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Introduction
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 not 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.
–Wes Alwan
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Well done. A forceful, but through examination.
Wes: Your critique is well done, but I suspect the root problem behind the debate about the meaning of liberalism and justice is that liberal universal individualism is in fact an historical outgrowth of ethnically western european communities. In other words, your objection to Sandel is rooted in the fact that liberal views are based in a particular ethnic identity, even if Americans typically do not recognize it. It may be difficult for us liberals to face the reality, but the evidence is in view everywhere else in the world that liberalism cannot be simply transplanted into other places to transform them into behaving like modern western liberal political bodies. I think it is even quite reasonable that there are evolutionary adaptive reasons for these differences, even if humanity as a whole is a common species.
I certainly see how liberal, supposedly universal values are in fact a product of the historically contingent development of European societies, but I difficulty seeing how ethnicity is involved–if, that is, ethnicity has something to do with speaking a common language, common phenotypic (“racial”) characteristics, etc. Could you elaborate on that?
1) I think one of Wes’s main points was that just identifying a genealogy of a theory (i.e. “liberalism was created by White Males”) doesn’t, in it self, constitute an argument for or against it’s merits. I understand that white men have done lots of bad things, but that doesn’t mean by itself that liberalism is ALSO bad,
2) Neither Wes nor Sandel was talking about imposing liberal values on other cultures, which is a whole other issue. Sandel is arguing that America, which is currently a liberal society, should shift to….uh something else that’s more comfortable making moral pronouncements, I’m not really sure (for the reasons Wes articulates)
3)Be veeeeeeeeeeeery careful using phrases like “evolutionary adaptive reasons.” Do you mean that maybe black people are genetically incapable of handling true liberal democracy and need to be rules by an autocratic system? Of course you don”t but you’ve opened the door to these sorts of arguments, which we have just spent decades, or even centuries trying to stamp out.
4) What makes liberalism different from the sort of systems Sandel seems to be promoting is that criticizing liberalism is something that can take place within a liberal society. In this apparently terrible liberal society we live in Sandel can still make a good living criticizing it’s fundamental society, and you or I can do so as well without any fear that someone is going to arrest us. But if the tables were turned and we lived in the kind of society that Sandel wants, would Wes be able to publish this essay? Perhaps, but what if someone (and take a moment to think about who this someone might be) decided that this essay constituted “hate speech” and was detrimental to human flourishing? It’s not a hard argument to make once you jettison liberalism: We as a society have determined that liberalism is contrary to human flourishing, and someone reading Wes’s article might be seduced into rejecting the good life. So we should prevent anyone from seeing it. That might seem like an exaggeration, and maybe it is, but there are very few societies that I can think of that tolerated criticism of their own founding principles, the only exceptions, I think, are societies that I think Sandel would refer to as liberal.
Tom M. Your criticism scared me at first because I thought at first it was going to be a genetic fallacy (perhaps on some sense it is, but that’s beside the point and we got people on that.). Well, maybe it is. I’m still thinking on it.
Graham. If this thing had a like button, I’d like your comment. My thoughts exactly!
This essay was a welcome explication of Wes’s critique of Sandel. In listening to PEL, every now and then Wes starts raging against Sandel, talking about Sandel’s gross misreadings of Kant and these thick and thin conceptions of the self—which I could not quite follow prior. I suspected Wes had something intelligent to say, but he came across as a bit of a madman. With this essay, I understand the source of his rage, and find Wes’s argument quite compelling and obvious once spelled out. Thank you!
While I feel that Wes destroys Sandel’s primary argument, I still feel Sandel’s weaker argument in Part IV (1.) has legs to stand upon. I think Wes here and many others conflate moral positions (or values), and our epistemological attitude about those values. One can be uncertain if abortion is right or wrong (epistemic uncertainty about a moral value), but this epistemic uncertainty is not in itself a moral position about the topic of abortion. In saying you are uncertain about the moral status of abortion, you are trying to say that “I don’t have a moral position about abortion, or I don’t know what my moral position is,” but this state of uncertainty or neutrality is subject to valuation just as a definite state is. For example, uncertainty about the existence of God is valued more highly than the uncertainty about the existence of unicorns, in general. Uncertainty about God is a more pressing matter, it carries greater moral weight–all supposed neutral positions are not equal. We do not avoid value judgments by claiming epistemic uncertainty about particular moral matters. I think Sandel is correct in making this claim, and believing that you are above moralizing when claiming neutrality can lead to a dangerous dogmatic position. This is not to say one should avoid moral uncertainty, only that one should be well aware that this position carries a moral charge.
A masterful defense of liberalism. When the state stands back, it doesn’t turn us into faceless consumers. Rather, it empowers us to form communities that are actually good for us. If a community loses membership without state help, it doesn’t reflect particularly well on the group.
To me the hard case is if a group benefits from positive network effects. Suppose having a telephone is increasingly useful as more other individuals have telephones. Having the world’s only telephone is worthless. Then there might be a role for the state in subsidizing telephones so that a critical mass is reached. This is at least a plausible argument, and shows that a liberal state need not be entirely neutral with respect to individual choices.
But what if I replace ‘having a telephone’ with ‘being a Catholic’? It is certainly plausible that being a Catholic is subjectively better if there are lots of other Catholics around. Could there then be a justification for government support of such groups? If so, would this be supportive of Sandel’s argument, or just another example of liberalism not being entirely neutral with respect to individual choices?
Just want to thank Wes for laying out his argument so formally and extensively. I, too, was very interested in the sandel podcast of pel, but found the actual discussion frustrating and circular.
I wonder whether this critique would extend to sandel’s book on the primacy of markets– what money can’t buy? I was very sympathetic to his argument there that markets can degrade. Essentially–are the primacy of liberal markets really the proper target of sandel’s critique and not liberal philosophy?
It’s interesting that in the preface to the second edition Sandel says that there are two arguments working in the text. While the unencumbered/communal self critique is one of them, he (that is, later in life when he pens the preface) wants to lean more heavily on the other: questioning the priority of the right over the good and challenging liberal neutrality.
Wes’ argument seems quite strong here and I’d be really interested in hearing Sandel’s response. That said, I think Sandel’s bit about unencumbered/communal self is best made sense of within the larger frame of communitarian critiques of Rawlsian liberalism. For example, Michael Walzer claims that each and every “thin” morality is necessarily rooted in and irrevocably connected to a “thick” one. Therefore any truly thin morality is an extracted, artificial, and unworkable one. A thin morality is only sensible and workable within its thick moral context: the culture and thought processes that created it. If this is right, there is no such thing as a truly thin morality. I think, if I’m reading him right, that this might be what Tom M. is saying at the top of this thread. Combine this sort of thinking with Rawls’ (early) claim that liberalism calls for keeping religion and moral reasoning out of the public/political sphere. Now Sandel’s position, about how Rawlsian liberalism strips one from one’s context and of one’s religious/moral grounding, makes at least a little more sense.
I think Marc brings up a great point in supporting the “weaker” point concerning liberal neutrality. This point of Sandel’s fits with his latest work which claims we need to be clear about the moral positions we (or our policies) take and/or the moral position we end up supporting as a consequence of our liberal thinking (i.e. the gay marriage example). Of course this might call for (and I think this is Sandel’s overall point in the newest work) developing some notion of the good life and legislating from it, though perhaps only on occasion and always with fear and trembling.
I’m sorry, but I’m pretty sure Wes is still not quite right about what Sandel is aiming for.
A useful analogue to this debate comes out of questions about free will. Liberalism in effect treats as a given a libertarian notion of free will. This is why the liberal understanding of democracy tends to understand it as a direct democracy and why the liberal understanding of representative democracy treats representatives as being somehow beholden to the will of the voters who voted them in.
The communitarian alternative is something more like Dennett’s compatibilism. The idea here is that a person is free precisely to the degree that they are able to respond to their reasons. The rub is that it’s perfectly possible for a person’s actual reasons to not be psychologically available to them. For example say I’m about to eat a poisoned fish. I have overwhelming reason to not eat the fish, but because I don’t know it’s poisonous I will probably die. If you however know that I’m about to unwittingly poison myself and valiantly rush up to my table and pulling it away you’ve not somehow impinged upon my ability to act as a free agent: you’ve enabled it by revealing to me reasons that I did not know I had.
How this plays out in practice is that there are some goods that I am not free to will outside of politics. The two obvious reasons can be either because it need some kind of social coordination to obtain, for example the tragic commons or large scale projects such as the LHC, or because I lack the knowledge to perceive it as in the case of my fish example or situations where I need specialist knowledge. Wes in effect concedes this point but doesn’t see how it’s corrosive to his case when he claims:
“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”
This of course isn’t to say that liberalism wasn’t a really important historical development, or that constitutional protections aren’t necessary, just that the reasons why aren’t what we think they are. Historically, liberalism is important because it marks the move away from monarchy and if problems of intellectual coordination are bad between individual voters, imagine how bad the problem is when you have a disconnected monarch or aristocracy. The difference is that the problem here is an epistemic one: monarchies and aristocracies are clearly just really bad at grasping reasons. Constitutionalism extends this valuable epistemic insight by recognising for instance the tendency for people to get bogged down in prejudice and to therefore place limits on the powers of political institutions which recognise where their epistemic strengths lie. For instance parliaments, when they’re working, are good at recognising where and how to build roads and other large scale infrastructure. On the other hand, they’re probably less good at deciding where I should go for dinner. Constitutions therefore say “parliament can make these sorts of decisions, and not these” and then we muddle through.
It almost seems as if you (or Sandel?) are conflating liberalism with libertarianism. For example, when you say “Liberalism in effect treats as a given a libertarian notion of free will.” I’ll agree that libertarianism (e.g. Nozick’s view) treats as a given a libertarian notion of free will, but to my mind it seems like liberalism (at least the form that Wes is defending) is rather agnostic on the whole idea of free will. On the one hand you are right that liberalism gives a priority to individual choices, but it also doesn’t have to assume that people only make “free choices.” Liberal societies often pass laws that aim to help people make “better” decisions: we place various limits on what can be advertised to whom, we ban various addictive drugs, we regulate gambling, and so on. The liberal justification for regulating or banning these things is that we as a society conclude that they have the potential to undermine our freedom to pursue the “thin” conception of the good, since if we’re addicted to heroin or gambling we can’t really make ANY choices at all. Libertarians would hate these sorts of regulations but in a Liberal society they’re fine. But a liberal society would NOT want to go further and regulate behavior that might impact our ability to “correctly” choose a particular thick conception of the good. So we wouldn’t ban using electricity on the Sabbath to help people to avoid the powerful temptation to violate the Torah. And we don’t ban going to church because we think religion is an “opiate of the masses,” which people can’t be trusted with. But it’s definitely a fuzzy line, and in in a liberal society, we can debate about where exactly it should be drawn, and these debates are less likely to devolve into pogroms and gunfire than debates about whether you are going to make me follow YOUR conception of the good.
I also think your comment that the advance of liberalism over monarchies etc. is mainly because”monarchies and aristocracies are clearly just really bad at grasping reasons” is potentially dangerous. I think of a lot of social scientists, philosophers, economists and psychologists would argue that almost EVERYONE is really bad at grasping reasons. That was a powerful insight of Marx, and ironically shows up in the terrible outcomes of soviet style governments (or other non-Marxists autocracies of the 20th century), which were run by neither monarchs or aristocrats but were awful at “grasping reasons.” To me the advance of Liberalism is recognizing precisely that while individuals in general are bad at reasoning because of our various biases you can get some good results if you have a diverse enough group of us together. The hope is that our biases to some extent cancel out, so that you don’t get your dream of a religious theocracy, and I don’t get my dream of state enforced atheism, but the synthesis of those two dreams is a society where both of us can live together without killing each other or anyone else. That’s the hope anyways. Obviously this doesn’t always work out in practice, but not for the reasons Sandel articulates.
Excellent points all Graham two thumbs up: a brilliant reply!
First off, let’s make explicit the claim that tells us that libertarians and liberals are at the very least intellectually related. Specifically, both camps see political freedom as somehow being the ultimate political good: it’s there in the names. So really, the question should be what makes liberalism different and I’m not convinced that liberalism really has an answer apart from the claim that it’s happier to accept limits on freedoms. Put simply what specific claim does liberalism make that helps it make decisions about which limits to accept?
“To me the advance of Liberalism is recognizing precisely that while individuals in general are bad at reasoning because of our various biases you can get some good results if you have a diverse enough group of us together. The hope is that our biases to some extent cancel out, so that you don’t get your dream of a religious theocracy, and I don’t get my dream of state enforced atheism, but the synthesis of those two dreams is a society where both of us can live together without killing each other or anyone else.”
So we’re clear, when you say this, we’re basically in agreement, so I’m happy to grant it as a matter of fact that:
a) Properly organised groups of individuals reason better than individuals do.
The question is what makes this a liberal approach? Well if we understand liberalism as in practice a commitment to “will of the people” style democracy, a) quickly stops looking like a principle of liberalism. Specifically, what does it say about when the will of the people differs from the conclusions of our properly constituted deliberative bodies? Shockingly it tends to tell us rather little. Hell, liberalism doesn’t even give a satisfactory answer about what to do about competing assertions of rights: when a religious fundamentalist claims it’s their right (and if they’re consistent their moral duty) to proselytise and a secular humanist claims it’s their right to opt out, it’s hard not to admit that the usual reply (no state endorsement of religion) isn’t entirely satisfactory because for instance in this case the state *is* actually making a stand on what counts as a legitimate moral duty in the fundamentalist’s own lights.
Sandel’s line is that we can’t hope to use broad liberal principles to opt out of these kinds of debates. Therefore, rather than just sweeping them under the rug and hoping they’ll go away, the proper approach is to engage in political debate and work to sway your ideological opponents. To accept this however means accepting that a fundamental role of politics is to shape its participants, and not merely reflect their interests.
For my money, I’d extend this a little bit by saying that this also happens to be an epistemic principle, that political debate enables individuals to know things they wouldn’t know otherwise, and that recognising this enables us to do a lot of really powerful work on setting limits on the state, work that liberalism has traditionally struggled to do successfully. At the same time, certain key intuitions that we like about liberalism, for instance pluralism, can serve are perfectly serviceable epistemic principles for doing the same.
Good points. I think that one of the tricky things in this debate is the fuzzyness about what “liberal” actually means, and the extent to which a it is different from “libertarian” or, “non-liberal” in whatever way Sandel means (insert obligatory Wittgenstein reference). So maybe libertarianism is the limit case of liberalism, where the principles of freedom totally trump everything else. Personally I agree with you in that I see liberalism as indeed sharing the same emphasis on personal freedom, and skepticism of state-sponsored “thick” conceptions of the good as libertarianism (although for epistemlogical as well as moral reasons), but I just see liberalism as being more realistic about how that all shakes out in practice. But there’s obviously a spectrum of what counts as liberal today So while I think we would all agree that most western democracies are “liberal” in the broad sense there’s obviously a huge difference between them in practice. You might see someplace like France (which felt that banning Muslim headscarves was within it’s proper jurisdiction) as being more on Sandel’s side of liberalism, and the US or Singapore as more on the libertarian side. I think you can productively debate whether our society should place more or less emphasis on the rights of the individual, but paradoxically, it’s only really in a liberal (in the broad sense) society that you can HAVE that debate. Actually, it’s an interesting question how a Nozickian libertarian society would deal with the rise of some sort of Theocratic or Fascist cult, bent on establishing a single party state. Can you limit people’s freedom to join a revolutionary group bent on limiting other people’s freedom? Hmmm…..
The other point that I think is important to keep in mind that, at least as I understand it, is that there are always (at least) two levels of debate going on in a liberal society. One is the debate that Sandel is attacking, which is concerned with what sorts of laws the state should pass and such. And indeed, only “liberal” arguments are (supposed to be) accepted in that debate. You can’t say that we should ban pre-marital sex because the bible says so or because it’s morally “right,” you would have to make an argument that hinges on Rawlsian or liberal principles about the good of society and such. But, that doesn’t mean you also can’t make non-liberal arguments at all. If you really think that pre-marital sex is wrong you can say so: you can buy TV ads, write a book, blog, put up lawn signs, whatever. You can use any argument you want to try to convince people that pre-marital sex is wrong, or that homosexuality is moral, that it’s OK for women to have jobs, or that we should all be vegans. We still have those debates all the time in liberal societies, and often they end up making a big difference in how we treat each other in society, even without the government getting involved. The only constraint liberalism imposes is that if we want to debate those sorts of things, we can’t involve the state, and it’s monopoly on the use of physical force, That certainly does place a limit on us getting our way, and it can be frustrating for all the reasons Sandel says. But it places the same limits on those other people who we think are morally reprehensible. If there was a way to only give the government the power to enforce the RIGHT kind of morality I think we’d all agree that would be awesome, but given how much debate there is about that in the world, and how many people have been killed in the course of that debate, I’m willing to accept the liberal compromise, at least for the time being.
-G
Showing that positions we traditionally see as liberal lead to results we support isn’t quite the same thing as saying that liberalism is worth defending. There’s a linking clause which involves explaining what it is that makes those principles liberal, as opposed to say representing a different set of principles that liberalism has somehow coopted.
Take secularism. I happen to think it’s a great thing, so does Sandel (he said as much in his PEL interview). Secularism however has a really hard time staying a purely liberal principle, that is a principle which merely appeals to freedom in order to have its rhetorical power. When the state stops religious fundamentalists from proselytising or claiming the power of the state, this is seen by religious people as a limit on their freedoms, sometimes an intolerable one. The reply that “tough, that’s how democracy works”, or even “those are questions from which we withdraw state power” aren’t enough simply because they don’t even claim to offer reasons for *why* this is how far we are allowed to go, or why we should simply accept democratic dictates. “Democracy is a terrible system, it’s just the best we’ve got” is even more blunt about the intellectual failures of liberalism.
Sandel’s claim is that we don’t have to simply live with these failures, that there’s a meaningful alternative once we stop simply accepting liberal assumptions. As for what thiis proposed alternative is, he’s a philosopher who practices what he preaches through the lectures which made him famous. Sure, on stage he’s clearly a performer, using his talent for these arguments to tease out the conclusions he wants from his audiences, but if you accept that his style of pedagogy is part showmanship, that image of a large lecture hall full of engaged people trying to resolve problems by asking serious questions is precisely Sandel’s communitarian picture of the political ideal. I also think it’s the vision of politics we keep looking for from liberalism, but which it consistently fails to deliver.
An interesting article that expands on what exactly an alternative to liberalism looks like:
http://bostonreview.net/books-ideas/mike-konczal-government-bureaucracy
“We take for granted that the Fourth Amendment protects the privacy of communications, such as our email. But where does that come from? Most look to wiretapping cases of the 1960s, which took their precedent from Justice Louis Brandeis’s notion of a right to privacy. However, Desai contends that communication privacy really began with everyday bureaucratic practices at the Post Office. In the 1780s and ’90s, the Post Office consciously prevented government agents from opening the mail without a government warrant, which itself was a reaction to activities of the British government during the Revolutionary War…”
“This is an example of what legal theorists call administrative constitutionalism, which, again, reverses the conventional wisdom according to which constitutional norms are created from on high. As William N. Eskridge Jr. and John Ferejohn explain in A Republic of Statutes: The New American Constitution (2010), our “normative commitments are announced and entrenched not through a process of Constitutional amendments or Supreme Court pronouncements but instead through the more gradual process of legislation, administrative implementation, public feedback, and legislative reaffirmation and elaboration.””
This is Sandel’s point that you can’t hope to escape political debate by appeal to abstract political principles writ American-bureaucratic-history style!
Many lols that it took this long for Wes to respond to Sandel’s ideas rather than just doing so on the podcast. More substantial responses to come.
Why is it not a stronger claim to say this version of liberalism is neutral? How is it neutral in regards to the good?
Sorry. Let me say that that is what I believe Sandel is saying when he says “in opposition to.”
Hey, I apologize. I am a royal dick and this is actually a good critique. I was being reactive and I am sorry for it.
Responding just to the essay here. Haven’t actually read the text being critiqued.
Basically, I am uncomfortable with the shears and sheep metaphor. It seems to me like it has precious little to do with the notion of relationship between social and individual. Unless the implication is that you really think that society both only limits the individual (and can only be used to shear things) and is as simple in its internal structure as shears are.
This metaphor colors the whole rest of the essay. If social is indeed reduced to “shears”, it then becomes pretty easy to imagine the process of building the right kind of society as being not much harder picking shears from a store, so even an unencumbered self can do it.
The interesting part in the metaphor is, of course, separating the notion of “communities” from larger social order (whether liberal or otherwise). In the metaphor, the communities would be the sheep. Indeed, even a very unencumbered self can buy shears made by someone else and apply them to sheep. Though maybe even that job ought to be given to someone at least somewhat encumbered with some manner of affection towards the poor animals.
Either way, the core criticism of Sandel seems to be that he denies the “unencumbered self” the ability to create solid new communities. Apparently, he has not proven that it takes a measure of encumberance of self to be able to create communities.
Oddly enough, i find the sheep and shears metaphor employed works great in Sandel’s favour. Indeed, how exactly can our shear-wielding “unencumbered self” create new community-sheep or flocks of thereof? Within the metaphor, the flock already exists and sheep reproduce on their own as if by magic, while our “unencumbered self” is quite happily reaping the rewards of something said self had literally no hand in creating. The person who originally found the sheep, put them together and assigned the “unencumbered self” to shear duty (and presumably oversees his work as well) is someone else entirely. And, frankly, i’m having a hard time imagining that higher level operator as “unencumbered”. You simply don’t do that kind of organizational work without being driven by some sort of “encumberance”.
All of this, however, is born from the fact that the metaphor separates the larger social order from the lifeblood of community. The larger social order is presented as shears – something mechanical and very much cause-and-effect. Not very human at all. So when, towards the end of the essay, it is discovered that the whole thing is anti-humanistic, it really was as expected. You can say that the conclusion was predetermined by the metaphor chosen to protray the whole thing. Hence the discomfort with the metaphor that i mentioned at the start.
The only question remains is whether this crude metaphor is something that accurately represents Sandel’s well respected body of work, or if it is an oversimplification being pushed upon it. That i can’t comment on without actually reading the work.
Arguments from analogy are probably the weakest form of legitimate argument. Really better for communicating ideas than arguing on their behalf. This analogy seems to fail even in that respect. That being said, it isn’t integral to the critique, even though it’s the weakest part of the writing.
Wes — Excellent piece, but I think that the following premise in your argument is incorrect: “the justice system takes a neutral position on the question of when personhood begins,” and in doing so, the court is not making a “metaphysical” claim about the personhood of fetuses. In fact, Roe v. Wade explicitly rules that fetuses are not “people” under the Fourteenth Amendment. 410 US 113, 156-58 (1973). Below is the relevant language from Roe v. Wade:
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The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, 157*157 for the fetus’ right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument.[51] On the other hand, the appellee conceded on reargument[52] that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.
The Constitution does not define “person” in so many words. Section 1 of the Fourteenth Amendment contains three references to “person.” The first, in defining “citizens,” speaks of “persons born or naturalized in the United States.” The word also appears both in the Due Process Clause and in the Equal Protection Clause. “Person” is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, § 2, cl. 2, and § 3, cl. 3; in the Apportionment Clause, Art. I, § 2, cl. 3;[53] in the Migration and Importation provision, Art. I, § 9, cl. 1; in the Emolument Clause, Art. I, § 9, cl. 8; in the Electors provisions, Art. II, § 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, § 1, cl. 5; in the Extradition provisions, Art. IV, § 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in §§ 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application.[54]
158*158 All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word “person,” as used in the Fourteenth Amendment, does not include the unborn.[55]
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Thus, the Roe Court would seem to be explicitly adopting a “metaphysical” premise here — i.e., a fetus is not a “person” under the Fourteenth Amendment.
Thanks Anton — this is a legal, not a metaphysical conclusion. The argument here is that because the constitution only applies the notion of person-hood postnatally, then fetuses are not persons for constitutional purposes. That would be a strange argument to make when discussing the the question from a philosophical point of view, where the 14th amendment is irrelevant. The court is discussing the legal definition of personhood, not personhood in the metaphysical sense. Now suppose we could definitively show that fetuses are persons as a matter of metaphysics. Would the constitution have to be amended? I don’t think so. In fact, the court is making a very narrow argument here, because the constitution is open-ended enough to allow reinterpretation of basic notions as new data comes to light. So if we could show that fetuses are persons, philosophically, then fetuses would have to be treated as persons for legal purposes. In this case the court would indeed be relying on a metaphysical conclusion. But of course, it is not possible to prove metaphysically that fetuses are persons. It’s not possible because whether fetuses are persons is not an empirical matter, even if empirical data is relevant: we have to flesh out our concept of personhood conceptually, first, and then see how the data squares up. And there’s always room for disagreement in this conceptual analysis, because we always reach a bedrock of differing intuitions. That’s why it’s generally impossible to prove anything philosophically. This passage is in fact evidence for my point about Roe vs. Wade: it refrains from the metaphysics, and makes a very narrow legal conclusion base on _use_ with the context of the constitution: which is to say, constitutional semantics. Finally, this narrow conclusion doesn’t get us all the way to where we want to go, if we’re pro-choice. Conceivably states — or even the federal government — could pass laws defining fetuses as persons, regardless of whether the constitution defines them as such. We shouldn’t make the mistake of thinking that just because the constitution does not treat fetuses as legal persons, legislators can’t. The argument here is not that the constitution bars states from defining personhood in this way. What ultimately restricts states from defining personhood in this way is the right to privacy of the woman bearing the fetus: the court takes this right as firmly established by the constitution. Only in this light do we need a constitutional endorsement of fetal personhood in order to override the rights of women. The court can’t find it. Nevertheless, the court also finds that regardless of the legal status of fetuses as persons, the state may take an interest in preserving fetal life after viability, unless it adversely affects the health of the mother. This is a nod to the fact that a woman’s right to privacy is not in fact absolute: the court just puts this in tension with the interests of the state instead of the interests of the fetus. But that’s an acknowledgement that whatever the legal status of fetuses as persons, viability suggests personhood to many people; and there’s enough doubt about the metaphysical question of personhood that court is willing to concede a state interest here. This decision is a very sophisticated compromise that remains agnostic on the philosophical question of fetal personhood (while suggesting that after viability the state need not remain agnostic); and makes a very narrow legal argument to the effect that the constitution does not endorse or imply fetal personhood, strictly as a legal matter.
Let me try to put it more simply. The court’s implied reasoning is: the constitution does not endorse fetal personhood as a legal matter, and we’re agnostic on the metaphysics of fetal personhood (otherwise the metaphysics, not constitutional semantics, would govern legally here). It is not the lack of constitutional endorsement that prevents states from defining fetuses as persons, but the right to privacy (which runs up against no constitutional barrier and hence cannot simply be overridden by some state definition of personhood). Nevertheless the state may take an interest in fetal-well being after viability, to the extent that maternal well-being is not compromised, implying the right to privacy is not absolute. With what is the right to privacy in tension? Not fetal rights, but state interests. This means that public — and legislative — intuitions about personhood may be taken into account, up to a point.
Thanks for this very thoughtful response! You’re definitely right that the Court in this passage is just discussing the legal definition of “person” under the U.S. Constitution, is doing its best to avoid making any new metaphysical decisions about whether fetuses are “persons,” and is trying to balance the right to privacy with state interests. However, assuming the Court is correctly performing a legal interpretation of the U.S. Constitution, I would think the framers themselves–the people who wrote the provisions the Court cites and interprets–must have implicitly made a metaphysical judgment about fetal personhood, at least in the negative sense that they didn’t make a “constitutional barrier” to the scope of the right to privacy. To be fair, the relationship between law and philosophy is very confusing to me, so I might be misunderstanding something here.
As an addendum, I think perhaps the more consistently liberal approach to the constitutionality of abortion would follow Justice Ginsberg’s dissent from Gonzales v. Carhart, 127 S. Ct. 1610 (2007), where she focused on the issue of equality rather than privacy. Under that approach, “legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.” In support of that view, Ginsberg cites the following: Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L.Rev. 261 (1992). When you dig into that article, you find the following test for deciding whether abortion restrictions are constitutional, so perhaps this is the sort of test Ginsberg has in mind:
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A state seeking to demonstrate that its decision to compel pregnancy was moved by concern for the unborn, and not traditional sex-role assumptions about women [in violation of the Equal Protection Clause], could carry this burden by supplying evidence of the following sort: by showing that the state does all in its power to promote the welfare of unborn life by noncoercive means, supporting those women who do wish to become mothers so that they are able to bear and raise healthy children; by demonstrating that the sacrifices the state exacts of women on behalf of the unborn are in fact commensurate with those it exacts of men–and the community in general–to promote the welfare of future generations; and, even, by showing that the state is ready to compensate women for the impositions and opportunity costs of bearing a child they do not wish to raise. A state that could demonstrate such a consistent course of conduct could indeed claim that it was an accident of nature that the state had to make the pregnant woman a samaritan for the unborn, and that its decision to do so had no roots in assumptions about her natural obligations or instrumental uses as a mother.
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Under that approach, I think it’d be a little clearer that the Court was taking no position on fetal personhood. Rather, it would be saying that states could decide fetuses are persons, and should be treated as such, but they can’t impose the cost of that policy entirely on individual women who are forced to carry out their pregnancies. I doubt Sandel has any grounds for arguing that this approach somehow isn’t neutral.
For a closer look at Sandels views on this very issue see a similar discussion between him and Thomas Nagel:
http://www.nybooks.com/articles/archives/2006/oct/05/the-case-for-liberalism-an-exchange/
Sandel sums up his claim:
“Can the principles of justice that define our basic rights and liberties be neutral with respect to substantive moral and religious controversies (as Rawls and Nagel claim), or does reasoning about justice sometimes require us to engage directly with such controversies (as I claim)?”
And his argument:
“liberals cannot defend the right to abortion without implicitly denying that the fetus is a person. For consider: if the Catholic doctrine were correct—if the fetus were morally equivalent to a child—then even the important principle of the woman’s right to choose would be morally outweighed by the importance of respecting human life.”
Now this is a nuanced argument, but his claim: “reasoning about justice sometimes require us to engage directly with such controversies”, seems perfectly reasonable to me.
Apparently Nagel was as outraged as other concerned liberals about this scandalous argument. However I find nothing in Nagels response or other responses actually rebutting Sandels simple claim.
Suppose you were a great lawgiver, brought into a society to make a law regarding the hot topic of the day: the big-endians insist that every crack their eggs on the big side, and the little-endians on the little. Do you think you need to have make any philosophical opinions on this matter to pass a law here? You need only want to see the matter resolved in this way, for pragmatic reasons. (I’m not sure what the compromise would be here; requiring the cracking eggs in the middle?). Similarly for passing an agent of consent law. No one things there is actually a hard and fast line at 16 regarding sexual maturity. But the line has to be drawn somewhere. Now consider murder: do I have to embrace “murder is wrong” as a metaphysical claim to want to see laws prohibiting murder in society? I don’t. I merely have to want to not be murdered, or live in a society where murder is common. I can explain things entirely in terms of pain, pleasure, and desire.
Once again, we shouldn’t confuse causation and justification.. Philosophers talk about the metaphysics of moral claims because they (most of them) want to find some way of justifying them. And they want the psychology of such claims — the implicit demands on other persons — to line up with the world in some way. But there are also philosophers who don’t think moral claims cam be justified in this way. But they would of course want a law against murder to be retained.
As a matter of causality, people don’t develop mores as the result of metaphysical demonstrations. They are influenced to believe such things. That also have good selfish reasons for embracing them — not wanting to be murdered, not wanting family members to be murdered, or members of one’s tribe. They are not confused about there being some metaphysics to the notion that “my Hatfields are worth more than your McCoys”; they just know that because they’re a Hatfield, the Hatfields are more important to them. And they are willing to fight for it. The implicit demand that others recognize this value is a matter of might makes right. My value will be your value or I’ll wipe you off the face of the earth. In better times we replace force with persuasion. When it comes to morality, persuasion becomes difficult, because moral claims are very difficult to justify metaphysically. They’re so difficult that the claim that we need such justifications to pass laws must be a completely distorted account of how laws actually come to be.
While philosophical, or metaphysical or moral positions, may not be necessary to pass laws; they may still be helpful or advantageous to have in the law-making process. The fact that we can take a ‘pragmatic’ approach that values pain, pleasure, and desires; and devalues moral positions, does not in itself count as an argument for doing so. While it is difficult to persuade people to take on a different moral position, this difficulty, again, is not a reason for not attempting the effort. In terms of causality, I’m not sure anyone knows how a person’s beliefs and morality are established. Children reared in the same environment, exposed to similar influences, may take on largely distinct moral/ political/ metaphysical positions. As well, sometimes acted-out examples are the best way to ‘justify’ a moral position—e.g. being kind to someone may help them see that kindness is of value. It’s not clear why you are assuming a Hobbesian account of the state of nature: “My value will be your value or I’ll wipe you off the face of the earth. In better times we replace force with persuasion”, to make this argument. I’m not sure that all people desire to impose their values on others, even if we feel our values may contribute to the good if shared. Anyway, I liked your essay and, as always, am impressed with your breadth of knowledge.
@K Assuming that moral claims are truth claims, then justifications for a law allowing abortion are inconsistent with the notion that fetuses are persons. But that’s not an inconsistency between liberal principles of justice and the notion that fetuses are persons. That’s an inconsistency between two competing factions within a liberal society, or between one liberal society and another. One liberal society may have concluded that fetuses are persons, and another not. Our liberal framework merely gives persons certain rights; it doesn’t tell us who those persons are. It is neutral with respect to this question. So in this sense Sandel is absolutely wrong to say that we can define our basic rights and liberties only with reference to some more robust conception of the good.
In application, more than a minimal conception becomes relevant. But at the level of application, we have already moved beyond the liberal framework. Further, when I say “relevant” here, I mean that more robust conceptions are relevant to interlocutors having this debate, at the level of justification. It doesn’t mean that when societies pass laws in these areas that legislators need to have metaphysical views on such issues (see my comment above).. Now you may say a pro-choice law is by implication inconsistent with the belief that fetuses are persons. But laws are not beliefs. Nor are they actually endorsements of beliefs. Such laws will be more or less satisfying to people, depending on their beliefs. But that doesn’t make laws beliefs or metaphysical assertions that can be consistent or inconsistent with any other assertion.
I’m not saying that there isn’t some implicit conception of the good in some system of the laws. That conception might be that society is better off with laws, and that laws ought to be determined by democratic means. But this implicit conception of the good isn’t an endorsement of the conception of the good implied by every single law. The fact that states with the U.S. have conflicting laws, or that different liberal societies can have inconsistent laws about abortion, is all the evidence you need here.
Sandel is right that our moral reasoning about our justifications for particular laws requires “us to engage directly with such controversies”; but that doesn’t imply that our principles of justice, in general, require such engagement. It just requires that they be framed at a level of generality where such engagement is irrelevant. And that’s what principles do; that’s what makes them “principles.”
The claim that we can’t define our rights without respect to more than a minimal conception of the good is confused. It demands that we define every application of a principle a priori. That’s like saying that we can’t define an inverse square law in physics without defining every single gravitational relationship in the universe. This is frankly a monumentally dumb idea, and one of the dumbest ideas that has ever garnered any serious attention by other philosophers.
This is why I called it a nuanced argument, it’s inconceivable to me how you think it claims the things you seem to think it claims. Maybe I should have labeled it general handwaving in the correct direction, and I’m sure you will find is as inconceivable when I reply that it indeed does point to the fact that our principles of justice, in general, require us to engage directly with some such controversies.
“Our liberal framework merely gives persons certain rights; it doesn’t tell us who those persons are.”
If you bracket who the persons are how do you arrive at the principles in the first place?
Tell me what the difference is between the principles “All persons are equal before the law”, and “Only white persons are equal before the law” if you allow the range of persons to change from “white men” in the first case to “all men” in the second case.
Then tell me why a rational agent would choose one principle rather than the other in the original position.
K: It’s not the fact that I “bracket out” the concept of personhood when I develop such principles. It’s just that I don’t expect it to be well-defined, even if I expect broad agreement in most cases. The original position, by the way, is a selfish position: it’s in the favor of rational actors to assume a conception of personhood that is as broad as possible. It’s obvious that no principle barring non-whites from personhood can follow from the original position, as a matter of self-interest. But that doesn’t mean the original position tells me everything there is to know about personhood, and it doesn’t tell me anything about the metaphysics of personhood. It doesn’t tell me whether or not non-rational actors are persons. And it doesn’t tell me that there won’t be difficult cases of application to which more robust conceptions of the good are relevant. I cannot resolve all these controversies up front. Instead I start from a highly inclusive — and also necessarily vague — position, and I handle the difficult problem of application on a case-by-case basis. This is another way of saying that my conception of personhood, like my conception of the good, is not non-existent: but it is minimal.
The nature of principles is that they are articulated at a certain level of generality. I can’t possibly determine every application in advance. That’s one reason why courts have to have some resort to precedent: they serve as a point of reference for actual practice. Societies can misapply sound principles of justice, as the United States did for hundreds of years. The potential for misapplication is not an argument for doing away with principles, and it is not an argument that there can’t possibly be principles of justice that rely on some minimal conception of the good. Similarly, my misapplication of certain scientific principles does not mean that the development of such principles could only have usefully have occurred if I had further rules for preventing misapplication.
Our disagreement here is not whether more robust conceptions of the good are relevant to the application of principles. They are, as I make clear in my essay, as long as they can be argued.
Here’s another way of getting at this. Sandel’s argument is that principles of justice are implicitly pro-choice because they don’t settle the question of personhood in the pro-life direction. But then why aren’t implicitly pro-life for not settling the question of personhood in the pro-choice position? I think you would have to admit that they are in fact agnostic on this question. But then you might argue that liberal principles fail not by being inconsistent with some more robust conception of the good, but in some other way. This other way seems to be that we make a demand that principles of justice settle all cases of application up front. They can’t do this. We don’t expect racist or anti-fetal principles to come out of the original position; but we don’t expect a laundry list of who it is that counts as a person either — because this list might leave someone out. The argument seems to be that liberal principles fail unless they provide just such a list.
Now consider a case study. Anti-abortion laws were common in the United States from 1900. Isn’t this evidence that liberal principles of justice in fact did not settle this question in the pro-choice direction? Or is it our argument that these laws inconsistent with some liberal principle that these laws ignored? If so, which one? If you argument is that liberal principles ought to be specific enough to ensure either that such laws be allowed or that they be prohibited, why? Why ought a liberal society settle this question up front?
Meanwhile, all of this is a sideshow to LLJ’s central argument, which is that liberal principles are inconsistent with community in the constitutive sense. Sandel trotted out these arguments after the fact to distract people from the total incoherence of this central argument, and these are now what he peddles in public. The case we ought to be concerned with is state establishment of religion. And the task here is to say why religions can’t flourish just because they aren’t endorsed by the state in some stronger or weaker sense.
The other response I gave probably gives a clearer view of what I’m trying to say, but I’ll comment here too since some questions were asked.
“But then why aren’t implicitly pro-life for not settling the question of personhood in the pro-choice position?”
I don’t understand the question seems garbled to me, but if you’re thinking of some sort of symmetry between to cases look at it this way:
All persons deserve life, A fetus don’t deserve life, therefore a fetus is not a person. (valid)
All persons deserve life, A fetus is not a person, therefore a fetus don’t deserve life.(invalid)
This also goes for the question:
“Isn’t this evidence that liberal principles of justice in fact did not settle this question in the pro-choice direction?”
There is no claim that liberal principles of justice settles the question in the pro-choice direction, just that “liberals cannot defend the right to abortion without implicitly denying that the fetus is a person”
“Why ought a liberal society settle this question up front?”
Because “the rights secured by justice are not subject to political bargaining or to the calculus of social interest”
“this is a sideshow to LLJ’s central argument”, “and these are now what he peddles in public”
This is probably a little bit unfair to Sandel, but I won’t argue about it, I’ll give you this quote though:
“[N]or is it ever really known, but to those who have attended equally and impartially to both sides, and endeavoured to see the reasons of both in the strongest light.”
“It’s obvious that no principle barring non-whites from personhood can follow from the original position, as a matter of self-interest.”
Good then we agree that contrary to: “Our liberal framework merely gives persons certain rights; it doesn’t tell us who those persons are.”, there are indeed implicit in the principles whom they range over. That’s what makes them principles rather than just empty statements like: “all x are equal before the law”.
This is also the reason why there can be no misapplication of the principles, you don’t tell a racist judge that he misapplies the principle of “all men have the right to an attorney” any more than you tell a murderer that he misapplies the principle “thou shall not kill”. What you do say is that they do not act according to the principles. And if you can’t resolve controversies of whom the principles range over up front, you amend them later, effectively changing them.
But it is not here that the disagreement lies I think, but in how you’re allowed to change the principles, (or pick them), remember the claim:
“reasoning about justice sometimes require us to engage directly with such controversies”
Here’s the question: Rawls himself already acknowledges that it makes sense to ask in original position mode: “what if I were born in a future generation?”, it makes sense to ask “what if I were born a poor?”, does it not make sense to ask, “what if I were born a dog?”, “what if I were born a robot?”
K: You’re in the very untenable situation of arguing that we can’t have principles unless we determine all applications in advance and complete definitions of all our concepts in advance. You need some very clever arguments to work your way out of that position.
My point wasn’t that we know nothing about personhood or the concepts we employ in our principles; it’s that we can’t know everything about them. We can say a lot, philosophically, about what we think personhood entails. But it’s never a closed issue.
A murderer isn’t trying to apply the principle “thou shalt not kill.” And a racist judge is misapplying a principle if he sincerely and mistakenly believes people of some race aren’t in fact persons. You can call this a failure of application not acting according to principles if you like. But there’s a huge difference between someone for whom a principle is not a live issue — a murderer or a judge who simply doesn’t care about principles of justice — and someone who believes that certain people are not persons, and so doesn’t treat them as persons. There’s also a big difference between a sociopath and a wartime citizen who believes dehumanizing propaganda about the enemy.
Again: We cannot possibly be supplied in advance with a list of all cases in which pesonhood applies; and despite the fact that we can say a lot about our intuitions about personhood, we cannot define necessary and sufficient conditions for personhod that aren’t open to exceptions. If Klingons arrive and we rind out they’re persons, we didn’t need our principles to definitively tell us in advance that Klingons are persons.
Whether or not fetuses are persons is simply not an issue that can be resolved philosophically. Fetuses satisfy certain intuitions about personhood and do not satisfy others. That is why the issue is so fraught.
It is not a failure of our principles of justice that they don’t answer the question of fetal personhood in advance.
“You’re in the very untenable situation of arguing that we can’t have principles unless we determine all applications in advance and complete definitions of all our concepts in advance.”
I would be if that was what I was arguing, unfortunately my idea is rather more simple than that, as I wrote previously:
“And if you can’t resolve controversies of whom the principles range over up front, you amend them later”
Or simpler still: you’re allowed to change the principles.
An example to illustrate; the Swedish constitution has a part from 1948 dealing with freedom of the press (the original part is from 1766), unfortunatly it explicitly uses the frase “in writing” to specify the range of the principle, thats the reason why, in 1992, it was amended to include radio, television, sound-recordings and so on.
“But there’s a huge difference between …”
Yes, but the difference is not in the application or non-application of principles. And the differences remain even when you use the language in the correct way. I wont press the point any further but I would like to say that this is the reason why some find it unbearable, when some liberals talk about founding principles, and at the mention of say slavery reply that the principles were there all along they where just not used.
“Whether or not fetuses are persons is simply not an issue that can be resolved philosophically”
I don’t see why this is a problem, theres alot of questions you can’t answer in the original position, this just means you can’t have a constitutional argument deciding the legallity of abortion (in the worst case). So what? Use a different method of argument, or as Sandel puts it: “Liberals would do better to engage their opponents on the moral merits, rather than retreat to an unconvincing neutral ground.”
“It is not a failure of our principles of justice that they don’t answer the question of fetal personhood in advance.”
No, but it is a failure trying to argue from those principles that they defend the right to abortion without implicitly denying that the fetus is a person.
This is the failure Sandel points out: “For consider: if the Catholic doctrine were correct—if the fetus were morally equivalent to a child—then even the important principle of the woman’s right to choose would be morally outweighed by the importance of respecting human life.”
Maybe the way to think about this issue issue is using the old “Original Position” hypo. In the original position, you wouldn’t really know whether you’re one of the people who thinks life begins at conception, or one of the people who thinks life begins at viability, or one of the people who thinks life begins at birth, etc. You wouldn’t know whether you’ll be a man or a woman, and let’s just say you don’t know whether you’ll be an aborted fetus. You know that, ultimately, a legal system will have to take some position on the issue of when life begins. You and your fellow denizens of the Original Position can’t reach an agreement as to when life begins, but you all would probably be able to reach the following compromise: an arbitration agreement under which you all agree to be bound by the arbitrators’ decision as to when life begins. The arbitrators’ decision is guided by whatever principles you all actually manage to agree on in the Original Position, but ultimately you know the decision will be pretty random (think Justice Kennedy here). In real life, the “arbitrators” are obviously the courts, but also I suppose the political branches, maybe the constitutional framers, etc. In that case, abortion rights would *not* be part of the deal reached in the Original Position — only the system for resolving that issue would be part of the deal. Maybe that’s sort of what Wes has in mind here?
Sure but the moment you allow for the possibility for the agent to be a fetus you pretty much settle the abortion question in the “pro life” direction, since the rational thing to do is to apply the principles of justice the same among all agents.
K — Actually, I thought a little bit more about this, and it occurs to me I was confusing things by saying, “let’s just say you don’t know whether you’ll be an aborted fetus,” which you refer to as “allow[ing] for the possibility for the agent to be a fetus.” I threw that in without thinking. That condition *assumes* a fetus is a person, which of course negates the purpose of the thought experiment — i.e., what denizens of the Original Position would agree to if they didn’t know whether they’d end up believing that a fetus is a person. Denizens of the Original Position would think they might be a fetus only if they already believed that fetuses are people — but of course that’s not the case, they don’t have any beliefs on the matter, and they don’t know if they’ll end up as someone who believes that fetuses are people.
Sure, but then why does it make sense to be allowed to ask the question “what if I’m born a slave?”. Does this not presuppose that slaves are persons? Presumedly that case is even worse to justify since all men have been fetuses but only some slaves.
This is Sandels point: In deciding who constitutes a person you’re using a conception of the good, you can’t simply bracket these questions to a later stage.
For those of you keeping up with the debate:
Check this page out on Communitarianism, the alternative position to liberalism closest to Sandel’s. I found it very helpful in putting this argument into perspective and getting the bigger picture of what is at stake
http://plato.stanford.edu/entries/communitarianism/
Also, here is a critique of Sandel on Rawls, much like Wes’s paper. This paper covers much of the same ground as Wes did.
http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=4040&context=penn_law_review
Both papers help to understand the relationship between Universalism vs Particularism, in the sense of universalizing principles of justice and rights to every human being at all times and places, versus taking account of particular situations, communities, and what have in establishing these principles.
Thanks Marc
Here’s one more try at explaining my disagreement with K and others about the priority of justice.
Let’s put Sandel’s task in very concrete terms: he must take some liberal principle based on a minimal conception of the good, and show how it is altered by considering some more robust conception of the good. Sandel’s favorite case is that of abortion. What he needs to do is take “thou shalt not kill” and show how it is altered by settling — or wrestling with — the question of fetal personhood. If you’re a Sandel supporter here, you must either a) offer up a modified principle, or b) tell us why the task I’ve just outline is not really your task (in which case, please offer some other criterion for a successful argument, and meet it).
Now the obvious way to alter “thou shalt not kill” is to make it more explicit. You say who you can’t kill — “persons” — and you define “persons” to the greatest level of specificity possible. You can do that by offering an extension — a list of who and who does not count as persons — or an intension; in this case, a definition of personhood. You do not have to read Wittgenstein’s “Philosophical Investigations” to know how ill-conceived these approaches are. Persons who are not on your door-list may show up to the PersonHood Nightclub. And exceptions to definitions always crop up. Definitions are never actually definitive. You might, by the way, argue for something less definitive: for a long “Best Practices Guide for Determining Who and Who Isn’t a Person.” But that’s not a principle: it’s a guide for application (and really, so are in this case the use of intensions and extensions).
You’ll note here that “thou shalt not kill” does not specify who thou shalt not kill. That’s part of the way it functions as a principle. It leaves the who, to some extent, open-ended. In most societies, the principle doesn’t apply to people trying to stab you in the neck; it doesn’t apply to wartime enemies; and it doesn’t apply to criminals subjected to capital punishment. It’s conceivable we might find out that dogs are persons; in which case the principle would become applicable to them. (And in fact dogs already have certain legal protections that suggest that they are not non-persons in the same way that plants are non-persons).
Now we could develop a stricter principle, “thou shalt not kill persons under any circumstances.” Put that on your stone tablets. But what you don’t have room for on that tablet is layers and layers of verbiage about who persons are and how the principle is to be applied. That verbiage crops up in the context of application, via legislatures and courts. There are thickets of precedent about how basic principles are to be applied.
In this light, consider Sandel’s claim that liberal principles of justice are predisposed against fetal personhood because they don’t decide, pre-legislatively, in favor of fetal personhood. This is an odd position. It’s clear that a society that fails to protect fetuses legislatively is not treating them as persons. But a liberal society may or may not have such laws. Sandel and his supporters treat liberal principles as if they were the sum and substance of a society’s laws, in the same way that some legal fundamentalists argue that some law is invalid because it “ain’t in the constitution.” There is no more a presumption against fetal personhood in liberal principles than there is a presumption against a defendant while a jury has yet to make up its mind. A society makes up its mind legislatively: liberal principles, in the case of fetal personhood, allow a society to make up its mind in either direction.
A case in point is Roe vs. Wade. You may be inclined to identify liberal principles with the United States constitution, and to see Roe vs. Wade as a derivation of fetal non-personhood from liberal principles. Let’s grant the former identification. The latter is not in fact a derivation from the constitution by itself. The decision rests on the semantics of personhood, as implied both by the constitution and by the use of the concept at the time the constitution was written. In other words, the justices really are looking for extra-constitutional evidence as to how to apply the concept “person.” If definitive evidence were revealed tomorrow, to the effect that fetuses were persons, then Roe vs. Wade would ought to be overturned. Because constitutional semantics and 18th century usage do not trump such evidence. A an alternative, imagine that Roe vs. Wade had been written with respect to some other historical context: suppose that the constitution or 18th century usage firmly implied that fetuses were persons. In this case the court makes an opposite ruling. The liberal principles are the same: what’s altered is the concept of personhood, whether because of evidence or semantics.
So you should see that it is a good thing that principles employ concepts that are open to interpretation: because they are open to interpretation, they are open to new cases, and new evidence. Unfortunately, they are also open to misapplication. And “misapplication,” not “failure to abide by the principle,” is the correct way to look at this. If definitive evidence of fetal personhood emerges tomorrow, it is not the case that the United States was simply ignoring the principle, “though shalt not kill.” Rather, its concept of personhood was erroneous. It didn’t include under this concept particulars that ought to have been included. The misapplication of this concept leads to a misapplication of the principle. In ever instance where the concept of personhood was correctly applied, the principle (all things being equal) was correctly applied: and that’s the vast majority of cases. And it is matter of historical fact that societies can have sound principles that are in most cases applied religiously, but misapplied when it comes to certain groups that have been excluded from their purview.
Sandel and his supporters claim that we must resolve or wrestle with the concept of fetal personhood (or other more robust conceptions of the good) before we can deploy basic liberal principles, predicated on some minimal conception of the good, like “thou shalt not kill.” I think you should understand by now why this is total nonsense. I do not have to know every particular that falls under a concept to use a concept — nor do I need to have a hard and fast definition in hand. That’s not the way principles work, and that’s not even the way language works.
If you want to show me wrong, leave the realm of vague academic verbiage and do the following: take a liberal principle, and show me precisely how you would alter it according to some more robust conception of the good. What modification do you plan to make to “thou shalt not kill,” based on whether fetuses are or are not persons? If you do this convincingly, then you’ll have successfully performed the task that Sandel should have accomplished in his book.
Incidentally, the question of fetal personhood is a particularly poor case: it really cannot be resolved. That’s because reality is fuzzy. There is no magic line whose crossing magically and suddenly turns a non-person into a person. Fetuses are neither persons nor non-persons, but something in between. So if we can’t really define “thou shalt not kill” without resolving the question of fetal personhood, then we’re in big trouble. If your contention is merely that we have to wrestle with the question of fetal personhood, then you must show how this inconclusive wrestling could cause us to alter liberal principles in any way.
I thought I had convinced you that it indeed has to be implicit whom the principle range over for it to be a principle, but apperently t’was not so.
I will try again.
A rather simple case is the difference between “thou shall not kill men” and “thou shall not kill animals”, thats not the same principle applied to different subjects. The reason is that the conception of the good that goes into them are fundamentally different.
Another case is the difference between “some men are equal before the law” and “all men are equal before the law”, thats not the same principle.
Application does not enter into the picture.
“thou shall not kill X” is not a principle.
There can be no missaplication of a principle, either you apply it or you do not apply it.
Do you agree at all with any of these statements?
We’re talking about “Thou shalt not kill persons.” The question is whether this principle can be misapplied. That question hinges on whether the concept person can be misapplied. Your idea seems to be that principles can never be misapplied, and therefore that concepts can never be misapplied. On this view, it is impossible for a child to mistakenly call a zebra a horse, and then be educated out of this mistake. Your view seems to be that the child was never using the concept “horse” in the first place. Apparently she is applying some different concept, referred to by the same word “horse,” that includes zebras.. On your view, we could never find out one day that fetuses are persons, unless the concept of personhood explicitly included fetuses from the beginning. Making this discovery turns “person” into an entirely new concept, and “thou shalt not kill persons” into an entirely new principle. But “horse” does not become a brand new concept if we discover that some quadruped that we thought was a canine in fact turns out to be a horse. We don’t get brand new concepts by figuring out that new particulars fall within their extension. Similarly, “thou shalt not ride horses” does not become a new principle when we discover new quadrupeds to which “horse” applies. If we were to discover that fetuses were persons, that would not be because we learned something new about personhood: it’s because we learned something new about fetuses that lined up with our intuitions about personhood. Once this happens, concepts can indeed be altered at their edges by this process — for instance, by the discovery of hoofless horses. But the alteration is not wholesale, and follows from the discovery of new legitimate applications, not the other way around.
Your task is to a) take some liberal principle, such as “thou shalt not kill persons” and b) show how this principle is altered by some more robust conception of the good, such as one implying fetal personhood. What’s the new principle? (Your idea seems to be that this principle is “thou shalt not kill persons & person = [insert necessary and sufficient conditions].” That’s a well-known philosophical dead end). Finally, you must c) say why it is that when a legislature passes pro-life legislation, how this legislation is in conflict with the principle “thou shalt not kill persons”? Two societies could broadly be using the same concept of person, yet disagree as to whether it were applicable to fetuses, and therefore pass diametrically opposed abortion laws while still observing this broad liberal principle. Presumably one of them is incorrectly using “person,” in the same way that a child might misuse “horse.” That doesn’t mean they’re applying two different concepts, and it doesn’t mean they’re applying two different principles.
Would you say that chopping wood with your hammer was a misapplication of an axe?
No you would say that chopping the wood you didn’t apply an axe. The fact that you can mistakenly call an axe a hammer or whatelse is irrelevant.
The point of a principle is not to have it “open ended” the point is to preclude the rights secured by it from “political bargaining or to the calculus of social interest”. If you allow for those rights to change from the interpretations of one society to another they are useless as principles. If you have a clause in the constitution prohibiting slavery and then let the courts decide whom it applies to, it’s effectively the same as having no clause at all.
But as you already agreed to the courts are prevented from doing this because a certain conception of whom the principle applies to is already implicit in the principle, lets say the “rational person”. Now suppose the courts decide that in addition to the rational person the unborn should also be protected by “thou should not kill” principle.
But this contradicts another principle namely the “important principle of the woman’s right to choose” over her own body. How do you resolve this? Remember the courts cannot change the constitution, and they cannot change the conception of whom the principle applies to (in this case), since doing so would contradict the “important principle of the woman’s right to choose”
Put it this way: if the courts can legislate only as long as they protect fundamental rights, they cannot legislate in this case since doing so would change one of those fundamental rights. This is essentially just a repetition of Sandels example, and I still fail to see why it isn’t convincing.
K: The issue is not that we mistakenly name a principle.
Principles employ concepts. Concepts clearly can be misapplied. So principles can be misapplied. Your attempt to deny these facts is now verging on self-parody.
“Thou shalt not kill persons” would not turn proverbially from a hammer into an axe if we were to discover tomorrow that fetuses were persons. Our concept of personhood would not be transformed whole-cloth. In fact, it would not be significantly transformed at all in this case. Our intuitions about personhood would largely remain intact.
Principles are in fact open-ended, because concepts and language are open-ended. And they have to be interpreted by human beings when getting into the nitty gritty of applying them. As a matter of empirical fact and history, such principles are not interpreted in the same way at all times and places, and yet that hasn’t made them useless. The same goes for language. Principles can be useful in providing guidance without being fail-proof and not subject to the errors involved in human application and interpretation. The same goes for language. That doesn’t mean that there aren’t good and bad interpretations. But interpretation has to occur.
That interpretation is performed, in this case, by the courts. And so of course courts decide to whom the principle “thou shalt not kill persons” applies. When PETA sues the government on the grounds that non-human primates are persons with rights (this happened), courts have to make a decision about whether primates are persons. It would be a gross miscarriages of justice of the courts were to decide that some segment of humanity were not persons. But such miscarriages happen. And there’s no way to ensure that they never happen. Because even if we tried to incorporate an entire body of law and precedent into our constitution, this body also requires interpretation by actual living human beings and actual courts. And even if we create a rule-book of meta-principles and a table of definitions, in an obsessive attempt to make sure our principles of justice were interpreted correctly everywhere and at all times, this rule book and table would also require interpretation.
So no: that you have to decide to whom this clause applies does not mean that you might as well not have a clause against slavery. Presumably this clause doesn’t apply to dogs, for instance. You do not put “by the way, dogs are not persons” into your principles, or your constitution. And if scientists discovered that, strangely enough, dogs turned out to be persons — with far more going on cognitively than we knew — then we could make a clause against slavery apply to them without changing this clause from a hammer into an axe, and without putting “by the way, dogs are persons” into our constitution. PETA would not sue in this case for a constitutional amendment, and it wouldn’t need to. Such a case would not require us to change any clause at all.
You have yet to suggest how we would alter a single principle of justice along Sandelian lines, and my explanation above should tell you why you can’t.
Finally, courts do not legislate: you seem intensely determined to make a muddle of all this. Courts interpret and apply legislation. One of the supreme court’s functions is to make sure such legislation isn’t inconsistent with the principles of justice embodied in the constitution. In doing so, it has to take into account extra-constitutional evidence. If definitive scientific evidence were to emerge that non-human primates are persons, it would have to reverse any law denying the rights of persons to non-human primates. This would not require any alteration of the constitution. The supreme court is not producing new legislation or constitutional amendments when it makes its decisions.
Finally, a woman’s right to choose is absolute only if fetuses are not persons, and only if the state has no interest in preserving fetal life. Roe vs. Wade assumes that fetal personhood would trump any right to privacy. But it can find no definitive evidence for it. Yet the decision does find that there is a state interest in preserving fetal life after the point of viability: and so it concludes that in fact a woman’s right to choose is not absolute. If scientists were to discover definitive evidence that fetuses were persons, we would indeed expect the supreme court to allow legislatures to ban abortion during any trimester; and Roe vs. Wade would be reversed, barring any misapplication of the concept “person.” There would be no conflict between such a decision and the right to choose, because a right to choose assumes fetal non-personhood. (There are in fact sophisticated philosophical arguments that a right to choose would trump fetal personhood, but that is not what the supreme court assumed in this case; and if it were to assume it, then my basic point here still holds — one right trumps or modifies another).
Incidentally, this supposed conflict has nothing to do with Sandel’s example.
You do not understand how Sandel’s argument works, you do not understand the difference between courts and legislatures, and you do not understand how principles and concepts work. In other words, you’re out of your league, and I’m wasting my time. But the point of me engaging in this exercise is to make it crystal clear to readers how a continued engagement with the underpinnings of Sandel’s argument makes it look more absurd, not less. Sandel could have used a better defense lawyer than you, but I think your confusions would have been just as effective at bringing out the strengths’ of his argument — if there were such strengths — as they have been in exposing its weaknesses.
“And they have to be interpreted by human beings when getting into the nitty gritty of applying them. As a matter of empirical fact and history, such principles are not interpreted in the same way at all times and places, and yet that hasn’t made them useless.”
Sure, but this is not what I’m claiming. I’m simply claiming that principles can be changed to explicate the range of the principle, it should be clear from the example I gave: “the Swedish constitution has a part from 1948 dealing with freedom of the press (the original part is from 1766), it explicitly uses the frase “in writing” to specify the range of the principle, in 1992 it was amended to include radio, television, sound-recordings and so on.”
Likewise the principle “thou shalt not kill animals” makes it very clear what the intended interpretation is and the reason it is different from “thou shalt not kill humans” is because the conception of the good that would make you adapt either principle (most likely) is different.
Why does this matter? As you say the courts could in principle interpret “thou shall not kill” as covering animals, why the have the specific principle “thou shalt not kill animals”? As you say:
“When PETA sues the government on the grounds that non-human primates are persons with rights (this happened), courts have to make a decision about whether primates are persons”
But reading about similar projects you can see why this is doomed to fail. (https://en.wikipedia.org/wiki/Nonhuman_Rights_Project)
“In October 2011, People for the Ethical Treatment of Animals (PETA) filed a complaint in a California federal district court alleging that SeaWorld was enslaving its captive orcas in violation of the orcas’ rights under the Thirteenth Amendment to the United States Constitution”
“In February of 2012, the case was dismissed. The judge wrote in his ruling that “the only reasonable interpretation of the Thirteenth Amendment’s plain language is that it applies to persons, and not to non-persons such as orcas.”
“Finally, courts do not legislate”
Yes, you’re right I’m sorry, english isn’t my language and I thought the word meant something it didn’t. And my knowledge about the american justice system is likewise not very good, but I never took Sandels argument to be about the american constitution per se but about general principles of justice.
I’ll stop wasting your time now.
Harsh ending, Wes. If you can edit out that last paragraph, you probably should. It doesn’t help your argument at all.
I did want to circle back to this conversation because I found the article and the thread quite interesting. My only previous exposure to Sandel is his book about what money can’t buy, which I thought had some interesting thoughts. But first, let me concede up front that I am out of my league. I represent the original position in “The Partially Examined Life” in that 1. I have not done the reading and 2. I have no background or education in philosophy, and 3. I mainly listen to you guys because you are usually entertaining even when I can’t follow the discussion very well. That, and I have a very long commute every day.
That said, based on your description of Sandel’s case, you don’t seem to have a beef with his intuition that the liberal ethos undermines the formation of religious communities by ranking pluralism higher in a value schema than many religions might choose. You even indicate that it is a plausible thesis:
“…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, 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.”
And “…Sandel cannot really argue that liberal societies are actually inconsistent with thickly constituted selves and constitutive communities. At worst, they have an attenuating effect.”
So, it is not the intuition that is incoherent, but the reasoning that he uses to justify it. Let me know if this example works any better to explain his intuition that liberal societies at least have an attenuating effect on constitutive communities.
An unmarried Catholic girl becomes pregnant in the United States. As a member of American society, she has the right to terminate that pregnancy. As a member of the Catholic church, she has no such right. She didn’t even have the right to birth control because sexual relations outside of wedlock is also considered sinful and counter to the flourishing of her soul. She is truly horrified that this has happened and sorely tempted to make it go away by exercising her liberal right to privacy. She is also horrified at the prospect of taking the life of a fetus which she believes is a person.
Now a Sandel society might be a little more modest than our current liberal society in that it would prefer that the girl pursue a solution to her problem within the constraints of the values she holds dearly with her family and Catholic community – even though a Sandel society does not believe in the personhood of a fetus. It might require her to sign a document that she has consulted with her family and her community prior to exercising her societal right. Obviously, even this mild intervention is fraught with potential for harm. Maybe her father impregnated her. Maybe her priest did. But maybe her boyfriend did, and a little consultation with her family and/or priest would prevent her from compounding her first mistake.
It’s a pretty subtle modification of her liberal right to privacy. But, honestly, Sandel’s value system seems like a pretty subtle variant of liberal values.
While I am firmly in Wes’s camp on the philosophical issues here, I think you could grant ALL of Sandel’s philosophical points and still be terrified of what might happen if he got his way. Maybe Sandel is “right” (however you define that) from a philosophical point of view, but when the government starts explicitly promulgating a “thick” conception of the good, a lot of people could end up dying.. That sounds dramatic, but I think human history gives good empirical evidence that this sort of thing is a very real possibility.
Let’s imagine that we somehow determine that Sandel (or one of his supporters) trots out a philosophical argument for his position on abortion that is so convincing that all of us, Wes included, have to admit defeat. We all admit “Sandel, was right: Roe DOES take a metaphysical stand on the issue of abortion. But in the larger political environment it doesn’t really matter what use philosophy buffs think. Let’s imagine (and I don’t think this is a stretch) that there exists a large and powerful religious organization that thinks that fetuses ARE persons, metaphysically, and this dogma is accepted by all the followers of this organization. Currently THEY do NOT see Roe as making a metaphysical claim about fetuses (even though they’re “wrong” to believe that)…they don’t like it, and they use lots of lobbying power to try and change it, but they’re not so offended by it that they refuse to engage with the government that enforces and promulgates such a law. But then Sandel gets his way and we pass a law saying “The US government hereby declares that all fetuses are NOT metaphysical people prior to X weeks, and anyone who thinks that they are is wrong.” Now, we’ve already granted that Sandel is correct that, “in philosophical reality” both of these laws really have the same metaphysical baggage and the philosophical community is (somehow) united in agreeing about this.
But the members of this large religious organization are not philosophers, and they do NOT agree with Sandel. While they’re willing to live with a law that implicitly makes a metaphysical claim, they’re not willing to live with one that makes a explicit metaphysical claim. They can not, in good conscious, have anything to do with a government that passes such a law, which denigrates a core tenant of their faith. They move from passive advocacy to armed resistance, bent on actively overthrowing the government that would dare pass judgement on their own religious doctrines. Just look to the middle east to get a taste for what this might look like.
Now, we can grant that such people would be “wrong” philosophically. If they only looked harder they would SEE that the old version of the law had just the same metaphysical implications as the new one….which I guess means they should have been trying to overthrow the government a lot sooner. But for whatever “irrational” reason, they found the first version easier to live with than the second.
So, from a pragmatic level, the wisdom of Sandel’s position is an empirical question: if the government started promulgating metaphysical and normative claims stemming from a thick conception of the good, would that make it more or less likely that some people will start wanting to kill other people? That’s a historical and empirical question, and I don’t think it provides a lot of data to support Sandel’s worldview. Personally, I’d rather live in a society that was philosophically “un-grounded” or whatever, but where people who disagree can live together without killing each other, than a society where the government does the “right” thing from a philosophical point of view, but where there is a civil war going on because some people (foolishly? ignorantly?) disagree with the government’s views.
-G
Apologies if these thoughts are echoed above in other comments…I didn’t read through them all!
Wes, I’m not entirely sure you got Sandel’s project quite right. Two thoughts:
First, I’m not sure Sandel is making quite the same strong argument you claim he is, that deontological liberalism (with its reliance upon unencumbered selves) CAN’T result in/produce “thick” selves. I don’t see him claiming that. Rather I see him claiming that the unencumbered self implied and required by deontological liberalism is at odds with our actual selfhood; that it is overly abstract and an inaccurate way to describe at least some of the relationships we have with our ends and our community. His implication is that such an unencumbered self discourages community and encourages an impoverished understanding of the self, but this is a different claim than the stronger one you accuse him of making. His project in LLJ seems quite clearly to be about determining whether the comprehensive selfhood Rawls depends on in A Theory of Justice is sensible and adequate. His argument is that it is overly reliant upon, and implicitly that it encourages, an impoverished sense of self.
Second, Rawls seems to have admitted that the notion of the self he proposed in A Theory of Justice was indeed a comprehensive one. Rawls responds in Political Liberalism by making the move you seem to want to make as well, claiming that the self implied and required by liberalism need not be a comprehensive one – the unencumbered self is merely a public/political one and not comprehensive (or “metaphysical”). Rawls encourages us to see a public/political self and a private one, the former which is appropriate for liberal democracy and the latter which preserves the possibility for “thicker” and more “communally constitutive” selves. This is what Sandel’s new and final chapter in the second edition of the book addresses – which is not merely some “afterthoughts meant to remedy” the problem you point out. It is in this change, amid the bifurcation of the self, that Sandel really points out the problem with bracketing out religious and moral reasoning from the public square.
The critique of Sandel’s handling of Aristotle is interesting, especially in its relation to evolutionary psychology, but in the end we’re still stuck living with antiquated narratives born out of obsolete mythologies.
I read only Part I but I just want to share the following thought. “principles of justice derived from an abstract conception of the self produce societies that stand opposed to fully realized selves.” I think this would actually make sense if we had in mind “fully specified selves” rather than “fully realized” ones. Abstract principles and values are generally biased against completely concrete realizations. Instead, they favor realizations that maintain a core of abstraction, thus flexibility, adaptability, endless growth, boundless empathy, etc.
I’m not a philosopher (or only an amateur one) but I wanted to say I found Part V of this absolutely riveting reading, without regard for the wider polemic of the essay. I’m not sure I have ever seen such an elegant and forceful presentation of the beliefs that I, as a liberal, have so often vainly tried to put into words with regard to the flaws of collectivist ideologies, the non-existence of the community-Geist, etc. Congratulations. I will now try to read anything else of Wes Alwan’s I can get my hands on.
The clearest refutation of Sandel’s argument is that the U.S. does not lack for communities or “thickly constituted” individuals. Mark Lilla and Francis Fukuyama have both written books arguing that this is precisely what’s wrong with modern liberalism—too much emphasis on communities and the ways in which they intersect to produce personal identity has led directly to political tribalism. Kant would be horrified. He wanted individuals to transcend their parochial identities and question all authority—not always and at all times, but in order to exercise the public use of reason on matters concerning the public good. Sandel’s remedy for democracy’s discontent would only exacerbate the patient’s condition.
Hey! Late to the party here – I can’t seem to get the kindle version of this anymore. I’ll donate to website if you email to me? No worries if not.