Michael Sandel’s Civic Republicanism and John Rawls’ Political Liberalism

可參中文簡介: 桑德爾的公民共和主義與羅爾斯的政治自由主義

 Kai-man KWAN, Department of Religion and Philosophy, Hong Kong Baptist University

Liberalism has long been the dominant political philosophy in the West. However, since the eighties, it has been challenged by communitarian critics like Michael Sandel (1982), Charles Taylor (1985, 1990), Alasdair MacIntyre (1981, 1988, 1990), and Michael Walzer (1983). One typical example of the liberal-communitarian controversy is the prolonged debate between Michael Sandel, a prominent communitarian, and John Rawls, a leading liberal, which has gone on for nearly thirty years. The earlier Rawls’ A Theory of Justice (1971) attempts to provide a universalist justification of liberalism,[1] and argues for the priority of the right over the good. Sandel, in his Liberalism and the Limits of Justice (1982), argues that Rawls has presupposed a controversial and defective theory of self-identity: a conception of unencumbered self who can choose to attach to any community at will. Sandel argues instead that personal identity is at least partially constituted by his communal ties and the values he is committed to. Later Rawls moves towards a political conception of liberalism which eschews controversial doctrines, tries to be neutral towards different comprehensive theories, and builds the just political order upon the overlapping consensus alone (Rawls 1980, 1985). This culminates in his Political Liberalism (1993).

Sandel once again responded. His critique of Rawls’ political liberalism is summarized in a new chapter in the second edition of his Liberalism and the Limits of Justice (1998). His major criticisms are threefold: (i) when we deal with some serious moral issues like abortion and slavery, it is impossible to be completely neutral towards controversial moral or religious doctrines; (ii) a kind of reasonable pluralism also exists in the debate concerning the proper understanding of “justice”; (iii) the restriction of public political discourse to the overlapping consensus will make it impoverished. His Democracy’s Discontent: America in Search of a Public Philosophy (1996) is a defense of his favoured version of communitarianism, civic republicanism, and can also be seen as a response to Rawls. Rawls now justifies his political liberalism mainly by claiming that it is implicit in the American political culture. Sandel (1996) contains a rich analysis of the history of American politics, the burden of which is to show that the liberal tradition has led to various problems, and that civic republicanism is also a tradition implicit in the American political culture. This book has provoked a lot of responses from liberals and communitarians alike, which are collected in Allen and Regan (1998), together with Sandel’s response.

In this paper, I will look at Sandel’s criticisms of Rawls’ political liberalism, and the debate between Sandel and his critics.
Rawls: From A Theory of Justice to Political Liberalism
In 1971, John Rawls published his very influential book, A Theory of Justice. Previously claims about rights and justice were usually justified with respect to utilitarianism. This kind of justification, however, depends on human preferences and desires, which are largely contingent. Rawls intended to establish our intuitions about justice on a more secure basis, and to answer objections to his theory of justice.

Rawls proposes two principles of justice:
“a) each person has an equal claim to a fully adequate scheme of equal basic rights and liberties, which scheme is compatible with the same scheme for all; and in this scheme the equal political liberties, and only those liberties, are to be guaranteed their fair value.
b) Social and economic inequalities are to satisfy two conditions: first, they are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least advantaged members of society.” (Rawls 1993, pp. 5-6).[2]

These principles express an egalitarian kind of liberalism, and the second one is called the difference principle. To justify them, Rawls resorts to the idea of original position, which is supposed to model a fair situation for a social contract. In the original position, everyone is put under the veil of ignorance, i.e., they know nothing about their intelligence, power, income, social status, etc. Under this situation, Rawls believes that rational people will agree on the above principles of justice. So those principles are fair ones which would gain the consensus of all rational people in a fair situation.

Whether Rawls succeeds to prove his principles is a controversial question. For example, Alan Gewirth thinks that the assumption of the veil of ignorance in the original position already presupposes egalitarianism. So as a proof of egalitarianism, the original position is circular (Gewirth 1984, p. 9). Others contend that not all rational people would choose as Rawls suggests. Perhaps those with a more adventurous spirit would prefer a society where they can possibly gain much more than they can in an egalitarian society.

Even some liberals agree that Rawls’ idea of original position is not neutral. For example, Amy Gutmann thinks that in the original position, the “resulting principles of justice … clearly rely on certain contingent facts: that we share some interests (in primary goods such as income and self-respect), but not others (in a particular religion or form of family life); that we value the freedom to choose a good life or at least the freedom from having one imposed upon us by political authority. If we do not, then we will not accept the constraints of the original position” (Gutmann 1992, pp. 124-5). Similarly, Richard Bellamy argues that in the original position whether the parties would prioritize liberties depends on their temperament or other desires. For example, it is not clear that they would insist on the liberty of conscience. Why can’t the people trade religious and moral convictions for other interests? (Bellamy 1999, p. 54) Another common criticism is that Rawls hasn’t convincingly explained why people in real life should care about the agreement made in the entirely hypothetical original position (Kukathas and Pettit 1990, p. 112). Moreover, many scholars think that even if the original position were actual, people may still have reasons not to keep the agreement in the original position when doing so is against their interests.

The early Rawls appears to suggest that the original position provides a kind of universalist justification of his principles of justice: “the conditions embodied in the description of this situation [original position] are ones that we do in fact accept. Or if we do not, then we can be persuaded to do so by philosophical considerations… Each aspect of the original position can be given a supporting explanation… Thus to see our place in society from the perspective of this position is to see it sub specie aeternitatis: it is to regard the human situation not only from all social but also from all temporal points of view” (Rawls 1971, p. 587).

Furthermore, despite his later denial, Rawls does seem to presuppose a metaphysical conception of the self: “We should not attempt to give form to our life by first looking to the good independently defined. It is not our aims that primarily reveal our nature but rather the principles that we would acknowledge to govern the background conditions under which these aims are to be formed and the manner in which they are to be pursued. For the self is prior to the ends which are affirmed by it; even a dominant end must be chosen from among numerous possibilities…. We should therefore reverse the relation between the right and the good proposed by teleological doctrines and view the right as prior” (Rawls 1971, p. 560).

“The parties [in the original position] regard moral personality and not the capacity for pleasure and pain as the fundamental aspect of the self… They think of themselves as beings who can and do choose their final ends… Their fundamental interest in liberty and in the means to make fair use of it is the expression of their seeing themselves as primarily moral persons with an equal right to choose their mode of life” (Rawls 1971, p. 563).

It is upon this conception of self that Sandel fastens his critique,[3] which is widely regarded as one of the most thorough critique of early Rawls. Sandel argues that this conception of a radically unsituated self, which can be detached from its empirically-given features, is untenable. It is also essentially an abstraction which goes against our actual moral experiences. It is also doubtful that such a self can be the foundation of a moral theory, because it is not intelligible to say that a self completely prior to its aims is capable of rational choice. Any choice made in that situation would be completely arbitrary. In contrast, Sandel suggests that any self is at least partially constituted by its aims and values inherited from its community. To understand community as a product of the contract between fully formed pre-social individuals is incoherent.

Many liberals rise to defend Rawls against Sandel’s criticisms. Although they may raise doubts about the communitarian conception of self,[4] they usually concede that the idea of an entirely unencumbered self, even if coherent, is hardly realistic. However, they argue that Rawls’ liberalism is not committed to such a conception of self. For example, Kukathas and Pettit pointed out that when Rawls delivered the Dewey Lectures in 1980, he explicitly admitted the contingency of his principles of justice. Instead of providing a universalist justification, Rawls is arguing that “[w]hat justifies a conception of justice is not its being true to an order antecedent to and given to us, but its congruence with our deeper understanding of ourselves and our aspirations, and our realization that, given our history and the traditions embedded in our public life, it is the most reasonable doctrine for us. We can find no better charter for our social world” (Rawls 1980, p. 519).[5] Rawls’ later paper on the political, rather than metaphysical, conception of justice as fairness (Rawls 1985) confirmed that it was indeed the direction which Rawls intended to go. This developmental process culminated in Rawls’ Political Liberalism (1993), which explains his most recent position systematically.[6]

The main purpose of Rawls’ political liberalism is to provide an answer to this question: "How is it possible that there may exist over time a stable and just society of free and equal citizens profoundly divided by reasonable though incompatible religious, philosophical, and moral doctrines?" (Rawls 1993, p. xviii) In other words, the aim of political liberalism is to uncover the conditions of the possibility of a reasonable public basis of justification on fundamental political questions. Obviously, in this state of reasonable pluralism, to decide the fundamental political questions on the basis of some controversial metaphysical or comprehensive would be unfair to those who reasonably disagree. So the basis has to be impartial between the points of view of reasonable comprehensive doctrines. The resulting conception of liberalism is political rather than metaphysical. Similarly, the ideas of the good in the political conception have to be appropriately political and distinct from those in more extensive views (Rawls 1993, p. xix).

To achieve this goal, Rawls thinks that the principles of justice cannot be derived from any comprehensive doctrine. (In this way, the political conception of justice is a freestanding view.) Rather, they should be uncovered from the shared political culture: “We start, then, by looking to the public culture itself as the shared fund of implicitly recognized basic ideas and principles. We hope to formulate these ideas and principles clearly enough to be combined into a political conception of justice congenial to our most firmly held convictions. We express this by saying that a political conception of justice, to be acceptable, must accord with our considered convictions, at all levels of generality, on due reflection, or in what I have called elsewhere ‘reflective equilibrium’” (Rawls 1993, p. 8).

Among the ideas implicit in the political culture, the most important one is that of “society as a fair system of social cooperation between free and equal persons viewed as fully cooperating members of society over a complete life” (Rawls 1993, p. 9). Rawls believes that this can serve as a fundamental organizing idea which helps to systematically connect the ideas and principles implied by his justice as fairness view. The original position is now regarded as a device to represent a situation in which the above fundamental idea is realized. So to determine the principles which would be agreed upon in the original position is to draw out the implications of the shared political culture.

However, Rawls recognizes that people are still largely influenced by their comprehensive doctrines. So while his principles of justice are conceived to be freestanding from the perspective of justification, he also hopes that they “can gain the support of an overlapping consensus of reasonable religious, philosophical, and moral doctrines in a society regulated by it” (Rawls 1993, p. 10). In a nutshell, it is to say that although different reasonable comprehensive doctrines may reason along different routes, they all arrive at the same conclusion that society is a fair system of social cooperation between free and equal persons. Only with such an overlapping consensus on the basic principles of justice, the public reason as Rawls calls it, we can best guarantee a stable and well-ordered free society.

However, when the comprehensive doctrines conflict with the public reason, “it is normally desirable that the comprehensive philosophical and moral views we are wont to use in debating fundamental political issues should give way in public life. Public reason … is now best guided by a political conception the principles and values of which all citizens can endorse” (Rawls 1993, p. 10). In this way, Rawls again asserts the priority of the right over the good: “an assignment of special priority to those [basic] rights, liberties, and opportunities, especially with respect to claims of the general good and of perfectionist values” (Rawls 1993, p. 6). Rawls admits that political liberalism also presupposes some ideas of the good. The priority thesis is now interpreted as the priority of the public political values over the nonpublic values of comprehensive doctrines. To avoid the charge that political liberalism is only a disguised hegemony of secularism, Rawls emphasizes that the authority of public reason only applies to citizens’ reasoning in the public forum about constitutional essentials and basic questions of justice, and not to the private realm.

Sandel’s Assessment of Rawls’ Political Liberalism
Sandel offers three criticisms of Rawls’ political liberalism. First, he thinks that it is “not always reasonable to bracket, or set aside for political purposes, claims arising from within comprehensive moral and religious doctrines. Where grave moral questions are concerned, whether it is reasonable to bracket moral and religious controversies for the sake of political agreement partly depends on which of the contending moral or religious doctrines is true” (Sandel 1998a, p. 196). He agrees that it is important to secure social cooperation on the basis of mutual respect but contends that this will not always outweigh any competing interest. To deny this possibility, we need to assume that no moral or religious conception could be true. However, Rawls explicitly says that political liberalism does not depend on this kind of skepticism, which is itself controversial. If we admit the possibility that one of those conceptions is true, we must also admit that some moral or religious values may outweigh the political value of toleration (Sandel 1998a, p. 197).

Sandel uses abortion as an example. He thinks that if the Catholic doctrine about the fully human status of the fetus is true, then to bracket this controversy is unreasonable: “the political liberal’s case for the priority of political values must become an instance of just-war theory; he or she would have to show why these values should prevail even at the cost of some 1.5 million civilian deaths each year” (Sandel 1998a, p. 198). Sandel is himself for women’s right to decide. His point is merely that the case for abortion rights cannot be neutral with respect to that moral and religious controversy.

Sandel also discusses the debate between Abraham Lincoln and Stephen Douglas over the issue of slavery in 1858. Douglas argued that Americans should bracket the moral question about slavery and appealed to popular sovereignty to resolve the issue, i.e., to leave the people of each territory free to make their own judgments. In contrast, Lincoln argued that the policy should express rather than avoid a substantive moral judgment about slavery; it was reasonable to bracket the question of the morality of slavery only on the assumption that it was not the moral evil he considered it to be (Sandel 1998a, p. 199).

Second, Sandel argues that “it cannot be said that there is a ‘fact of reasonable pluralism’ about morality and religion that does not also apply to questions of justice” (Sandel 1998a, p. 196). He agrees that there is a pluralism about conceptions of good. However, it does not follow that there is an asymmetry between the right and the good because there is a similar pluralism about the former (Sandel 1998a, p. 203). Disagreements about justice are legion: “debates about affirmative action, income distributions and tax fairness, health care, immigration, gay rights, free speech versus hate speech, and capital punishment… divided votes and conflicting opinions of Supreme Court justices in cases involving religious liberty, freedom of speech, privacy rights, voting rights, the rights of the accused” (Sandel 1998a, p. 204). Sandel anticipates that the liberal may respond by saying that there is no disagreement about the principles of justice, but only disagreement about how they should be applied. Sandel then asks, “What of our debates about distributive justice? Here it would seem that our disagreements are at the level of principle not application” (Sandel 1998a, p. 205).

Sandel cites the debate between Robert Nozick and Rawls over the difference principle as an example. Rawls may say that this disagreement does not reflect reasonable pluralism because he can give many arguments in support of his principle and the difference principle is the outcome of the search for reflective equilibrium. Sandel says, “To the extent that his arguments are convincing, as I believe they are, and to the extent that they can be convincing to citizens of a democratic society, the principles they support are properly embodied in public policy and law” (Sandel 1998a, p. 207). However, Sandel asks, if it is the case, “what guarantees that reflections of a similar kind is not possible in the case of moral and religious controversy? If we can reason about controversial principles of distributive justice by seeking a reflective equilibrium, why can we not reason in the same way about conceptions of the good? If it can be shown that some conceptions of the good are more reasonable than others, then the persistence of disagreement would not necessarily amount to a ‘fact of reasonable pluralism’ that requires government to be neutral” (Sandel 1998a, p. 207). For example, he believes that gay rights should not be built on the basis of neutrality but on convincing arguments which show the moral justifiability of homosexuality (Sandel 1998a, p. 208).

Sandel concludes that “a more modest notion of justification is appropriate” (Sandel 1998a, p. 209). Given this notion of justification, it is possible to reason about the good as well as the right. So political liberalism’s claim for the priority of the right over the good, or the priority of political values over non-political values, is undermined (Sandel 1998a, p. 210).

Third, Sandel believes that political liberalism leads to “an unduly severe restriction that would impoverish political discourse and rule out important dimensions of public deliberation” (Sandel 1998a, p. 196). Rawls promotes the idea of public reason which requires that political discourse be conducted solely in terms of political values all citizens can reasonably be expected to accept. Voting decisions should also be limited in such a way (Rawls 1993, p. 215). Sandel charges that political liberalism would leave “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” (Sandel 1998a, p. 211). For example, it would restrict arguments for gay rights in substantive terms, and also the arguments of the abolitionists: “Rooted in evangelical Protestantism, the abolitionist movement argued for the immediate emancipation of the slaves on the grounds that slavery is a heinous sin” (Sandel 1998a, p. 213).

Rawls justifies the priority of the political values realized by a well-ordered constitutional regime by drawing a parallel with the restrictive rules of evidence in criminal trials (Rawls 1993, p. 218). Sandel argues that “to assess restrictive rules of public reason, we need to weigh their moral and political cost against the political values they are said to make possible; we must also ask whether these political values- of toleration, civility, and mutual respect- could be achieved under less restrictive rules of public reason” (Sandel 1998a, p. 215). He thinks the results of this weighing process may vary from case to case. Rawls does not intend to do such comparison (Rawls 1993, p. 157), but Sandel thinks it is unavoidable (Sandel 1998a, p. 216).

The restrictions of the ideal of public reason, Sandel believes, incur severe political costs: “democratic politics cannot long abide a public life” which is abstract and detached from moral purposes (Sandel 1998a, p. 216). This would generate widespread disenchantment. Then it is likely that the “public attention becomes riveted on the private vices of public officials” (Sandel 1998a, p. 217). More seriously, since political liberalism’s “vision of public reason is too spare to contain the moral energies of a vital democratic life,” it would create “a moral void that opens the way for the intolerant, the trivial, and other misguided moralisms” (Sandel 1998a, p. 217) such as the Moral Majority and the Christian right.

Sandel further argues that the restrictions of the ideal of public reason is not consonant with Rawls’ emphasis on respect: “we respect our fellow citizen’s moral and religious convictions by engaging, or attending to, them- sometimes by challenging and contesting them, sometimes by listening and learning from them” (Sandel 1998a, p. 217). Of course, agreement is not guaranteed but the emphasis on moral dialogue is a “more suitable ideal for a pluralistic society. To the extent that our moral and religious disagreements reflect the ultimate plurality of human goods, a deliberative mode of respect will better enable us to appreciate the distinctive goods our different lives express” (Sandel 1998a, p. 218).

Many people criticize communitarianism in this way: although communitarianism can offer insightful criticisms of liberalism, it cannot provide a constructive alternative to liberalism. This criticism was valid to some extent but now much less applicable due to the development in the nineties. Communitarians have developed their philosophy in a systematic way, and tried to apply it to social and political issues (cf. Tam 1998). The efforts of Amitai Etzioni were especially impressive. Besides editing and publishing several books (Etzioni 1996, 1998, 1999), he founded The Responsive Community in 1990. This is a journal for communitarian philosophers to articulate their views on public policy issues. The communitarians have also published a manifesto: “The Responsive Communitarian Platform: Rights and Responsibilities” (Etzioni 1998, pp. xxv-xxxix). Similarly, Sandel has also moved into a more constructive phase of philosophizing. His Democracy’s Discontent: America in Search of a Public Philosophy, besides being a polemic against liberalism, is also a positive exposition of Sandel’s civic republicanism, although it is by no means fully developed.

Civic Republicanism versus Procedural Liberalism
By democracy’s discontent, Sandel is referring to the anxiety of the age, for example, the “fear that, individually and collectively, we are losing control of the forces that govern our lives. The other is the sense that, from family to neighborhood to nation, the moral fabric of community is unraveling around us” (Sandel 1996, p. 3). The liberal public philosophy is deemed inadequate to this situation because it is unable “to speak convincingly about self-government and community.” Liberals’ idea of the procedural republic emphasizes neutrality, or, in other words, the “priority of fair procedures over particular ends” (Sandel 1996, p. 4). This idea lacks the civic resources to sustain self-government.

The liberals “assume that freedom consists in the capacity of persons to choose their values and ends” (Sandel 1996, p. 5). Sandel thinks that this assumption is only a recent arrival in the last 40-50 years. In the American political culture, there is a long tradition of republican political theory which has a different understanding of freedom: “liberty depends on sharing in self-government… It means deliberating with fellow citizens about the common good and helping to shape the destiny of the political community. But to deliberate well about the common good requires more than the capacity to choose one’s ends and to respect others’ rights to do the same. It requires a knowledge of public affairs and also a sense of belonging, a concern for the whole, a moral bond with the community whose fate is at stake” (Sandel 1996, p. 5). To realize freedom, citizens need civic virtues. So politics can’t be neutral toward the values of citizens. Sandel believes that this kind of civic republicanism is a sorely needed corrective to the impoverished civic life of America.

For the liberals, obligations are understood either “in terms of duties universally owed or obligations voluntarily incurred.” It follows that there are no special obligations to fellow citizens, e.g., obligation to advance their good, apart from the universal, natural duty not to commit injustice. Consequently, it is “difficult to account for civic obligations and other moral and political ties that we commonly recognize. It fails to capture those loyalties and responsibilities whose moral force consists partly in the fact that living by them is inseparable from understanding ourselves as the particular persons we are- as members of this family or city or nation or people, as bearers of that history, as citizens of this republic” (Sandel 1996, p. 14).

This problem is especially acute for those egalitarian liberals like Rawls because the above thin understanding of obligation is “even too weak to support the less strenuous communal obligations expected of citizens in the modern welfare state” (Sandel 1996, p. 16). Moreover, it is vulnerable to the libertarian argument that redistributive policies use some people as means to others’ ends, and so it is an offense to the inviolable plurality of individuals. “If those whose fate I am required to share really are, morally speaking, others, rather than fellow participants in a way of life with which my identity is bound, then liberalism as an ethic of sharing seems open to the same objections as utilitarianism. Its claim on me is not the claim of a community with which I identify, but rather the claim of an arbitrarily defined collectivity whose aims I may or may not share” (Sandel 1996, p. 17). If it is replied that it is a matter of equal respect for all persons, Sandel would ask why Rawls’ difference principle only applies to those in the same country. If all persons count equally, then welfare should be on the same par with foreign aid. “What egalitarian liberalism requires, but cannot within its own terms provide, is some way of defining the relevant community of sharing, some way of seeing the participants as mutually indebted and morally engaged to begin with”(Sandel 1996, p. 17).

The republican theory seems to be able to provide this perspective. It interprets rights in the light of a particular conception of good society- the self-governing republic, and it leads to a politics of the common good. “Unlike utilitarianism, republican theory does not take people’s existing preferences, whatever they may be, and try to satisfy them. It seeks instead to cultivate in citizens the qualities of character necessary to the common good of self-government” (Sandel 1996, p. 25). So the moral character is a public, not merely private, concern because liberty is internally connected to self-government and the civic virtues that sustain it.

Sandel fully understands that from the liberal standpoint, “the republican emphasis on self-government leaves individual rights vulnerable to the tyranny of the majority. Moreover, the republican claim that freedom depends on civic virtue gives the state a stake in the character of its citizens that may open the way to coercion and oppression.” However, he replies that from the republican standpoint, “to view citizens first and foremost as objects of treatment, however fair, rather than as agents of self-rule is to concede from the start a certain disempowerment, or loss of agency. If liberty requires citizens whose identity is defined in part by civic responsibilities, then the public life of the neutral state may erode rather than secure our agency as free persons” (Sandel 1996, p. 27). I discuss the responses to Sandel’s critique of liberalism below.

The Impossibility of Neutrality

Andrew Siegel tries to respond to Sandel’s claim that it is sometimes impossible to bracket the truth of some controversial moral or religious doctrines. Commenting on the case of slavery, Siegel asserts that political liberalism’s political conception of the person is simply incompatible with the institution of slavery: the “idea of a fair system of cooperation and the political conception of the person which goes with this idea are sufficient to generate principles which bar slavery” (Siegel 1998, p. 153). Similarly, Rawls reacts with signs of incomprehension to the charge that political liberalism would not commit to the rejection of slavery: "A further misunderstanding alleges that an argument in public reason could not side with Lincoln against Douglas in their debates of 1858. But why not? Certainly they were debating fundamental political principles about the rights and wrongs of slavery. Since the rejection of slavery is a clear case of securing the constitutional essential of the equal basic liberties, surely Lincoln's view was reasonable (even if not the most reasonable), while Douglas's was not. Therefore, Lincoln's view is supported by any reasonable comprehensive doctrine. It is no surprise, then, that his view is in line with the religious doctrines of the Abolitionists and the Civil Rights Movement. What could be a better example to illustrate the force of public reason in political life?" (Rawls 1999, p. 174).

Indeed, in his 1993 book, Rawls has repeatedly asserted that the rejection of slavery is a fixed point for political liberalism: “We may accept provisionally, though with confidence, certain considered judgments as fixed points, as what we take as basic facts, such as slavery is unjust.” (Rawls 1993, p. 124). He also “thinks it illuminating to say about slavery that it violates principles that would be agreed to in the original position by the representatives of persons as free and equal… there is no possibility that a principle allowing slavery would be agreed to. That is a fact related to the injustice of slavery” (Rawls 1993, pp. 124-125). So has Sandel ignored all these passages and misunderstood Rawls’ position? 

Perhaps not. Both Rawls and Siegel do not seem to understand the exact nature of Sandel’s objection. Of course, slavery is incompatible with the public reason and the political conception of person in contemporary America. However, the question is whether it is compatible with the public reason in 1858. Political liberalism is not built upon universal values. Its starting point is the fundamental idea implicit in the political culture at a particular time and place. Although slavery is inconsistent with current American political culture, this kind of argument would have no force in 1858. In fact, Sandel has anticipated this reply, and pointed out that the “notions of equal citizenship implicit in American political culture of the mid-nineteenth century were arguably hospitable to the institution of slavery” (Sandel 1998a, p. 202). For example, Douglas argued that in the Declaration of Independence, “the signers of the Declaration were asserting the right of the colonists to be free of British rule, not the right of their black slaves to equal citizenship” (Sandel 1998a, p. 202).

Furthermore, how illuminating, in fact, it is to say that slavery would be precluded in the original position, and why is this fact related to the injustice of slavery? Besides asking why the slave-holder should care about this fact, we can also remind Rawls that “the original position is simply a device of representation…it models what we regard – here and now – as fair conditions” (Rawls 1993, p. 25; italics mine). So the allegedly illuminating fact says nothing more than that slavery is regarded as unjust by contemporary Americans. Sandel seems justified to conclude that political liberalism in 1858 would not necessarily reject slavery. Perhaps this is embarrassing enough for political liberalism.

The above discussions bring out a fundamental problem of Rawls’ political liberalism: the tension between his methodological commitment and his substantive commitment to freedom and equality. On the one hand, Rawls’ view of justice as fairness treats the idea of society as a fair system of social cooperation between free and equal persons as a fundamental axiom. On the other hand, to avoid relying on controversial comprehensive doctrines, Rawls asserts that the “bases of this view lie in fundamental ideas of the public political culture as well as in citizens’ shared principles and conceptions of practical reason” (Rawls 1993, p. 97). We need to ask whether political liberalism commits to freedom and equality because they belong to Americans’ public political culture or whether it endorses Americans’ public political culture because it commits to freedom and equality? Which way is the direction of justification? When the two coincide, we may shelve the issue for the time being. When they do not coincide or even conflict with one another, the question is inescapable. At times, Rawls seems to say that his methodological commitment has priority (see the quote from Rawls’ 1980 paper earlier). If it is the case, then the methodology of political liberalism at other times and places would lead to radically different substantive commitments. For example, perhaps a political liberal in America in 1800 or in ancient Greece will uphold democracy for the citizens while allowing the non-citizens to be enslaved. A contemporary political “liberal” in some Asian countries may even support an authoritarian government.

However, this seems to reduce political liberalism to cultural relativism and empties it of any substantive content. Rawls’ response above suggests that if he were to travel back in time to 1858, he would drop the appeal to public political culture, provided that this would not categorically reject slavery. So perhaps we need to take seriously Rawls’ claim that political liberalism is designed for Americans here and now alone.[7] Interpreted this way, Sandel’s case of slavery may not be damaging to Rawls’ political liberalism. However, this would also render his political liberalism largely irrelevant to people who aspire to freedom and equality at other places and times. For example, I doubt that the Chinese and other Asian activists who want to promote freedom and democracy in their cultures will react to this kind of political liberalism with enthusiasm.

The case of abortion presents a more serious challenge to Rawls’ political liberalism because it is still hotly disputed in contemporary America. Rawls endorses a typical liberal position on abortion: “we consider the question in terms of these three important political values: the due respect for human life, the ordered reproduction of political society over time, including the family in some form, and finally the equality of women as equal citizens… any reasonable balance of these three values will give a woman a duly qualified right to decide whether or not to end her pregnancy during the first semester. The reason for this is that at this early stage of pregnancy the political value of the equality of women is overriding… any comprehensive doctrine that leads to a balance of political values excluding that duly qualified right in the first trimester is to that extent unreasonable; … it may also be cruel and oppressive… we would go against the ideal of public reason if we vetoed from a comprehensive doctrine that denied this right” (Rawls 1993, pp. 243-4). This footnote has drawn a lot of criticisms.[8] Critics think that this clearly shows that Rawls’ claim to impartiality with respect to comprehensive doctrines is bogus because his position on abortion seems to preclude the Catholic doctrine of the fully human status of the fetus.

In reply, Rawls says in another footnote, "Some have quite naturally read the footnote … as an argument for the right to abortion in the first trimester. I do not intend it to be one. (It does express my opinion, but my opinion is not an argument.)” Although Rawls admits the error of misleading others, he continues to affirm the following: “Suppose … there is a reasonable argument in public reason for the right to abortion but there is no equally reasonable balance, or ordering, of the political values in public reason that argues for the denial of that right. Then in this kind of case, but only in this kind of case, does a comprehensive doctrine denying the right to abortion run afoul of public reason… Of course, a comprehensive doctrine can be unreasonable on one or several issues without being simply unreasonable" (Rawls 1999, p. 169).

It seems to me Rawls has misunderstood the criticism. The critics are not saying that Rawls has mistakenly or assumed without arguments that public reason will endorse the right to abortion. They are arguing that even if by public reason alone we come to that conclusion, the final affirmation of the right to abortion still presupposes the falsity of the Catholic doctrine. So political liberalism’s attempt to bracket all controversial comprehensive doctrines is not in the end feasible. All along Rawls is sticking to his ideal of public reason and refuses to consider why, from the Catholics’ perspectives, the political values of public reason necessarily override the value of the life of the fetus. Obviously the great values cited by Rawls to justify the priority of political values in ordinary cases, e.g., civility, stability of a well-ordered society (as Rawls understands it), will not do in this case if the Catholics are right. Instead of considering this central problem, Rawls just reaffirms his idea of public reason and offers two consolation prizes to the Catholics: first, although the Catholic view on abortion is unreasonable (or even cruel and oppressive), Catholicism as a whole is not;[9] second, although Catholics should not even vote for the regulation of abortion, "they need not themselves exercise the right to abortion”, and they “may, in line with public reason, continue to argue against the right to abortion" (Rawls 1999, p. 170; italics mine).

The above dispute shows clearly that Rawls’ political liberalism can hardly avoid all controversial assumptions. Let us consider how the people in the original position will decide on the issue of abortion rights. I suppose they can agree that when mothers’ lives are in danger, abortion is to be allowed. However, in other cases, it is not clear that they will agree on the right to abortion. First, each of them knows that he or she has been a fetus in some sense: even if he or she is not identical to that fetus, his or her coming into being directly depends on the survival of that fetus. However, he or she may not be woman at all. Second, to grant abortion on demand would be very dangerous for their survival; disallowing abortion will incur serious inconvenience or at most hardship in life. According to Rawls, the “maximin rule [of rational choice] tells us to rank alternatives by their worst possible outcomes: we are to adopt the alternative the worst outcome of which is superior to the worst outcomes of the others” (Rawls 1971, pp. 152-53). In accordance with this rule, it seems that people in the original position should decide against the right to abortion. They are less likely to suffer the worst outcome of the prohibition of abortion than the worst outcome of the contrary decision to allow abortion, and the former is superior to the latter.

Although the above argument seems plausible to me, I guess Rawls will come up with considerations that show that the original position will lead to the affirmation of the right to abortion after all. The complexity and endlessness of the ensuing debate after Rawls’ publication of A Theory of Justice (cf. Richardson 1999a, 1999b) shows that the construal of the original position can readily be modified or qualified in many different ways. I also bet that if the idea of the original position turns out to be inhospitable to the primacy of the equal rights of women, which Rawls affirms in the case of abortion, he will abandon the former rather than the latter. Despite the claim that he is applying the principle of toleration to philosophy itself, Rawls does not really tolerate philosophical or religious conceptions of person radically at odds with his liberal conception. It is true that for him all persons are equal, but who are to be counted persons here? Rawls explains the basis of this equal worth: “in virtue of their two moral powers (a capacity for a sense of justice and for a conception of the good) and the powers of reason (of judgment, thought, and inference connected with these powers), persons are free. Their having these powers to the requisite minimum degree to be fully cooperating members of society makes persons equal” (Rawls 1993, p. 19). Clearly neither fetuses nor infants possess those moral powers to the degree which make them fully cooperating members of society. It follows that fetus and infant are not equal to adult citizens, men or women, given this conception. This conception may be the correct one, but it is by no means neutral. In affirming the primacy of this conception, it is denying, say, the religious conception of all human beings as made in the image of God and possessing infinite worth. Rawls’ claim that he has made no comparison between political values and transcendent values is quite puzzling (Rawls 1999, p. 173, n.89).

Siegel also discusses the case of abortion, and this time he seems to side with Sandel rather than Rawls. He considers different attempts by the liberals to uphold abortion while bracketing controversial beliefs. For example, Dworkin defends the right to abortion in the name of religious freedom: since opposition to abortion is grounded on religious beliefs, a ban on abortion is a violation of religious freedom. Siegel thinks that it has unwelcome consequences. He supposes there is “a religious group which believes that (painlessly) sacrificing their own newborn babies is required for the salvation of the members of the group” (Siegel, p. 156). In this case, even liberals will deem it an atrocious act which should be banned. Isn’t this also imposing a particular view of the sacred on them, and violating their religious freedom? If we argue that this prohibition is based on the fact that infants are sentient (or having a potential for higher things), then we should also prohibit the killing of animals (or fetuses).

Siegel concludes, “The more plausible explanation for the liberal’s opposition to infanticide is that she believes infants have an intrinsic value which is inviolable. It seems most liberals would be willing to interfere with the hypothetical religious group’s practice precisely because it is so at odds with their own conception of the sacred. But it follows that the liberal defense of abortion rights is in fact generally premised on a rejection of the pro-life view of the value of fetal life” (Siegel, p. 156). Siegel suggests a neutral solution: to leave the issue to the states to decide. Yet he believes the liberals “will no doubt be strongly inclined to cling to their metaphysics if its expulsion from the law entails a denial of constitutional protection of abortion rights” (Siegel, p. 157).

The way Rawls handles the Catholic position on abortion really puzzles me. While he never seems to take it seriously, Rawls writes as if he is making great concessions to it. Perhaps the comment of William Connolly is relevant here: “the claim to take a position on these issues without invoking controversial metaphysical ideas is soon seen to be a façade by others. Academic secularists are almost the only partisans today who consistently purport to leave their religious and metaphysical baggage at home. So the claim to being postmetaphysical opens you to charges of hypocrisy or false consciousness: ‘You secularists quietly bring a lot of your own metaphysical baggage into public discourse even as you tell the rest of us to leave ours in the closet’” (Connolly 1999, p. 37; italics in original).

The Priority of the Right over the Good

Although Rawls’ political liberalism commits to the priority of the right over the good, he attempts to argue for this apart from controversial assumptions like ethical relativism, Kantian conception of the autonomous individual and so on. Instead Rawls’ argument boils down to the claim that while the public political culture supports a consensus on the priority of rights and liberties, the persistence of reasonable pluralism of comprehensive doctrines makes conceptions of the good essentially contestable. However, Sandel argues that since conceptions of justice (the right) are as controversial as conceptions of the good, Rawls’ political liberalism has no basis to assert the priority of the right over the good. In response to this criticism, Richard Rorty argues that the right should be thought of as prior to the good for political purposes. Consistent with the spirit of political liberalism, the argument here is merely historical, not philosophical: “Procedural republics … have the best track record among the regimes which we have tried so far” (Rorty 1998, p. 119).

One obvious problem with this reply is the dichotomy between a historical argument and a philosophical argument. Rorty’s historical argument depends on the judgment about what kind of track record is the best- this is by no means free from philosophical presuppositions. For example, most can agree that Hong Kong society emphasizes the priority of rights and liberties more than Singapore does, but they would disagree vehemently over whether Hong Kong is better than Singapore. Perhaps Rorty is hinting at the fact that totalitarian regimes which impose a uniform conception of good on the people tend to produce disastrous results. This may be true but only shows that the absolute priority of the good to the total neglect of the right is undesirable. Some regimes can combine the right and the good in a complicated way. For instance, although they deny the priority of the right over the good, they need not assert the priority of the good over the right. They may try to put emphasis on both the right and the good, and balance one with another. This is the way contemporary political communitarianism is going (cf. Etzioni 1996, 1999; Lehman 2000; see Frazer [1999] for a critique). It is doubtful whether the regimes which are deemed to have the best track record by Rorty are entirely procedural republics.

In fact, Sandel’s argument in Democracy’s Discontent is historical. He tries to show that American democracy has both liberal and republican traditions. So the success of American democracy (this is Rorty’s basic premise) can’t be attributed to the “procedural republic” alone. Sandel complains that Rorty has ignored the major thrust of his book: “he does not engage the historically specific, internal critique of procedural liberalism that constitutes most of the book. To those who defend the priority of the right over the good on the grounds that it fits with ‘our history and the traditions embedded in our public life,’ DD replies that the story is more complicated” (Sandel 1998b, p. 321). It is because “the liberal conception … is not characteristic of our political culture and constitutional tradition as such. The image of the person as a freely choosing, unencumbered self has only recently come to inform our constitutional practice. Whatever its appeal, it does not underlie the American political tradition as a whole, much less ‘the public culture of a democratic society’ as such” (Sandel 1996, p. 103). “To invoke the tradition of American liberty is to invoke a contest not a consensus” (Sandel 1998b, p. 322), and hence Rorty is begging the question. The above also puts a question mark over the basis of Rawls’ political liberalism.

Of course, the denial of the priority of the right over the good inevitably produces anxiety (or even consternation) in a liberal mind. Gutmann’s response is typical and also forceful. She again emphasizes the dilemma of modern society: the disagreement about the nature of the good life. She believes communitarian critics of liberalism like Sandel “miss the appeal of liberal politics for reconciling rather than repressing most competing conceptions of the good life” (Gutmann 1992, pp. 130-1).   She points out civic republicanism’s tendency towards intolerance, e.g., the exclusion of women and minorities. Sandel has earlier said that “intolerance flourishes most where forms of life are dislocated, roots unsettled, traditions undone” (Sandel 1984, p. 17). She replies, “if Sandel is arguing that, when members of a society have settled roots and established traditions, they will tolerate the speech, religion, sexual, and associational preferences of minorities, then history simply does not support his optimism. A great deal of intolerance has come from societies of selves so ‘confidently situated’ that they were sure repression would serve a higher cause” (Gutmann 1992, p. 132). For example, the Puritans’ belief in the common good led them to hunt witches. Gutmann thinks that the “communitarian critics want us to live in Salem, but not to believe in witches” (Gutmann 1992, p. 133). Because she does not deem this feasible, she thinks it is dangerous to weaken the priority of the liberal rights.       

Similarly Kymlicka complains that communitarians “do not mention that these [communal] practices were historically defined by a small segment of the population, nor do they discuss how that exclusionary history would affect the politicization of debates about the value of different ways of life… Forcing subordinate groups to defend their ways of life, under threat or promise of coercive power, is inherently exclusive. Communitarians simply ignore this danger and the cultural history which makes it so difficult to avoid” (Kymlicka 1992, p. 182). Connolly also charges that Sandel’s Democracy’s Discontent is a sanitized history of republicanism (Connolly 1998, p. 206).

Gutmann and Kymlicka have a point here. Liberalism is addressing the genuine problem of pluralism but we need to point out Rawlsian liberalism goes beyond the intent to avoid conflicts. For example, Steven Kautz (1995) argues that liberals Rawls and Dworkin want to establish a liberal orthodoxy as well. (Kautz is also exploring a kind of liberalism that does not go beyond the intent to avoid conflicts. Similarly, Patrick Neal [1997] advocates a kind of vulgar liberalism that admits to be merely a modus vivendi.) I agree that any alternative to liberalism must give an acceptable solution to the problem of pluralism, and accommodate the value of tolerance. But it does not follow that liberalism is the only, or the best, solution. For example, instead of giving priority to the right, we can give the priority to entrenched conceptions of good in a community, provided the basic rights and liberties are protected. As long as the majority of the people accept this solution, conflicts can also be avoided.

Gutmann also does not seem to sufficiently recognize Sandel’s valid point that anomie or moral anarchy will also lead to intolerance. Intolerant acts can be performed merely out of selfish desires. The relativism fostered by liberalism may also lead to new kinds of intolerance (cf. Kautz [1996] on Rorty). It looks as if the crucial problem is the creation of a tolerant community. Perhaps it is possible to live in Salem and not to believe in witches. Gutmann is dismissing this possibility too quickly. The standard liberal response to critics by invoking past atrocities of non-liberal political practices may not be applicable to contemporary communitarianism. For example, Sandel now clearly admits that intolerance could be performed in the name of the common good of a community. “Republican politics is risky politics, a politics without guarantees. And the risks it entails inhere in the formative project. To accord the political community a stake in the character of its citizens is to concede the possibility that bad communities may form bad characters… This is the truth in the liberal’s complaint about republican politics” (Sandel 1996, p. 321).

However, he argues that “the assumption that the capacity for virtue is incorrigible, tied to roles or identities fixed in advance, is not intrinsic to republican political theory, and not all republicans have embraced it” (Sandel 1996, p. 319). Although he places hope on the formative aspect of republican politics, it is not meant to sanction exclusion. The task of soulcraft can be achieved “not by coercion but a complex mix of persuasion and habituation” (Sandel 1996, p. 320). There is also no need to assume that the common good is unitary and uncontestable. The republican conception of freedom only offers a way of conducting political argument, not transcending it.

Moreover, Sandel makes clear that he is not advocating a totalitarian community: “The hope for self-government lies not in relocating sovereignty but in dispersing it… [we need] a multiplicity of communities and political bodies- some more, some less extensive than nations” (Sandel 1996, p. 345). He emphatically says that republicanism is by no means ignoring the importance of rights. His debate with Rawls is “not whether rights are important but whether rights can be identified and justified in a way that does not presuppose any particular conception of the good life. At issue is not whether individual or communal claims should carry greater weight but whether the principles of justice that govern the basic structure of society can be neutral with respect to the competing moral and religious convictions its citizens espouse” (1998a, p. x). To deny that the right is always prior to the good does not mean that principles of justice are always subordinate to the conceptions of the good in a particular community or tradition: “The mere fact that certain practices are sanctioned by the traditions of a particular community is not enough to make them just.” It is only saying that “rights depend for their justification on the moral importance of the ends they serve” (Sandel 1998a, p. xi).

While Sandel admits that the republican project has risks, he points out that liberalism’s attempt to avoid the formative project also has danger (maybe an even greater one). The problematic liberal conception of person is shown up in practice, e.g., discontent, moral void, loss of mastery, growing sense of disempowerment, but the “voluntarist conception of freedom leaves us ill equipped to contend with this condition”, and “[t]he procedural republic … cannot secure the liberty it promises because it cannot inspire the moral and civic engagement self-government requires” (Sandel 1996, p. 323). The loss of community is also the loss of the capacity for narrative, and this “would amount to the ultimate disempowering of the human subject, for without narrative there is no continuity between present and past, and therefore no responsibility, and therefore no possibility of acting together to govern ourselves” (Sandel 1996, p. 351).

The above discussions have been centred around one standard liberal response to Sandel’s attack on the priority of the right over the good: denial of this thesis will lead to intolerance and the formative project is inherently risky. Kymlicka’s response to Democracy’s Discontent explores another way: the formative project can to some extent be accommodated within liberalism. For him, there is a crucial distinction between promoting virtues and promoting a conception of good life.[10] “The distinction between the good and the right is a distinction between two kinds of justifications for public policies, not a distinction between two kinds of objects of public policy” (Kymlicka 1998, pp. 137-8; italics in original). Although liberalism has no intrinsic commitment to civic virtue, it is still an open question whether liberalism can promote civic virtue. For example, liberals can promote virtue “on the grounds that possessing them will make someone more likely to fulfill her obligations of justice” (Kymlicka 1998, p. 136), e.g., civility, public reasonableness, sense of justice, critical attitude towards governmental authority. To do this is consistent with the affirmation of the priority of the right over the good.

So Sandel is mistaken in thinking that the promotion of a conception of virtue or communal identity implies the promotion of a conception of good life: “a conception of the good life is just that- i.e. a conception of what makes one’s life worth living… These virtues and identities do not tell us where our own good lies; rather, they tell us how far we can go in pursuing our own good” (Kymlicka 1998, pp. 138-9). Kymlicka concludes that the merits of Sandel’s civic republicanism is no argument for abandoning the claim that justice is the first virtue of political institutions (Kymlicka 1998, p. 141). He also suspects that in case of conflict between justice and communal good, Sandel will not choose differently from him. Civic republicanism and procedural liberalism should be allies rather than enemies after all (Kymlicka 1998, p. 131).

In response, Sandel admits that both liberalism and republicanism may have formative projects, but he thinks the scopes of these projects are different: “it would be defensible, from the standpoint of republican freedom, to discourage practices that glorify consumerism on the grounds that such practices promote privatized, materialistic habits, enervate civic virtue, and induce a selfish disregard for the public good” (Sandel 1998b, p. 329). For liberalism, “what matters is fair access to the fruits of consumption” (Sandel 1998b, p. 330). So there are still two different visions of citizenship and the public realm.

This is not yet a complete response to Kymlicka’s reply. To vindicate the superiority of civic republicanism’s formative project, Sandel also needs to argue for the inadequacy of the liberal formative project- but of course what Sandel has extensively written elsewhere is relevant here. Let us consider the liberal virtues which Kymlicka mentions: civility, public reasonableness, sense of justice, and critical attitude towards governmental authority. I think Sandel will probably argue that these virtues alone are not sufficient to maintain a thick identity of a community, and the moral energy needed to sustain effective self-government. An individual can be civil and reasonable towards other citizens but at the same time entirely preoccupied with egoistic pursuits within the bounds of justice. Moreover, an individual’s critical attitude towards governmental authority will not help the development of a patriotic spirit and a self-sacrificial commitment to the public good, even if it does not hinder it. As William Galston observes, many Americans assert their rights but are not willing to fulfill their responsibilities, e.g., their “insistence on one’s right to trial by jury without the corresponding willingness to serve on juries” (Galston 1998, p. 76). Kymlicka is correct to say that Sandel is his ally for the cause of social equality. However, I think Sandel will press the question whether Kymlicka’s liberal virtues alone will adequately support the sense of community needed for the welfare state.[11]

Kymlicka’s list of liberal virtues are mostly related to the mind. It confirms Connolly’s observation that modern liberalism ignores the visceral register of subjectivity and intersubjectivity “in the name of a public sphere in which reason, morality, and tolerance flourish. By doing so it forfeits some of the very resources needed to foster a generous pluralism.” It is because the visceral register, if properly utilized, “can be drawn upon to thicken an intersubjective ethos of generous engagement between diverse constituencies” (Connolly 1999, p. 3).

In response to this reply, perhaps Kymlicka will argue that a thin identity of community is sufficient. The basis for communal identity is not necessarily a shared conception of the good, but rather a more diffuse sense of belonging to an intergenerational society (Kymlicka 1998, pp. 136-7). In order to sustain just institutions and to rectify injustices, Kymlicka thinks it best to promote thin national identities together with local identities, say, of minority groups. Furthermore, other liberals will argue that paradoxically, a thin identity is exactly what constitutes the American community. For example, Clifford Orwin thinks that    “Americans have always aspired to constitute a community, but one of self-reliant individuals…. Sandel’s ‘encumbered self,’ fully constituted by its communal environment, is not a homespun article… We have all been raised as members of a community of liberals” (Orwin 1998, p. 90). So Orwin instead calls for a renewal of individualism, and the communal elements of liberalism: “Not until we are again willing to take responsibility for ourselves as individuals will we be fit to assume it as a community” (Orwin 1998, p. 91). As a memorable sentence of Gutmann says, “The unencumbered self is … the encumbrance of our modern social condition” (Gutmann 1992, p. 129).

Still others argue that in our postmodern situation, a communitarian understanding of identity is inadequate: “Nostalgia for a republicanism of self-contained islands of political action cannot hope to consolidate itself today; such an ideal can only foster melancholy or the angry translation of traditional republican virtues into weapons of cultural war against vulnerable constituencies held responsible for failure to attain the impossible end” (Connolly 1998, p. 210). “Contemporary civic pluralism needs citizens who affirm comparative elements of contingency and contestability in those identities” (Connolly 1998, p. 210). All in all, critics of Sandel argue that a liberal understanding of identity is more appropriate to contemporary life.

First, we need to point out Orwin’s misunderstanding of Sandel, who from the very beginning has only asserted the partial constitution of a self by his community. He also realizes that a self in contemporary society typically belongs to multiple communities (Sandel 1996, p. 345). He clearly recognizes that the “civic virtue distinctive to our time is the capacity to negotiate our way among the sometimes overlapping, sometimes conflicting obligations that claim us, and to live with the tension to which multiple loyalties give rise” (Sandel 1996, p. 350). Sandel need not deny that Americans aspire to constitute a community of free-reliant individuals and the unencumbered self is to some extent the encumbrance of our modern social condition. However, I think he is correct to argue that it is incoherent to suppose the ideal of individualism or an unencumbered self alone can constitute a modern community. Just think of the innumerable occasions when those self-reliant individuals need to count upon others’ cooperation in a modern society.

Sandel further queries whether it is advisable to make the essential contestability of self-identity into a virtue: “First, as a matter of moral psychology, decentering or disrupting people’s sense of who they are does not necessarily inspire greater openness toward the practices and convictions of others. To the contrary, generosity of spirit is more likely to flow from confidently situated selves than from persons constantly confronted with the contingency and contestability of their identities. Second, dogmatism and fundamentalism that Connolly fears may themselves be symptomatic reactions to dislocating forces of contemporary life” (Sandel 1998b, p. 334).

The Limits of Public Reason
In response to Sandel’s criticisms of Rawls’ idea of public reason, some liberals emphasize the limits of morality in public discourse. For example, Siegel claims that because Sandel is blind to the depth of moral divisions, he fails to see that moral argument in constitutional adjudication can do as much damage as it can good (Siegel 1998, p. 157). So although Siegel admits that liberal neutrality is not in principle possible, it can help shelter individual rights. Furthermore, it is “far from obvious that moral argument in constitutional law is necessary for cultivating an appreciation for different ways of life” (Siegel 1998, p. 158). For instance, moral persuasion can be done in nonstate forums. Similarly, while Pettit also holds to a kind of republicanism which rejects no-value neutralism, he thinks a single value, i.e., freedom as nondomination, is sufficient. He does not want to “let loose of the dogs of moralistic enthusiasm” (Pettit 1998, p. 55).

I do not find the above arguments convincing. If both Siegel and Pettit recognize that the public forum can’t be neutral, then it should be in principle open to all kinds of moral argument. To insist on the exclusive primacy of rights or nondomination talk seems to reflect a partisan stand. If the liberals cannot provide good moral arguments for the primacy of rights, then the restrictions of the public reason are not justified. In response to Pettit’s worry about moral enthusiasm, Sandel replies: “the indeterminacies Pettit would banish are essential to the contestable, democratic character of republican politics. Avoiding domination is a worthy political end, but it is not the only end… people disagree about what counts as a domination… how to identify and cope with the sources of domination in the modern world is an intensely political question that too often goes unaddressed in our politics. One way of placing it on the political agenda might be, indeed, to ‘welcome into the public forum all the discontented, moralistic voices that are currently marginalized.’ Mobilizing citizens to contend with economic inequality and the power of special interests require moral and civic energies now lacking in American politics… it is a defect of procedural liberalism that it keeps ‘the dogs of moral enthusiasm’ on too short a leash. Pettit’s tame republicanism offers little to remedy this condition” (Sandel 1998b, p. 327).

We should also note that Rawls has recently further relaxed the restrictions of his public reason. First, the restrictions of the public reason only apply to judges, state officials, etc., but not to “the background culture with its many forms of non-public reason nor to media of any kind. Sometimes those who appear to reject the idea of public reason actually mean to assert the need for full and open discussion in the background culture. With this political liberalism fully agrees” (Rawls 1999, p. 134). Second, Rawls now thinks that the requirement of public reason “still allows us to introduce into political discussion at any time our comprehensive doctrine, religious or nonreligious, provided that, in due course, we give properly public reasons to support the principles and policies our comprehensive doctrine is said to support.  I refer to this requirements as the proviso" (Rawls 1999, pp. 143-144; italics in original). The "proviso is to be appropriately satisfied in good faith. Yet the details about how to satisfy this proviso … cannot feasibly be governed by a clear family of rules given in advance" (Rawls 1999, p. 153). Third, "there are no restrictions or requirements on how religious or secular doctrines are themselves to be expressed; these doctrines need not, for example, be by some standards logically correct, or open to rational appraisal, or evidentially supportable" (Rawls 1999, p. 153). While Sandel may still not be completely happy with Rawls’ idea of public reason, this idea is now so attenuated that perhaps in practice Sandel’s emphasis on deliberation of the common good can also be realized on Rawls’ terms.


Although I think Sandel’s three criticisms of Rawls’ political liberalism are basically correct, I agree that his civic republicanism is not without problems. “Sandel is more persuasive in stating problems than in finding solutions” (Orwin 1998, p. 87). Pettit is correct to some extent in saying that Sandel “fails to explain how self-government is supposed to be implemented, especially in a society as complex and large as the United States today, and he fails to say anything about how self-government is going to be made proof against what Jefferson himself described as the tyranny of the majority” (Pettit 1998, p. 47).

Moreover, Sandel has not successfully resolved the tension between large political community and local communities. He admits his own ambivalence: “I am sympathetic to localism… Republican freedom requires a sense of belonging, a moral bond with a particular political community… But self-government also requires political communities that have some effective control over their destinies. Given the hyper-mobility of capital, information, and industrial production, it is unclear whether localities today can meet that test” (Sandel 1998b, p. 330). But then it is “hard to reconcile this call for more redistribution with that for a ‘dispersal’ of sovereignty… he [Sandel] faces a daunting dilemma. He wants the public to retain enough power to curb large corporations on not just the national but the international plane, but he wants such public power dispersed rather than concentrated” (Orwin 1998, p. 88).

Despite all these problems, I think Sandel’s civic republicanism deserves to be worked out in more details, and believe that this will continue to pose a challenge to contemporary liberalism. If liberalism and civic republicanism are not exactly allies, as Kymlicka hopes, they can at least be partners in a fruitful dialogue with one another.

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[1] Although it is later denied by Rawls, this is certainly how it appears to many scholars.
[2] This formulation by Rawls in 1993 is substantially the same as that in his A Theory of Justice (see p. 302).
[3] Rawls denies that Sandel’s interpretation is correct: “I think Michael Sandel mistaken in supposing that the original position involves a conception of the self ‘shorn of all its contingently-given attributes’, a self that ‘assumes a kind of supraempirical status… and given prior to its ends, a pure subject of agency and possession, ultimately thin’… The essential point … is not whether certain passages in A Theory of Justice call for such an interpretation (I doubt that they do), but whether the conception of justice as fairness presented therein can be understood in the light of the interpretations I sketch in this article and in the earlier lectures on constructivism, as I believe it can be” (Rawls 1992, p. 204, n.21). “I believe this to be an illusion caused by not seeing the original position as a device of representation. … has no specific metaphysical implications concerning the nature of the self; it does not imply that the self is ontologically prior to the facts about persons that the parties are excluded from knowing” (Rawls 1993, p. 27). Nevertheless, he still thinks Sandel’s work important.
[4] For example, Kukathas and Petttit emphasize that the self is not entirely constituted by the community or goals he identifies with. The self can still actively choose what kind of self to become and to revise his goals.
[5] Sandel is often taken to task for ignoring Rawls’ 1980 paper in his critique of the early Rawls. However, I think when Sandel published his book in 1982, it was then far from certain that Rawls’ 1980 paper was the definitive development of his position. Furthermore, Sandel’s interpretation of Rawls, I believe, is at least a reasonable one.
[6] During this period, Charles Larmore (1987, 1990) also developed a similar kind of political liberalism.
[7] This is close to how Rorty interprets Rawls’ political liberalism.
[8] Besides Sandel, see also Haldane (1996, p. 68).
[9] It seems to me this kind of Rawlsian move is dubious. Although a comprehensive doctrine may come into conflict with the public reason at many points, Rawls can still say that that doctrine as a whole is reasonable and consonant with the public reason. This tends to make his idea of overlapping consensus vacuous.
[10] Kymlicka (1992) also tries to combine social perfectionism with state neutralism. In many ways, his liberalism is not so different from Sandel’s communitarianism.
[11] To further clarify the differences between Kymlicka’s liberalism and Sandel’s republicanism, perhaps Kymlica can also comment on the cases of pornography, family law, free speech, etc. which are analyzed in Sandel’s Democracy’s Discontent.