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Published online by Cambridge University Press: 07 December 2016
The ideal theory debate rests on two conflicting claims: that justice is “the first virtue of social systems” (justice first), and that a just society is one in which “everyone accepts and knows that the others accept the same principles of justice” (universal consent). Justice first holds that questions about the meaning of justice — and thus about what an ideally just society would look like — must be settled before we can effectively pursue justice. However, universal consent entails a project of justification that can only take place over time. I propose that we avoid this impasse by treating freedom rather than justice as the “first virtue” of a liberal society. Liberal freedom has two distinct and complementary dimensions, which give rise to two distinct and complementary moral aims: on the one hand, to create the social conditions that make responsible agency possible (republican freedom), and on the other hand to carve out a social space within which the demands of responsible agency are relaxed or absent (market freedom). Striking the appropriate balance between these two dimensions of liberal freedom is irreducibly a matter of judgment. A freedom-centered liberalism therefore requires that we treat justice as the endpoint rather than the starting point of political action, thus severing the link between legitimacy and consent.
1 Here I distinguish the ideal theory debate from the debate, centering around the late work of Bernard Williams, about political “realism” versus political “moralism,” which calls these claims (and much else) into question. See in particular Williams, In the Beginning Was the Deed: Realism and Moralism in Political Argument (Princeton, NJ: Princeton University Press, 2005), as well as Geuss, Raymond, Philosophy and Real Politics (Princeton, NJ: Princeton University Press, 2008)CrossRefGoogle Scholar and, for a useful overview, William Galston, “Realism in Political Theory,” European Journal of Political Theory 9 (2010), 385–411.
2 Rawls, John, A Theory of Justice, rev. ed. (Cambridge, MA: Harvard University Press, 1999 [1971]),Google Scholar 3–4 (emphasis added).
3 Rawls, Political Liberalism, 2nd ed. (New York: Columbia University Press, 1996 [1993]), 137; cf. 217.
4 Strictly speaking the consent in question is “universal” only with respect to the (reasonable) members of the society that is to be bound by a given conception of justice, and Rawls took an increasingly modest position on the question of what kind of society that might be in his later work. This narrowing of scope does not affect the line of argument that I am pursuing here, but the word “universal” should nevertheless be read with this caveat in mind.
5 The latter formulation — and the term “contractualism” — is due to T. M. Scanlon; see his “Contractualism and Utilitarianism,” in Amartya Sen and Bernard Williams, eds., Utilitarianism and Beyond (New York: Cambridge University Press, 1982), 103–28, and more generally his What We Owe to Each Other (Cambridge, MA: Harvard University Press, 2000).
6 Rawls’s way of drawing the distinction between ideal and nonideal theory hinges on the question of whether we assume “strict” or only “partial” compliance with what justice demands (Rawls, Theory of Justice, 8, 215–8). This way of drawing the distinction conflates the two issues that I distinguish here, since it raises the question both of what we should do when others are noncompliant (a concern about justice first), and of how much compliance we should be willing to assume (a concern about universal consent).
7 Sen, Amartya, “What Do We Want from a Theory of Justice?” Journal of Philosophy 103 (2006), 215–38,CrossRefGoogle Scholar quoted at 218, 222. Sen uses the term “transcendental” to refer to views that take “the principal question to be: What is a just society?” (ibid., 216, original emphasis) — in my terms, views that endorse justice first.
8 John Simmons, A., “Ideal and Nonideal Theory,” Philosophy and Public Affairs 38 (2010): 5–36,CrossRefGoogle Scholar quoted at 34–35 (original emphasis).
9 Swift, Adam, “The Value of Philosophy in Nonideal Circumstances,” Social Theory and Practice 34 (2008): 363–87,CrossRefGoogle Scholar quoted at 363; cf. Zofia Stemplowska, “What’s Ideal About Ideal Theory?” Social Theory and Practice 34 (2008): 331–34.
10 Waldron, Jeremy, Law and Disagreement (New York: Oxford University Press, 1999), 105.CrossRefGoogle Scholar For a similar line of argument see David Enoch, “Against Public Reason,” Oxford Studies in Political Philosophy, vol. 1, ed. David Sobel, Peter Vallentyne, and Steven Wall (New York: Oxford University Press, 2015), 124–26.
11 This is Scanlon’s definition of reasonableness; see for example “Contractualism and Utilitarianism,” 110–11. Rawls holds that reasonable people must also assume the “burdens of judgment”; that is, they must accept that uncertainty about how to weigh conflicting evidence, define key terms, and balance competing values severely limits our ability to reach agreement about fundamental moral questions: see especially Political Liberalism, 54–58. Ironically, Waldron rests his appeal to the “circumstances of politics,” and his concomitant critique of Rawlsian theories of justice, on this aspect of Rawls’s thought — it is in that sense an immanent critique.
12 Adam Swift is startlingly candid on the latter point: “what is really nonideal,” he argues, is that “I live in a democracy containing too many people who are: (i) too unreflective or ignorant to understand the conceptual distinctions that would allow them properly to understand the place of fairness in any overall evaluation of policy or individual action; and/or (ii) too selfish to value fairness as much as they should, and hence to vote for policies that would promote it, or to be motivated by it when deciding on their actions as individuals.” One is not entirely reassured by his further observation that “since, as well as valuing fairness, I am a democrat, and a liberal, I wouldn’t really want to be an omnipotent dictator”: “The Value of Philosophy in Nonideal Circumstances,” 383–84, 382 (original emphasis).
13 Despite first appearances, these two categories do not make up an exhaustive typology of human action: the slave — the paradigmatically unfree person — cannot properly be held responsible for his actions because he is (at least in principle) a mere instrument of his master’s will. Nor, of course, does the slave enjoy a domain of conduct in which he is not held responsible for his actions, because there is no part of a slave’s life that is not (in principle) subject to his master’s will.
14 Here it’s worth noting that the contractarian canon centers around — and is nearly exhausted by — Kant and Rawls, two notoriously disengaged political thinkers. The contractarian model fits the liberal thinkers of the intervening period — figures such as Montesquieu, Condorcet, David Hume, Adam Smith, Jeremy Bentham, Edmund Burke, James Madison, Benjamin Constant, Alexis de Tocqueville, John Stuart Mill, T. H. Green, Henry Sidgwick, L. T. Hobhouse, John Dewey, Isaiah Berlin, Friedrich Hayek, and Karl Popper — much more awkwardly, or not at all. Indeed most of these thinkers — Hume, Bentham, Mill, and Sidgwick are the exceptions, for obvious reasons — are all but read out of the tradition in Rawls’s Lectures on the History of Political Philosophy (Cambridge, MA: Harvard University Press, 2007): Montesquieu, Condorcet, Smith, Constant, Tocqueville, and Berlin each receive only passing mention, and Burke, Madison, Green, Hobhouse, Dewey, Hayek, and Popper are not mentioned at all. Most (though not all) of these thinkers treat freedom as a more fundamental political value than justice.
15 I am (as the reader will have guessed) working on a book, with the working title Liberal Freedom, in which I explore these issues in more detail.
16 This position should not be confused with the claim that an agent can only be made unfree by constraints for which other agents can be held morally responsible: see especially Miller, David, “Constraints on Freedom,” Ethics 94 (1983): 66–86,CrossRefGoogle Scholar and Benn, S. I. and Weinstein, W. L., “Being Free to Act, and Being a Free Man,” Mind 80 (1971): 194–211.CrossRefGoogle Scholar
17 Strawson, P. F., “Freedom and Resentment,” Proceedings of the British Academy 48 (1962): 1–25.Google Scholar
18 Pettit, Philip, A Theory of Freedom: From the Psychology to the Politics of Agency (New York: Oxford University Press, 2001), 18.Google Scholar Pettit’s republicanism is described and defended at greater length in his Republicanism: A Theory of Freedom and Government, 2nd ed. (New York: Oxford University Press, 1999 [1997]), and more recently in On the People’s Terms: A Republican Theory and Model of Democracy (New York: Cambridge University Press, 2012). For my own interpretation of republican freedom, which is largely consonant with Pettit’s, see MacGilvray, Eric, The Invention of Market Freedom (New York: Cambridge University Press, 2011), esp. chap. 1.CrossRefGoogle Scholar
19 The great exception is Thomas Hobbes, who argues that “LIBERTY, or FREEDOME, signifieth (properly) the absence of Opposition,” that is, of “externall Impediments of motion,” and that this definition “may be applyed no lesse to Irrationall, and Inanimate creatures, than to Rationall”: Leviathan, ed. Richard Tuck (New York: Cambridge University Press, 1996 [1651]), 145 (chap. 21).
20 See for example Friedrich A. Hayek, Law, Legislation and Liberty, vol. 2: The Mirage of Social Justice (Chicago: University of Chicago Press, 1976), chap. 10.
21 The “individual actor” may of course be a corporate rather than a “natural” individual; for example a firm or a voluntary association. I leave aside here the difficult question of what morally relevant differences there might be between these two kinds of actors.
22 Adam Ferguson, An Essay on the History of Civil Society (1767), ed. Fania Oz-Salzberger (New York: Cambridge University Press, 1995), 119 (part 3, section 2); cf. Hayek, Law, Legislation and Liberty, vol. 1: Rules and Order (Chicago: University of Chicago Press, 1976), 20, and Edna Ullmann-Margalit, “Invisible Hand Explanations,” Synthese 39 (1978): 263–91.
23 Isaiah Berlin, “Two Concepts of Liberty” (1958/1969), in idem, Liberty, ed. Henry Hardy (New York: Oxford University Press, 2002), 166–217. The critical literature on Berlin’s essay is vast and impossible to summarize, but many commentators have pointed out that there are more than two “concepts” of liberty abroad in it, and that the analytical relationships between them are rather loosely drawn. For my own take on this issue see Eric MacGilvray, “Republicanism and the Market in ‘Two Concepts of Liberty’,” in Bruce Baum and Robert Nichols, eds., Isaiah Berlin and the Politics of Freedom (New York: Routledge, 2013), 114–26, and cf. MacGilvray, Invention of Market Freedom, 9–15.
24 Gerald Gaus has argued that liberal legitimacy simply requires convergence on a common set of moral principles; that is, agreement that the principles are justified but not (necessarily) on the reason why this is so. See for example his Justificatory Liberalism: An Essay on Epistemology and Political Theory (New York: Oxford University Press, 1996), and more recently The Order of Public Reason: A Theory of Freedom and Morality in a Diverse and Bounded World (New York: Cambridge University Press, 2011). I want to suggest that even this weaker understanding of universal consent is unlikely to be satisfied without a significant amount of idealization.
25 I draw here on the more detailed discussion in MacGilvray, Eric, Reconstructing Public Reason (Cambridge, MA: Harvard University Press, 2004), chaps. 6–8.Google Scholar
26 These include, but are not necessarily limited to, the freedoms of speech, press, and assembly.
27 On the idea of a “realistic utopia" see Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), sec. 1.