Michael Sandel is one of America’s best-known political philosophers, and helped establish his reputation with a widely respected and widely taught book, Liberalism and the Limits of Justice. He was also kind enough to make an appearance on The Partially Examined Life. So I don’t relish saying that I think that the esteemed reputation of Liberalism and the Limits of Justice is nothing short of a scandal. That is not because I dispute the plausibility of the claim that community is fundamentally important to human well-being, and that the ethos of liberalism is in tension with it. Rather it’s because Sandel makes the stronger claim that a certain kind of liberalism “stands opposed … to the possibility of community in the constitutive sense,” and his central argument for this claim is based on fundamental errors in reasoning that ought to be obvious to any professional philosopher.
In Part I of this essay, I give a very brief sketch of my objections to Sandel’s central argument, in the form of a parable. In Part II, I give a fuller account of Sandel’s central argument, and in Part III, a fuller account of my objections to it. In Part IV, I describe Sandel’s attempt to amend this argument (via his response to John Rawls’s Political Liberalism), and then give a second series of rebuttals. In Part V, I argue that Sandel’s anti-liberal conception of a “thickly constituted” self is actually generic, impoverished, and dehumanizing; and respond to some of his particularly egregious mischaracterizations of Kant.
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Part I: A Sketch of My Critique
Suppose I told you the following fairy tale, one that for some reason didn’t make it into the compilations of the Brothers Grimm: A shepherd goes into a shop to buy some shears. The available shears are all very attractive for different reasons, and the shepherd cannot choose between them. The shopkeeper suggests that he close his eyes and pick blindly, and that’s what the shepherd does. With his nice new shears in hand, the shepherd returns to his flock. But there is a problem: The shepherd finds that every time he uses these shears on one of his sheep, the sheep goes blind. So the shepherd returns to the shopkeeper to complain. The shopkeeper identifies the problem: it’s not that the shears are poisoned, and it’s not that the shepherd is using them incorrectly by applying them directly to the eyes. The problem can be explained, says the shopkeeper, by the following maxim:Shears chosen blindly produce blind sheep.
Now consider the similar logic at work in Michael Sandel’s Liberalism and the Limits of Justice: principles of justice derived without a view to identity tend to produce societies with identity-blind citizens. Here’s a less awkward way of putting it: principles of justice derived from an abstract conception of the self produce societies that stand opposed to fully realized selves.
By the same logic, citizens in political orders founded without regard to pudding, can’t ever have any pudding. Not even after they’ve eaten their meat.
In case you doubt the accuracy and charity of this general sketch, let’s dig a little deeper.
Part II: Sandel’s Central Argument
Sandel argues that liberalism—or at least a version of “deontological liberalism” he associates with the philosophers Kant and Rawls—“stands opposed … to the possibility of community in the constitutive sense.” This is Sandel’s central thesis, and in what follows I’m going to describe the central argument he makes in support of it, while for the most part leaving aside the book’s subsidiary theses. Along the way I’ll be explaining some of the philosophical concepts at issue with my own examples.
What Sandel means by “community in the constitutive sense,” is community insofar as it has a role in shaping who I am. If I belong to a certain religious community, then my identity is constituted in part by membership in this community. The primary mechanism here consists of the values I share with other community members, and that I have been bequeathed by the community: for example, the importance of going to church, or of virtues like chastity, or of certain religious rituals, or of the community itself. Sandel uses the word “ends” instead of “values,” because values might be construed as something extraneous to our identities that we can adopt or discard as we desire—a view he erroneously associates with Kant (see Part V). “Ends” leaves us more explicitly open to the view—one sometimes associated with Aristotelian teleology and final causation—that what is good for a living being is part of its nature, and so is objectively grounded outside of desire.
It’s worth noting that the way that Sandel uses the word “ends” is a significant extension of Aristotelian virtue ethics. Aristotelian ends are underwritten by human nature, and are applicable to all human beings. They define a set of virtues, dispositions grounded in character, that include such universally desirable qualities as courage and temperance. Courage is a virtue for human beings because it is the actualization of an end that is grounded in human biology and psychology. It is good to be courageous because we are so constituted that acting courageously enhances our well-being (eudaimonia, variously translated as “happiness” and “flourishing”). By analogy, I might think of a set of virtues and ends that are defined not by nature but by culture, including the specific communities to which I belong. In shaping my identity, these communities define for me goods that are more specific than courage and other Aristotelian virtues. If I am raised as a Muslim, then my identity is shaped in such a way as to define for me certain Muslim-related ends, in the same way that biology defines for me certain human-related ends.
Consequently, community-related ends are no more arbitrarily defined than those shaped by nature. If being a Muslim has shaped my identity, then ends related to being a Muslim—including certain religious beliefs and practices—are fundamental to my well-being. It is a matter of chance—and so arbitrary in a sense—that I grew up a Muslim rather than a Christian. But the ends defined by my being a Muslim or Christian—and the relationship of my well-being to them—are not at all arbitrary, and not merely a matter of choice based on desire: they actualize a set of dispositions that have been ingrained in me from early on. This is not to say that I might not find some other community, with formative powers that define new ends and new criteria for my well-being (as in a conversion from Christianity to Islam). And it’s not to say that communities might define ends for me that are bad for me, insofar as the conflict with ends defined by my humanity: for example, communities in which violence and sexual abuse are norms. But what’s relevant here is that my identity and my ends are shaped by membership in multiple communities, some of which are presumably important to my well-being. These may be national, religious, ethnic, professional, educational, and familial, and I assume this list goes on to any level of specificity we like.
Each of my examples—for example, being courageous, or a Muslim—is an account of what is good for me based on my identity as determined by certain formative influences. Following Rawls, Sandel calls this a “thick” conception of the good, to distinguish it from a minimal conception that is less aspirational and focused instead on “primary goods,” including basic rights and liberties. This “thin” conception of the good is indirectly the basis for Rawls of a derivation (via a set of actors in the “original position”) of liberal principles of justice that are meant to be broad enough to allow varying thick conceptions of the good to flourish under their umbrella: in this sense, “the right is prior to the good.” For instance, liberal societies prohibit murder but not certain religious practices (except to the extent that those practices violate other fundamental prohibitions). We call this “pluralism,” and one of its goals is to allow the peaceful coexistence of people who want to live fundamentally different kinds of lives, in communities with ends that are different and in some cases opposed. Justice is meant to serve as the most general moral framework in which various more robust conceptions of the good may thrive to the extent that they do not contradict this framework.
According to Sandel, in deriving its principles of justice from a thin conception of the good, deontological liberalism derives them from a thin conception of the self. The thick version of the good includes the ends that are formative of a “thickly constituted self.” By abstracting from these ends, we abstract from this richer version of the self. The ground of a liberal society is an “unencumbered self” that, instead of being individuated by its ends, is “antecedently individuated prior to its experience,” and so individuated prior to its ends. This means that what distinguishes you from me under this conception of the self is not the richer differences in our identities that we often associate with our character, ends, and the social forces that go into shaping these things, including group affiliations such as race and religion. Instead, we are distinguished by the mere fact of being two numerically separate consciousnesses with differing desires—desires that are the result not of character or social forces but our own free choices. We are in this sense thinly constituted selves, not constituted by our ends, or “attachments that go to the core of identity.” Instead we are in possession of desires that we can freely abandon as we will.
According to Sandel, this unencumbered self is not just the theoretical ground for a liberal society, but its product. Basing principles of justice on such theoretical, unencumbered self leads to these principles being inconsistent with communities in which our ends and identities are at stake (I will treat Sandel’s vague “stands opposed to” as “inconsistent with,” since this is clearly the way he talks in the rest of the book: for example, a derivation of principles of justice from the unencumbered self “rules out the possibility of a public life in which … the identity … of the participants could be at stake”). Consequently, the pluralism of liberalism—the extent to which it provides a framework for differing conceptions of the good, for instance, different religious communities—is incomplete, and the principles of justice involved in liberalism are not neutral with regard to the varying conceptions of the good for which it is meant to serve as an umbrella, but hostile to them. This is not to say that we cannot form communities within liberal societies. It’s just that these communities cannot be communities in the fullest sense, which is to say “constitutive.” As a consequence, we are forced in liberal societies to live lives as something like the unencumbered selves that we theoretically posit for the sake of deriving our principles of justice.
Part III: A Critique of Sandel’s Central Argument
Let’s assume for the sake of argument that Sandel is right that both Kantian and Rawlsian theories of justice require that liberal principles be derived from some minimal conception of the self. The question is, in what sense is the “unencumbered self” from which these principles are derived inconsistent with the existence of genuine communities in societies ruled by such principles? It’s not, of course, that these hypothetical, non-existent, unencumbered selves of theory simply migrate into reality, becoming the actual real-world human beings who live in a state whose political order they were used to justify. Imagine here Rawls’s actors in the original position: not quite as blind as the shepherd, but choosing principles of justice without being fully cognizant of their identities and ends. What’s the mechanism via which they transfer this lack of encumbrance to the citizen-herd? Why do shears chosen blindly produce blind sheep?
Sandel’s central argument in Liberalism and the Limits of Justice does not answer this question. (A preface and new closing chapter for the second edition of the book seem to be afterthoughts meant to remedy this problem—I address these below and in Section IV). Sandel seems to assume a) that a derivation of principles of justice from theoretical unencumbered selves imply that there is no more to one’s “theory of the person” than these unencumbered selves and b) that the negation of encumbered selves in any theory used to justify principles of justice means that these principles must be actually opposed, or causally negating, to the actual existence of thickly constituted selves and communities.
None of this follows. Consider the following analogous logical example: My derivation of some theorem from a certain minimal set of axioms doesn’t make this theorem inconsistent with all the additional axioms that I might have—but didn’t—include from the beginning in my system. I have to demonstrate separately that the theorem itself is inconsistent with those other axioms. Pointing out that liberalism nowhere grounds itself in thickly constituted selves does absolutely no work when it comes to the task of demonstrating that its consequences are inconsistent with thickly constituted selves.
But suppose we concede for the sake of argument that the set of assumptions from which we derive our principles of justice includes or implies the impossibility of thickly constituted selves. This still doesn’t get Sandel where he wants to go. We can derive true theorems from false axioms, and we can derive principles of justice conciliatory to thickly constituted selves from assumptions that deny their existence. Similarly, it is entirely possible that an eccentric potter who develops a strange method of potting based on the bizarre belief that there is no such thing as wine, nevertheless produces pots that are capable of holding wine. Sandel has somehow to make the transition from this logical inconsistency between a theoretical justification of liberal societies and thickly constituted selves, to a necessary causal relationship between liberal societies and thickly constituted selves. He has to identify some causal mechanism that explains why liberal principles of justice would be necessarily hostile, in practice, to identity and community.
Now suppose that liberal principles do in fact turn out to be opposed to thickly constituted selves, and that the assumptions we used to derive our liberal principles are also opposed to thickly constituted selves. Could these two facts have anything to do with each other? They couldn’t. Rawlsian or Kantian justifications of liberalism can’t tell us anything about the nature of liberalism. If it turned out that principles derived from premises opposed to thickly constituted selves abandoned some conception of human rights, then what we have derived is no longer liberalism. We know from the beginning the nature of liberalism, and our justifications cannot alter it, whether they involve accurate theories of personhood or absurd theories of personhood. Again, what we need is for Sandel to identify some causal mechanism that is necessarily associated with liberalism.
Despite Sandel’s avoidance of talk about possible causal mechanisms in his central argument, there is one possibility that will immediately occur to most readers. It’s clear that liberal regimes will not endorse more robust conceptions of the good (I use “endorsement” here to include some level of enforcement of such conceptions of the good, and perhaps prohibition of competing conceptions). So one method of establishing a causal mechanism linking liberalism to a lack of constitutive community would be to show that for ends to properly constitute us, they require such state endorsement. But Sandel does make this argument, and I think we can assume he would see the necessity of state endorsement in this strong sense as a result whose perniciousness trumps the value of constitutive communities. Nevertheless, it is truly strange that Sandel fails to address this possibility: the whole raison d’etre of liberalism is to avoid the terrible consequences of endorsement (including, for example, of religion). Most readers will be wondering, and will expect Sandel to address, the following questions: Is he suggesting minor modifications to liberalism, or some alternative political scheme? In either case, how do we make sure to avoid the terrible consequences that liberalism is meant to solve, including the curtailment of liberty and the persecution of certain communities? Or does the value of constitutive community trump the possibility of such consequences? Anyway, what is the proposed political scheme even called, if it is not either some form of authoritarianism or some minor modification of liberalism? Sandel never addresses these questions, and it gives one the impression that he is avoiding the most difficult—and relevant—challenges to his thesis.
Sandel comes closest to explaining why liberalism is causally opposed to constitutive communities in his preface to the second edition of Liberalism and the Limits of Justice. Here he gives two examples. In the case of religious liberty, he argues that while religious pluralism ought to be preserved, it ought to be preserved for the right—that is, non-liberal—reasons. This means that we ought to ground religious liberty—including a “special respect” shown to religions and religious practices—not in human rights and respect for individuals, but in respect for religions themselves. This respect is to be grounded in the fact that the content of a specific religion is actually valuable, and as such “essential” to the good of members of religious communities, and “indispensable to their identity.” A grounding of religious pluralism in liberalism implies that religion is just like any other preference of the unencumbered self, and so is deprived of its power to constitute encumbered selves. In his second example, Sandel makes a case for establishing limits to freedom of speech: “hate speech … can inflict a harm as real and as damaging as some physical harms” and reaches “the core of … identities and life stories.” The remedy here is curtailment of such speech based not on liberal principles (which already imply numerous limits to free speech), but on the content of the speech itself. Specifically, we must balance “the moral importance of the speech in relation to the moral status of the settled identities the speech would disrupt or offend.”
These examples seem to imply the following explanation for the inconsistency of liberalism and constitutive community: it’s not that state endorsement is necessary in the strong sense (of outright enforcement and prohibition) to constitutive communities, but that state endorsement is necessary in some weaker sense. This causal principle focuses on the content of people’s beliefs and their expression of these beliefs. So while the Sandelian state wouldn’t be in the business of affirming one religion and outlawing other religions, it would be in the business of affirming religion-in-general and outlawing “harmful” speech.
Now, all of this ought to make you scratch your head, for two reasons. The first is that Sandel’s focus on “content” is not actually consistent with the pluralism he seems to wish to preserve. Not all communities have laudable ends conducive to our well-being, however much they are “constitutive.” And presumably not everything that calls itself a religion is good for us, either. If the state is to really endorse religion based on content rather than freedom of conscience, it must distinguish good content from bad. And the making of these distinctions is in no way consistent with the affirmation of religion in general. If all religions have valuable content deserving state endorsement, that’s a curious result given that the content of religions is often contradictory. One, of course, might take the view that anything constitutive is good, as long as it doesn’t meet some definition of harm. But this means that it was never the content of religious ends that was at issue, but their property of being constitutive. In this case then, even by his own account, Sandel only differs from liberals in that he thinks it’s important that the justification for religious pluralism be the property of being objectively-valuable-because-constitutive, whereas liberalism relies on the property of being subjectively-valuable-because-desired. Special respect is due not because certain communal ends are objectively better than those of a community with diametrically opposite ends; but because these ends are beside the point, except to the extent that they do no harm and play their constitutive role. Are these ends then really all that different from what it is that I desire? Isn’t desire arguably—as a matter of psychology—determined in part by communal ties, and inherently constitutive? Isn’t the distinction Sandel is making here the product of analytic scholasticism, and ultimately bogus?
Here’s the second head-scratcher when it comes to the implied causal role of weak endorsement: it’s very clear that while liberal societies will do their best to avoid endorsement, strong or weak, it’s not at all clear that constitutive communities can’t survive without it. If Sandel wants to make this his causal principle, he must argue for it. And the thesis he needs to argue is a cultural thesis, to the effect that the liberal ethos is corrosive to the cultural forces that make communities constitutive. It’s entirely possible that the value of religious tolerance, for example, leads to a weakening of religious faith, and so nudges us closer to the imaginary horizon of the unencumbered self.
While this is a plausible cultural thesis, it is not one that Sandel ever argues. It is, after all, a complicated thesis that would benefit from some empirical data, and forays into anthropology, psychology, sociology, and history. Most of us intuitively accept the idea that the liberal ethos is in tension with community to some degree: this is a truism. But most of us would be surprised to find that it rises to Sandelian levels of inconsistency, and most of us would be surprised that this inconsistency could be derived a priori from theoretical justifications of liberalism. In any case, the real questions are now many, and include: to what extent does the liberal ethos weaken constitutive community? How do we distinguish the effects of the ethos of liberalism with other possible causal mechanisms, such as technology?
Whatever Sandel might have established in defending such a cultural thesis, it would be a far cry from showing that liberal societies lead to the unencumbered selves he describes. It is not possible for a liberal society—through cultural mechanisms—to turn us into free-floating transcendental subjects, devoid of our empirical selves, including our bodies and our personalities. And however liberalism weakens communal attachments and ends, it could not deprive us entirely of our thickly constituted selves, with personalities and human relationships and ends that go far beyond “thou shalt not kill” and other minimal moral limits. The many forces that shape our identities—biological, psychological, social, and cultural—do not simply vanish in a liberal society. So Sandel cannot really argue that liberal societies are actually inconsistent with thickly constituted selves and constitutive communities. At worst, they have an attenuating effect.
Finally, even for this cultural thesis, Sandel’s causal mechanism of weak endorsement won’t get him very far. Is the death of God really to be explained not by the advent of science, technology, industrialization, and so on, but by lack of legislation that ensures that communities feel respected and shields them from offense? Are communities really so fragile as to be made non-constitutive by the lack of such protections? Are communities—these powerful, identity-constituting entities—really such shrinking wallflowers that offense and lack of just the right kind of “special respect” is the key to their downfall?
In any case, in his central argument Sandel fails to identify any workable causal mechanism for liberal hostility to constitutive communities, and rather harps on the non sequitur that the entirely theoretical, unencumbered selves used to derive principles of justice will necessarily lead to actual unencumbered selves that presumably get flattened out by actual liberal societies. He gives us a long account of the plight of the unencumbered self—its lack of identity, its arbitrary desire, and its inability to know itself. And he gives a bizarre account of Kant’s transcendental subject, as if Kant thought there were no such things as bodies and psyches. Kant’s transcendental subject is not his complete “theory of the person,” which actually includes an empirical subject that is entirely capable of being constituted by its ends, including its communal attachments, in just the way that Sandel requires. That’s why, as we saw above, an actual psychology of desire is not as distinct from the function of ends as Sandel would like. Sandel might rightly argue that such ends wouldn’t, by Kant’s standards, fall within the domain of moral obligation. But this is just to complain that Kant’s ethics is not a virtue ethics, and that liberalism is not a virtue politics. And a virtue politics is decisively, as we shall see in Part IV, not something that any sane person should want out of a state.
Part IV: A Critique of Sandel’s Supplementary Arguments
Sandel’s later addition to Liberalism and the Limits of Justice, “A Response to Rawls’ Political Liberalism,” departs entirely from the central argument I have critiqued above. Where the argument of the bulk of the book is that liberal principles of justice are hostile to community in the constitutive sense, its amended argument is that questions of justice cannot be settled without reference to some conception of the good that is stronger than the thin conception upon which liberalism rests. This is a movement from the radical claim that liberal principles of justice are inconsistent with more robust conceptions of the good, to the much weaker claim that liberal principles of justice are incomplete until we take into account more robust conceptions of the good. Specifically, Sandel claims that:
- It is not always reasonable to exclude particular conceptions of the good when thinking about what is just, especially when thinking about grave moral questions. Particular moral and religious doctrines might, after all, be true, outweighing the values of toleration and fairness. Since Catholics might be right in claiming that abortion is murder, we cannot simply bracket out this question. When courts abstain from ruling on the question of where life begins, they are issuing a de facto judgment against the claim that life begins at conception.
- Pluralism about morality and religion also apply to questions of justice: people can reasonably disagree about what is just, and often do (as with, for example, gay rights and affirmative action). The liberal would reply here that what we reasonably disagree about in such cases is not the fundamental principles of justice, but their application. Sandel’s rejoinder is that this is not the case with distributive justice: if Rawls can reason his way to preferring the difference principle over libertarianism, why shouldn’t a society be able to reason its way to the permissibility of homosexuality (rather than merely remain neutral on this issue of permissibility and merely tolerate it)? In general, why can’t we reason about moral and religious controversies in the way that Rawls reasons about distributive justice?
- Despite its emphasis on free speech, liberalism places unduly severe restrictions on the content of our debates. It precludes incorporating our moral and religious ideals into our discussion of fundamental political and constitutional questions, and “leaves little room for the kind of public deliberation necessary to test the plausibility of contending comprehensive moralities—to persuade others of the merits of our moral ideals, to be persuaded by others of the merits of theirs.” A politics that precludes such discussions in turn “generates disenchantment” and cedes the debate to intolerant fundamentalists.
Do any of these arguments work? I don’t think so.
Let’s begin with (1): consider what a debate between interlocutors who disagree about abortion would look like, and how they might incorporate their particular conceptions of the good into that debate. The mere fact of having such a conception, and the identity associated with it, cannot itself form the basis for a justification of my belief, no matter how important a role it played in causing me to have the belief. If I were an anti-abortion Catholic, my justification for opposing abortion could never be, “because I’m a Catholic,” even if my Catholicism is the primary causal force historically for my holding this position. In general, my justification on questions of justice could never be “because of my identity,” or “because that’s my faith,” or “because that’s my particular conception of the good” or “because I belong to such-and-such a community.” These are causes, not justifications. If these were to count as justifications, then debates would consist of a crossfire of assertions between irreconcilable communities barred forever from genuine communication with each other by the event horizons of their differing thickly constituted identities (and specifically, by that impossibly versatile tool that is taking offence).
In a real debate, interlocutors meet on common ground where it’s at least conceivable that agreement could be reached. In a real debate about abortion, the central question is whether we think of a fetus as a person and if so, how we balance its well-being against that of the woman who carries it. What’s common between the interlocutors here is the same principle of justice and morality: that we ought not to kill human beings indiscriminately. And if we can’t agree on that, we have a disagreement not about whether morality can be deontologically justified, but whether there is such a thing as morality at all. Consequently, what interlocutors must differ on in the case of abortion is the application of a principle of justice, not the principle itself.
Disagreements about application of principles of justice will indeed rest on interlocutors’ more robust conceptions of the good. But settling their disagreements about application does not amount to appealing to those conceptions as such, and seeing which one overpowers the other. To persuade someone that a fetus is a person, you must persuade them that their position is actually inconsistent with their own more basic moral intuitions, by analyzing the concept of personhood in the direction of these intuitions. You can combine this approach, if you like, with empirical evidence (for example, by linking studies of the nature of fetal consciousness to intuitions about the relationship between consciousness and personhood). This debate looks precisely the same, whatever your intuitions, whatever your ends, and whatever communal association provided you with such ends. Your Catholicism might have provided you, as a matter of influence, with a valuable way of thinking about the world, and it might provide you with motives for your beliefs. But your Catholicism would never be a form of evidence in a debate, never a justification for some position. It might be good enough for you, but it will never be good enough for others who do not already share your convictions. Consequently, there is no genuine version of debate that is anchored—at the level of justification—in identity. If liberal debates rule out the justificatory force of my identity, so does every genuine debate.
Further, it is not the case that when the justice system takes a neutral position on the question of when personhood begins, it is issuing a de facto ruling against the metaphysical claims of abortion opponents. Laws are often pragmatic compromises, not rulings on fundamental philosophical questions. We cannot abstain from making laws on the grounds that we have not settled such questions, which often show no signs of ever being settled. When we make a law prohibiting sex between adults and someone under the age of 16, we are not making a metaphysical claim that the age of 16 is a magical dividing line between sexual immaturity and sexual adulthood, when we know that such maturity—physical and psychological—varies greatly between individuals. Similarly, Roe vs. Wade is a pragmatic compromise. It says, essentially: people disagree about whether fetuses are persons. But almost everyone agrees that at the very least, sperm and unfertilized eggs are not persons, while newborn babies are. Therefore, as a matter of compromise, we can suppose at the very least that over the course of nine months, a fetus is gradually becoming a person, and we can accordingly allow laws regulating abortion to become increasingly restrictive over the course of that development.
Systems of justice can and do abstract from particular conceptions of the good. This sort of neutrality is not a claim to absolute neutrality, as Sandel suggests, since liberalism is indeed based on a minimal conception of the good. But there is an argument for the minimal conception: and the argument is that it is the most politically agnostic. It is the least presumptuous in what it claims to know about the world, the closest to being an admission of Socratic ignorance. It makes the fewest possible moral claims—drawing the line, for example, at “thou shall not kill” rather than at “thou shalt believe in Christ.” Sandel’s suggestion that such agnosticism amounts to a competing dogmatism is unworkable. If he is right, then any position we might take is dogma, and then the question becomes which position is least dogmatic. My claim to not knowing could never be more presumptuous than your claim to know something else, for example your claim to be a provider of good news concerning God or community or something else. But here’s a simpler and more historically relevant way of putting it: I can never know enough to justify killing you for not agreeing with me.
In his second critique, Sandel seems initially to accede to the liberal rebuttal: that what we reasonably disagree about with regard to justice is not its fundamental principles, but their application. But Sandel points to an exception when it comes to the question of distributive justice, about which we can reasonably agree. And oddly, he wants to conclude that if we can disagree about distributive justice, then we can disagree about justice-as-fairness. But is this really the case? Does the fact that there is a debate to be had about the way resources are distributed in a society really mean that there is a debate to be had about fundamental human rights?
For example, Sandel is confident that he can ground the permissibility of homosexuality not in human rights, but in virtue ethics. To do this, he asks us to make a transition from the principle that all human beings ought to be able to live as they wish, providing this way of life causes no harm to others, to the principle that the permissibility of any way of life depends upon our reasoning about whether it constitutes the “highest end” in some domain. In doing so, we are to talk in the language of ends, and argue that the “highest end of human procreation” is not “the good of reproduction” but the goods of “love and responsibility.”
What could possibly go wrong here? For a preliminary empirical investigation, I recommend picking up a book of history and reminding yourself of the millennia of human mass murder and oppression in the name of upholding a strict equation between the permissible and the good. This is the glaring fact of conflict created by pluralism, the real motive for liberalism that Sandel tries to sidestep with his adventures into the a priori. “Goodness” and “highest ends” are not sound criteria for whether you get to prohibit gay people from living happy lives, or more generally, for what ought to be permissible within a society.
If you find this empirical investigation unsatisfying, remind yourself what is good in this strong sense—and what the highest human ends are—are bones of contention not just a matter of historical circumstance, but of philosophical recalcitrance. “The good” in the strongest sense amounts to a difficult philosophical question that—like the mind-body problem—cannot in principle be settled, however much insight we gain into it. In the face of such difficulties, there is actually a moral imperative to admit our ignorance.
Such admissions of ignorance—or more broadly, states of moral agnosticism and open-mindedness—are not simply retreats into the psychical desert of the unencumbered self, and need not deprive us of our passions and ends, identity and faith. Consider Pyrrhonian skepticism, for which suspension of theoretical judgment is thought to be in no way inconsistent with ordinary belief and life. Consider the long theological tradition, in which wrestling with doubt is not inconsistent with faith. Consider Nietzschean irony and psychoanalytic integration, in which thought and passion need not remain mutually opposed, irreconcilable primal forces. Sandel may disagree with the possibility of such reconciliation; but since his theme is an irreconcilable conflict between liberty and identity, he ought not simply pretend he has never heard of accounts that reconcile theoretical agnosticism with personal commitment.
And such tension—psychological and political—between moral agnosticism and one’s most deeply held commitments is a good thing: it is the ground for open-mindedness, curiosity, and even joy. It is of fundamental importance to good lives and good states. You cannot say the same about any random “end” that you have unthinkingly adopted as part of some community, however “constitutive” it is. Liberalism—and a more minimal conception of the good on which there is broader agreement—is not a perverse scheme depriving us of every other end we might have. It is a way of acknowledging our human frailty in the face of certain profound questions. It is an act of humility, in which we institutionalize the fact of our shortcomings. And finally, it is a matter of empathy toward those who would like to live lives with ends different from our own.
Meanwhile, any invitation to an analysis of permissibility in terms of “the good” is an invitation to abuse: it means that between the fact of our ignorance and our aspiration to something higher, anyone can insert the verbiage required to rationalize the oppression of a minority based on their supposed deviation from this good. The inherently flawed nature of human beings means that the elitist standards of state-mandated virtue ethics can be used as ammunition to condemn any group we like. By some ideal standard our relationships are always imperfect, and to some degree destructive and perverse. Consequently, traditional philosophical arguments concerning the unnaturalness of homosexuality are actually critiques of the imperfectness of all human sexuality, disguised to make them seem applicable only to a subset of humanity. The equation of the permissible with the good really just gives us license to arbitrarily decide which group we are going to hold to such standards.
Arguments against homosexuality have historically been framed in just such a way. Anyone can assert any end they like for sexuality, because the question of what leads finally to human flourishing—and whether it is the same for all—is actually so complex as to make the answer indeterminate. Sandel’s assertion that the end of sex is love will only convince someone who already agrees with him; it as an ad hoc rationalization by someone who already assumes the permissibility of homosexuality, not something that might persuade anyone with a different idea of the good. By contrast, the concept of equality—insofar as it appeals to fundamental, shared conceptions of fairness—can be enormously persuasive to those who are willing to think something through, even if they start from the standpoint of bigotry. So I don’t think it is a good idea to abandon the notion of human equality, so that a Sandel—or any other philosopher—can help us argue our way back to the dignity and humanity of some group within a society. We are better off taking a more cautious approach. The attempt to escape the limited nature of our moral knowledge—into the certitude of “ends”—is not something on which we can ground the well-being of others.
This leaves us with Sandel’s third critique, to the effect that liberalism places unduly severe restrictions on the content of our debates, precluding the discussion of moral and political ideals. I think my arguments above show that this is not at all the case in principle. But does the ethos of liberalism nevertheless restrict our debates in practice? Presumably Sandel means either that interlocutors are a) less likely to advance arguments motivated by religious beliefs or moral ideals or b) unwilling to make use of the fact of their religious belief—or their identity or ends in general—as a reason for their beliefs. If Sandel means (b), it bears reiterating that while identity can provide a causal basis for our beliefs, it can’t actually be a reason for our beliefs, in the sense of a justification that is potentially appealing to someone who doesn’t already share our ends. Arguments by their very nature abstract from these things. That means that it would be difficult for Sandel to empirically verify his claim in (a). Sophisticated arguments will tend toward offering reasons, not reiterating the fact of identity or religious belief. So when an author offers a religion-free argument in a magazine, it is not safe to assume that the author is not religious, or not motivated by religious beliefs (it is entirely possible, for instance, that my well-reasoned critique of Sandel is motivated by a deep commitment to Islam). It is safer to assume that the religion-eschewing author actually wants to communicate with human beings who don’t already share the same opinions, and doesn’t believe that “I’m a Catholic, so you should be too” is a persuasive form of argument. Meanwhile, there is plenty of public and academic debate premised on the notion that identity is a justification. This is the most degraded, least sophisticated territory in the public and academic realms.
There’s a lot to be said about the poor state of American public discourse. It’s true, for instance, that the discourse about abortion often involves interlocutors talking past each other—with one side focusing on the well-being of women, and the other focusing on the well-being of fetuses presumed to be persons. Is this really, as Sandel suggests, the result of liberalism? It seems to me that the quality of this debate is really defined by a willingness of people to have more complex, nuanced, and essentially philosophical discussions in public forums where the philosophical sophistication of readers and writers is lacking. Are we really supposed to believe that the quality of such debates is less a function of sophistication than of people’s willingness to talk about moral and religious ideals, and more generally, their identity? In fact their lack of sophistication is today typically premised on their willingness to hawk some conception of identity.
Part V: The Poverty of Anti-Liberal Identity
The central argument in Liberalism and the Limits of Justice is incoherent. It erects an absurd straw man—the unencumbered self—and then berates it with ad hominems. I mean this seriously: the notion that justifications of political principles could work for or against one’s identity (Part III), or that one’s identity could work for or against one’s political justifications (Part IV), is just to take the ad hominem fallacy and make a general principle of it.
But I think we can assume that this focus on identity is one of the reasons the book is so prized by the anti-liberal segment of the American left wing. It conforms to the current academic dogma—now also very common in American public discourse—that questions of identity trump liberal notions of equality, justice, and fairness. It constitutes a regression to the sort of tribalism for which justice and liberal institutions are meant to serve as a remedy. In fact, it’s not just liberalism and deontology that provide no alibi to the two minutes hate for disfavored groups, disguised as compassion for the marginalized: it’s any ethical theory—and any anti-authoritarian political stance—whatsoever. The warm-and-fuzzy concept of community is meant to put a happy face on all of this.
It is the individual, not community, that is the foundation for ethics. It is individuals, not communities, that can have thoughts and feelings, and consequently individuals that can be the objects of empathy. It is individuals that can be wronged, and individuals that—when you prick them—will bleed. It is individuals that deserve our dignity and respect, and individuals for which these ethical imperatives ought never to be compromised for the sake of loyalty to some community. Even if you believe that there is such a thing as a community-Geist, I hope you do not think that the community itself is a subjectivity. However much you wish to talk about “intersubjectivity,” there is a stark and undeniable dividing lines between my subjectivity and yours: you cannot feel my feelings or have my thoughts, and it is a rather unempathetic notion to believe that empathy can fully cross this boundary between us. “Individual” and “individuality” are not the bad words many humanities academics think they are, and there are versions of these concepts that have nothing to do with turning us into generic units fit for capitalist consumption. In fact, if we wish to avoid the generic, we cannot stop at community-based identity: concreteness requires individuality.
Sandel seems to believe he is rescuing some richer version of the self than can be had by individuals liberally conceived. But his conception of identity—as primarily a matter of one’s group identifications—is entirely generic, impoverished, and dehumanizing. To see why, consider the way in which Sandel’s extension of virtue ethics—from human nature to community-based identity—can be deepened. Being courageous may be the virtue of human beings; and being a Muslim the virtue of someone formed by a certain community. But there are also goods, ends, and virtues based on formative influences—social and psychological—specific to individuals.
It might be the virtue of John, for instance, to be a doctor. Which is to say, John has the kind of character for which the profession of being a doctor would be suitable, and it would contribute profoundly to his well-being. But even this extension remains at the level of the generic: John’s character, after all, is ultimately sui generis. In the same way that no one on earth shares his genetic makeup, no one on earth shares his unique pattern of influences and their consequences for who-John-is. Consequently, John’s virtue is, ultimately, a specific pattern of living, being, thinking, and feeling: a specific path through life. Courage is certainly a virtue for John, and so might be being a Muslim or being a doctor. But his ultimate virtue is that of being-John, and actualizing potentialities that are more particular than these categories. You cannot do justice to John—to his unique character—by listing his group affiliations, or even by giving a list of generic character traits. To do justice to an actual, individual human character, you must be a good novelist, not a good taxonomist of political species. When novelists bring characters to life, they do so by making them more than stereotypes, more than generic examples of some group or trait. To do justice to identity, we need the individual in its full, glorious particularity. A good novelistic regime, like a good liberal regime, honors the individuality of its citizens, rather than obliterating them in the name of the plot-driven collective.
This means that culture is by itself a very poor way to understand identity. Whether I am stingy or generous is far more consequential than whether I am French or American, and whether I am Wes Alwan or Jacques Cousteau is far more consequential still. The least important thing about the formative experiences that forge my character—even if they are the most obvious—are the cultural garb they wear. What makes me different from you is a long succession of events in our personal biographies, beginning with genetic inheritance and intrauterine environment and extending to a series of stimuli directed at us both from within and without. Our characters have been forged by a succession of experiences of hunger and anger, love and lust, and the mechanisms we must use to cope with these experiences (these mechanisms can be divided into general categories of “defense,” but there is an infinitely various symbolism to their manifestations). Especially important, psychically, is the behavior of early caretakers. Whether a person is neglected in French or English is not really the point, even if the effects of neglect on character manifest themselves differently according to certain cultural tropes. The essence of the situation is still neglect and characterological consequences, however signified. The same goes especially for the unique intersection of traits that is character in its full particularity.
The sketch of virtue I’m offering here is psychoanalytic and roughly Nietzschean. Here, for example is Nietzsche on the matter (Gay Science 120, Kaufmann translation):
The popular medical formulation of morality that goes back to Ariston of Chios, "virtue is the health of the soul," would have to be changed to become useful, at least to read: "your virtue is the health of your soul." For there is no health as such, and all attempts to define a thing that way have been wretched failures. Even the determination of what is healthy for your body depends on your goal, your horizon, your energies, your impulses, your errors, and above all on the ideals and phantasms of your soul.
I say “roughly Nietzschean,” because I don’t think the more generic Stoic (which is to say neo-Aristotelian) account of virtue (“virtue is the health of the soul”) is actually inconsistent with Nietzsche’s more particular account (“your virtue is the health of your soul”). My account is also psychoanalytic, in that the therapeutic effect of psychoanalysis is partly a function of identifying an idiosyncratic set of meanings specific to the individual: it involves becoming aware of one’s own individual psychical culture, and through this culture one’s own particular ends, and one’s own particular version of health. Psychoanalysis might help you find out how to be generous, or that you ought to become a doctor. It might help you conquer neurosis or, with a great deal of work, a personality disorder (which is to say a disorder of character). But more importantly, it can help provide a more explicit interpretative frame for everything you do in the world. It might, for example, provide a new way of relating to a specific person, a set of behaviors that belong not to the generic category of “generosity,” but are more finely tuned to that relationship (think of being able to sing a song rather than merely tapping along). Similarly, it might provide new ways of thinking and feeling and doing—in relation to particular aspects of the world—that defy generic categorizations in that they actualize not human nature, or community-defined ends, but ends entirely unique to a given character. If this seems too vague, consider what it means to be an artist or maker of things: ultimately, one is not merely “a writer” or “a painter,” but whatever particularity it is that is manifested in the particular thing written or the particular thing painted.
And if you wish to make one term of the individual-community dyad the bad guy, why not pick community? What of the dark side of communities? What of the way in which they help us avoid knowledge of ourselves, or even enforce such self-alienation? Don’t they accomplish this precisely by encouraging us to think of ourselves generically, and by encouraging us to conform not to our own ends, but to those of the group, however unsuited the ends of the group may be to our well-being? How many people’s lives have been ruined by trying to fulfill the demands of the community over and against their own ends? What of the way in which communities are a source of stifling misery for those who don’t fit in? And what of the way in which in-group identification encourages out-group demonization?
Consider, for example, the way in which the purveyors of identity politics—on the American political right and left—today talk about human beings. The thoughts and behaviors of others are never their own, but always represent their ethnicity, religion, or some other group affiliation (as if such groups were actually entirely uniform in their thinking and behavior). According to this logic, terrorism reflects poorly on Muslims, crime rates reflect poorly on African Americans, and the suffering of every marginalized group reflects poorly on white people. Such politics conceive of people never as individuals, but as representatives of their groups, seen in the worst or best possible light, and collectively guilty or laudable for the behavior of any individual in that group. However much you dress these views up as a concern for “justice”—social or otherwise—they are a denial, both in their demonizing and idealizing modes, of humanity. This denial reflects an authoritarian frame of mind, the function of which is to control goodness by stamping out individuality, which is invariably too flawed for this ideal. It requires controlling others’ thoughts, ensuring uniformity of communal ends, and ultimately stamping out individuality for the sake of the greater good. The point of liberal and psychoanalytic individuality, on the other hand, is not that we be denuded of all communal attachment, but that whatever our attachments, our fundamental dignity as human beings can never be held hostage to them.
Consider, in this light, Sandel’s highly distorted reading of Kant, which makes individual dignity and ethical behavior seem entirely at odds with altruism and real human relationships. He restates Kant’s moral maxim, that we ought never to use others merely as a means to our ends, as the maxim that we must not use others as a means to our ends, ever. Kant carefully worded this maxim to include “merely” with good reason. He knows very well that human beings use each other very frequently as a means to their ends. In having sex with someone, or even in having a conversation, we treat another person as a means to our pleasure. The point is that we also ought to respect their integrity as human beings by not, for example, forcing them to have sex with us. Sandel’s misquoting of Kant neatly attempts to make the transcendental and empirical subjects inconsistent in just the way required for Sandel’s argument to work. If human beings can’t use each other for pleasure, then they can’t ever have the kinds of social relations that embodied persons actually have.
Now take Sandel’s notion that the Kantian conception of freedom involves our freely—and hence arbitrarily—choosing our ends, which for him is a way of illustrating the impoverishment of the unencumbered self. This absurd reading of Kant implies that we get to choose our moral precepts, for example, whether murder is wrong. But for Kant, it is not even the case that most of our choices are free. In limited cases where we can avoid heteronomy—functioning merely via our desires and impulses—we can make free choices. I might choose to refrain from murdering the person toward whom I have urgently vengeful impulses. And the general maxim—that murder is wrong—follows from the nature of the will. Over this I have no control. Consequently, there is a direct parallel to the way in which the ends of the thickly constituted empirical self are a function of identity. It is the nature of the will that defines these ends, not our arbitrary desires, as Sandel claims. Kant would agree with Sandel that most ends are not a matter of free will at all, but flow from the empirical self and its identity. A person’s Catholicism is the product of a large number of formative influences, not of arbitrary willing. The same goes for liking football. But the same does not go, on the Kantian view, for a moment in which I reason my way away from a moral violation that I very much want to commit.
Finally, consider here the parallel between Sandel’s treatment of Kant and the dehumanizing implications of community-based identity. Sandel’s account shows no specific familiarity with Kant’s actual work—with the individuality of the text—but instead treats him vaguely as the representative of certain general themes and vague associations, represented tendentiously in the worst possible light. Today this cynical approach to texts is not uncommon in humanities academia: texts are to be read as the manifestations of certain cultural trends, or the biographies of their authors, not to be read as the highly specific and often well-motivated products of actual individuals with particular thoughts and feelings. And I do not mean literally read, but rather “read” via the game of interpretative telephone that is academic secondary literature: that’s how your “merely”s drop out. There is no individual subjectivity behind the text: just the text as de-subjectified cultural product, subjugated by the authority of the social. That is why texts today are “interrogated” rather than heard: you do not listen to their testimony, but rather make them confess their crimes. This confession is necessarily in light of their lack of obvious conformity—in the case of texts that are truly great—to a certain set of simplistic political pieties that it is absolutely forbidden to question.
So here’s a new political thesis: it’s not shears chosen blindly that produce blind sheep, but rather intellectual shears applied carelessly in the service of the political dogma around identity. In this case, the sheep need no shepherd other than their community of fellow herd animals, whose ends—both intellectual and political—they dare not abandon, since that would mean leaving aside the comforting conformism of a thickly constituted (which is to say thick-headed, self-obscuring) way of life.