawlsian conception of a political person, a citizen.

This combination of Scheler’s and Rawls’s philosophies al ows us to correct a problem

in Rawls’s work and make clearer the other features of his moral conception of the person. If one believes that Scheler’s account of the person is correct, then one may reasonably argue for Rawlsian politics.

However, as a final note, there are still problems to be worked out. For example,

adopting this conception of the person would require a reworking of the original position

thought experiment into a form which is radical y different – if it remains possible at al . If one’s political philosophy could be cal ed Rawlsian after that is another question. Also, more work would need to be done to actual y figure out the fine details of Scheler’s person. As it may have become somewhat clear above, Scheler’s presentation of his concept of the person

is not a neat and tidy systematic thesis and it often does lack attention to detail. In his original work in German, there are a number of inadequately defended arguments and inconsistent

terminology. It is indeed, despite Scheler’s protests, easy to read his conception of the person as disembodied or abstract seeming. However, I feel that if such work is done then, at worst, we have a conception of the person that has the same flaws, just like Rawls’s does and, at best, we may have a better one.

c.p.murphy@keele.ac.uk

REFERENCES

Frings, Manfred S. 2001. The Mind of Max Scheler. The First Comprehensive Guide Based on the Complete Works. Wisconsin: Marquette University Press.

Kant, Immanuel. 1998. Critique of Pure Reason. Cambridge: Cambridge University Press.

———. 1999. Groundwork of the Metaphysics of Morals in Practical Reason. Cambridge: Cambridge University Press.

Mulhal , Stephen and Adams Swift. 2003. Rawls and Communitarianism . In The Cambridge Companion to Rawls, edited by Samuel Freeman. Cambridge: Cambridge University Press, pp. 460–87.

Rawls, John. 1985. Justice as Fairness: Political not Metaphysical. Philosophy and Public Affairs 14 (3): 223-51.

———. 1999. A Theory of Justice Revised Edition. Cambridge: Harvard University Press.

———. 2005. Political Liberalism Expanded Edition. New York City: Columbia University Press.

Sandel, Michael. 1999. Liberalism and the Limits of Justice. Cambridge: Cambridge University Press.

Scheler, Max. 1973a. Formalism in Ethics and Non-formal Ethics of Values. Evanston: Northwestern University Press.

———. 1973b. Phenomenology and the Theory of Cognition. In Selected Philosophical Essays, edited by David R. Lachterman. Evanston: Northwestern University Press.

Schneck, Stephen F. 1987. Person and Polis: Max Scheler’s Personalism as Political Theory. New York: SUNY Press.

Spader, Peter H. 2002. Scheler’s Ethical Personalism. New York: Fordham University Press.

White, Michael J. 2012. Political Philosophy A Historical Introduction. Oxford: Oxford University Press.

Public Reason 9 (1-2): 61-78

© 2017 by Public Reason

Context Dependence in Gaus’s Evolutionary Account

of Public Reason

Luca Costa

University of Pavia

Abstract: One of the distinctive features of Gerald Gaus’s public justification theory is his extensive use of the empirical data from the social sciences to support his normative claims.

One such claim which stands out for its importance, within the context of Gaus’s theory, is the evolution of strong reciprocity: over time, members of large societies develop a tendency to follow social rules and punish defectors. This claim, in turn, is supported by several studies in experimental economics involving mixed motive games, which show how subjects are

inclined to punish, even at a net cost for themselves, any perceived violation of social norms such as fairness. While critics of Gaus’s theory focused mainly on whether the use of empirical evidence in a normative theory is prima facie admissible, in this paper I address two different issues. The first concerns the accuracy of the empirical evidence used by Gaus’s theory, and whether the conclusions advanced by the social scientists on the grounds of this evidence

are actual y sound. The second issue, on the other hand, concerns the consistency between

the empirical assumptions underlying these experiments and the claims of Gaus’s theory.

I argue that both concerns are warranted. On the one hand, there is empirical evidence that the rule-following behavior observed in experiments involving mixed motive games is context dependent: the tendency of subjects to follow rules and punish defectors is strongly correlated to the epistemic constraints, such as anonymity, commonly imposed during the experiments. On

the other hand, these constraints hardly reflect the circumstances of life in modern societies, which is the context assumed by Gaus’s justificatory theory. I conclude that Gaus’s account of rule-following punishers is not altogether invalidated, but the empirical evidence from experimental economics is insufficient to support it.

Key words: experimental economics, Gerald Gaus, naturalistic fal acy, public justification, social morality, ultimatum games.

Interest in the contributions of social sciences has been all but a recurring feature in

the contemporary debate on public reason. For example, John Rawls’s Political Liberalism (1996) based his theory of public reason on a conception of citizens as reasonable and

rational, which is described as a philosophical scheme rather than an accurate account

of humans’ moral psychology (1996, 81-87); and this choice, in turn, is motivated by a

sceptical stance towards social sciences, which are claimed to be incapable of providing

useful insight beyond what historical knowledge and common sense would already

suggest (1996, 88). In other words, social sciences are unable to accurately specify facts about human nature, which could shed light on what limits there are to the viability of a

philosophical conception of citizens.

However, social sciences have recently known an unprecedented development.

Different research fields, such as evolutionary psychology (Barkow et al. 1992), gene-

culture coevolution theories (Richerson and Boyd 2005), and sociology (Bicchieri

2006) have produced an impressive bulk of data about humans’ biological and social

nature, undermining the grounds for Rawls’s scepticism.

62

Context Dependence in Gaus’s Evolutionary Account of Public Reason

Among the first ones to understand the relevance of these results for political

philosophy1, Gerald Gaus did not fol ow Rawls in his distrust. Rather, one of the most

important arguments of the first part of his The Order of Public Reason (Gaus 2011) is that recent studies in the fields of experimental economy, evolutionary psychology, and

game theory provide a significant support for the evolution of strong reciprocity – i.e.

the claim that individuals have a tendency to cooperate when enough others show a

cooperative behaviour, and to punish those who violate social norms and rules (2011,

105). This argument represents a two-fold novelty in the contemporary debate on public

reason. On the one hand, it defends the claim that recent experimental data from the

social sciences can actual y have a role in a theory of public reason. On the other hand, it draws the attention of political philosophy on insofar neglected fields of research whose

subjects of interest are relevant for normative political theory, as wel .

However, an appeal to empirical data, in order to support normative claims, can

raise several suspicions. Even if one were to find out that, for example, individuals

actual y cooperate and punish defectors, as the hypothesis of strong reciprocity predicts, how would this tell us anything in regards to how they ought to act? In other words, how could the descriptive claim that people act in a certain way hold any normative weight?

Any serious attempt to ground a normative theory on an empirical account will first

need to dispel these doubts.

The relation between descriptive and normative levels is not the only issue at

stake, either. It might be the case, in fact, that even if the logical step from one level to another is overall sound, the descriptive data this step relies on are inadequate. On the

one hand, these data may simply be incorrect, underdetermined, or seen as controversial

by the contemporary scientific community. On the other hand, even if these data were

substantial y correct, they could nonetheless rely on theoretical premises (regarding the

properties of the subject of study) which are at odds with the ones assumed by Gaus’s

empirical account.

Before I address these points, however, I will first provide a brief overview of

Gaus’s empirical account: its theoretical background, its basic factual claims, its role

within Gaus’s normative framework. This will be the subject of the first section of this

paper. In the second section, I will examine the data referenced by Gaus in support of

his empirical account. In the third section, I will address the aforementioned concerns

about the relation between empirical data and normative claims. Then, in the fourth and

fifth sections, I will explore these empirical data in further detail, in an attempt to assess their plausibility within the context of Gaus’s theory. I will conclude with an assessment of Gaus’s evolutionary approach, in the light of the criticism advanced in this paper.

1] On the other hand, interest of social sciences in political philosophy and political consequences in a wider sense has been mixed. While sociobiologists have defended the role of social sciences in normative thought (Ruse and Wilson 1986), evolutionary psychologists have more or less explicitly refused any involve-ment in the political side (Thornhill and Thornhill 1992), out of fear of the “naturalistic fal acy” (Moore 1903).

For a critical review of the latter position, as well as a more detailed account of this debate, see Dupré (2001).

Luca Costa

63

I. MOR ALITY AND EVOLUTION

I mentioned above that one of the central arguments of Gaus’s work is that there

is significant empirical evidence for the evolution of strong reciprocity. But the reader

might still feel unconvinced. Why is it so important to actual y rely on empirical evidence, rather than a more intuitive or idealized account? And what does evolution have to do

with public justification? In this overview of Gaus’s evolutionary account, I will seek to address both questions.

In order to answer the first issue, concerning the relevance of empirical evidence,

one must first turn to Gaus’s approach to morality. Gaus is not interested in morality and ethics in general, but only in that subset of moral rules which require, al ow, or prohibit certain courses of action when members of society interact with each other: this subset

is what Gaus cal s social morality (2011: 2-3). Gaus’s view of morality – and, specifical y, of social morality – is functional: according to Gaus, social morality is of value to us (and we consider its claims to be authoritative) because of its essential function in al owing

cooperation among human beings in a large-scale society (2011, 2-6, 145-47, 191-93;

2015a, 1081-82).2

For social morality to perform this function, however, it is crucial that members

of society actual y endorse it, and see its imperatives as binding: a social morality

which nobody conforms to is no social morality at all (Gaus 2011, 163-64). This does

not necessarily require actual acceptance of the rules of social morality, as people can

withhold their acceptance due to ignorance, confusion, or stubbornness (1996, 123).

At the same time, though, social morality cannot be justified by something like a

hypothetical agreement between highly idealized counterparts of members of society

(like in Rawls 1999), as actual people cannot be bound by an agreement struck between

strongly idealized versions of themselves (Dworkin 1973). Therefore, Gaus opts for a

moderate idealization of members of society in the deliberative process, which gives them

a few cognitive restraints (such as the impossibility to lie about their own preferences), but otherwise lets them retain all the psychological and social features of their actual

counterparts (Gaus 2011, 276).3

Within such a perspective, empirical data about human nature assume renewed

relevance. In order to build a moderate idealization of actual members of society, in

2] The focus on this subset of the moral sphere, as well as the functional approach to morality, is by no means unique to Gaus’s theory, though. It dates at least back to the work of John Stuart Mil (1963), and can be found in more recent philosophers, as well (Strawson 1961; Gauthier 1986; Baier 1995; Kitcher 2011).

3] It is important to note here that Gaus is not claiming that all and only the pre-existing rules of social morality (what he cal s positive morality) should be justified. To the contrary, the content of a justified social morality (what he cal s true morality) can be quite different from the one of positive morality. But, at the same time, due to the function social morality needs to perform in society, the content of true morality cannot stray too far from the one of positive morality (Gaus 2011, 56). For a more articulated motivation behind this stance, see his argument about the path-dependency of morality (2011, 242-43).

64

Context Dependence in Gaus’s Evolutionary Account of Public Reason

fact, it is important to be aware of what these actual members of society look like; their different approaches to morality; their attitudes towards social rules; and so on. I will say more about this point in the fol owing, but first, I need to address the second issue this section started with: what is the point of evolution?

As I mentioned before, Gaus endorses a functional view of morality, according to

which the practice of social morality has a point – al owing cooperation among members

of society. But there is also another approach to public justification which shared such a view of morality: the instrumentalist approach, pioneered by the seminal work of David

Gauthier (1986). This is why Gaus dedicates a significant part of his own book to evaluate the merits and the limits of this approach (2011, 53-100), and why it is useful to briefly review the main points of Gaus’s criticism here.

According to Gauthier, the justification of social morality is grounded in the

rationality of persons: if they fol ow the rules of social morality, rather than solely trying to maximize their respective utilities, everyone can do better: it is thus rational to show restraint in one’s own selfish motivations and comply with the demands of morality,

because doing so is the best way for everyone to advance his or her own ends (1991, 22-23).

Consider for example a typical Prisoner’s Dilemma scenario: two instrumental y

rational people, Alf and Betty, are faced with a situation where they have to decide

whether to cooperate or not. For each person, not cooperating is always the best

(“dominant”) choice. If the other party cooperates, not cooperating al ows to “free-ride”

and reap the benefits of cooperation without suffering the costs. And if the other party

does not cooperate, not cooperating at least al ows each person not to suffer the costs of cooperation without getting its benefits. The best choice for both parties is thus not to

cooperate, to avoid being free-ridden. But Alf and Betty will get a lower payoff, by acting in this way, than what they would have got if they cooperated.

Fol owing moral rules poses a similar dilemma. Members of society who only try

to maximize their own utilities will always choose to “not cooperate” – which in this case means that they will defect from the demands of social morality. But if everyone defects,

the result is that everyone is worse off than if each of them opted to comply with moral

rules instead. So, how can Alf and Betty reason themselves out of this dilemma?

According to Gauthier, the mistake in this scenario is to assume that both parties

ought to endorse a modular form of rationality. A rational course of action is considered to be modularly rational if, at any time t between the beginning and the end of the action, i

complying with the course of action decided at t is still a better choice than defecting 0

from it. So, in a Prisoner’s Dilemma scenario, if Alf and Betty are modularly rational, they will never manage to agree to not defect, even if they promise each other to do so: once

the promise is done, in fact, the best course of action (the one yielding the highest pay

off) for each of them is still to defect.

Gauthier argues that it is wrong to assume that rationality requires modularity.

Instead, he embraces a notion of rationality as effectiveness, according to which a course of action is rational if employing it is conducive to one’s life going as well as possible, even

Luca Costa

65

if at some point of the performance of that action it might appear that doing so is not

in the agent’s best interest (1994, 701).

Can past really hold such a sway over the present, though? Even assuming both

parties are in good faith when they promise to cooperate, their information about what

makes their courses of action good or bad may change through time. Is it really rational

– in any intuitive, commonly shared sense of the term – to ignore such information

and stick with the original course of action because, at the time the agent formed it, it

was “conducive to his or her life going as well as possible”? And at the same time, is it

really rational to assume good faith such easily in the first place? In the aforementioned Prisoner’s Dilemma scenario, for example, unless we assume Alf and Betty know each

other well enough to have good reason to believe in each other’s promises, they are

taking a risk which may well not pay off at all. This is why Gaus argues that, ultimately, the instrumentalist approach failed. In his attempt to implement it, in fact, Gauthier

ended up revising the concept of rationality in a way that undermined the plausibility

of his solutions (Gaus 2011, 100).

How can members of society reason themselves out of this Prisoner’s Dilemma,

then? It might seem that, after all, an independent motivation such as reasonableness

is required – a motivation that cannot be derived from mere instrumental rationality

(Rawls 1996, 50-51). Gaus opts for a similar solution, but he appeals to evolutionary

forces, rather than reasonableness, to solve the dilemma. Following a proposal

originally advanced by Bryan Skyrms (1996), Gaus claims that, unlike rationality,

evolution is not bound by constraints such as modularity: evolutionary forces can

select a strategy T on the grounds that those employing T outperform those who employ different strategies, even if T sometimes instructs people to act in ways that do not best promote their own goals (Gaus 2011, 104-05).

Following the rules of social morality is one such strategy (2011, 105-12).

Members of society who adopt this strategy sustain a cost, based on how complying

with rules limits their ability to pursue their own ends. In return, however, they get a

reward for their troubles: cooperating with other rule followers allows them to reap

benefits they would not have been able to achieve on their own. And these benefits

may improve each member’s ability to pursue his chosen end. If the benefits outweigh

the costs, we can say that each member has a payoff from adopting the rule following strategy, based on the difference between costs and rewards. We can call this strategy

simple rule fol owing.

Simple rule following, as a strategy, has the advantage of a positive payoff

through the benefits of cooperation. However, it has a crucial weakness: it can be

invaded. An instrumentally rational agent who only follows rules when doing so does not thwart his own ends, for example, may be able to reap the benefits of cooperation

from simple rule followers; but he does not sustain the same costs, because he follows

rules only when it is contingently convenient for him to do so. In a society of simple

rule followers, therefore, the instrumentally rational agent who defects rule following

66

Context Dependence in Gaus’s Evolutionary Account of Public Reason

would have a higher payoff than other simple rule followers. Over time, more and more

defectors would successfully invade that society, until the majority of its members are

all rule defectors.

However, suppose that, in a different society, its members not only follow rules,

but also punish all members who does not comply with rules. We can call these

members rule-following punishers. The presence of rule-following punishers suddenly makes defecting a less advantageous strategy, because the former’s punishment

imposes a cost on the latter which reduces the latter’s overall payoff. Of course, the

cost of punishing also reduces the payoff of rule-following punishers, compared to

simple rule followers. However, if defectors are not present in significant numbers

(which is likely, given their reduced payoff), the additional cost incurred by rule-

following punishers may be low enough to allow this strategy to thrive alongside

simple rule followers.4 Rule-following punishers would thus be an evolutionarily

stable strategy (ESS) under these conditions.5

Unlike instrumental explanations, Gaus’s evolutionary account does not thus

explain how can agents reason themselves into following rules. Rather, it aims to

show that rule followers can be more “fit” than agents devoted only to their own

ends (2011, 112). But this still leaves a crucial question unanswered: what role does

this evolutionary account play in Gaus’s normative theory of public justification?

Gaus’s proposed model of public justification is a convergent process that

selects and implements a subset of moral rules out of a morally eligible set (2011,

321-25), under the assumption that members of society (or, more precisely, their

moderately idealized counterparts) will recognize there is no other way to secure

the benefits of social cooperation. This convergence of a single option from the

eligible set is neither foreseen nor constructed in advance by any of the members,

but nevertheless each of them has sufficient reason to accept the outcome of this

process (2011, ch. 19).

What makes this process plausible, though, is the hypothesis that people are

actually capable of internalizing and following rules, rather than acting as narrowly

instrumental agents. The eligible set, in fact, includes several options that, while

still superior – in the eyes of some members of society – to not having any social

rule at all (that is the basic condition for them to belong to the eligible set, in the

first place), are still far from optimal for those members. If members of society were

not capable of developing a motivation to comply with rules, even when this hinders

their chosen goals, convergence on any social rule would be actually impossible.

4] The advantage of simple rule followers over rule-following punishers may be further reduced by

“second-order” forms of punishment, which punish members who follow rules but do not punish defectors (Boyd and Richerson 2005, 166-79).

5] An ESS is a strategy S if there is no other strategy T which can get a better payoff by playing against S. For a classical study on ESS, see Smith (1978).

Luca Costa

67

II. EXPERIMENTAL DATA

However, is this a realistic scenario? Do we have a reason to think that we,

or at least the majority of us, are indeed rule-following punishers? As I noted in

the previous section, the plausibility of this evolutionary account rests on the

assumption that a sufficient number of rule followers arose in the population. For

this reason, Gaus shows recent experiments that, he argues, provide a strong case for

the existence of rule-following punishers (2011, 119).

The large majority of these studies are experiments involving several variants

of the Ultimatum Bargaining Game. In its simplest form, it is a one-shot game played by two subjects – a Proposer and a Responder – who have to bargain over a certain amount X of some good (usually money). The Proposer moves first and has to offer

a share n of X to the Responder, where the offer can range between X and zero. The Responder has two choices: to accept the offer, or to reject it. If the offer is accepted, the Responder receives n while the Proposer receives X – n. If the offer is rejected, each player receives nothing.

If the Responder were an instrumentally rational agent, and since instrumentally

rational agents are assumed to always choose more over less of anything they value,

he or she would accept any offer higher than zero. Likewise, if the Proposer were an

instrumentally rational agent – and if he or she expected the Responder to act like

an instrumentally rational agent, as well – he would make an offer higher than zero,

but as small (as close to zero) as possible. So, if we suppose that X = 100 and that n must be a natural number, the instrumentally rational Proposer would always offer

1, and the instrumentally rational Responder would always accept.

This is not the observed outcome, though. Studies of one-shot Ultimatum

Games involving university students from the United States and other countries

showed that median offers of proposers to responders are significantly more

common than mean offers (40-50% against 30-40%, respectively), and mean

offers (below 20% of the share) are refused roughly half the time.6 The divergence

from the scenario predicted by the hypothesis of instrumentally rational agents

is thus significant: not only proposers tend to offer more than expected, but

responders do not accept all offers either (in fact, they refuse mean offers with

surprising frequency). Many social scientists thus interpreted these results as an

evidence of an aversion to unfair results from the subjects (Fehr and Schmidt

1999; Bolton and Ockenfels 2000).

However, further experiments challenged this explanation. In another study

(Falk et al., 2000), a variant of the ultimatum game has been tested, where proposers

6] These data come from the following studies: (Bolton and Zwick 1995; Cameron 1999; Croson 1996; Eckel and Grossman 2001; Hoffman et al. 1994, 1996; Güth et al. 1982; Roth et al. 1991; Forsythe et al. 1991; Harrison and McCabe 1996; Larrick and Blount 1997; List and Cherry 2000; Rapoport et al.

1996; Schotter et al. 1996; Slonim and Roth 1998. A review of these studies can be found in Camerer 2003).

68

Context Dependence in Gaus’s Evolutionary Account of Public Reason

could only choose one of two possible offers (and the responders were aware of

the choices available to their proposers). When the proposers’ alternatives were

between a mean offer and a fair offer (80-20 vs 50-50), the rejection rates of the mean

offer were on par with the previous experiments (44.4% rejected the 80-20 offer).

However, when the proposer was forced to choose between a mean and an altruistic

offer (80-20 vs 20-80), the rejection rates of the mean offer were significantly lower

(18% rejected the 80-20 offer). When the only choice available to the proposer was

to either make a mean offer or an unreasonably altruistic one (80-20 vs 0-100), the

rejection rates of the mean offer were extremely low (8.9% rejected the 80-20 offer).

It would seem, therefore, that responders change their behaviour according to the

options available to the proposer, and show different acceptance rates of equally

unfair shares.

A study which does not involve ultimatum games arguably produced similar

results (Falk et al. 2005). In the first stage of this experiment, subjects engaged in a

3-player Prisoner’s Dilemma, where they had to decide simultaneously whether to

cooperate or defect. If both other players defected, cooperating yielded a payoff of

12 while defecting yielded 20. If one of the other two players cooperated, defecting

yielded 32 while cooperating yielded 24. If both other players cooperated, defecting

yielded 44 while cooperating yielded 36. In all three scenarios, defecting was the

dominant strategy, but if all people cooperated they yielded higher payoffs than if

they all defected.

In the second stage, each player was informed about the other players’

individual decisions for stage 1, and could choose to punish them by reducing the

payoff of either or both of the other players, by a maximum of 25. However, the cost

of the punishment greatly differed in the two treatments of second stage. In the low-

sanction treatment, punishing was equally costly for the punisher and the punished.

For example, if a player decided to spend 6 to punish another, the other player would

have seen his payoff reduced by 6. To the contrary, in the high-sanction treatment, punishment was more effective against defectors and even more effective against

cooperators. So, in this treatment, a player who decided to spend 6 to punish another

would reduce the other player’s payoff by 15 (2.5 factor) if he were a defector, or by

19 (3 1/3 factor) if he were a cooperator. The results showed that, even in the low-

sanction treatment, the majority of cooperators (59.6%) decided to punish defectors, even if doing so would not reduce the inequality of the outcome (as the cooperator’s

payoff would be reduced as much as the defector’s).

While studies evidence a tendency, from subjects, to cooperate and punish

defectors, it seems therefore that they do not do so because they are motivated by a

distaste for unequal outcomes. The best explanation, Gaus argues, is that the subjects

“endorse norms about fairness in certain sorts of interactions and are willing to forgo

material benefits to punish those who do not comply” (Gaus 2011, 122).

Luca Costa

69

III. THE PROBLEM OF FACT SENSITIVITY

As noted at the end of the first section, the role of this empirical account in Gaus’s

public justification model is permissive.7 It does not dictate which normative claims

one must adopt; rather, it limits the range of admissible normative models, by making

some more or less plausible than others. Nevertheless, it may still draw criticism, insofar as it draws normative conclusions from descriptive premises. In this section, I will thus

consider two different arguments against the use of descriptive evidence in normative

theory, and how Gaus’s model fares against them.

First, the contribution of empirical data may be accused of being redundant.

According to this line of criticism, the issue is not that the normative claim is false, per se. Rather, its validity does not actual y rest on the empirical evidence, as assumed by the criticized argument, but on a third, different (and often hidden or implicit) normative

premise, which explains why the empirical evidence supports the normative claim, in

the first place.8

Suppose, for example, that a person claimed that we have a standing duty to respect

promises (we shall call this normative claim P); and that we have this duty because there is empirical evidence that respecting promises improves the promisees’ chances to pursue

their own conceptions of the good (we shall call this descriptive claim F). In other words, the claim is that F is sufficient to support P – i.e. P has moral authority because F is true.

However, this still does not clarify why the person should believe that F actual y supports P, unless she adds an additional premise P’ along the lines of “we have a standing duty to improve people’s chance to pursue their own conceptions of the good”. It is thus P’

which causes F to “matter”, and that causes F to support P. But P’ itself is not supported by F: even if the person were to believe that F is false, she would still believe that P’ is true.

In the end, therefore, it would seem that it is the normative framework (the principles P

and P’) that are “doing the work”, and the appeal to F would be largely redundant. This line of criticism is not especial y problematic for Gaus’s argument. In fact, consider his aforementioned functional view of morality. Is it a descriptive or a normative claim? Were it to be a descriptive claim, we would have made no progress, as one could still press the question of why this mere fact, that social morality exercised an essential function in large-scale societies, supports Gaus’s justificatory model. And it seems apparent that Gaus’s

functional view of morality is definitely stating something about the empirical world.

However, it would be a mistake to conclude that Gaus’s stance is merely a descriptive one.

The claim that “of course social morality has a point – providing the foundations for social life – and this fact must shape our understanding of it” (Gaus 2011, 56) does not just state that social morality provides the foundations for social life, but that our understanding of 7] This definition of the permissive character of accounts of human nature follows closely Rawls (1996, 87).

8] This line of criticism draws primarily from G. A. Cohen’s analysis of normative principles and their sensitivity to empirical facts (Cohen 2003).

70

Context Dependence in Gaus’s Evolutionary Account of Public Reason

social morality should be shaped by how it provided such foundations. This latter part is a normative claim. Not only is it not itself supported by any fact, but it may very well be the case that one could believe the fact that social morality provided the foundations of social life, while denying that this should shape our understanding of it (Enoch 2013).

Does this mean, then, that empirical evidence does not play any relevant role,

because it is only the truth of this added normative claim (the functional view of morality) which makes them support Gaus’s justificatory model? Again, such a conclusion would

be arguably mistaken. Suppose, in fact, that the empirical evidence Gaus appeals to in

support of his theory is somehow flawed, or otherwise wrong. Even if this had no weight

on whether or not the functional view of morality is valid, it still could have significant consequences in regards to the validity of Gaus’s other normative claims – consequences

which would be likewise supported by his very view of morality. To say that Gaus’s

empirical evidence is redundant, simply because some of his normative claims are not

supported by them, would underestimate the extent to which his other, not any less

important, normative claims depend on them for their validity.9

According to a second line of criticism, though, the issue is not just that there is a

third premise which is required to show that the empirical evidence actual y supports

the normative claim. Rather, the charge is that this third premise is false, or otherwise

implausible. In other words, this line of criticism rejects Gaus’s functional view of morality as a valid normative claim. David Enoch, for example, objects that morality itself is hardly the kind of thing which can have a function – in the same sense in which we do not see

physics (rather than the study of physics) as having a function (Enoch 2013, 149).

Gaus’s reply to this objection is that taking physics as a fitting model for morality

is itself questionable, and law would make for a more appropriate comparison (2015a,

1081). If we were to truly believe that morality has no function at al , Gaus argues, all the costs moral life imposes on us – such as guilt, blame, and rebuke – would look more like a neurosis than something rational y justifiable. Furthermore, a functional view of morality has the added benefit of making sense of all the work of ethnographers and social scientists, who commonly assume morality to be an essential form of social adaptation (2015a, 1082).

This answer is hardly conclusive. It could still be replied, in fact, that a realist view

of morals could be just as capable of explaining the purported role social morality played in the evolution of large-scale societies (Enoch 2013, 149); and that furthermore, such a

view would make sense of our actual moral attitudes and responses in a better way than

Gaus’s functional perspective (2011, ch. 1). However, it should be noted that this debate, while crucial, does not bear specifical y on the use of empirical evidence we are concerned with, at this point. When Enoch says that the functional view of social morality cannot

vindicate Gaus’s appeal to studies in the social sciences (2013, 148), he is right in saying 9] And in fact, to be fair, the purpose of Cohen’s argument was not to claim that there cannot be principles (normative claims) which depend on the support of facts for their validity, but simply that «a principle can reflect or respond to a fact only because it is also a response to a principle that is not a response to a fact» (2003, 214). And this more modest claim is, as I have argued, ful y compatible with Gaus’s use of empirical evidence.

Luca Costa

71

so from the point of view of a moral realist. However, unless further reasons for why

one should dismiss a functional view of morality are presented, this does not show that

Gaus incurs in the naturalistic fal acy as Enoch claims (2013, 150), but merely that the

normative principle which justifies the support of empirical evidence for Gaus’s theory is incompatible with a certain metaethical stance.

IV. CONTEXTUAL ISSUES WITH THE EXPERIMENTAL EVIDENCE: THE IDENTITY OF

SUBJECTS

The conclusion of the last section is somewhat promising for Gaus’s argument. While

it does rely on a controversial view of morality, the criticisms about fact sensitivity that I discussed do not undermine its internal consistency. As long as Gaus’s normative premises

about the nature and role of social morality are accepted as valid, the use of empirical

evidence within the context of his framework seems, at least in principle, admissible.

However, as noted before, there is another possible source of concern that we ought

to consider: is Gaus’s empirical evidence actual y sound? And most importantly, does

this evidence actual y support the conclusions Gaus draws from them? The objective of

this section, as well as the next one, will thus be to assess this concern – with particular attention to the evidence supporting the existence of rule-fol owing punishers. I will thus begin with a discussion regarding the nature of the subjects involved in the experiments I presented in section two.

Who are these subjects? In each and every of the aforementioned studies, they are

always graduate or (most commonly) undergraduate students from universities, general y

from economics and MBA classes, that are invited to participate in exchange for a fee

(such as in Harrison and McCabe 1996; Forsythe et al. 1991; Schotter et al. 1996), or to

get credits for their final exams (such as in Güth et al. 1982).

It is hardly obvious that university students as experimental subjects can be

representative of humanity as a whole. After al , there are bil ions of humans who never

attended a university, in the first place. So, how can we be sure that the latter would

display the same kind of behaviour we observed in the former? How can we be sure, in

other words, that the former’s behaviour is not a result of the unique social environment

they are part of?

In order to verify this hypothesis, a group of anthropologists went on to test

Ultimatum Games and other mixed motive games in several small societies located in

Asia, Africa, and South America (Heinrich et al. 2001). The results were surprising. Group differences were significantly larger here than in the previous studies involving university students, both on account of the proposers and of the responders. In some groups,

rejection rates of mean offers were significantly lower than the ones observed in industrial societies. In other groups, on the other hand, rejection rates were significantly higher, and included frequent rejections of offers above 50% (2011, 75). As a consequence, it becomes

significantly harder to claim, as some social scientists suggested, that cooperation evolved

72

Context Dependence in Gaus’s Evolutionary Account of Public Reason

in the environment of ancestral hunter-gathering societies (Fehr and Gächter 2002),

when these very ancestral hunter-gathering societies show such an abysmal cooperative

record, compared to their Western counterparts.

At the same time, though, the data from this cross-cultural study suggested a

different hypothesis, based on a significant correlation between the differences in offers among groups and their respective degrees of market integration (Camerer 2003, 72-74;

see also Chibnik 2005). In particular, the data show that societies with a higher degree of market integration show acceptance and rejection patterns which more closely resemble

the ones typical y observed in large-scale societies, such as the USA. This observation is arguably in line with Gaus’s own analysis, as he describes the societies, which he based

his justificatory model on, as large-scale societies where people frequently confront each other as strangers (Gaus 2011, 268); and these anonymous relations primarily take the

form of market relations (2011, 474).

While there are certainly sensible reasons for restricting the scope of a public

justification theory to large-scale societies, though, there are still some criticisms which are left unanswered. On the one hand, while the data from Heinrich et al. (2001) may

not clash with Gaus’s empirical account per se, it might be at odds with some of the other empirical sources Gaus relies on for his theory.10 On the other hand, there is evidence

for differences in people’s behaviour even among market societies (Roth et al. 1991), so

market integration is probably not the only variable involved in these differences.

V. CONTEXTUAL ISSUES WITH THE EXPERIMENTAL EVIDENCE: KNOWLEDGE AND

ANONIMITY

There is another set of issues, which does not have to do with the identity of the

subjects. Instead, it concerns the contexts in which the experiments are performed. The

main contribution to Gaus’s account which comes from experimental economics is, in

fact, the evidence that actual people behave like rule-fol owing punishers. In light of this conclusion, one may thus expect these studies to try and simulate an environment as close

to real life as possible, to make sure that the results observed in the experiment make sense of the behaviour we are familiar with in actual social experience.

This is though not the case, at least as far as the experimental evidence considered by

Gaus goes. In these experiments, the subjects perform under severe cognitive constraints,

which have very little to do with anything resembling real life experience. For example, in these experiments, subjects are general y prevented from engaging in any sort of verbal

communication with each other (Güth et al. 1982; Hoffman et al. 1996), and are restricted

to one-shot interactions, never meeting the same player twice (Cameron 1999).

This is general y done to reduce the confounding effect of irrelevant variables which

are not the focus of the study, and is necessary to understand the influence of a specific 10] See, in particular, Gaus’s account of deontic reasoning (2011, 122-30).

Luca Costa

73

factor over the focus of the study. For example, if the study is focused on testing whether the motivation behind informal sanctions is aversion to unfair results or retaliation

against norm violators (such as in Falk et al. 2005), it is important to control for any other variable which could influence a person’s tendency to inflict an informal sanction – such

as previous experience, the other person’s outlook, specific features of the environment,

and so on. However, it has the disadvantage of reducing the study’s ability to predict actual behaviour: even if a certain behaviour is observed in the experiment, there is no assurance that the same behaviour will be observed in an actual, real life scenario, which includes

all those variables the experiment control ed for. And even if, in such a scenario, the same behaviour witnessed in the experiment were to occur, one could not tell (on the grounds

of that study alone, at least) whether the basic explanation of the observed behaviour is the same as the one tested in the experiment.

Unlike the previous set of issues, this criticism is arguably less of a worry from the

point of view of experimental economics. This is not because the discipline has no interest in predicting actual behaviour, but because no single study expects to test all the possible variables which could influence a certain behaviour. Even if a study ends up eliminating a possibly relevant variable from the context of the experiment, the impact of that variable can always be checked for in another study. The criticism does call for special care in

circumscribing the scope of the outcome of a study, but it does not, all things considered, undermine the discipline as a whole, or its methodology.

Conversely, though, this very criticism poses a bigger chal enge to Gaus’s empirical

account of social morality, and to the role played by these studies in his account. According to Gaus, the outcome of these studies applies not just under the artificial constraints of the experiments, but to actual social environments as wel . However, real life includes a

myriad of variables, which could either affect the behaviour of rule-fol owing punishers

or provide an alternative, stronger explanation for them than the one proposed in the

studies. This worry would be somewhat lessened, if one had reason to believe that the

circumstances of real life do not change significantly the behaviour of people who would

otherwise behave like rule-fol owing punishers. However, evidence from experimental

economics suggests a different picture.

A study by Eckel and Grossman (2001), for example, arguably shows that gender

has an influence on behaviour in ultimatum games. In this study, while other conditions

of anonymity were present – such as random pairing of subjects – the subjects of the

experiments were aware of the gender of the other player (even if they were unaware of

the specific identity of said player). The results showed that women’s offers are, on an

average, slightly more generous than the ones advanced by men. Furthermore, women’s

offers were much less likely to be rejected than men’s: even for a given offer amount, the given offered size coming from a woman was more likely to be accepted than the same

size offered by a man. Women were also more likely to accept a given offer than men.

Conversely, in the control group with mixed genders (so that proposers and responders

74

Context Dependence in Gaus’s Evolutionary Account of Public Reason

could not determine each other’s gender), there were no appreciable differences between

the rejection rates of the two genders.

Now, the fact that social variables may influence people’s behaviour is still not

exceedingly problematic for Gaus’s account. As long as people are still shown to reason

like rule-fol owing punishers – that is to say, as long as they show a tendency to fol ow

rules and punish defectors, even at a net cost for themselves – it is not too much of an issue that external factors may affect the likelihood and intensity of such punishments.

However, even this assumption is put into question by Zamir (2001). More precisely,

the assumption Zamir questions here is the interpretation of Ultimatum Games and their

results as a case of irrational behaviour. According to Zamir, subjects in the experiments do not tend towards fair offers because they endorse rules of fairness, even when doing

so may end up thwarting their own ends. Quite the contrary, in fact, they act so because

it best advances their interests, and they change their behaviour whenever this is no

longer true. More specifical y, what causes players to advance fair offers (around 50% of

the share) is because “they pay wel ; i.e. they respond best to the rejection patterns of the responders” (2001, 19).

To put this claim to test, an experiment was conducted, where players were randomly

paired for several rounds of Ultimatum Bargaining either with real players, or with virtual players – that is to say, computer programs employing fixed strategies decided at the

beginning of the games.11 Some of these programs acted like “fair players”, making offers in the vicinity of 50% and rejecting any offer below that threshold. Other programs, though,

acted like “tough players”, more wil ing to accept mean offers but also more likely to offer low shares to the responders. The result was that, even when virtual players constituted a minority (around 40%) of the overall number of players, the rest of (real) players quickly adapted their behaviour within the first ten rounds of play. In environments populated by

“tough” virtual players, even real players began acting “tough”, as they learned that they could get away with meaner offers and they had more reason to also accept such mean

shares; vice versa, the presence of “fair” virtual players strongly stabilized the average offer around the fair, 50:50 split. This goes to show, Zamir argues, that real players – far from being “irrational” or “endorsing rules of fairness” – act according to the basic rational

behaviour of maximizing their income: their tendency to fairness is merely “context

dependent” (2001, 20).

Are these results an issue, for Gaus’s account? At first sight, it may appear that they

are not. Indeed, one could be even tempted to see Zamir’s study as the confirmation of

Gaus’s claim that, from the point of view of a functional approach to social morality, it

is important that members of society actual y endorse its rules. However, if members of

society were merely rational agents, who endorse rules only when doing so maximizes

11] In some cases, participants were informed that they could be matched against virtual players, but they were unaware of how likely this match-up was, and of the nature of the computer programs. In other cases, participants did not know about the presence of virtual players altogether. Neither scenario showed significant differences from each other in its outcome (Zamir 2001, 9).

Luca Costa

75

their interests, defecting to them whenever they can get away with it, they would not be the sort of members of society who could look up to rules as binding, in the sense intended by Gaus. What al ows his evolutionary model to escape the Prisoner’s Dilemma introduced

in section one, in fact, was the assumption that members of society would endorse rules,

even when doing so hinders their ability to pursue their chosen ends.

What is needed, thus, is a background theory which gives us an independent reason

to believe that the actual, real life context (both in its biological and in its social dimension) actual y support robust, internalized rule fol owing. Without such a background, the

results of these studies are too underdetermined to successful y support, alone, Gaus’s

empirical account of social morality.

VI. CONCLUSION

The use of empirical evidence in a normative argument has general y been met

by political philosophy with either scepticism (Cohen 2003; Enoch 2013) or approval

(D’Agostino 2013). However, both the criticism and the approval focused primarily on

the logical admissibility of empirical evidence in normative discourse, in principle. This left out two important questions. First, the data Gaus presents might be insufficient

to support his specific normative claims – not because of an a priori impossibility of employing empirical evidence to validate normative statements, but because the specific

assumptions behind the data employed by Gaus are incompatible with his justificatory

model. And second, it could be the case that these empirical data are flawed in the first

place, and the conclusions researchers drew from them are themselves unsubstantiated.12

In this paper, I argued that this both concerns are warranted. On the one hand,

the general scope of the claims that researchers have drawn from the aforementioned

experiments is somewhat undermined by the contextual features of their experiments,

such as the identity of the subjects involved. While this does not necessarily invalidate

such claims, it still leaves them significantly undermined: as compel ing as the hypothesis of strong reciprocity is, other explanations might be compatible with the results of these studies. On the other hand, the epistemic constraints commonly imposed to subjects in

experiments make it difficult to draw conclusions that canapply to an empirical account

to social morality, as Gaus assumes.

It should be noted, though, that Gaus does not rely solely on these studies, in order

to defend his empirical account of social morality. A large part of his empirical evidence, in fact, depends on other disciplines, such as evolutionary psychology (Barkow et al.

1992; Cummins 1996a, 1996b) and theories of gene-culture coevolution (Boyd and

Richerson 1985, 2005; Richerson and Boyd 2005), which offer an articulate explanation

12] Enoch (2013, 149) actual y showed scepticism towards Gaus’s claim, that there is extensive empirical evidence about the role social morality would have played in the evolution of large-scale cooperation. However, Enoch himself does not give any reference in support of his own claim, whereas Gaus’s hypothesis is, indeed, supported by a significant number of sources (as noted in Gaus 2015b).

76

Context Dependence in Gaus’s Evolutionary Account of Public Reason

that can provide independent support for the claims advanced by experimental economics.

However, on the one hand, these research fields have not been immune to criticism, either.13

On the other hand, evolutionary psychology relies on empirical assumptions that are

partial y contested by theories of gene-culture coevolution (Richerson and Boyd 2005, 44-

48), but the ramifications of this fact are not given any consideration within Gaus’s work.

Most importantly, though, other theories which could offer a plausible explanation for the evolution of culture and morality exist (Jablonka and Lamb 2005; Sterelny 2003, 2012).

The evolutionary approach to public reason developed by Gaus offers a valuable

model of explanation for the justification of morality and social norms. As I have argued

in §1, it is based on a moderately idealized account of members of society, which arguably constitutes a preferable alternative to the highly idealized model advanced by Rawls (1996).

Moreover, unlike the instrumentalist approach developed by Gauthier, Gaus does not rely

on a controversial notion of rationality, but rather on an appeal to evolutionary forces that can find support in extensive empirical evidence. However, for this evolutionary approach

to overcome its weaknesses and flaws, a more comprehensive and critical assessment of its

empirical account may be required.

lucagenova@fastwebnet.it

REFERENCES

Baier, Kurt. 1995. The Rational and the Moral Order. The Social Roots of Reason and Morality. La Salle IL: Open Court.

Barkow, Jerome H., Leda Cosmides, John Tooby. 1992. The Adapted Mind. New York: Oxford University Press.

Bicchieri, Cristina. 2005. The Grammar of Society. The Nature and Dynamics of Social Norms.

Cambridge: Cambridge University Press.

Bolton, Gary E., Ockenfels Axel. 2000. ERC: A Theory of Equity, Reciprocity, and Competition. The American Economic Review 90 (1): 166-93.

Bolton, Gary E., Rami Zwick. 1995. Anonymity versus Punishment in Ultimatum Bargaining.

Games and Economic Behavior 10: 95-121.

Boyd, Robert, Peter J. Richerson. 1985. Culture and the Evolutionary Process. Chicago: University of Chicago Press.

———. 2005. The Origin and Evolution of Culture. Oxford: Oxford University Press. Bul er, David J.

2005. Get Over: Massive Modularity . Biology and Philosophy 20: 881-91.

Camerer, Colin F. 2003. Behavioral Game Theory: Experiments in Strategic Interaction. Princeton: Princeton University Press.

Cameron, Lisa A. 1999. Raising the stakes in the ultimatum game: Experimental evidence from Indonesia . Economic Inquiry 37 (1): 47-59.

13] For a criticism of the inheritance mechanisms assumed by theories of gene-culture coevolution, see Jablonka and Lamb (2005, ch. 6). For a criticism of evolutionary psychology, with particular attention to its massive modularity hypothesis, see Sterelny and Griffiths (1999), Sterelny (2003), Bul er (2005). For a more general criticism of evolutionary psychology, see also Dupré (2001).

Luca Costa

77

Chibnik, Michael. 2005. Experimental economics in anthropology: A critical assessment. American Ethnologist 32 (2): 198-209.

Cohen, Gary A. 2003. Facts and Principles. Philosophy and Public Affairs 31 (3): 211-45.

Croson, Rachel, T. A. 1995. Information in ultimatum games: An experimental study . Journal of Economic Behavior & Organization, 30: 197-212.

Cummins, Denise D. 1996a. Evidence of deontic reasoning in 3- and 4-year-old children. Memory

& Cognition 24 (6): 823-29.

———. 1996b. Evidence for the Innateness of Deontic Reasoning . Mind & Language 11 (2): 160-90.

D’Agostino, Fred. 2013. The Orders of Public Reason . Analytic Philosophy 54 (1): 129-55.

Dupré, John. 2001. Human Nature and the Limits of Science. Oxford: Clarendon Press.

Dworkin, Ronald. 1973. The Original Position. The University of Chicago Law Review 40 (3): 500-33.

Eckel, Catherine, Philip Grossman. 2001. Chivalry and solidarity in ultimatum games. Economic Inquiry 39 (2): 171-88.

Enoch, David. 2011. Taking Morality Seriously. A Defense of Robust Realism. New York: Oxford University Press.

———. 2013. The Disorder of Public Reason: A Critical Study of Gerald Gaus’s The Order of Public Reason: A Theory of Freedom and Morality in a Diverse and Bounded World. Ethics 124 (1): 141-76.

Falk, Armin, Ernst Fehr, Urs Fischbacher . 2000. Informal Sanctions . IEER Working Paper No. 59.

———. 2005. Driving Forces Behind Informal Sanctions. IZA Discussion Paper No. 1635. Fehr, Ernst, Simon Gächter. 2002. Altruistic Punishment in Humans . Nature 415 (6868): 137-40.

Fehr, Ernst, Klaus M. Schmidt. 1999. A Theory of Fairness, Competition, and Cooperation .

The Quarterly Journal of Economics 114 (3): 817-68.

Forsythe, Robert, Horowitz Joel L., Savin N. E., Sefton Martin. 1991. Fairness in Simple Bargaining Experiments. Games and Economic Behavior 6: 347-69.

Gaus, Gerald. 1996. Justificatory Liberalism: An Essay on Epistemology and Political Theory. New York: Oxford University Press.

———. 2011. The Order of Public Reason. A Theory of Freedom and Morality in a Diverse and Bounded World. New York: Cambridge University Press.

———. 2015a. On Dissing Public Reason: A Reply to Enoch . Ethics 125 (4): 1078-1095.

———. 2015b. The Egalitarian Species . Social Philosophy and Policy 31 (2): 1-27.

Gauthier, David. 1986. Morals by Agreement. New York: Oxford University Press.

———. 1991. Why Contractarianism?. In Contractarianism and rational choice: essays on David Gauthier’s Morals by agreement, edited by in P. Val entyne, New York: Cambridge University Press, pp. 15-30.

———. 1994. A

ssure and Threaten . Ethics 104 (4): 690-721.

Güth, Werner, Rolf Schmittberger, Bernd Schwarze. 1982. An experimental analysis of ultimatum bargaining . Journal of Economic Behavior and Organization 3: 367-88.

Harrison, Glenn W., Kevin A. McCabe. 1996. Expectations and Fairness in a Simple Bargaining Experiment. International Journal of Game Theory 25: 303-27.

Henrich, Joseph, Robert Boyd, Samuel Bowles, Colin Camerer, Ernst Fehr, Herbert Gintis, Richard McElreath. 2001. In Search of Homo Economicus: Behavioral Experiments in 15 Smal -

Scale Societies. The American Economic Review 91 (2): 73-78.

Hoffman, Elizabeth, McCabe Kevin, Shachat Keith, Smith Vernon. 1994. Preferences, Property Rights, and Anonymity in Bargaining Games. Games and Economic Behavior 7: 346-80.

–———. 1996. On Expectations and The Monetary Stakes in Ultimatum Games. International

Journal of Game Theory 25: 289-301.

78

Context Dependence in Gaus’s Evolutionary Account of Public Reason

Jablonka, Eva, Marion J. Lamb. 2005. Evolution in Four Dimensions. Genetic, Epigenetic, Behavioral, and Symbolic Variation in the History of Life. Cambridge, MA: MIT Press. Kitcher, Philip. 2011. The Ethical Project. Cambridge MA: Harvard University Press.

Larrick, Richard, Sal y Blount. 1997. The Claiming Effect: Why Players Are More Generous in Social Dilemmas Than in Ultimatum Games . Journal of Personality and Social Psychology

72 (4): 810-25.

List, John A., Todd L. Cherry. 2000. Learning to Accept in Ultimatum Games: Evidence from an Experimental Design that Generates Low Offers. Experimental Economics 3: 11-29.

Mil , John Stuart. 1963. On Liberty. In The Collected Works of John Stuart Mill, vol. 2 and 3, edited by in Robson J. M., Toronto: University of Toronto Press.

Moore, George E. 1903. Principia Ethica. Cambridge: Cambridge University Press.

Rapoport, Amnon, James A. Sundali, Darryl A. Seale. 1996. Ultimatums in two-person bargaining with one-sided uncertainty: Demand games. Journal of Economic Behavior & Organization 30: 173-96.

Rawls, John. 1996. Political Liberalism. New York: Columbia University Press.

———. 1999. A Theory of Justice. Revised Edition. Cambridge MA: The Belknap Press of Harvard University Press.

Richerson, Peter, Robert Boyd. 2005. Not by Genes Alone. How Culture Transformed Human Evolution. Chicago: The University of Chicago Press.

Roth, Alvin E., Vesna Prasnikar, Masahiro Okuno-Fujiwara, Shmuel Zamir. 1991. Bargaining and Market Behavior in Jerusalem, Ljubljana, Pittsburgh, and Tokyo: An Experimental Study.

The American Economic Review 81 (5): 1068-1095.

Ruse, Michael, Edward O. Wilson. 1986. Moral Philosophy as Applied Science . Philosophy 61: 173-92.

Schotter, Andrew, Avi Weiss, Inigo Zapater 1996. Fairness and survival in ultimatum and dictatorship games. Journal of Economic Behavior & Organization 31: 37-56.

Skyrms, Brian. 1996. Evolution of the Social Contract. Cambridge: Cambridge University Press.

Slonim, Robert and Alvin E. Roth. 1998. Learning in High Stakes Ultimatum Games: An

Experiment in the Slovak Republic. Econometrica 66 (3): 569-96.

Smith, John M. 1978. The Evolution of Behavior . Scientific America 239: 176-92.

Sterelny, Kim. 2003. Thought in a Hostile World. The Evolution of Human Cognition. Malden MA: Blackwel .

———. 2012. The Evolved Apprentice. How Evolution Made Humans Unique. Cambridge MA: The MIT Press.

Sterelny, Kim, Paul E. Griffiths. 1999. Sex and Death. An Introduction to Philosophy of Biology. Chicago: The University of Chicago Press.

Strawson, Peter F. 1961. Social Morality and Individual Ideal . Philosophy 36 (136): 1-17.

Thornhil , Randy, Nancy Wilmsen Thornhil . 1992. The Evolutionary Psychology of Men’s Coercive Sexuality. Behavioral and Brain Sciences 15: 363-421.

Zamir, Shmuel. 2001. Rationality and Emotions in Ultimatum Bargaining. Annales d’Économie et de Statistique 61: 1-31.

Public Reason 9 (1-2): 79-98

© 2017 by Public Reason

Deafness as Disability: Countering Aspects

of the Medical View

Boaz Ahad Ha’am

Israeli Deaf Studies Center

Abstract: This article argues that deafness as disability from a medical view does not rest on the scientific aspect of medicine. Rather there are ideological biases and prejudices that are masked under the medical view of deafness as disability. The article reveals these and counters them.

Key words: Deafness, disability, political philosophy, Audism, Ableism, deaf studies.

Deafness is a condition that is considered prima facie a disability. A harmful one.

Deafness is perceived to have far fetching negative effects (Cho Lieu 2004, 524-30).

Thus “hearing loss may impair cognitive and language development that can hamper

the education and communication abilities in developing children” (Leifer 2015, 527).

Such a detrimental effect requires a swift and effective response, which in the modern

state means medical, bureaucratic, educational, rehabilitative and vocational applications toward preventing and treating the disability of deafness.

The medical aspects of prevention and treatment of deafness as harmful disability

are pervasively omnipresent in every deaf person’s life. Not only throughout the deaf

person’s life, but also preceding it via genetic screening: “a procedure where diseases

such as deafness can be screened in or out prior to the implementation of an embryo in

a woman” (Goggin et al. 2005, 99). The medical view that justifies such pervasiveness is

questioned here; it will be argued that such a view is based on ideology, instead of science.

More specifical y, it is argued that this medical view of deafness is based on a particular ideological view of the human body, one that is founded upon a naturalistic argument of

the human body. From this point of view it can be understood why deafness is seen as a

medical disability .

Simply put, the naturalistic argument claims that deafness is a disability since it is

unnatural. The natural being is a hearing human being. This conclusion of the natural

hearing human is based on mapping of the physical makeup of the human body. Mapping

the body induces that it natively possesses a hearing ability; natural y there is a sense of hearing in the human body. The hearing sense consists of hearing organs. These hearing

organs are facilitated toward the ability to hear. From the pinna through the eardrum and

onward the inner ear and the cochlear and so forth, the main function of these universal y-existing parts in the human body is to hear. Such form and formation indicates that hearing is natural to the human being. For as a sentient being, the human being experiences the

external world through the senses; therefore, the sense of hearing is established as a core sense that belongs to the essence that defines what is the human being: a hearing being.

80

Using physical evidence, the naturalistic argument of deafness as disability posits

that since to hear is the natural form of being human, being able to hear is the desirable mode of being. Concluding ought from is, the opposite condition – the lack of hearing – is therefore the resultant antonym. The logical outcome from this view is that deafness is a

flaw in the human form. Hence, being deaf is being unnatural and deafness is a defect of

the natural human body.

Framed as a defect in the human form, deafness is then spatial y located. A physical

defect, deafness is located in one or more parts of the body that comprise the sense of

hearing. Hearing impairment, the popular term used by professionals, is positioned in the

physiological organs that channel traveling sounds which the brain interprets (Seikel et al.

2010, 514-15). The systematic aggregation of data on the location and effects of the various hearing impairments is the onset of the medicalization of the naturalistic view of deafness as disability. The medical argument continues to do what the naturalistic view of deafness as disability did, but adds another layer of meaning. While the naturalistic view enforces the idea of the natural vis-à-vis the unnatural, the medical supplements to this view the

addition of health. Deafness is then unnatural and unhealthy.

Such view reflects, however, the way hearing persons evaluate deafness: “Science

and literacy education have, by and large, rhetorical y constructed deafness (primarily

in the lower case sense of ‘disability’ and ‘pathology’ and sometimes, although rarely, in the uppercase sense of ‘culture’). What is odd is that science and literacy education have interpreted and constructed without much attention to, communication with, or regard

for d/Deaf persons themselves; they have tended not to listen, not to lend their ears, to

those they are speaking for and about” (Brueggemann 1999, 6). Ignoring what deafness

is to those who are deaf puts the question of natural and healthy in doubt. Research “that will improve the understanding of the epidemiology of hearing impairment worldwide

can inform public health policy and is critical to the development of effective preventive interventions and should therefore be a global health priority” (Curhan et al. 2016, 49)

makes sense not as an altruistic concern for the health of the deaf person, but rather as a measure catering to the vision of the natural and healthy hearing person everywhere – the

happy person. The good life is a hearing one is the underlying motif and motive that runs deep through the medical view of deafness as disability. The bias of ignoring the deaf is

the tip of the shadow casted upon the scientific cogency of the medical argument. Thus,

countering the medical claim of deafness as disability is based on the assertion that the

medical argument promotes the beliefs and biases of its proponents instead of disinterested conclusions from evidence. In other words, the medical argument of deafness as disability

is not a conclusion of scientific endeavor divorced from interposition, but, rather a partisan outcome pertinent to the medical and social ideology of its proponents. It is argued to be partisan for two reasons.

The first reason is a philosophical one. The medical argument assumes a certain

human body. This imagined natural body is claimed to be the universal or normal body,

but it is neither universal nor normal. It is a particular body: “To understand the disabled

Boaz Ahad Ha'am

81

body, one must return to the concept of the norm, the normal body [. .] A common

assumption would be that some concept of the norm must have always existed. After al ,

people seem to have an inherent desire to compare themselves to others. But the idea of

the norm is less a condition of human nature than it is a feature of a certain kind of society”

(Davis 2013, 1). In the case of deafness it is certain and particular in being a hearing body.

As such, deafness is indeed a feature of the abnormal human body; only if we accept the

conclusion to be derivative from the inference that the universal and normal body is

exclusively a hearing one. Such conclusion is unfounded.

After al , this universal, normal hearing body the medical view imagines, is the

product of many inspirations. Among which is the godly creation of Adam, the perfect

body da Vincian’s Vitruvian man elicited, the statistical median body or some sort of

algorithm of a biophysical makeup – ancient or modern. The earliest modern account

of this imagined universal body discusses it in the context of art: “Baltasar Castiglione

(writing as Count Lodovico) constructs the body of the courtier by explaining what is

should not be like. The courtier ‘should be neither too small nor too big, since either of these two conditions causes a certain contemptuous wonder and men built in this way

are stared at as if they were monsters [. .] So I wish our courtier to be well built, with finely proportioned members’” (Ravescroft 2006, 30). Designating the desirable body is thus

persistently apparent in modern thought. The earlier historical question of origins is

besides the point here, as it does not affect the core issue of concern, which is the modern status of deafness. The crux of the matter is then that the medical argument of deafness

as disability employs a particular bar for all humans, in which deafness is subpar. But it does so under the pretense that such bar is unquestionably and truthful y universal. This

idea of standardization of the body, as the philosophical reason can be summarized, is

relying on the assumption that a human physical standard exists. Furthermore, even if

such standardization is viable, it is an instrument of comparison in which proponents

of the medical argument have chosen a specific human standard that excludes deafness

among other variations.

Choosing a particular standard suggests that standards exist as we wish them, and

can be raised or lowered as seen fit. This is one fundamental concern for the claim of

objectivity or validity of universality that the medical view espouses. However, the central problem here is not the dubious use of some standard for the claim of universality, but,

rather the use of the standard for exclusion. That is, instead of using the standard as a

scientific instrument to merely describe empirical evidence, the standard is being used as a political tool promoting exclusion. This casts doubt on the justification for pervasiveness of medical applications, among others, upon deafness.

While the causes of belief in a human standard are too broad for this article, the

least that can be said is that an epistemological certainty is a major cause. Be it religious, economic, psychological, social or political (Hakak et al. 2010). Hence, some turn to a

godly standard as humans are meant to be in its image; some turn to mathematics and

statistics to quantify and measure humans as the “political arithmetic” (McCormick et

82

al. 2009, 259-85) attempted; and others have taken to evolutionary psychology in order

to explain why humans need to form a classification of the external world (Murphy et

al. 2000, 62-92). Whatever is the source for the quest of standardization, the need for

quantification of humans is a matter of social fact. Yet in the case of the medical argument of deafness as disability the quest for standardization as applied to deafness is both

unnecessary and erroneous.

It is unnecessary since classification does not require hierarchical standardization;

categories can be differentiated without creating hierarchy. In certain areas hierarchy in classification is necessary: “Most of the researches on hierarchical classification show that the hierarchical methods are superior to the flat methods which have no hierarchy between

categories in text classification” (Yoon et al. 2005, 616). What is good for texts does not apply for people, at least from an egalitarian view. It is argued that hierarchy might be

ingrained in us: “Given the universality ranking systems, it is exceedingly strange that so many contemporary social scientists deny their validity. Indeed, many regard hierarchy

as an anomaly. They insist that it is not a fundamental aspect of our humanity. Far from

our being hierarchical animals, they regard us as innately egalitarian. Consequently, where inequalities in status exist, they attribute these to corrupting elements. Either self-seeking individuals are distorting social relationships for their own benefit or superfluous social institutions are interfering with normal human impulses” (Fein 2002, 2). Thus, “moralizing”

medicine toward an egalitarian position is perhaps the wrong argument to make?

Human hierarchies might be a fact of social life, but there are two points to consider.

First, a political order, namely democracy, is presumed to be the one relevant to the

discussion. Democracy gained legitimacy and support through its promise to ensure that

people will enjoy freedom, security and equality. The political arrangement of democracy

is exactly the one under which people no longer have to recourse to violence and other

forms of self-preserving means in order to battle discriminatory hierarchies. Structural

or circular mobility, for example (Beeghley 2007, 121) are more accessible than any other

large-scale existing political order, such as the Chinese claim for “xiaokang society” (a prosperous society) in the CCP-party control ed state (Yingjie 2016, 7). Even when the

democratic ideal is far from being achieved: “We are taught that democracy provides a

positive way for power to be exercised. But our everyday experiences, and other things

we learn, lead us to believe that this ideal norm of power rarely functions in real life”

(Ewen 1998, 104). Even then, battling prejudice and discrimination is a commitment that

runs deep through democracy’s values, with and without the international commitment

expressed in treaties such as the Convention on the Rights of Persons with Disabilities

(United Nations, 2008).

The second point is that medicine itself adopted an egalitarian approach in its ethical

commitments with or without democracy. “And I will use regimens for the benefit of the

ill in accordance with my ability and my judgment, but from (what is) to their harm or

injustice I will keep (them) [. .] Into as many houses as I may enter, I will go for the benefit of the il , while being far from all voluntary and destructive injustice [. .] ” (Miles 2004,

Boaz Ahad Ha'am

83

xi i-xiv). These words from the Hippocratic Oath express the ethical commitment of

medical practice that continue to reverberate in modern medical ethics. Thus the WMA

international code of medical ethics reads that a physician shall “always exercise his/her independent professional judgment and maintain the highest standards of professional

conduct” and shall “not al ow his/her judgment to be influenced by personal profit or

unfair discrimination” (World Medical Association, 1949).

It is argued then that the hierarchical order of hearing and deafness is violating this

medical and ethical commitment. For the hierarchical order means political ranking

and prioritizing one category as superior over the other. In other words, differentiating

between the profoundly deaf and the diverse hearing levels, does not require stratification of who is better and who is worst. Instead there should be recognition of needs. Otherwise, there is no value-ranking necessity arising from classification; it arises only when we

attach to the classification a political necessity. Judging forms of being – such as deafness –

to be baneful requires a set of values that are external of the classification to facilitate the separation between the valued from the ones we don’t value. External values such as those

present in the thorny subject of sex selection: “sex selection may reinforce stereotypes

and place males and females into a preferred order of birth; this would unbalance power

relationships between genders” (Reich 1995a, 1654). This is then the point why medical

ethics should be exercised – to prevent medical “paternalism” toward the deaf among

others (Honderich 1995, 544). For if medical ethics “sought to understand how human

beings should act and what kind of life is best for people,” (Reich 1995b, 720) then medical assessment of such life should not commence in error.

Error is the second reason. The reason hierarchical application of classification of

hearing is erroneous is because it is founded upon an ontological fal acy of being. The

ontological fal acy can be separated into a several fal acies in the constel ation of this argument. The known ontological fal acy is the one associated with the ontological

argument furthered by Anselm, who argues that since something exists in our minds

and language, it must also exists in reality (Davis et al. 2004, 159-160). In our context, in relation to disabilities and deafness the fal acy of ontological being is an amalgam of aspects of several fal acies: (a) ontological fal acy, (b) the fal acy of appeal to tradition, (c) the The Bandwagon Fal acy, (d) the fal acy of appealing to nature, (e) the Argumentum

ad Baculum, (f) the fal acy of the Pol yana principle, and the (g) Procrustean fal acy. In respect to the lettered fal acies the medical argument of deafness as disability promotes

the fol owing arguments under the claim that since a certain body exists – a hearing one

– it denotes a moral, social and political superiority because (a) it exists, (b) it “always”

existed, (c) it is of the absolute majority of existing bodies, (d) it is natural, (e) it is the more powerful mode of being, (f) it is what everyone desires for, (g) it is the standard. All of these are reasons for discriminating, but none of them is justified.

The countering of such arguments is that: (a) There can be no justification that a

certain body exists, the hearing body, as existence can not lend it any more legitimacy per se than the fact that the deaf body exists as wel . That a certain body exists can provide

84

some insight on what a body should be, but it does not justify negating other bodies,

definitely not by arguing by existence. To the contrary: existence – life – is a justification to appreciate metaphysical temporality. Respect diversity through dignity: “impairment

is not to be regarded as a deficit or as a factor that can be detrimental to human dignity”

(Degener 2017, 40). (b) The hearing body did not always exist, for the human is a recent

phenomenon, and even if it did this premise does not warrant an obligation for its future

existence, as such it is impossible. Until human cloning is available, it is impossible to guarantee physical similarity, which is in fact not what is aimed at, but, rather similar

behavior. For the claim is not toward having the same exact ears or hearing, but, instead, of being able to replicate the same communicational behavior. Thus the “insignificance

of intergroup variations in genetic endowment” (Cartwright 2000, 23) as the standard

social science model of human nature has been known. (c) Be it tyranny of the majority or

overwhelming consensus, it does not justify negating others, especial y when the human

right of the deaf to pursue life and happiness in their way is present “to prevent dominant groups from violating fundamental human rights” (Wojciechowski 2014, 63). (d) Beyond

arguing that whatever that exists is natural (Crumley II 2009) or that the general idea of natural form of being is non existent having instead “different cultural choices from a huge range of options,” (Harari 2011, 53) or that the particular idea of the natural excluding

the disabled is a myth: “Lacanian discourse al ows seeing the first misrecognition –

the purported stability of the self – as a myth and encourages us to disrupt this social

mythology [. .] the myth of the ‘natural/able body’ and its converse” (Goodley 2011, 135).

(e) This reduces the capability of a person to hearing, whereas “an individual’s capabilities are best understood as a ‘joint product of her internal endowments, her external

resources, and the social and physical environment in which she lives’” (Riddle 2014, 66).

Oversimplifying hearing to be the primary qualification of capability is a fundamental

error, as the case of the bi-lingual community on Martha’s vineyard has shown that the

Deaf lacked no capacity if and when social environment was inclusive and not excluding

(Groce 1985). (f) However passionate is the desire, it is no more a valid desire as the racist desires its own perpetuation: “Whiteness puts itself in the very place of being” (Seshadri-Crooks 2000, 43) and thus hearing puts itself in the very place of being. The desire of the hearing to impinge their own image is no justification for negating the essence and choice of others. (g) Before and after the audiological hearing ISO 7029 standard, which defines

“threshold of hearing by air conduction as a function of age and gender for ontological y

normal persons” (Cremes and Smith 2002, 61) the belief that the body has a standard

has different meanings. Sometimes it is the average “model humans assuming numerical

values for mass, height, etc. of a ‘standard human’” (Herman 2016, 17). Sometimes it is the practical as a “realistic standard that is not ‘ideal’ but is ‘acceptable’” (Hoeger et al. 2016, 157). But it is also the perfect: “A body may grow to the standard of its species, perfect of its kind” (Blood 1860, 31). For all its varieties, the hearing body as standard is politicization of the body by distinguishing itself: for the normal body “in effect create the concept of

Boaz Ahad Ha'am

85

the disabled body” (Davis 2017, 4). There is no standard, only imagined silhouettes of

stereotypes. This is then the error: medicalizing stereotypes (Bel , 1984, 169).

Those stereotypes are the reason deafness and sign language face claims for

annihilation, which are the conclusion of the application of hierarchical valuation upon

the general classification of hearing. Here is one blatant example: “The only cochlear

implant surgeon in this province says deafness is a disability which is being eradicated in Newfoundland and Labrador. Dr. Tony Batten, an ear, nose and throat surgeon, who has

helped many hearing impaired and deaf people get their hearing back, says the technology

available now, as well as at-birth screening for every child is resulting in incredibly low rates of deafness. One of the results of such advances though may be the closure of the

Newfoundland School for the Deaf on Topsail Road in St. John’s. ‘We don’t have any

children now going to the school for the deaf’, Batten says, explaining that children who

are born deaf have a good chance at hearing if they get an implant early in life. ‘The school for the deaf is being phased out’, he says. ‘Children (with implants) they get better incomes when they graduate, they get higher levels of learning, they integrate into society’. So sign language is a dying language. It’s only for the older people who are beyond the cochlear

implant years now. ‘It’s interesting because it’s a dying culture and it’s kind of part of our past now’” (Morrisey 2009). This is not eugenics resurrected, but the politicized rhetoric and stereotypes wrapped in medical objectivity raise serious doubts on the integrity of the medical view’s subscribers (Lane et al. 2001). Once again, not for the first or last time: the science of craniometry was one such screwy and clear example, in which the superiority

of Caucasians was supposed to be evident in the measurement of brain volume compared

with other races (Gould 1996).

Medicalized stereotypes are used by those who seek to impinge their own image

on others. Others who differ from the standard-makers’ vision of what is the proper form

of being human. Desiring to impose a godly vision – “Let us make man in our image,

in our likeness [. .]” written in Genesis – one is left to wonder when the shift occurred.

From god being the physician, “I am thy Physician” (Watson 2001, 39) through physicians

deriving authority from god (Katz 2002, 8), toward physicians playing god (Verhey 2012,

134). Hence conceiving health as a political requisite defines who is the unhealthy and

the question of political ranking becomes an acute one. All the more acute since it is

argued here that from a scientific point of view identifying those who are unhealthy has

no inherent political value: “Neutrality, in short, was to provide protection against those wanting to pass off political opinion as established science” (Proctor 1991, 150). The

kind of protection is the purpose of the concept of privacy of medical records, a practical aspect. To protect from prejudice based on your health: “Disclosure of sensitive medical

information [. .] can cause embarrassment, acute distress, or social stigmatization”

(Humber et al. 2001, 8). The kind of politicization medical professionalism is meant to

counter (Crel in 2005, 75-85).

Medical classification provides the legitimacy for political selection. Consider the

example of fibromyalgia. Since it is a phenomena that does not have scientific verification,

86

the decision to recognize those who endure the syndrome as disabled or not is not

medical. However, in order to be treated requires medical classification. Note the irony

as one study notes: “The recognition of fibromyalgia can lead to effective treatment with

significant improvement in functioning. Unfortunately, because of the chronic nature of

the pain condition and associated counterproductive behaviors and disability, patients

and physicians may rapidly become frustrated with each other and abandon the pursuit

of adequate diagnosis and treatment” (Acton 2012, 83). So for a long time medicine

refused to recognize the plight of those who suffer from fibromyalgia, as doctors refused to recognize the condition of fibromyalgia itself as existing and is merely in the person’s mind (Goldenberg 2002, 21). The pressure from the patients prevailed, however. Fibromyalgia is

now recognized, although recognition is often political not medical. As one physician put

it: “At least everyone pretty much agrees the pain is real now?” (Scott 2015, 166).

This il uminates the political underpinnings of the socio-political processes which

people with various conditions undergo. Political considerations and interests such as

budgeting, electoral gains, religious, social beliefs and fantasies determine how the political recognition of some conditions goes toward being awarded certain benefits and privileges,

while other conditions are awarded with none. The claim for the scientific validity is the heart of medical scientific objectivity: “the physio-pathology-based classifications of

diseases are not conventions of label ing [sic.] based on subjective decisions but they are the results of the discovery of real properties concerning the alterations of biological entities and events” (Azzone 1998, 49). Yet this science of medicine is not pure. And this can be seen with the variations of disagreements. Sometime the variation is in the medical classification and sometimes it is a matter of political systems; that is, sometimes there is a “universal”

disagreement regarding a condition, and sometimes there is “local” disagreement that

changes from one country to the other. Learning disabilities is an example of the former:

“As reading researcher Marion Monroe observed in 1932, psychology and education

had two primary explanations for children who did not learn under typical instructional

circumstances. They were ‘either lazy or stupid’” (Danforth 2009, 3). Contact dermatitis

at the workplace is an example of the latter: “In many cases an occupational cause is

suspected and proven after careful diagnostic procedures. There then arise a number of

questions that are handled in different ways in the different European countries [. .] In the years to come it will probably be necessary to create more uniform joint legislation in this area, so as to avoid social y unjust decisions” (Rycroft et al. 2001, 997).

The science of medicine is fluctuating and evolving, which is what to expect from any

scientific discipline. So there is insolence taken to the way deafness and other disabilities are marked and treated with cocksureness. The apparition that disabilities are measured

and are scientifical y ascertained in accordance to the needs of the disability or the disabled is no less a fiction than they are part of the general political games people take part in, like poverty, education and so on. Thus disability benefits were awarded based on political

considerations, as this US soldiers example demonstrates: “The 1873 Consolidation Act

revised pension legislation, basing payment on the degree of disability rather than on

Boaz Ahad Ha'am

87

service rank”. This change, however, did not come about because of betterment of science

and medicine, but due to politics. “The act came about because the laws had become so

complex and conflicting, leading to the need for codification” (McGeary et al. 2007, 96).

The politics of medicine do not discredit medicine. Scientific improvement and

success are constantly bettering people’s lives. However, the reverse is untrue. Medicine

is not perfect. Thus, as part of the dialogue with the science of medicine, if the goal of achieving neutrality is possible, is a philosophical argument that is indeed still under

process. However, that the field of medicine claimed to be such is a different point: “The rise of Positivism in academia [. .] demanded that scholars strip their observations of

personal bias with the goal of absolute objectivity [. .] it is difficult to characterize the new medical rhetoric as devoid of the same long-established institutional bias against people

with disabilities. In their attempt to construct a value-free vocabulary, they created one that was also, at the least, compassion-free” (Davis 2017, 15). Masking rhetoric as neutral, however, does not mask the motives.

The experience of the deaf and the disabled is that divergence from the so-cal ed

healthy ideal is undesirable and renders who is the invalid person. That’s where the

imperfection of medicine and its politicization are revealed. Beliefs regarding the

legitimacy of the normal beget Ableism: the idea that able-bodied (healthy) persons are

preferable and superior to those who are considered non-abled (the disabled) (Campbell

2009, 3-16). As noted above the experience of ableism from a medical perspective is

one that included sterilization (Albrecht et al. 2001, 498) as well as other medical y

proscribing practices aimed at the deaf among other classes of those termed as diseased

beings (Greenwald 2007, 136-52).

As the medical imagination asserts that the normal, healthy and desirable body is

a hearing one, deafness is oppositely defined as abnormal, sick and il egitimate mode of

being. It is further argued here that such a position must be ruled out by principle. That is, its political validity is argued to be unacceptable. No dehumanization should ensue from

a medical outlook. Especial y since the medical position lends so much scientific weight

to political protagonists. This way German doctors and the German public accepted

the sterilization and “mercy-kil ing” of various disabled persons (Lifton 1986). Thus, no

deaf person should be reduced to being a mere defective hearing being. In other words,

the scientific-philosophical rationale of desiring to investigate, compare, classify, and

rank humans is unjustified in embittering the lives of the subjects it explores. There is no acceptable political justification in a democracy for a means promoting greater human

knowledge to become a political end in itself, promoting poorer quality of human lives:

“The practice of scientific research and the use of knowledge from that research should

always aim at the welfare of humankind, including the reduction of poverty, be respectful

of the dignity and rights of human beings, and of the global environment, and take ful y

into account our responsibility towards present and future generations. There should be

a new commitment to these important principles by all parties concerned” (UNESCO,

1949). This is then the first theoretical or principled claim of the error argument.

88

Deafness as Disability: Countering Aspects of the Medical View

The second claim of the principled error argument is that it violates bio-political

neutrality. A claim based on the principle of neutrality, medicine is committed to as a

scientific approach. “Physicians tend to see themselves as bioscientists. Their self-image as practitioners reflects a view of medicine as a discipline that has adopted not only the rationality of the scientific method but the concomitant values of the scientist, namely,

objectivity and neutrality [. .] Although the scientific values of rationality, objectivity, and neutrality may be difficult to achieve in practice, nevertheless they retain their force as the basis for assessing the quality of clinical work. Further, these values are used to justify the particular ways in which clinical work is done” (Mishler et al. 1981, 15-16).

So whereas the first objection to deafness as disability is on grounds of violation of a

moral and philosophical principle of equality medicine is committed to, the second one

claims for a political partiality violating the scientific principle of impartiality. The first violation al ows for the method of discriminatory practice to materialize on paramount

scale; the second violation validates the discriminatory practice by masking its biased

view as impartial. The argument of bio-political neutrality is based on two premises. The

first is that the study of the human biophysical makeup is improper since it is carried

in a fragmented way. That this study is historical (e.g., evolutionary changes), current

(e.g., public health) futuristic (e.g., genetic), social (e.g., public budget) and political (e.g.

gendered) can be counted among the main aspects. And so care must be taken as to the

verity of the research and the integrity of the researchers. Something that is amiss, not only within the framework of deafness or disabilities but also in other ways: “According to the Institute of Medicine, every cell in our bodies has a sex, which means men and women are

different at a cel ular level. That also means that diseases, treatments, and chemicals might affect the sexes differently. And yet there’s a long and storied tradition of ignoring gender when it comes to health research” (Westervelt 2015). Lest it be said that it is only a matter of informational aggregation and is therefore a technical issue, direct actions are directly associated with scientific ignorance: “Spermicides were distributed by population experts

who often failed to notice the sex/gender of their ‘targets’” (Lowy 2014, 107). The results of such actions have repercussions that affect people’s lives and can not be discounted as mere technicalities or as insignificant data.

From the deaf point of view there are many aspects that can be skewed toward

legitimization of discriminatory practice against deafness. Actions against the deaf under medical pretense are past, present and futuristic. Hence, from a futuristic view the abortion of deaf fetuses is already a desirable goal: “According to a survey conducted by Delhi’s Sir Ganga Ram hospital, a majority of would-be parents would opt for an abortion if knew

they are going to have a hearing-impaired child. The study was published in a recent issue of American Journal of Medical Genetics. The research-based study was conducted for

four years – 2005 to 2009 – on at least 51 families with a history of congenital hearing

loss. ‘Around 93 per cent of the couples expressed high interest in prenatal diagnosis,

while 73 per cent considered termination if the foetus was affected’ Dr Ishwar C. Verma,

chairman, department of genetics, Sir Ganga Ram hospital, said” (Neetu 2013). The

Boaz Ahad Ha'am

89

practice of genetic prevention is readily available: “The science of genetics has gotten so sophisticated so quickly that it can be used to not only treat serious diseases but prevent thousands of them well before pregnancy even begins. Diseases that have stalked families

for generations – like breast cancer – are being literal y stopped in their tracks. Scientists can do that by creating and testing embryos in a lab, then implanting into a mother’s womb only the ones which appear healthy. While the whole field is loaded with controversy,

those who are worried about passing on defective and potential y dangerous genes see

the opportunity to breed out disease” (O’Donnell 2014). Bridging between the desire

of those who see deafness as a harmful disability and the preventive genetics is the next

logical step and the future – or the lack of it – of deafness.

In light of this view, in which deafness should be eradicated and the deaf fetus

prevented from materializing, there is a strong case for the argument that a certain view

of a human biophysical makeup as the preferred one is blatantly a bio-political one and serves not science but, rather, politics. In other words, claiming that a certain form or

organ should fulfill a certain function in a particular way and in accordance with certain social expectations is a political argument that promotes a parochial and interested vision of what it means to be human: an ableist view.

The coccyx and the vermiform appendix are examples of latent or hidden biophysical

features that demonstrate such political manipulation of the concept of the body and its

role in furthering ideologies and interests – without relation to ableism. The coccyx is

utilized in arguments on evolution: “The tailbone derived its name because some people

believe it is a ‘leftover’ part from human evolution, though the notion that the tailbone

serves no purpose is wrong” (Comfort 2013). Whereas the appendix is used in arguments

on veganism: “Compare the carnivore digestive system to the herbivore digestive system

and to the human digestive system. Here is the unmistakable answer to whether humans

are herbivore, carnivore, or omnivore” (Rex 2014).

Reference to these organs is made in particular not only because they have little

if any relevance to deafness and disabilities, but also because it has no effect on human

flourishing. In other words, the biological purposes of these physiological parts are of no relevance to our general makeup as humans in contemporary times. However, they carry

profound political importance in supporting or opposing beliefs and practices among

their protagonists. That is, whether one thinks the coccyx proves we have evolved or

not, can affect one’s religious beliefs and religious attachment, for example. And whether one believes the appendix is a proof of vegetarian past or carnivore one, can affect the

dietary choices people make for themselves and their families. On a moral level, the

arguments on the meaning of the tailbone and the appendix can determine whether one

is going to hell or not or is secularly moral y right or wrong; as evolution might contradict religious choices and eating animals might prove to be against our “ancestral heritage”, for example. However, scientifical y and medical y, whether the tailbone and the appendix

signify anything on our history as carnivores or herbivores and our relation to some aping

90

relatives, has no political meaning. Science is bio-neutral toward the two regardless of the heated and passionate debate they elicit in embittered battles people wage.

Hair is an example of salient or manifest physical feature with political ramifications:

from White-supremacy skinheads, through toupee-wielding politicians, to big afros or

dreadlocks. Its size, color, shape, form and location are far more important political y

than any biophysical relevance the human hair carries per se. “As part of our modes of

appearance in the everyday world, the ways we shape and style hair may be seen as both

individual expressions of the self and as embodiments of society’s norms, conventions

and expectations” (Kobena 1987, 34). Take baldness or hairiness for example. Science is

bio-neutral toward having hair or the lack of it anywhere on the body. Even though the

status of whether one is bald or has a certain type of hair carries a sociopolitical weight.

For it is a social fact that distribution and placement of hair on the head, face or body is valuable in the search for mating partners: “It is general y observed that a person’s hair-style and clothing attracts the most, particularly females by males. The important factors which have been included in the grooming factor are hair-style – short hair; long hair and particular hair style [. .]” (Husain 1993, 28). Whatever the social preferences for hair, styled or not, this does not serve as justification for medical y preferring one hair condition over the other.

In practice, however, physicians pick a condition: “Indeed, some physicians

cite the negative psychological correlates of baldness as the justification for medical

treatment of hair loss. Emanuel Marritt, a hair restoration surgeon, sees this as his

medical responsibility [. .] The exaggerated significance Marritt attaches to hair loss

treatment reflects his awareness that as a surgeon he performs procedures more risky and

invasive than what a dermatologist does when prescribing Propecia, but the viewpoint

he expresses is an increasingly common one: hair loss is a serious problem worthy of

medical intervention” (Conrad 2007, 40). And such medical intervention is “localized”

not only in its appearance but also in its care: “There is no set standard of care which

is universal y applicable or acceptable. One of the yardsticks useful in this regard is the standards established by a professional body of similarly qualified aesthetic surgeons

in a country or region” (Venkatarm 2016, 423). So in practice physicians engage in the

politics of the human form.

While political causes render problems and solutions around hair, be it people

straightening their hair, cutting, removing, coloring, or shaping it in various forms,

science and medicine have an inherent commitment toward neutrality. So are physicians

meddling with the politics of hair, in this instance, running afoul? In other words,

the neutrality commitment is breached by physicians who appropriate and promote

preferences for certain hair – with or without the mediation of the treatment targets’ choice?

The question of physicians as salespersons is still open in some places, as they are being paid to promote medicines (Brodwin 2015). But the consequences of having physicians

declare baldness an unhealthy and a defect in humans are the result of politicization of the human physique, which goes beyond providing service and encroaches on playing god.

Boaz Ahad Ha'am

91

This is then the counter-claim to the socio-medical argument of deafness as disability: it is bias against deafness – marking deafness as a human defect on the grounds of political

conviction, not science.

What would a non-political view of deafness be? An example of a non-biased view

of deafness should start with a neutral view of the human hearing system. It is argued

that audition is purposeless without speech, for it is the only sensory system that has no other function: “The auditory system is the only system that has no other function besides communication. One might argue that our distant ancestors were more interested in the

sounds that supported survival than those that arose from society, but nonetheless audition (the process associated with hearing) is an essential element of verbal communication”

(Seikel et al. 2010, 447). In other words, hearing in general is a sense that al ows the human to engage with sounds of the surrounding environment as well the internal one (e.g.,

borborygmic sounds), but is argued to exclusively geared toward particular behavior:

verbal communication – speech.

However, speech is processed through an evolved structure which has functions that

predate and are primary over speech: “The bodily components of the speech production

apparatus are hundreds of mil ions of years old, and therefore none of them initial y

evolved for speech purposes” (Macneilage 2008, 7-8). That is, breathing and consuming

food take precedence over speech, which renders speech an auxiliary of the oro-facial

anatomy. Hence, from a bio-neutral scientific perspective, both audition and speech are

qualities that have evolved that provided humans verbal communication some of the time in history. So from a “tradition” aspect, these newcomers should be cautiously and closely supervised; you never know what these physical tweens are up to. Humor aside, there

were and are other forms of communication. Neglecting or negating the other biophysical

modes of communication is therefore a political step that corresponds with parochial

views and beliefs regarding what the human body should be, instead of the disinterested observation of what the human body is.

Furthermore, the diversity of the biophysical system is disregarded and bio-

neutrality is violated as audition, in this instance, is being propagated in an over-simplified view to be an ever-present presence. That is, the view that verbal communication was

and will always be part of our essence as humans is lacking scientific credence. Take

cybernetics for example. For all we know, cybernetics may usher communication into a

non-verbal age: “it should be pointed out that in real life both the encoding and decoding of nonverbal communication are dynamic processes with continuous feedback and

readjustments between the communicants. It is only very recently that our experimental

paradigms have begun to take this cybernetic dimensions of nonverbal communication

into consideration” (Siegman et al. 1987, 17). This was written before the Baja Beach

Club’s members in Barcelona paid money in order to be implanted with a chip that

“al ows them to bypass lengthy club queues” (Michael et al. 2014, xix), a paralyzed man

moved his arm with the help of “two tiny recording chips implanted in his motor cortex

and another 36 electrodes embedded in his right arm” (Mul in 2017). Not to mention that

92

Deafness as Disability: Countering Aspects of the Medical View

the cochlear implant itself is cybernetics per excel ence: “cochlear implants give rise to an

‘artificial’ sense of hearing which is inferior to natural hearing but yet sufficient for social functioning” (Tzafestasa 2017, 426). So keeping neutrality or an open mind is at least what one should expect from those who “must incorporate conceptions of the ‘good’ and ‘ideal’

doctor” (Cruess et al., 2016, 229).

Thus elevating speech and hearing to the status of superiority and even sacredness

is quite disturbing. When religious fables tell us that the voice is hol y, as with god talking through the burning bush, we take it as miracle, which means this is exception to the general rule. And this interpretation remains to this very day, in which believers note that holy voice is carried in “unusual circumstances: how God spoke in some undeniably supernatural way”

(Tirabassi, 2009, 73). This applies to other experiences outside of Western framework, such as when natives recount experience of sound as sacred so we can appreciate it as a unique

cultural revelation. “When he was about four years old, Black Elk began to hear voices [. .]

The next year, after his grandfather had given him a gift of bow and arrows, Black Elk was riding horseback alongside a creek in the forest, when he saw a kingbird sitting in a tree.

He was about to shoot the bird, when it spoke to him. ‘Listen! A voice is cal ing you!’ Then I looked up at the clouds, and two men were coming there, headfirst like arrows slanting

down; and as they came, they sang a sacred song [. .] ‘Behold, a sacred voice is cal ing you.

All over the sky a sacred voice is cal ing’” (Moon 2010, 29). But for the laymen sound is

instrumental. For the lot of humanity there is nothing sacred in the voice or sound; humans attach such meaning to what they please to be worthy of veneration. That is the central point the countering-argument to the socio-medical one argues. Narrating the voice as sacred

does not signify anything more than the value of the voice in certain human culture; it is the narrative and no more. But validating this narrative by scientific means is to al ow the desire for a certain narrative to regulate diverse realities under one Audist conscription. Audism is the view that deafness is inferior to hearing: “discriminatory treatment of deaf individuals through history had no name until 1975 when Tom Humphries coined the term Audism,

based on the Latin audire, meaning to ‘hear’. In his original article, Humphries defined Audism as ‘the notion that one is superior based on one’s ability to hear or behave in the manner of one who hears’” (Bauman 2008, 13).

The Audist narrative ultimately provides the justifications to particular definitions of

what being human is and is supposed to be, as discussed above. But it also creates what is arguably a false dichotomy. What is disputed is also the opposition of deafness to hearing.

Wrongly and narrowly perceived as deafness, it should be considered that deafness is not the opposite of hearing, but, rather juxtaposed next to it on the continuum of sound. Perhaps

because the poverty of thought has aligned deafness with diverse forms of soundless being, deafness has become a catchall phrase. After al , there is an essential difference between an organism that has a hearing organ that relies on temporal hearing (Oxenham 2013), an

organism that has a frequency hearing (Au et al. 2000, 55), and an organism that does not

have a hearing organ at all (Bailey 1987, 266).

Boaz Ahad Ha'am

93

Deaf persons are able to process sound in some form as the hearing organs general y

exist in the absolute majority of deaf persons. Since sound sensed by humans is reliant

on vibrations and thus the lack of sound is not possible unless one has no hearing organs.

So any person, even deaf, with the otolith organs, for example, will experience some

dimension of sound. So if science distinguishes the four grades of microtia (external ear

deformities), of which anotia is the term indicating the fourth grade in which the absence of the entire ear is diagnosed, why positing deafness in dichotomous opposition to and of

hearing is a consensus?

There seems to be no good reason that some changes are documented and

differentiated when they correspond to the notion of deafness as a disorder, but

carelessly groups under deafness a whole range of variegation in conceiving sound.

Additional vocabulary to describe the more intricate conditions of hearing and its

opposite such as the terms svanahless (Sanskrit) or sonarless (Latin), can denote the

various physical conditions with deafness being additional (Collin et al, 2003, 3-39).

Compare with typlosis, amblyopia and amaurosis in relation to vision and blindness.

However, there is at least one reason to group deafness under blanket terms and

espouse uniform policies toward the deaf. It makes it easier to define and regulate a

political reality – through political over-generalization. Just as with cultural uniformity, political over-generalization is utilized toward regulating a “part of a political culture which all citizens may be expected to share” (Habermas 2015, 313-25). Thus, deafness

conceived as antithetical, profane and harmful is easier to demarcate: “deliberately

creating a deaf child counts as a moral harm, because it so dramatically curtails the

child’s right to an open future [...] Davis maintains that selecting for deafness similarly violate a child’s right to an open future” (Fahmy 2011, 129). If we view deafness as

threat, being the opposite of the open-future of the hearing child, then we can regulate and administer deafness as a universal harm: “Many deaf people do not realize the

risks of marriage with another deaf person. They seek medical advice only after one,

or even two, deaf children have been born. They should be better informed but best of

all is to integrate the deaf as far as possible in normal hearing society. This will reduce the change of intermarriage and is additional advantage of early auditory training of

deaf children and of the auditory approach in all their training and management” (Fry

et al. 1970, 91).

Revealing these prejudices, particular ones toward deafness, and general ones

toward other disabilities and differences, should reframe the way medical applications

are evaluated. The ethical integrity of the current and past medical practice toward

the prevention and treatment of the human variety is in question in general, and in

particular in relation to deafness. To the Deaf the good life and happiness is too often

nongermane to the medical rationale; au contraire to the very purpose of medicine and its relevance to human life.

ahboaz@gmail.com

94

Deafness as Disability: Countering Aspects of the Medical View

REFERENCES

Acton, Ashton Q. 2012. Muscular Diseases – Advances in Research and Treatment 2012 edition.

Georgia: Scholarly Editions.

Albrecht, Gary L., Katherine D. Seelman, and Michael Bury, eds. 2001. Handbook of Disability Studies. New York: Sage Publications.

Au, Whitlow W. L., Arthur N. Popper, and Richard R. Fay, eds. 2000. Hearing by Whales and Dolphins. New York: Springer.

Azzone, Giovanni Felice. Medicine from Art to Science: the Role of Complexity and Evolution.

Amsterdam: IOS Press.

Bailey, Kent. 1987. Human Paleopsycholgoy: Applications to Aggression and Pathological Processes.

New Jersey: Lawrence Erlbaum Associates, Inc., Publishers.

Bauman, H-Dirksen L. 2008. Introduction: Listening to Deaf Studies. In Open Your Eyes: Deaf Studies Talking, edited by H-Dirksen L. Bauman, Minneapolis: University of Minnesota Press.

Beeghley, Leonard. 2007. The Structure of Social Stratification in the United States, 5th ed. New York: Routledge.

Bel , Susan E. 1984. Premenstrual Syndrome and the Medicalization of Menopause: A

Sociological Perspective. In Premenstrual Syndrome: Ethical and Legal Implications in a Biomedical Perspective. Edited by Benson E. Ginsburg & Bonnie Frank Carter. New York: Plenum Press.

Beverly, Moon. 2010. The Role of Revelation in the World’s Religions. North Carolina: McFarland

& Company, Inc. Publishers.

Blood, Benjamin. 1860. Optimism: the Lesson of Ages. Boston: Bela Marsh.

Brodwin, Erin. 2015. These Are The Drugs Doctors Get Paid The Most To Promote.

http://www.businessinsider.com/what-drugs-are-doctors-paid-the-most-to-promote-

2015-1, (accessed 10 January, 2018).

Brueggemann, Brenda J. 1996. Lend Me Your Ear: Rhetorical Constructions of Deafness. Washington D.C.: Gal audet University Press.

Campbel , Fiona K. 2009. Contours of Ableism: The Production of Disability and Abledness. New York: Palgrave Macmil an Press.

Cartwright, John. 2000. Evolution and Human Behavior: Darwinian Perspectives on Human

Nature. Suffolk: Palgrave.

Cho, Lieu Judith E. 2004. Speech-Language and Educational Consequences of Unilateral

Hearing Loss in Children. Archives of Otolaryngology Head & Neck Surgery 130 (5): 524-30.

Col in, Shaun P., and N. Marshall Justin, eds. 2003. Sensory Processing in Aquatic Environments.

New York: Springer-Verlag New York, Inc.

Comfort, Ray. 2013. Human tailbone: Evidence of evolution? http://www.wnd.com/2013/02/

human-tailbone-evidence-of-evolution/ (accessed 10 January, 2018).

Conrad, Peter. 2007. The Medicalization of Society: On the Transformation of Human Conditions into Treatable Disorders. Baltimore: The John Hopkins University Press.

Crel in, John K. 2005. Public Expectations and Physicians’ Responsibilities: Voices of Medical Humanities. Florida: CRC Press.

Cremes, Cor W. R. J., and Richard J. H. Smith. 2002. Genetic Hearing Impairment: Its Clinical Presentations. Basel: Karger.

Cruess, Richard L., Sylvia R. Cruess, and Yvonne Steinert, eds. 2016. Teaching Medical Professionalism: Supporting the Development of a Professional Identity, 2nd ed. Cambridge: Cambridge University Press.

Boaz Ahad Ha'am

95

Crumley II, Jack S. 2009. An Introduction to Epistemology, 2nd ed. Ontario: Broadview Press. Curhan, Gary, and Sharon Curhan. 2016. Epidemiology of Hearing Impairment. In Hearing Aids:

Springer Handbook of Auditory Research, edited by Gerald R. Popelka, Brian C. J. Moore, Richard R. Fay, and Arthur N. Popper. Switzerland: Springer International Publishing.

Danforth, Scot. 2009. The Incomplete Child: An Intel ectual History of Learning Disabilities. New York: Peter Lang Publishing, Inc.

Davies, Briam, and Brian Leftow, eds. 2004. The Cambridge Companion to Anselm. Cambridge: Cambridge University Press.

Davis, Lennard J. 2013. Introduction: Normality, Power, and Culture. In The Disability Studies Reader, 4th ed., edited by Lennard J. Davis. New York: Routledge.

Davis, Seamus. 2017. Tracing the Roots of Disability Rhetoric in the United States. In Disability and U.S. Politics: Participation, Policy and Controversy, Vol. 1, edited by Dana Lee Baker.

California: Praeger.

Degener, Theresia. 2017. A Human Rights Model of Disability. In Routledge Handbook

of Disability Law and Human Rights, edited by Peter Blanck and Eilionoir Flynn. New York: Routledge.

Ewen, Lynda Ann. 1998. Social Stratification and Power in America: a View from Below. Maryland: General Hall.

Fahmy, Melissa S. 2011. On the Supposed Moral Harm of Selecting for Deafness. Bioethics 25 (3).

Fein, Melvyn L. 2012. Human Hierarchies: A General Theory. New York: Routledge. Goggin, Gerard, and Christopher Newel . 2005. Disability in Australia: Exposing a Social Apartheid.

New South Wales: University of New South Wales Press Ltd.

Goldenberg, Don L. 2002. Fibromyalgia: A Leading Expert’s Guide to Understanding and Getting Relief From the Pain That Won’t Go Away. New York: A Perigree Book.

Goodley, Dan. 2011. Disability Studies: An Interdisciplinary Introduction. Los Angeles: Sage Gould, Stephan Jay. 1996. The Mismeasure of Man. New York: W. W. Norton & Company.

Greenwald, Brian H. 2007. Taking Stock: Alexander Graham Bell and Eugenics, 1883-1922. In The Deaf History Reader, edited by Van Cleve, J. V. Washington D.C.: Gal audet University Press.

Groce, Nora E. 1985. Everyone Here Spoke Sign Language: Hereditary Deafness on Martha’s Vineyard. Massachusetts: Harvard University Press, 1985.

Habermas, Jurgen. 2015. Religious Tolerance – the Pacemaker for Cultural Rights. In

Philosophers of Our Times, edited by Ted Honderich. Oxford: Oxford University Press.

Hakak, Yohai, Lea Kacen, and Michal Krumer-Nevo. 2010. The Limits of quantification: Critical Perspectives on Measuring and Grading People, their Behaviours and Achievements. Be’er-Sheva: Negev University of Ben-Gurion Publishers.

Harari, Yuval Noah. 2011. A Brief History of Mankind. Yehuda: Kinneret, Zmora-Bitan, Dvir Publishing House Ltd.

Herman, Irving P. 2016. Physics of the Human Body, 2nd ed. New York: Springer.

Hoeger, Werner W. K., Sharon A. Hoeger, Amber Lee Fawson and Cherie I. Hoeger, eds. 2016.

Fitness & Wel ness, 13th ed. California: Thomson Brooks/Cole Publishers.

Honderich, Ted. 1995. The Oxford Companion to Philosophy. Oxford: Oxford University Press.

Humber, James M. and Robert F. Almeder. 2001. Privacy and Health Care. New Jersey: Springer Science Business Media, LLC.

Husain, Akbar and Firdous. 1993. Human Mating Behaviour. New Delhi: Northern Book Centre.

Katz, Jay. 2002. The Silent World of Doctor and Patient. Baltimore: The John Hopkins Press.

Kobena, Mercer. 1987. Black Hair/Style Politics. In New Formations, Nu. 3. London: Lawrence & Wishart.

96

Deafness as Disability: Countering Aspects of the Medical View

Lane, Harlan, Robert Hoffmeister, and Ben Bahan. 2001. The Hearing Agenda II: Eradicating

the DEAF-WORLD. In Deaf World: A Historical Reader and Primary Sourcebook, edited by Bragg, Lois. New York: New York University Press.

Lifton, R. J. 1986. The Nazi Doctors: Medical Killing and the Psychology of Genocide. New York: BasicBooks.

Lowy, Ilana. 2014. Spermicides and their Female Users After World War II: North and South. In

Gendered Drugs and Medicine: Historical and Socio-Cultural Perspectives, edited by Teresa Ortiz-Gomez & Maria Jesus Santesmases. London: Routledge.

Macneilage, P. F. 2008. The Origin of Speech. Oxford: Oxford University Press.

McCormick, Ted. 2009. William Petty: And the Ambitions of Political Arithmetic. Oxford: Oxford University Press.

McGeary, Michael, Morgan A. Ford, Susan R. McCutchen, and David K. Barnes, eds. 2007. A 21st Century System for Evaluating Veterans for Disability Benefits. Washington D.C.: The National Academies Press.

Michael, M. G., and, Katina Michael, eds. 2014. Uberveillance and the Social Implications of Microchip Implants: Emerging Technologies. Pennsylvania: IGI Global.

Miles, Steven H. 2004. The Hippocratic Oath and the Ethics of Medicine. Oxford: Oxford University Press.

Mishler, El iot G., Lorna R. Amarsingham, Stuart T. Hauser, Ramsay Liem, Samuel D. Osherson, Nancy E. Waxler. 1981. Social Contexts of Health, Il ness, and Patient Care . Cambridge: Cambridge University Press.

Morrisey, Alisha, 2009. Eradicating Deafness. In The Telegram. https://w w w.pressreader.

com/canada/the-telegram-st- johns/20090427/281526516998912, (accessed 10

January, 2018).

Mul in, Emily. 2017. This Paralyzed Man Is Using a Neuroprosthetic to Move His Arm for the First Time in Years. https://www.technologyreview.com/s/603993/this-paralyzed-man-is-using-a-neuroprosthetic-to-move-his-arm-for-the-first-time-in-years/, (accessed

10 January, 2018).

Murphy Dominic, and, Stephen Stich. 2000. Darwin in the Madhouse: Evolutionary Psychology

and the Classification of Mental Disorders. In Evolution and the Human Mind: Modularity, Language and Meta-Cognition, edited by Carruthers, Peter and Andrew Chamberlain.

Cambridge: Cambridge University Press.

Neetu Chandra. 2013. Prenatal testing prompts rise in abortions of deaf babies. In The Daily Mail. http://www.dailymail.co.uk/indiahome/indianews/article-2280183/Prenatal-testing-prompts-rise-abortions-deaf-babies.html, (accessed 10 January, 2018).

O’Donnel , Norah, 2014. Breeding Out Disease. In 60 Minutes. http://www.cbsnews.com/

news/breeding-out-disease-with-reproductive-genetics/(accessed 10 January, 2018).

Oxenham, Andrew J. 2013. Revisiting place and temporal theories of pitch. https://www.ncbi.

nlm.nih.gov/pmc/articles/PMC4215732/, (accessed, 10 January, 2018).

Proctor, Robert N. 1991. Value-Free Science? Purity and Power in Modern Knowledge. Massachusetts: Harvard University Press.

Ravenscroft, Janet. 2006. Invisible Friends: Questioning the Representation of the Court

Dwarf in Habsburg Spain. In Histories of the Normal and the Abnormal: Social and Cultural Histories of Norms and Normativity, edited by Ernst, Waltraud. New York: Routledge.

Reich, Warren Thomas. 1995a. Encyclopedia of Bioethics: revised edition, Vol. 3. New York: Macmil an Library Reference USA.

———. 1995b. Encyclopedia of Bioethics: revised edition, Vol. 2. New York: Macmillan Library Reference USA.

Boaz Ahad Ha'am

97

Rex, Aurora. 2014. Carnivore Digestive System. http://www.raising-rabbits.com/carnivore-

digestive-system.html, (accessed 10 January, 2018).

Riddle, Christopher A.. 2014. Disability and Justice: The Capabilities Approach in Practice.

Maryland: Lexington Books.

Rycroft, Richard J. G., Torkil Menne, Peter J. Frosch, and Jean Pierre Lepoittevin, eds. 2001.

Textbook of Contact Dermatitis, 3rd ed. Berlin: Springer -Verlag Berlin Heidelberg.

Scott, Graham, S. 2015. The Politics of Pain Medicine: A Rhetorical-Ontological Inquiry. Chicago: Chicago University Press.

Seshadri-Crooks, Kalpana. 2000. Desiring Whiteness: A Lacanian Analysis of Race. New York: Routledge.

Seikel, J. Anthony, Douglas W. King, and, David G., Drumright. 2010. Anatomy & Physiology: for Speech, Language, and Hearing, 4th ed. New York: Delmar, CENGAGE Learning, 2010.

Siegman, Arnon W., and Stanley Feldstein, eds. 1987. Nonverbal Behavior and Communication, 2nd ed. New York: Psychology Press.

Tirabassi, Becky. 2009. Let God Talk To You: When You Hear Him, You Will Never Be The Same.

Minnesota: Bethany House Publiers.

Tzafestas, Spyros G. 2017. Systems, Cybernetics, Control and Automation: Ontological,

Epistemological, Societal and Ethical Issues. Denmark: River Publishers.

UNESCO. Declaration on science and the use of scientific knowledge. http://www.unesco.org/

science/wcs/eng/declaration_e.htm, (accessed 10 January, 2018).

United Nations. 2008. Convention on the Rights of Persons with Disabilities. https://www.un.org/

development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/

convention-on-the-rights-of-persons-with-disabilities- 2.html (accessed 10 January, 2018).

Venkatarm Mysore, ed. 2016. Hair Transplantation. New Delhi: The Heath Sciences Publisher.

Verhey, Al en. Playing God and Invoking a Perspective. In On Moral Medicine: Theological Perspectives in Medical Ethics, 3rd. ed. Edited by M. Therese Lysaught, Joseph J. Kotva Jr., and Al en Verhey. Cambridge: Wm. B. Eerdmans Publishing Co.

Watson, Thomas. 2001. A Divine Cordial. Indiana: Sovereign Grace Publishers, Inc.

Westervelt Amy. 2015. The medical research gender gap: how excluding women from

clinical trials is hurting our health. In The Guardian. https://www.theguardian.com/

lifeandstyle/2015/apr/30/fda-clinical-trials-gender-gap-epa-nih-institute-of-medicine-

cardiovascular-disease, (accessed 10 January, 2018).

Whetnal , Edith, and D. B. Fry. 1970. Learning to Hear. London: Wil iam Heinemann.

Wojciechowski, Bartosz. 2014. Human Rights as an Element of Mutual Recognition and Equality of Opportunity. In Towards Recognition of Minority Groups: Legal and Communication

Strategies. Edited by Mark Zirk-Sadowski, Bartosz Wojciechowski, and Karolina M Cern.

New York: Routledge.

World Medical Association. 1949. WMA International Code of Medical Ethics. https://www.wma.

net/policies-post/wma-international-code-of-medical-ethics/ (accessed 10 January, 2018).

Yingjie Guo, ed., Handbook on Class and Social Stratification in China, (Cheltenham: E d w a r d Elgar Publishing Limited, 2016), 7.

Yoon, Yongwook, Changki Lee and Gary Geunbae Lee. 2005. Systematic Construction

of Hierarchical Classifier in SVM-Based Text Categorization. In Natural Language

Processing – IJCNLP 2004. Edited by Keh-Yih Su, Jun’ichi Tsuji , Jong-Hyeok Lee, and Oi Yee Kwong. New York: Springer.

Public Reason 9 (1-2): 99-108

© 2017 by Public Reason

In Defense of Liberal Equality

M. E. Newhouse

University of Surrey

Abstract: In A Theory of Justice, Rawls concludes that individuals in the original position would choose to adopt a system of democratic equality governed by his two principles of

justice. However, Rawls mistakenly defines the possibility space within which individuals in his original position must make their choice. An alternative account of the possibility space created by Rawls’s original position reveals that a system of liberal equality, according to which distributive shares would be determined by market processes, would be preferred by risk-averse individuals. However, such individuals would guard against the erosion of the social bases of self-respect by including a social safety net among the basic equal liberties secured by Rawls’s first principle of justice.

Key words: Rawls, A Theory of Justice, liberal equality, the difference principle, rational choice.

Early in A Theory of Justice, John Rawls (1971, 1999) considers and rejects an

interpretation of his two principles of justice cal ed “liberal equality” in favor of an

alternative interpretation that he styles “democratic equality”– an otherwise similar system that substitutes his famous “difference principle” of distributive justice for distribution according to market processes. Rawls has been criticized for supposedly claiming that

a person’s relationship to her own attributes is moral y arbitrary, and that the attributes of individuals are therefore properly considered a social resource. I argue that this is an uncharitable interpretation of the text. It is an individual’s relationship to the distribution of natural attributes in her society that Rawls considers arbitrary, not her relationship to her own natural attributes. I then show that what I will call the “libertarian objection”

nonetheless has some purchase as a criticism of Rawls’s analysis, which misapprehends

the possibility space created by the original position. I offer an alternative account of the uncertainties faced by an individual in the original position, cal ed the Unknown Society

Model. The Unknown Society Model indicates that risk-averse individuals in Rawls’s

original position will unanimously prefer distribution according to market processes to

the difference principle and will therefore adopt a system of liberal equality rather than a system of democratic equality. Nonetheless, the Unknown Society Model implies that

individuals in the original position are also likely to include a social safety net on their list of basic liberties in order to preserve the social bases of self-respect.

I. LIBER AL EQUALITY VS. THE DIFFERENCE PRINCIPLE

John Rawls’s theory of justice is anchored by two fundamental principles, which

apply to the “basic structure”1 of society:

1] The basic structure of a society is the scheme by which “the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation” (Rawls 1999, 6).

100

In Defense of Liberal Equality

First: each person is to have an equal right to the most extensive scheme of

equal basic liberties compatible with a similar scheme of liberties for others.

Second: social and economic inequalities are to be arranged so that they are both (a)

reasonably expected to be to everyone’s advantage, and (b) attached to positions and

offices open to al . (Rawls 1999, 53)

Rawls’s first principle secures an equal right to a set of basic liberties for every

member of society, and these rights are given priority over all other considerations of

justice (1999, 55). Once the equal basic liberties are secure, the institutions comprising the basic structure should seek to implement the second principle. Rawls suggests that

both clauses of his second principle are ambiguous, and he disambiguates them in a short

discussion near the beginning of his analysis (1999, 57).

The principle that positions and offices should be “open to al ” could be read simply

to prohibit employment discrimination on the basis of irrelevant characteristics, an

interpretation that Rawls cal s “careers open to talents” (1999, 57). Rawls certainly endorses the requirement of non-discrimination, but he concludes that his second principle of justice must go further to ensure that individuals have genuine, as opposed to merely formal,

opportunities to pursue social positions for which their natural attributes make them well-suited. He therefore settles on a broader interpretation of this part of his second principle, cal ed “fair equality of opportunity” (Rawls 1999, 63). Fair equality of opportunity requires, in addition to non-discrimination, the provision of talent development opportunities to

less privileged members of society that enable them to compete on equal terms for offices

and positions in which they have the natural capacity to succeed.2

Rawls then considers two possible interpretations of his requirement that social

and economic inequalities will be “reasonably expected to be to everyone’s advantage”

(1999, 53). One interpretation of this clause is what Rawls cal s “efficiency”, according to which the principle is satisfied by a competitive market economy that maximizes the total

wealth in society, and in which an individual’s distributive share of wealth and income

will correspond to the relative productive value of her natural attributes (as developed in accordance with fair equality of opportunity), subject to her “wil ingness to use them”

in the workplace (1999, 62-63). A system combining equal basic liberties, fair equality of opportunity, and distribution according to market processes is cal ed “liberal equality”

(Rawls 1999, 57).

Rawls characterizes the system of liberal equality as an “unstable” stopping place in

his search for the best principles of justice, because “there is no more reason to permit the distribution of income and wealth to be settled by the distribution of natural assets than by historical and social fortune” (1999, 64). Once we see the distribution of natural assets in society as “moral y arbitrary”, Rawls thinks we will be moved to prefer an alternative

interpretation of this clause according to which the principle is satisfied by institutional 2] Rawls explains, “those who are at the same level of talent and ability, and have the same wil ingness to use them, should have the same prospects of success regardless of their initial place in the social system” (1999, 63).

Marie E. Newhouse

101

arrangements that maximize the wealth and income available to “the representative

unskil ed worker” whom he supposes will be among the least well-endowed “full and

active participants” in an otherwise just society (Rawls 1999, 68, 84). Rawls refers to this interpretation as the “difference principle”, and he refers to the system combining equal

basic liberty, fair equality of opportunity, and the difference principle as “democratic

equality” (1999, 57).

II. THE LIBERTARIAN OBJECTION

Rawls’s treatment of what he refers to as “natural assets” or “natural attributes”

(1999, 11, 87, 172) – “intel igence, strength, and the like” (1999, 11) – in his design and analysis of the original position is perhaps the most enduringly controversial aspect of his theory. Some critics have objected to the difference principle on the basis that Rawls has inappropriately ignored the moral significance of a person’s relationship to her own natural attributes. Such critics complain that an individual’s natural attributes are constitutive of her and therefore cannot be arbitrary from a moral point of view.3

Some language in A Theory of Justice can be interpreted in ways that seem to bolster this case. For example, Rawls refers to “the outcome of natural chance” and to “the outcome of the natural lottery” as moral y arbitrary (1999, 11, 64). If Rawls meant to say that a

person’s relationship to her own attributes is a matter of chance, then perhaps his theory presupposes an implausible metaphysical account of the nature of persons. At times,

Rawls also uses language that could be interpreted to mean that the natural attributes

of persons should be considered a common resource. For example, Rawls writes that in

a society governed by his principles of justice, the less natural y well-endowed “view the greater abilities of others as a social asset to be used for the common advantage” (1999,

92). However, there is at least as much textual evidence to suggest that Rawls held neither an implausible metaphysical view of the nature of persons nor so controversial a view of

the moral irrelevance of an individual’s relationship to her own natural characteristics

as some have suggested. Rawls’s words in context more often indicate that an individual’s place in the distribution of natural attributes within the population can be regarded as arbitrary. For example, he writes that “we do not deserve our place in the distribution of native endowments”, and he wishes to design a system in which “no one gains or loses

from his arbitrary place in the distribution of natural assets” (Rawls 1999, 87-89). By

contrast, natural attributes themselves, as part and parcel of a person, can be considered no one else’s: “To be sure, the more advantaged have a right to their natural assets, as does everyone else; this right is covered [. .] under the basic liberty protecting the integrity of the person.” (Rawls 1999, 89). Rawls also writes, “The difference principle represents,

in effect, an agreement to regard the distribution of natural talents as in some respects a 3] See for example (Nozick 1974, 215-16).

102

In Defense of Liberal Equality

common asset and to share in the greater social and economic benefits made possible by the complementarities of this distribution.” (1999, 87).4

If this latter reading of Rawls is the correct one, then the purpose of the veil of

ignorance is to eliminate the influence of an individual’s arbitrary place in the social

distribution of natural attributes on the selection of principles of justice. Shielding an individual from knowledge of her own attributes (which Rawls agrees are determinate5)

is simply his means of accomplishing this goal: if a person does not know what her

natural attributes are, then she cannot know what place she occupies in the larger social

distribution of those attributes.

But if this is Rawls’s goal, he makes a key mistake in his analysis of the choice faced

in the original position, and this mistake gives the libertarian objection some purchase as a criticism of his results despite its inaccuracy as a criticism of his premises. When Rawls argues that a risk-averse person in the original position will choose principles of justice that maximize the wealth and income of the representative least-skil ed worker in society, he inadvertently holds the social distribution of natural attributes constant and treats the individual chooser’s attributes as variable. The difference principle is the risk-averse choice if the total wealth in society (and therefore the distribution of attributes that generate this wealth) is fixed, but the individual selecting principles of justice does not know what her own attributes are. In this situation, it is risk-averse to maximize the smal est slice of the fixed pie in case one’s own attributes place one at the lowest “level of talent and ability” in this fixed distribution (Rawls 1999, 63). The possibility space presupposed by this analysis of the choice faced in the original position is inconsistent with Rawls’s stipulation that an individual is supposed to know that she has determinate natural attributes, even if she does not know what they are (1999, 127, 152).

An individual in the original position does not need to know what her attributes are,

and she must not know where these attributes place her in the larger social distribution

of such attributes, since this is the arbitrary relationship we wish to eliminate from

consideration. However, she is supposed to know that she has determinate natural

attributes. Other members of her society have determinate attributes as wel , but she has

no way of knowing whether the attributes of others will translate into higher or lower

levels of talent and ability in society relative to her own. A person in the original position therefore ought to experience the social distribution of talent and ability around her as

the variable feature in the analysis, which wil , after she chooses principles of justice, be settled by a “natural lottery”. I will propose an “Unknown Society Model” that more

accurately reflects the possibility space that remains after the original position eliminates the arbitrary influence of an individual’s place in the social distribution of natural assets from consideration when principles of justice are chosen.

4] Emphasis added.

5] Rawls writes, “we must keep in mind that the parties in the original position are theoretical y defined individuals.” (1999, 127)

Marie E. Newhouse

103

Like Rawls, I assume that individuals in the original position are non-enviously seeking

to maximize the value of an index of social primary goods including wealth, income, and

positions of authority and responsibility that they can expect to receive, and that positions of authority and responsibility are sufficiently correlated with wealth and income that they need not be considered separately (Rawls 1999, 83). Also like Rawls, I assume that given

the conditions of deep uncertainty and high stakes that prevail in the original position,

individuals will appropriately have a “high level of risk aversion” when they choose principles of justice (Rawls 1999, 144), leading them to “adopt the alternative the worst outcome of

which is superior to the worst outcomes of the others” (Rawls 1999, 133).

III. THE UNKNOWN SOCIETY MODEL

The Unknown Society Model does not change the features of the original position

itself. Rather, it is an alternative account of the possibility space created by the original position. It treats an individual’s natural endowments as an unknown constant rather than

as a variable, reflecting the fact that individuals in the initial situation are “determinate persons” – they do not know what their specific attributes are, but they do know that they have specific attributes (Rawls 1999, 151-52). Second, the social distribution of “level[s] of talent and ability” (by which I understand Rawls to be referring to the market value of the constel ation of natural traits that are useful for generating income) of members of society is treated as variable, since an individual in the original position has no idea what levels of talent and ability others in her society will have relative to herself (Rawls 1999, 63).

In the Unknown Society Model, a randomly selected individual – whom I will call

Xenia from now on – must choose principles of justice knowing that her society might

be comprised entirely of individuals with lower levels of talent and ability than hers, or higher. Alternatively, her level of talent and ability might fall somewhere in the middle

of the distribution. Xenia also has no idea how large her society is, nor how wide the

distribution of talent and ability might be. Her society might contain huge differences in levels of talent and ability, or everyone might be endowed with attributes that enable them to be roughly equal y productive.6 Therefore, Xenia cannot choose principles of justice

based on her arbitrary place in the social distribution of natural assets.

Xenia chooses principles of justice by considering the risks of the “natural lottery” that she faces: various places she might wind up occupying in the unknown social distribution

of natural assets. To demonstrate the robust superiority of liberal equality to the difference principle in the face of this uncertainty, I will model Xenia’s relative expectations in terms of wealth and income in three possible worlds in which she occupies three very different

places in this social distribution:

6] Rawls envisioned a possible future society in which its members enjoy “the greatest equal talent”, although he does not suggest that this is very likely (1999, 93).

104

In Defense of Liberal Equality

Spartanville: In Spartanvil e, every other ful y-participating member of society has

a lower level of talent and ability than Xenia, who therefore finds herself at the very top of the social distribution of such attributes after she chooses principles of justice.

Equalitania: In Equalitania, all ful y-participating members of society have equal

“levels” of talent and ability (in the Rawlsian sense of market value), although those

attributes may differ qualitatively.

Talentopia: In Talentopia, every other ful y-participating member of society has a

higher level of talent and ability than Xenia, who therefore finds herself at the very bottom of the social distribution of such attributes after she makes her decision.

Like Rawls, I assume that a system of social cooperation yields more wealth and

income than the sum of what every participant might generate on her own (i.e. there are

gains from trade within a society). I also adopt Rawls’s assumption that the system of

liberal equality will generate shares of wealth and income that are roughly proportional

to individuals’ relative levels of talent and ability in the social distribution thereof.7

Additional y, I suppose along with Rawls that a redistributive policy “pushed beyond a

certain point weakens incentives and thereby lowers production” although there is no

need to decide where, empirical y, that point might be (Rawls 1999, 142).

Final y, in accordance with Rawls’s stipulation that “there is no objection to resting

the choice of first principles upon the general facts of economics and psychology”, I account for the possibility of what economists call “human capital externalities” (Rawls 1999, 137).

A human capital externality is the effect that a change in one person’s level of talent and ability has on the (inflation-adjusted) wealth and income of other members of her society.8

Economists attempting to measure human capital externalities have arrived at estimates

that range from statistical y insignificant to strongly positive.9 Xenia will deal with this uncertainty by considering her relative expectations in different possible states of the

world under either assumption, and she will choose the principles of justice that maximize her expectations in terms of income and wealth in the worst possible state of the world.

In a system of liberal equality, Xenia will expect to have roughly equal amounts

of wealth and income in Spartanvil e, Equalitania, and Talentopia if human capital

externalities turn out to be insignificant. If they turn out to be significant, she will

have more wealth and income in Equalitania than she will in Spartanvil e, and she will

have more wealth and income in Talentopia than she will have anywhere else. If Xenia

chooses a system of democratic equality instead of a system of liberal equality, the

difference principle will increase what Xenia will expect to have in Talentopia (relative

7] That is, shares will be equal to those Rawls describes in a system of natural liberty except that they will no longer reflect inherited wealth and income due to the implementation of the principle of fair equality of opportunity (1999, 62-64).

8] Daron Acemoglu explains, “Human capital externalities arise when the investment of an

individual in his skil s creates benefits for other agents in the economy.” (1996, 779).

9] See for example Lucas Jr (1988), Moretti (2004), and Thönnessen et al (2013).

Marie E. Newhouse

105

to her expectation under liberal equality), will decrease what Xenia will expect to have in Spartanvil e, and will leave her expectation in Equalitania unchanged. See Figure 1.

Figure 1: Xenia’s Expectations in Terms of Wealth and Income

Talentopia

Equalitania

Spartanvil e

Liberal Equality

(no human capital externalities)

a

a

a

Liberal Equality

(positive human capital

a+b+c+d

a+b+c

a+b

externalities)

Democratic Equality

(no human capital externalities)

a+f

a

a-e

Democratic Equality (positive

human capital externalities)

a+b+c+d+h

a+b+c

a+b-g

Key to Figure 1 (all values are positive)

a

Xenia’s expectation under liberal equality with no human capital externalities

b the value to Xenia of positive human capital externalities in Spartanville

c

the additional value to Xenia of human capital externalities in Equalitania (compared

to Spartanvil e)

d the additional value to Xenia of positive human capital externalities in Talentopia

(compared to Equalitania)

e the value of the reduction in Xenia’s expectation in Spartanville with no human

capital externalities under democratic equality (relative to liberal equality)

f

the value of the increase in Xenia’s expectation in Talentopia with no human capital

externalities under democratic equality (relative to liberal equality)

g the value of the reduction in Xenia’s expectation in Spartanville with positive human

capital externalities under democratic equality (relative to liberal equality)

h the value of the increase in Xenia’s expectation in Talentopia with no human capital

externalities under democratic equality (relative to liberal equality)

For Xenia, the worst possible state of the world is Spartanvil e with no human capital

externalities. To paraphrase Rawls, this is the world in which her enemy would place her

(1999, 133). In this worst possible situation, Xenia will have more wealth and income if

she has chosen to adopt the system of liberal equality (an expectation of a) than she will in the system of democratic equality (an expectation of a-e). By contrast, Talentopia with human capital externalities is the best of all possible worlds for Xenia. In this system, she

106

In Defense of Liberal Equality

will fare even better under democratic equality (a+b+c+d+h) than she will under liberal

equality (a+b+c+d).

In other words, when Xenia regards her own attributes as constant, though

unknown, and the distribution around her as variable, the difference principle is a risk-

loving principle – it further boosts Xenia’s already good expectations in Talentopia with

human capital externalities, and it worsens her already poor expectations if she loses the

“natural lottery” and is consigned to Spartanvil e without human capital externalities.

Because Xenia is risk averse, she will choose to adopt the system of liberal equality and its principle of distribution according to market processes instead.10

IV. THE SOCIAL BASES OF SELF-RESPECT

I have shown that when the possibility space created by the original position is

properly defined, individuals in the original position will maximize the share of wealth

and income they can expect to receive in the worst-case scenario by choosing the system

of liberal equality. However, this outcome raises a possibility that Rawls did not have to address given that his own analysis yielded a system of democratic equality instead: the

possibility that very high levels of income inequality might effectively deprive individuals near the bottom of the income distribution of the social bases of self-respect. While fair equality of opportunity would certainly limit the inequalities that arise in a system of

liberal equality, it cannot entirely rule out the possibility of an extreme stratification of income and wealth among mature citizens that could potential y undermine the self-respect of the relatively poor.

Rawls refers to self-respect as “perhaps the most important primary good” because

“without it nothing may seem worth doing” (1999, 386). The social bases of self-respect

include the resources necessary to carry out a rational plan of life in accordance with

one’s conception of the good, and the ability to find a community inside the larger society

“within which the activities that are rational for [the individual] are publicly affirmed

by others” (Rawls 1999, 387). Rawls gestures at the lexical priority of self-respect over

ordinary distributive concerns when he suggests that its importance “limits the forms

of hierarchy and the degrees of inequality that justice permits” (1999, 92). I therefore

believe that individuals in the original position would include a social safety net adequate to safeguard the social bases of self-respect among the basic equal liberties protected by Rawls’s first principle of justice.

10] To be sure, different natural attributes will have different market values in different societies.

For example, a person whose talents would make them a particularly good hair stylist, flower arranger, or cake decorator might find her skil s relatively more valuable in a rich, post-industrial society, while a person whose talents lend themselves to physical combat and wilderness survival may find themselves more marketable, on average at least, in a poorer, pre-industrial society. But these uncertainties are bi-directional, exist at all points in the distribution of natural assets, and exist to an equal degree in Spartanvil e and Talentopia, so they cannot change the outcome of the analysis.

Marie E. Newhouse

107

V. CONCLUSION

Rawls himself never evaluates liberal equality from the perspective of the original

position, having considered and rejected this interpretation of his principles before

undertaking his primary analysis. Given his understanding of the possibility space created by the features of the original position, he was right not to waste any time on the analysis: if the proper methodology is to compare the expectation in terms of wealth and income

of the least skil ed worker in a given society under liberal equality and under democratic equality, the difference principle yields an expectation equal to or better than market

processes by definition, so democratic equality will be preferred.11

However, if I am correct in my account of the possibility space created by the original

position, then Rawls rejected liberal equality prematurely. If the correct principles of

justice are those that free and equal individuals would choose in a situation cleansed

of the arbitrary influence of individuals’ relative positions in larger social distributions of income and wealth as well as natural assets, then liberal equality, cushioned by the

inclusion of a social safety net among the basic equal liberties, appears to be the most just available system.

Of course, those currently committed to democratic equality are not rational y

required to embrace my proposed version of liberal equality even if my analysis is

correct. In the process of reflective equilibrium, there is no privileged starting place. A person confronted with a discrepancy between the widely shared and highly general

principles incorporated into the initial situation and her considered convictions

about the requirements of justice is free to revise either the general principles or the

considered convictions (Rawls 1999, 17-19). Rawlsians convinced by my analysis but

likewise convinced of the unacceptability of liberal equality might prefer to respond to

my critique by revising the general principles that determine the features of the original position. For example, some might decide on reflection that a system of social cooperation should literal y “draw forth the wil ing cooperation of everyone taking part in it” rather than merely constructively doing so (Rawls 1999, 13). In that case, it might fol ow that a universal basic income should be adopted in preference to the more modest social safety

net that I have suggested for inclusion among the basic equal liberties.

m.newhouse@surrey.ac.uk

11] Even if it happens to be the case that market processes generate the best expectation possible for the least-skil ed worker in a given society, then adopting the difference principle will result in a policy of distribution via market processes. The least-skil ed worker in a given society therefore might do better, and can by definition do no worse, under democratic equality than she would under liberal equality.

108

In Defense of Liberal Equality

REFERENCES

Acemoglu, Daron. 1996. A microfoundation for social increasing returns in human capital

accumulation. The Quarterly Journal of Economics 111(3): 779-804.

Lucas Jr, Robert E. 1988. On the mechanics of economic development. Journal of Monetary Economics 22, (1): 3-42.

Moretti, Enrico. 2004. Workers’ education, spil overs, and productivity: evidence from plant-level production functions. American Economic Review 94 (3): 656-90.

Nozick, Robert. 1974. Anarchy, State, and Utopia. New York: Basic Books.

Rawls, John. 2009. A Theory of Justice: Revised Edition. Harvard University Press.

Thönnessen, Rasmus, and Erich Gundlach. 2013. The size of human capital externalities: cross-country evidence. Public Choice 157 (3-4): 671-89.

Public Reason 9 (1-2): 109-112

© 2017 by Public Reason

Book Review

Bernard Harcourt, Exposed. Desire and Disobedience in the Digital Age, Harvard University Press, Cambridge, Massachusetts, 2015, Pp. 1+790, ISBN: 0674504577, E-pub format.

At almost 20 years after John Perry Barlow declared the independence of cyber-

space through a very persuasive manifesto, Bernard Harcourt published Exposed to analyze not only how much the internet has changed over time, but also how a digital kind

of self emerged. Barlow’s manifesto speaks to us exactly because that kind of a digital

universe is now pure fantasy and, if one reads Harcourt’s book, dwel ing on that ideal

is no longer possible. From the simplest forms of our digital life, like social networks

and numerous mobile apps, to advanced recommendation algorithms and methods of

tracking online activity, the internet became the greatest data col ector of individual

preferences, political options, desires, location at all time, etc. The author clears the conceptual ground for a new kind of metaphor, the expository society, that can encompass

both the perils we are aware of when we immerse in the digital dimension, and our

readiness to let ourselves seduced by social media connections who round up exposing

us as subjects of surveil ance, data mining, monitoring and profiling.

The book aims to achieve three main goals: firstly, “to trace the emergence of a

new architecture of power relations throughout society, to excavate its antecedents, to

explore what it is constructing” (63) through a thoughtful analysis of the most contro-

versial disclosures regarding the digital environment, like those concerning the PRISM

program; secondly, “to document its effects on our political relations, on our concep-

tion of self, and on our way of life” (64); last, but not least, “to explore how to resist and disobey” (65).

The book is organized in four parts, each providing a useful framework in ana-

lyzing the implications of all kind of interactions on the internet that involves giving

up a part of your analog self’s private information and letting the digital self expose

it. Part I, Clearing the Ground, parts ways with some unfitting metaphors like Orwel ’s Big Brother and Jeremy Bentham’s Panopticon. Harcourt supports the idea that metaphors play a constitutive role in how we understand and interpret certain features of

reality and therefore we can draw the right conclusions and analyze the implications

of an action only if we operate with the most appropriate and far-reaching concept/

metaphor. Orwell did a great job in describing the mechanisms of oppression, but he

could not foresee the one ingredient that Harcourt thinks to be the core of the digital,

namely “the role that desire would play in enabling digital exposure today” (81). If in

Oceania the authorities were concerned with spreading hatred and distrust among citi-

zens, in the distinct world of social networks desire is preserved as the core drive of our digital activity. The author of Exposed invokes Facebook’s refusal to introduce a dislike button, exactly because this gesture would go against what we all settled for when we

befriended the internet. Adding desire to the old pile of ingredients associated with op-

pressive societies is drastical y reshaping the paradigm of discourse regarding surveil-

lance. Harcourt’s work is, even from this point of view, an attempt to draw attention on

the fact that we can no longer talk only about the surveil ance state in this equation, but also about private actors like corporations driven by economic stimuli and individuals

craving for public confirmation. This is why he considers that the metaphor of a surveil-

lance state must also be abandoned.

110

Book Reviews

By invoking Zygmunt Bauman’s concept of “liquid modernity” (165) , Harcourt

argues in favor of the thesis that modern institutions no longer have time to solidify and therefore we live in a world where the structure of power is more fluid than ever. Lastly, however complex and terrifying Foucault and Bentham’s Panopticon would be, it is

unfit for the age of spectacle that goes hand in hand with surveil ance, like two dialec-

tical forces that shape behaviors, attitudes, desires, institutions and governments. The

prisoners of a panoptic structure internalize the disciplinary practices to the point that the actual act of surveil ance is no longer required. While is was a useful metaphor for

catching something about the distinctive nature of power and knowledge in the eigh-

teen and nineteen centuries, maybe even more recently- Harcourt is never questioning

this particular idea- he believes that perpetuating it would convey an inexact message. It would be more appropriate to talk about a cryptopticon, a term that could capture more than one attitude toward surveil ance- ignorance, fear, even delight.

The second part of the book, The Birth of the Expository Society, provides the readers with a more appropriate metaphor – a mirrored glass pavilion – that can capture the

true dimension of our expository society. He takes the work of Dan Graham, “Hedge

Two-Way Mirror Walkabout”, to be the archetype of generic glass structures that he

cal s into question: “part crystal palace, part high-tech construction, partly aesthetic

and partly efficient, these glass and steel constructs al ow us to see ourselves and others through mirrored surfaces and virtual reflections” (236). Harcourt’s proposal seems to

capture many, if not every dimension of our digital rendition: the desire for participa-

tion, the need for appreciation, the ease with which individuals subject to questionable

terms and conditions for a greater, digital advantage, all with the promise that every-

one else’s showcase is also available in this hazy environment. The author thinks that

the reason why we immerse with ignorance in the digital life is that we abandoned the

humanist mind-set that valued and preserved privacy and autonomy and, in turn, transitioned to a rational choice framework, associated with the commodification of privacy and the like. When people started to perceive privacy and autonomy as commodities,

they lost their value: “In the digital age, we are more likely to hear about the cost of privacy, not its virtues or even its value. We are far more likely to hear about trade-offs and opportunity costs.” (382). Here Harcourt makes a dangerous and partly unconvincing

move trying to correlate the rise of the neoliberal approach with the creation of submis-

sive individuals in the digital sphere. If the basic tenets of economic neoliberalism are

truly internalized, this would not lead to a devaluation of the idea of privacy, but quite the opposite. If individuals perceive privacy and autonomy as commodities, then this

would be the strongest case in favor of the privatization of data. Nonetheless, little reaction was registered after a chain of revelations about personal data being sold, misused

and instrumentalized in the most il egitimate ways, as the author himself admits. If the

logic deployed in this chapter would be bul etproof, then a massive stir was in order. The neoliberal doctrine does not shape passive and compliant citizens, at least not properly

understood.

The third section of the book, The Perils of Digital Exposure, is an attempt to il ustrate how multinational technology companies, like Apple, took over the function of

censorship that not so long ago was associated entirely with the state. The author uses

the example of Josh Begley, who created a mobile app cal ed ‘Drones+’ and submitted

it to Apple, but got rejected on the grounds that it was not useful enough and that the

content provided by the application could be found largely objectionable by the audi-

Book Reviews

111

ence. The fact that we live in a world where so many private actors are wil ing to over-

see our every move, to influence our preferences through recommendation algorithms,

to buy private information or to sell it for the sake of profit, leads Harcourt to deploy

Goffman’s mortification of the self as a key concept that can capture the way in which our daily digital practices detach the self “from its former identity” (484). These structures of power, specific for the digital era, produce moral experiences or, even more accurate,

, a phenomenology of the analog carceral experience that may shed light on our digital

condition” (482). It is a new way of perceiving ourselves, a fundamental dimension of the

human existence that loops back and forth from real to virtual dimensions. This is not

in itself a very troubling fact. What counts as problematic is the impossibility of tel ing them apart at times and the abusiveness of the digital environment combined with the

interests of private actors. Harcourt subscribes to Foucault’s attempt to conceive a gene-

alogy of the perpetual game of reconfiguration that various relations of power entail. He

finds the general foucauldian conceptual framework useful in the respect that all digital

practices are in themselves a dispositif which enhances the amassment of knowledge and power over individuals and particular events and decisions with percussive effects over

the social body. If those digital practices, often undemocratic and dishonest, produce

moral experiences, they have a transformative role. This reconfiguration of subjectivity

implies a major shift in attitude towards algorithms at the expense of one’s sense of self-reliance. Anxiety, depression and an overwhelming sense of lack of control are tolerated

foes, an uneasy and corrosive consequence of giving up control over one’s extended self.

In this section, the mirrored glass pavilion turns into an asylum where humiliation and

degradation go hand in hand with a pervasive satisfaction. It is, as Harcourt puts it, a new world that emerges from under Kafka’s literary metaphor – the bureaucratic behavior of

abuse and indifference that we inhabit, a genuine cryptopticon.

In the last part of the book, Harcourt succeeds in doing a tour de force starting from

those philosophical ideas that resiliently support the idea of resistance, even though

they do not entail with necessity a realistic commitment, but rather a pragmatic one.

This is the most philosophical y substantial part of the book and also the most intrigu-

ing, because it highlights the perks of making sense of a new conceptual grounding

regarding the exhibitionist self as a product of scanty democratic practices. Just as To-

queville forewarned in , Democracy in America,” paternalistic tendencies who materialize end up having the most dramatic consequences- citizens are infantilized to the

point that they become unable to access all forms of resistance. For these reasons, a

philosophy of resistance must be aware of the way in which the expository society is

redefining the democratic practices, including electoral campaigns, the voting process

and the making of truth standards for information.

Virtual democracy is a cyber-utopia. Only by stepping outside of it one can see

the dangers that surround our democratic regimes. Harcourt uses Deleuze’s concept

of societies of control. He maintains that any society of control has some associated machines, from rudimentary forms – levers, pul eys, clocks-to infinitely more advanced

forms, with a much more subtle modus operandi – a network of computers and an army

of two-faced algorithms. Just as Deleuze, Harcourt is an optimist; he believes that any

society of control has its cure. He analyzes possible forms of resistance, from minor

gestures like the use of proxy websites, to the whole phenomena of whistle-blowing.

Assange’s WikiLeaks is a form of institutionalized resistance that is given as example

of complex and efficient counteraction. Nonetheless, there are more subtle and acces-

112

Book Reviews

sible forms of coping with the mechanisms of a virtual democracy, like designing and

implementing educational programs in schools in order to raise awareness of the lesser

known sides of the digital trade-offs, the use of sophisticated encryption software and

the like. Furthermore, he points to the fact that political philosophers had neglected

to talk about some policy proposals that could be just the answer we are looking for:

digital taxation and the privatization of data. By privatizing the data we would give the

owners the ability to cash in on whatever information they choose to disseminate.

Harcourt’s book, Exposed, is definitely a thought-provoking work, providing its

readers with a conceptual framework that goes from various transformations of the self,

the rise of a new political and economical paradigm in which the state is no longer the

only agent who is posing a threat to the individual freedom and a thorough deconstruc-

tion of the metaphors that help us shaping and making sense of the present. With an in-

citing empirical background, this book is an excel ent reference for anyone concerned

with the philosophy of the internet, ethics, philosophy of law, or simply searching for

further lectures on digital and surveil ance studies. Harcourt aims at establishing the

main research directions concerning privacy and means of resistance, and he succeeds

in doing just that. Exposed is not just the work of a legal theorist, but also the philosophical product of a man who teaches and writes about spectacle and surveil ance,

techniques of torture and confessions – they all play a part in making this book one of

the most comprehensive and well written works on this subject.

Reviewed by Anda Zahiu

University of Bucharest

anda.zahiu@yahoo.com

Acknowledgements

This work was supported by a fel owship of the Romanian National Author-

ity for Scientific Research and Innovation, CNCS- UEFISCDI, project number

11/30.09.2016, within PNCDI III.

PUBLIC REASON

Journal of Political and Moral Philosophy

Submission information: All contributions whether articles or reviews are welcome and should be sent by e-mail as attachment at publicreason@ub-filosofie.ro. Papers will be refereed on a blind basis by Public Reason’s referee board. Acceptance notices will be sent as soon as possible. The editors may ask for revisions of accepted manuscripts. Papers should have an abstract and key words. Please limit your paper submission to 8000 words, including footnotes and references, and format it for blind review (the text should be free of personal and institutional information). Along with the article, but not in the article, please send contact details: current affiliation, address, telephone number and email address. Authors are responsible for reinserting self identifying citations and references when manuscripts are prepared for final submission. Book reviews should have no more than 4000 words.

Manuscript preparation: All manuscripts should be formatted in Rich Text Format file (*rtf) or Microsoft Word document (*doc) with 12 pt. font size and double-spaced. Please use the author-date system documentation style, as it is presented in The Chicago Manual of Style. For more information about our editing rules, please go to: http://www.publicreason.ro/submission-info

Notes: The contributions have to be original and not published before. Public Reason does not require exclusivity in submission of articles. However, if you have submitted your article to another journal, we kindly require that you let us know about it, and notify us without any delay about other journals’

decisions about your article. The work has to be approved by all co-authors. Authors wishing to use text passages, figures, tables etc. that have already been published elsewhere are required to obtain permission from the copyright owner(s). Evidence that permissions have been granted are to be sent along with the manuscripts submitted for the blind review.The authors assume all responsibility for the content published in the journal.

Book reviews: Books for review should be sent to: CSRB, Department of Philosophy, University of Bucharest, 204 Splaiul Independentei, Sect. 6, 060024, Bucharest, Romania.

Advertising Information: If you want to advertise your books, department programs, conferences, events etc. please contact us at publicreason@ub-filosofie.ro in order to get general information or information on costs, specifications, and deadlines.

Subscription and delivery: Public Reason is an open access e-journal. For the print version of the journal please contact us at publicreason@ub-filosofie.ro.

Permission: Public Reason holds the copyright of all published materials. Requests for permission to reprint material from Public Reason should be sent to publicreason@ub-filosofie.ro.

Online publication: Public Reason is available online at http://publicreason.ro

The journal Public Reason is published by The Center for the Study of Rationality and Beliefs. CSRB is a unit of scientific research within the Faculty of Philosophy of the University of Bucharest (http://www.ub-filosofie.ro). CSRB is located in the Faculty of Philosophy, Splaiul Independenţei 204, Sector 6, postcode 060024, Bucharest. For more information see http://www.csrc.ro/EN/home

ISSN 2065-7285

EISSN 2065-8958

© 2017 by Public Reason

Document Outline

- Front Cover

- About Public Reason

- Contents

- Introduction: Methods in Normative Political Theory/Philosophy

- Challenging Political Theory: Pluralism and Method in the Work of Bernard Williams

- I. Legitimacy and Justification: New Realism Reading Bernard Williams

- II. Williams’s Subterranean Method: Naturalism, Historicism Andpolitical Theory

- III. Contemporary Reverberations: Putting Williams Together with Tullyfor a Democratic Pluralism

- IV. Conclusion

- References

- From Inevitable Establishment to Mutual Exclusion: The Challenge for Liberal Neutrality

- I. Neutrality in Inevitable Establishment Domains

- II. ‘Both/And’ vs. ‘Either/Or’

- III. Mutual Exclusion

- IV. Intrinsic-Value Judgments

- V. Conflicting Universal Justifications

- VI. Can Language Policy Be Neutral?

- VII. Disagreement over the Right and Over the Good

- VIII. Conclusion

- References

- ‘What Might Scheler Say to Rawls?’: A Schelerian Critique ofRawls’s Concept of ‘The Person’

- I. Rawls’s Conception of the Person

- II. Scheler’s Possible Comments to Rawls

- III. Scheler’s Conception of the Person and Its Link to Rawls

- References

- Context Dependence in Gaus’s Evolutionary Account of Public Reason

- I. Morality and Evolution

- II. Experimental Data

- III. The Problem of Fact Sensitivity

- IV. Contextual Issues with the Experimental Evidence: The Identity of Subjects

- V. Contextual Issues with the Experimental Evidence: Knowledge and Anonimity

- VI. Conclusion

- References

- Deafness as Disability: Countering Aspectsof the Medical View

- References

- In Defense of Liberal Equality

- I. Liberal Equality vs. the Difference Principle

- II. The Libertarian Objection

- III. The Unknown Society Model

- IV. The Social Bases of Self-Respect

- V. Conclusion

- References

- Bernard Harcourt, Exposed. Desire and Disobedience in the Digital Age .

- Submission Information

- Back Cover

Table of Contents

Front Cover

About Public Reason

Contents

Introduction: Methods in Normative Political Theory/Philosophy

Challenging Political Theory: Pluralism and Method in the Work of Bernard Williams

I. Legitimacy and Justification: New Realism Reading Bernard Williams

II. Williams’s Subterranean Method: Naturalism, Historicism Andpolitical Theory

III. Contemporary Reverberations: Putting Williams Together with Tullyfor a Democratic Pluralism

IV. Conclusion

References

I. Legitimacy and Justification: New Realism Reading Bernard Williams

II. Williams’s Subterranean Method: Naturalism, Historicism Andpolitical Theory

III. Contemporary Reverberations: Putting Williams Together with Tullyfor a Democratic Pluralism

IV. Conclusion

References

From Inevitable Establishment to Mutual Exclusion: The Challenge for Liberal Neutrality

I. Neutrality in Inevitable Establishment Domains

II. ‘Both/And’ vs. ‘Either/Or’

III. Mutual Exclusion

IV. Intrinsic-Value Judgments

V. Conflicting Universal Justifications

VI. Can Language Policy Be Neutral?

VII. Disagreement over the Right and Over the Good

VIII. Conclusion

References

I. Neutrality in Inevitable Establishment Domains

II. ‘Both/And’ vs. ‘Either/Or’

III. Mutual Exclusion

IV. Intrinsic-Value Judgments

V. Conflicting Universal Justifications

VI. Can Language Policy Be Neutral?

VII. Disagreement over the Right and Over the Good

VIII. Conclusion

References

‘What Might Scheler Say to Rawls?’: A Schelerian Critique ofRawls’s Concept of ‘The Person’

I. Rawls’s Conception of the Person

II. Scheler’s Possible Comments to Rawls

III. Scheler’s Conception of the Person and Its Link to Rawls

References

I. Rawls’s Conception of the Person

II. Scheler’s Possible Comments to Rawls

III. Scheler’s Conception of the Person and Its Link to Rawls

References

Context Dependence in Gaus’s Evolutionary Account of Public Reason

I. Morality and Evolution

II. Experimental Data

III. The Problem of Fact Sensitivity

IV. Contextual Issues with the Experimental Evidence: The Identity of Subjects

V. Contextual Issues with the Experimental Evidence: Knowledge and Anonimity

VI. Conclusion

References

I. Morality and Evolution

II. Experimental Data

III. The Problem of Fact Sensitivity

IV. Contextual Issues with the Experimental Evidence: The Identity of Subjects

V. Contextual Issues with the Experimental Evidence: Knowledge and Anonimity

VI. Conclusion

References

Deafness as Disability: Countering Aspectsof the Medical View

References

References

In Defense of Liberal Equality

I. Liberal Equality vs. the Difference Principle

II. The Libertarian Objection

III. The Unknown Society Model

IV. The Social Bases of Self-Respect

V. Conclusion

References

I. Liberal Equality vs. the Difference Principle

II. The Libertarian Objection

III. The Unknown Society Model

IV. The Social Bases of Self-Respect

V. Conclusion

References

Bernard Harcourt, Exposed. Desire and Disobedience in the Digital Age .

Submission Information

Back Cover