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Rational disagreement about social justice Preinsperger, Kurt 1992

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RATIONAL DISAGREEMENT ABOUT SOCIAL JUSTICE by KURT PRENSPERG  A THESIS SUBMIYI’ED IN PARTIAL FLTLFTLLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY  in THE FACULTY OF GRADUATE STUDIES  Department of Philosophy  We accept this thesis as conforming  Signature(s) removed to protect privacy  THE UNIVERSITY OF BRITISH COLUMBIA  Pre- &15fe-9  July 1992  In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree. that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department  or  by  his  or  her  representatives.  It  is  understood  that  copying  or  publication of this thesis for financial gain shall not be allowed without my written permission.  Signature(s) removed to protect privacy  (Signature)  Department of The University of British Columbia Vancouver, Canada Date  DE-6 (2/88)  £r  (S  11  ABSTRACT  Numerous conflicting theories about the just distribution of goods in society have emerged in response to John Rawis’ 1971 treatise A Theory of Justice. Given that informed persons continue to disagee strongly about the demands of social justice, progress may come from better understanding the underlying reasons for disagreement about justice among philosophically informed people of moral goodwill. In this dissertation I explore the idea, suggested by Larmore, Pogge, Ackerman and others, that some of the disagreement about justice among informed people of goodwill is “rational” disagreement. I identify, in the literature on social justice, recurrent conceptual, normative and empirical issues which we have reason to consider currently (or conceivably forever) irresolvable, at the first-order level of moral reasoning, by any information, arguments or methods accessible to us. But claims concerning the possibility of rational disagreement about justice only differ non-trivially from skepticism about justice if plausible limits can be set to the scope of this disagreement. To characterize such limits, I seek to establish the following two wide-reflective-equilibrium-based presumptions. (1) A consequentialist metaethical framework is our most credible approach to moral justification (where the form of consequentialism defended is constructivist, non-foundational, value-pluralistic, and includes distributionsensitivity among its ultimate values). (2) In moderately well-off, pluralistic societies, only those conceptions of justice fall within the scope of rational disagreement which propose broadly egalitarian-liberal, “directly responsive” principles (i.e. principles applicable to individual or group shares and not merely to basic social structure). Some likely candidates for the status of rational disagreements about social justice are discussed: the criteria definition and inclusion problems; various balancing problems related to attempts to increase the comprehensiveness of principles (the priority problem, the aggregation-distribution problem and commensuration problems); the domain demarcation problem; and problems of imprecision associated with justifying claims about justice within a consequentialist framework. An improved understanding of major sources of rational disagreement about social justice, as presented in this dissertation, helps define the normative weight of appeals to justice. This in turn clarifies the need to resolve many issues of social distribution otherwise than by relying on invocations of justice.  111  S  Abstract List of tables Acknowledgments  CONTENTS ii iv v  INTRODUCTION  1  Part 1: THE CONCEPT OF RATIONAL DISAGREEMENT 1.1 The philosophical context 1.2 A conception of rational disagreement 1.3 Objections  6 14 21  Part 2: THE CHOICE OF A CONSEQUENTIALIST MORAL FRAMEWORK 2.1 Defining non-trivial limits to rational disagreement 2.2 Reflective equilibrium as a method of moral justification 2.3 Choosing consequentialism in reflective equilibrium 2.4. The structure of CND consequentialism 2.5 Rawis’ avoidance of moral theory  28 35 42 57 70  Part 3: CONSEQUENTIALISM AND RATIONAL DISAGREEMENT ABOUT JUSTI CE 3.1 Disagreement about just-making criteria 81 3.1.1 The concept of social justice 81 3.1.2 The criteria definition problem 94 3.1.3 The criteria inclusion problem 110  3.2 Disagreement about the comprehensiveness of principles  3.2.1 Basic properties of principles of justice 3.2.2 Sources of rational disagreement about principles 3.2.3 Rawis master principle 3.2.4 Limits of the master-principle approach to justice 3.3. Disagreement about the justification of principles 3.3.1 The basic nature of consequentialist justification 3.3.2 Bona fide principles of justice and morally justified principles 3.3.3 Defining injustice 3.3.4 Rational disagreement about consequentialist justifications 3.4 The conflict between liberals and non-liberals 3.4.1 Liberal and non-liberal conceptions of justice 3.4.2 On the nature of human well-being 3.4.3 Limits to rational disagreement about liberal politics 3.5 The conflict between libertarians and egalitarians 3.5.1 The presuppositions of freedom 3.5.2 The contractarian justification of libertarianism 3.5.3 Limits to rational disagreement about libertarianism  132 132 144 155 173 181 181 190 195 200 208 208 221 225 239 239 246 265  SUMMARY AND CONCLUSIONS  271  BIBLIOGRAPHY  291  iv  LIST OF TABLES  Table I:  A taxonomy of views of justice  Page 114  Table II:  Types of master principles of justice  Page 139  Table IlL  Consequentialist formulations of traditional moral standards used as criteria for proposed principles of justice  Page 201  V  ACKNOWLEDGMENTS I feel deep gratitude toward my adopted country Canada for allowing my lifetime dream of studying philosophy to come true. I owe the University of British Columbia many years of joy and growth in an atmosphere of intellectual freedom. I owe thanks to my Committee. Earl Winkler took on my supervision at a hectic stage in his own career and encouraged my fledgling thesis efforts up until his sabbatical year. Michael McDonald kindly agreed to take over as thesis supervisor, in spite of the crushing demands of his role as Director of UBC’s new Centre for Applied Ethics. He gave me reams of valuable comments which challenged me to think harder and dig deeper. Gary Wedeking and Peter Danielson invested hard work in my project, and I sincerely thank them for seeing it to completion. Thanks are also due to Jim Dybikowski and Bob Modrow for serving as my University Examiners, and to Wayne Sumner of the University of Toronto for serving as my External Examiner. I also want to thank Bob Rowan, my M.A. thesis supervisor, whose passionate teaching of Plato, Hobbes and Rousseau originally got me excited about political philosophy. In his unforgettable words, “Yes, Plato can be shot down but not with your guns!” —  And I wish to acknowledge some special friends for their affirming support in sometimes difficult times: Dennis Bibby, Alice Gmuer, Marcia Monreal, Margaret Nicholson, Randy Reiffer, Antonia Rozario, Makiko Suzuki-Plimley.  1  INTRODUCTION Inescapable questions confront human communities about how to divide benefits and burdens among their members. Justice is commonly invoked as a decisive constraint on social distributions of valued things. But there are fierce disagreements about justice which often provoke festering antagonisms and violent confrontations, even among philosophically informed people of moral goodwill. There has been an upsurge of theorizing about justice thanks to the publication of John Rawl& A Theory of Justice in 1971. Rawis deserves praise for reopening the question of justice at a sophisticated level of argument. It is a striking fact, however, that Rawls’ work has not so much stimulated convergence toward philosophical consensus about the just distribution of goods in society, as a proliferation of rival theories. 1 In response to this fact, my dissertation seeks to develop the concept of ‘rational disagreementH, in the hope of overcoming certain forms of conflict which are standardly couched in terms of justice. The concept of rational disagreement, though not yet prominent in justice theorizing, is not original with me. Some Larmore  -  -  for example  use it without, apparently, feeling much need to clarify jt.2 Others use more  I A very partial sampling of post-Rawlsian theories of social justice: Ackerman, Bruce A., Social Justice in the Liberal State, 1980; Ewin, R.E., Liberty, Community, and Justice, 1987; Galston, William A., Justice and the Human Good, 1980; Gauthier, David, Morals by Agreement, 1986; Heller, Agnes, Beyond Justice, 1987; Narveson, Jan, The Libertarian Idea, 1988; Nielsen, Kai, Equality and Liberty: A Defense of Radical Egalitarianism, 1985; Nozick, Robert, Anarchy, State, and Lltopia,1974; Phillips, Derek L., Toward a Just Social Order, 1986; Reiman, Jeffrey, Justice and Modern Moral Philosophy, 1990; Soltan, Karol Edward, The Causal Theory of Justice, 1987; Sterba, James P., The Demands of Justice, 1980; Walzer, Michael, Spheres of Justice: A Defense of Pluralism and Equality, 1983; Winfield, Richard Dien, Reason and Justice, 1988. 2 Larmore uses the concept in the following context: “If we have it in our power to satisfy the needs of others or to prevent their having physical pain, and if the good thereby effected is sufficiently great, we may well feel obligated to set aside temporarily the pursuit of our own projects. And even if we do not conclude that the greater good overall should prove dedsive, we ought still to feel regret, or offer some explanation, or perhaps make some amends. I am disinclined to believe that there is any illuminating general rule to decide such cases (How great should the greater good overall be? How much does it matter how it is distributed among others?), Some cases may be decidable by judgment; others must be the object of rational disagreement.”(14 1-2; emphasis added).  2 or less closely related concepts. Pogge, for example, speaks of “reasonable 3 disagreemen t”; Ackerman speaks of “good-faith disagreemen 4 t”; Benjamin speaks of “the ineliminability of rationally irreconcilable moral conflict”; 5 and Hardin speaks of “the limits of reason”. 6 There is nothing very mysterious about the underlying idea of such talk. Every remotely plausible approach to moral decision-making will have to admit limits both to its precision and to its power to decide hard cases; and it is natural to speak of “room for disagreement” in such contexts. But in spite of its central importance, the idea of rational disagreement seems to me to have been left surprisingly unclear in recent philosophical works on justice. I can attempt only part of this clarifying task here. My aims are essentially threefold: to give some sense of the complexities that arise from an attempt to apply the concept of rational disagreement to disputes about social justice; to identify some plausible sources of rational disagreement; and to reach a provisional verdict about some of the limits to rational disagreement. This inquiry is organized into three main parts. Part I seeks to motivate talk about “rational disagreement” by sketching the need for such a concept in the context of contemporary justice theorizing and by offering a viable working conception of this Pogge’s use of this concept is especially illuminating: “What is needed is the recognition that knowledgeable and intelligent persons of good will may reasonably disagree about the fundamental issues dividing the world today. For example,should the means of production be controlled by national governments, or locally by workers or by private owners? Is the best forum for democratic discussion and decision making afforded by a single-party, two-party, or multi-party system? Which is more important in the appraisal and reform of social institutions, the protection of civil and political liberties or the satisfaction of basic social and economic needs? If only we could understand our disagreements about such matters as reasonable disagreements, then we could jointly work toward a world in which alternative answers to these questions could coexist in a peaceful, friendly, and supportive international environment.”(232; emphasis added) Ackerman says this: “And so we come to a first difficulty of second-best government. What decision rule should be used when liberal statesmen disagree about the best way to compromise the liberal ideal of undominated equality? Call this the problem of good-faith disagreement.”(274; emphasis added) 5 Benjamin thinks that “An appreciation of the ineliminability of rationally irreconcilable moral conflict will accord greater importance to the notion of compromise than one generally finds among ethical theories.”(2) 6 Limits of reason, according to Hardin, “are the usual cognitive and structural limits to good decisionmaking.... These include limits on mental ability, limits on time available for deciding, limits on information, and limits on relevant theory. Anyother major limit of moral reason that is not usually discussed in this context is the inability of a single individual to determine an outcome independently of the actions of others. This is the problem of strategic interaction. ..“(xvii). V  3 concept. Part II and III advance and defend the following theses respectively: 1. Setting non-trivial limits to rational disagreement about justice will require metaethical commitments. (I will sketch a wide reflective equilibrium-based rationale for choosing a form of consequentialism over rival theories  —  but obviously without  being able to give anything approaching a full defense here). 2. Once we accept a broadly consequentialist framework for moral thinking, then there arise a number of recurrent conceptual, normative and empirical issues which constitute plausible sources of rational disagreement about justice. (Many of these issues will, however, arise mutatis mutandis within certain non-consequentialist frameworks as well.) I launch my search for plausible sources of rational disagreement about justice by examining two central problems arising from the question of what sorts of considerations are fundamentally relevant to determining justice. These problems are labelled the criteria definition problem and the criteria inclusion problem (Ch 3.1). Next I explore two closely connected sources of disagreement about principles of justice: disagreement about the appropriate level of comprehensiveness of such principles (Ch 3.2), and about the structure of their justification within a consequentialist framework (Ch 3.3). Four recurrent dilemmas facing theories of justice are briefly characterized: the priority problem, the aggregation-distribution problem, the commensuration problem, and the domain demarcation problem. Finally I try to assess the possibility of rational disagreement with respect to two of the most prominent disputes about justice: the dispute between liberal and non-liberal conceptions of justice (Ch 3.4), and the dispute between libertarian and egalitarian conceptions of liberalism (Ch 3.5). I conclude that there is a presumption that only “directly responsive” principles of justice of a liberal-egalitarian type fall within the scope of rational disagreement (assuming a pluralist society in at least minimally favorable economic circumstance 7 s). 7 Principles of justice will be labelled indirectly responsive to the existing pattern of sentiment and  4 Disagreement about competing principles of this kind will generally have to be settled in the light of fairly context-specific consequentialist considerations rather than at the level of fundamental moral theory. But even context-specific considerations will frequently leave room for rational disagreement between mutually exclusive principles or decisions. Such disagreement must then be resolved at the second-order level of moral reasoning, the level of political compromise-seeking and convention-setting  —  ideally, in clear recognition of the scope for rational first-order disagreement. Three cautionary remarks are in order. First, I cannot possibly defend the interconnected strands of my account all at once, and must often defer discussions to later chapters whose results are presupposed in earlier ones. Since a meaningful effort to think clearly about justice requires complex considerations to be kept in mind simultaneously, there is no ideal order of presentation which can resemble the linearity of a simple argument. Only a view of the whole can illuminate each part. Second, I must presuppose acquaintance with contemporary theories of justice, most importantly John Rawis’ and David Gauthier’s work. There is simply no feasible way for me to restate their work sufficiently fully here to prepare the ground for my criticisms. I shall often refer to places in the literature where crucial arguments can be looked up whenever rehearsing them would lead me too far afield. Third, my interest here is not in giving a concise summary and critique of the vast contemporary literature on justice, or even a history of key disputes that seem to go on without resolution. Parts of this immense task have been ably accomplished by a number of writers. 8 I shall assume that the empirical fact of deep philosophical disagreement about justice is not in doubt, and focus on my chosen subject of examining the possibility that at least some of this disagreement may be rational in the  expectations about justice in a society if they specify a just system of basic socia’ institutions organized as a whole (e.g. Rawis’ approach). By contrast, principles of justice will be labelled directly responsive to this pattern if they specify particular characteristics which individuals (or groups) must have for justly claiming a particular share of social resources. (See Sec 3.1.3 §3 below.) 8 See e.g. Philip Pettit, Judging Justice (1980); Will Kymlicka, Contemporar Political Philosophy (1990); y or Tom Campbell, Justice (1988) for admirable restatements and criticisms of prominent theories of justice.  5 relevant sense. The dilemma which this sort of synoptic inquiry must face is that many issues are both centrally relevant to it and yet far too complex to pursue to a desirable degree of depth. I cannot follow many contemporary writers on justice into what I judge to be ultimately blind alleys, but must be highly selective with respect to the issues I engage. All I can hope to do here, on many issues, is to establish basic bearings. My project is motivated by a fundamental conviction, however, that finding our basic bearings in the welter of conflicting ideologies is more important than to erect blinkers around some little corner of it. The scope of this inquiry is broad; but when it comes to contemporary justice theorizing, I believe that a broad view is required to see any light at all.  6  PART 1: THE CONCEPT OF RATIONAL DISAGREEMENT This part seeks to motivate the concept of rational disagreement in the context of contemporary justice theorizing; to develop a viable working conception of this concept; and to confront several serious objections to the project of identifying sources of rational disagreement about justice.  1.1 THE PHILOSOPHICAL CONTEXT  §1 What sense can we make of the vast philosophical literature on justice? How much authoritative clarity about the demands of justice can decision makers gain from it? Are additions to the already crowded field of competing theories of justice likely to resolve conflicts about justice or more likely to exacerbate them? What sort of philosophical endeavor is now most likely to advance this field? These are my motivating concerns. Two kinds of endeavor seem obviously worthwhile. The first would be to offer an adequate theory about the just distribution of goods in society. The second is to point out inadequacies in various proposed theories. What are the prospects for success in either of these endeavors? It is a monumental challenge to offer an adequate theory of social justice: a theory, which no informed person of good will could reasonably reject, for a set of usefully determinate principles to decide the justice of major social distributions. Taking on this challenge is easily confused with a far less difficult one  -  that of  proposing new principles of social distribution and defending them as no less permitted by reason than those we already have. My own initial desire was, in fact, to defend some principle as the following:  Distribute economic goods in such a way as to ensure the most modest level of material prosperity which is consistent with good health, and which has the psychological effect of minimizing preoccupation with material acquisition while at the same time maximizing opportunities for experiencing the beauty of unspoilt nature, the delights of art and scientific discovery and warm human relationships to the utmost compatible degree.  7 I came to realize, however, that there was little hope of justifying my favored social vision as a principle of justice which any informed person of good will would have to accept. Since a wide range of conflicting visions of the ideal society already exist, it seems objectionable to advance any new vision of this kind as a theory of justice  -  unless one is prepared to accept the burden of arguing that it is the best social vision. And, as I hope to make clear, any such argument faces immense problems. The second kind of endeavor, which makes up the bulk of current justice theorizing, consists in detailed critiques of proposed theories of justice. Such critiques come in two grades of severity: let me call them “fatal” and “non-fatal . t Successful criticism of the non-fatal kind merely undermines a theory’s claim to rational superiority and reduces its rational status to that of one competing option among others. Successful criticism of the fatal kind undermines even the modest claim of a theory to being one competing option among others. Stated differently, non-fatal criticism merely aims to show that not all informed persons of good will must accept the theory in question, while fatal criticism aims to show that every such person must reject the theory. The distinction between these two kinds of criticism, although rarely drawn explicitly, is crucial for my purposes, because non fatal criticism places a theory squarely within the scope of rational disagreement. Many allegedly “devastating” criticisms of theories of justice are, in fact, charitably interpreted to be of the non-fatal rather than the fatal kind. They are devastating only to a theory’s monopoly claim to rational superiority. While all theories of justice qua theories of justice must, I think, make precisely this monopoly claim, it does not follow that undermining any such claim “refutes” the theory, in every relevant sense of this ambiguous term. Criticizing a theory for not compelling universal rational assent is not equivalent to having raised a fatal objection to it, as long as the criteria for having justified a theory of justice as superior to all rival theories are themselves in dispute.  8 With practice one quickly gets proficient at spotting non-fatal defects in any  theory of justice yet proposed, because every such theory can plausibly be interpreted as sacrificing something of great moral importance in order to gain something else. But those who do not share each other’s fundamental normative perspective are rarely converted. Up to a point, the debate between defenders of various theories and their critics helps clarify the implications of each perspective, but I cannot discern much progress toward rational consensus in the predictable ritual which now unfolds every time someone proposes yet another theory of justice.  Has justice theorizing reached a dead end? This is hardly an unreasonable suspicion. Appeals to “justice” provoke flaming passions and festering conflicts throughout the contemporary world  -  yet the current normative disarray in the  philosophy of justice must be disheartening for decision-makers seeking moral guidance. Still, if philosophers cannot illuminate the nature of justice, who can? In the face of this seeming impasse, a third endeavor in the field of justice theorizing appears to me promising: to investigate the sources of normative indeterminacy in this field in a more systematic way, with the goal of conceptualizing the sources and limits of rational disagreement. How much disagreement about justice does reason permit? What are the conceptual and normative factors on the one hand, and the intractable empirical factors on the other, which so often lock informed people of good will into bitter disagreement about justice? Working toward an understanding of some important sources of rationally irremediable disagreement about justice  —  this is the line of inquiry I  propose to pursue here.  §2 There is nothing strikingly new about a focus on the problem of sorting out the conceptual, normative and empirical factors that may allow a variety of  9  conflicting but equally rational beliefs about justice. 1 Serious writers on justice, and most impressively John Rawls, have explicitly acknowledged limits to rational 2 But efforts at determining the sources and limits of the rationally decidability. undecidable tend to be selective and inadequate. The all-important distinction between the rationally required and the merely permitted is not easy to draw, and often not clearly acknowledged by writers who must surely be aware that the weight of reasons favoring their particular views about justice is far short of compelling. I want to group contemporary philosophical work on justice into three broad categories. There are developed normative theories which generally include critiques of major alternatives (e.g. Rawis, Nozick, Dworkin, Ackerman, Galston, Nielsen, Phillips, Walzer, Gauthier, Narveson, Reiman, Sterba and others). Then there are many detailed critiques and critical surveys of theories of justice, often strongly informed by normative commitments without, however, presenting them as a developed alternative to existing theories (cf. Barry, Sandel, Wolff, Maclntyre, Larmore, Raz, Fishkin, Pettit, Campbell, Kymlicka and others). And in addition there is a small but growing “counter-literatur& to the almost obsessive emphasis on the construction and refutation of ambitious theories of justice in contemporary political philosophy, a literature that tries to evaluate the limits of theory  1 Hume gives the following as an example of what reason alone cannot determine in a dispute about just property claims (although his example is admittedly fairly minor and has to do with the need for convention-setting): “Sometimes the interests of society may require a rule of justice in a particular case; but may not determine any particular rule, among several, which are all equally beneficial... Sometimes both utility and analogy fail and leave the laws of justice in total uncertainty. Thus, it is highly requisite, that prescription or long possession should convey property; but what number of days or months or years should be sufficient for that purpose, it is impossible for reason alone to determine.”(An Enquiry Concerning the Principles of Morals, 29-30). 2 Rawis’ painstaking analyses of the “priority problem”(40f) and the “index problem”(93f) in A Theory of Justice remain guiding examples of the sort of project I think needs to be carried through more systematically, in the light of the criticisms Rawis’ own theory has received. An article that is exceptionally sensitive to problems of achieving “political consensus in the face of fundamental moral disagreement” is Amy Gutman and Dennis Thompson’s “Moral Conflict and Political Consensus” (1990). Such “second-order” agreement-seeking, however, presupposes some consensus on the limits to first order agreement.  10 construction by reassessing fundamentals of rational justification in moral and political theory (I have in mind, for example, Mapel’s Justice Reconsidered, Shklar’s The Faces of Injustice, as well as recent work by Sumner, Hardjn and Haslett). 3 How do I understand my own project in relation to this literature? Clearly, it fits the third category best. My hope is to reach at least some tentative conclusions about the limits of justified belief about justice, in the light of existing theories of justice and fundamentals of moral justification. The larger enterprise to which I hope to contribute is to find ways of transcending the current impasse in justice theorizing. This is best attempted, in my view, by first seeking a clearer understanding of rational disagreement about justice. It is hard to see how such an understanding could evolve without renewed efforts to rethink justificatory fundamentals with a synoptic view of the shortcomings of existing theories of justice. But the issues involved in this enterprise, as I came to discover, are so relentlessly complex that it is perhaps impossible for any single mind to encompass them in their fullness.  §3 I must immediately address three misconceptions of my project. I shall argue that there is room for rational disagreement about justice  -  which is not the  same as the skeptical claim that no usefully determinate principles of justice can possibly be justified as rationally required or the dogmatic claim that I can give a final verdict on what issues are rationally undecidable. It will be instructive to consider these misconceptions briefly. First: I am not arguing the thesis that being “usefully determinate” and “rationally required” are mutually exclusive properties of principles of justice, but something much weaker: that on a plausible account of the nature of moral reasoning, far greater disagreement is rationally permitted about the demands of  L.W. Sumner, The Moral Foundations of Rights (1987); R. Hardin, Morality Within The Limits Of Reason (1988); D.W. Haslett, Equal Consideration: A Theory of Moral Justification (1987).  11 justice than seems to have been contemplated by many contemporary theories of justice. Even if all theories so far proposed can be shown to be inadequate, that does not imply the impossibility of an adequate theory. Obviously, the idea of such a theory is not self-contradictory, and only self-contradictory ideas are demonstrably unrealizable. My project does not imply that an adequate normative theory of justice is impossible. But by taking more seriously the possibility of rational disagreement about justice, we may clarify the limits of what anyone can expect to achieve in this field. It may be possible to develop concepts and arguments which enable us to repudiate, with great confidence and clarity, exaggerated claims made by many people about the rational status of their favorite conception of justice. Second: I cannot offer a final verdict on what disagreements about justice are rationally undecidable  -  I can only offer a list of what I judge to be plausible  candidates for the status of rational disagreements. The concept of rational disagreement permits rational disagreement about what is to count as rational disagreement. But this fact does not, I believe, lead to a vicious regress; it rather  confirms how indispensable the concept of rational disagreement is. Others will find shortcomings in my list of plausible candidates for rational disagreement which may lead me to revise this list. All value judgments arise necessarily from someone s perspective. But judging an issue explicitly to be a t  matter of rational disagreement invites a sharing of perspectives about the question of whether we sincerely believe this issue to be resolvable by information, arguments or methods currently at our disposal.  §4 We must, however, immediately draw an important distinction between “rational disagreement” and “disagreement among rational people”. Disagreement among rational people is disagreement which informed people with impeccable rational credentials carry on in good faith by the means of rational persuasion and  12 which they judge to be resolvable, given currently available information, arguments and methods (otherwise they would find it pointless to carry on their dispute by such means). In contrast, rational disagreement below  -  -  in a sense to be further clarified  is disagreement which (although we may not be conscious of it) we have  reason to judge to be irresolvable at the present, because we have exhausted all relevant and epistemically accessible information, arguments and methods. Rational disagreement could be seen as a form of fruitless disagreement which is not appreciated as such. That there exists disagreement among rational people about some issue is, therefore, neither a necessary nor a sufficient condition for this disagreement to be rational disagreement, in the sense of Hrationap? which interests me here. It is not necessary (i.e. not all rational disagreement is disagreement among rational people), because the fact that a disagreement is not carried on by informed people of good will through means of rational persuasion clearly does not affect the question whether this disagreement involves irresolvable conceptual, normative or empirical issues. And it is not sufficient (i.e. not all disagreement between rational people is rational disagreement), for at least three possible reasons: (1) Most people who freely invoke the concept of justice are surprisingly unsophisticated about the conceptual, normative and empirical sources of rational underdetermination in this field. In fact, many undoubtedly reasonable people seem not to have seriously contemplated the very possibility of rational disagreement about social justice, or at least they often do not realize that a particular issue is a matter of rational disagreement. (2) Many issues of social justice are both enormously complex and emotionally absorbing. Progress is often possible in settling disputes about justice by appeal to rational argument. But there is a hard-to-define point at which many debates cease to explore the limits of rational agreement in constructive ways and instead lapse into a sterile repetition of inconclusive considerations. Even people with impeccable rational credentials cannot always be expected to realize when this  13 point has been reached, especially given the primitive state of our vocabulary for articulating varieties of rational underdetermination. (3) There may in turn be room for rational disagreement about whether a particular issue is, in fact, a matter of rational disagreement. Whether all relevant and epistemically accessible information, arguments and methods have been brought to bear on an issue is not a question whose answer is always clear-cut. Concepts like “relevance” and “epistemic accessibility”, although indispensable in many contexts, are notoriously difficult to clarify. Clearly, how inaccessible a particular piece of information is may depend on the effort we are prepared to make in getting it. If the cost of getting some particular information is prohibitive in relation to the value of goods whose just distribution is in dispute, then obviously such information is, for practical purposes, inaccessible. To the extent that the concepts of “relevance” and “epistemic accessibility” are not sharply bounded, the distinction between what is inside and outside the scope of rational disagreement will also be somewhat hazy and shifting. But from the fact that a distinction is not sharp it never follows that drawing it is unimportant. Persistent disagreement among informed people of good will provides at best evidence, not proof, that some issue is a matter of rational disagreement, in the relevant sense of “rational”. For someone to suggest, therefore, that a particular issue is outside the scope of rational disagreement implies neither that there is no longer any dispute among informed people of good will about this issue, nor that carrying on such disagreement is necessarily irrational in every sense of this ambiguous term (see below). My claim is not that focussing on the question, “How much room is there for rational disagreement about social justice?” is a magic key to the ultimate truth about justice or that it will transport us to a vantage point beyond ideology. My claim is simply that conceptualizing certain recurrent disputes about justice as rational disagreements defines a constructive line of effort for philosophical dialectic probably our best chance for progress. Those who are strongly committed -  14 to their favorite normative perspective may well resist the possibility of rational disagreement. It is my goal to challenge the rationality of this kind of meta-position about rational alternatives without, however, embracing all-out skepticism.  1.2 A CONCEPTION OF RATIONAL DISAGREEMENT  §1 How can “rational disagreement” be defined? To understand what a concept includes it is often helpful to ask what it is meant to exclude. No doubt disputes about justice often result from the fact that the disputants are ignorant of relevant and accessible information, insincere in their professed concern for justice, overwhelmed by passion, misled by authority figures or otherwise clearly deficient in their reasoning powers. These and similar factors are common sources of disagreement about justice. But claiming that the intelligence, rationality or sincerity of some or all of the disputants is somehow blocked, that they must be stubborn, uninformed or misinformed, shortsighted, biased or otherwise mentally blighted cannot plausibly explain the extent of good-faith disagreement about justice among informed people with impeccable rational credentials. The most satisfactory way to mark the distinction between “rational” and “irrational” forms of disagreement about justice would perhaps be to give an explicit, uncontroversial definition of rationality which, when applied to problems of justice, will neatly separate disagreements that are rational from those that are not. But to my knowledge, no such definition of rationality exists. An extended investigation of models of rationality, although relevant to my task, would quickly 4 lead me too far afield. Nevertheless, I have in mind what seems to me a tolerably clear and viable concept of “rational disagreement”. I want to risk an explicit definition, realizing  Cf. e.g. H.I,Brown’s interesting revisions of the traditional model of rationality in Rationality, London: Routledge, 1988.  15 that both my definition and the clarifying remarks which follow give rise to numerous questions: Rational disagreement about justice is either currently or fundamentally irremediable disagreement between (proponents of) basically rational conceptions of justice. It can be of a conceptual, normative or empirical kind. Rational disagreement can be regarded as fundamentally irremediable if we have reason to think (whether we are conscious of it or not) that there are basic conceptual or normative points at issue which no relevant information, clearer reasoning or conceivable method will ever settle, or if there are intractable empirical points at issue which would require epistemically inaccessible information. Rational disagreement can be regarded as currently irremediable if we have reason to think there are empirical or nonfundamental conceptual or normative points at issue which additional information, clearer reasoning or conceivable methods will settle eventually. I shall assume that the distinction between the conceptual, the normative and the empirical as marking off three contrasting categories of disagreement is sufficiently settled in principle, without suggesting that it is always easy to draw in practice. But what is a basically rational conception of justice? Is rational disagreement completely relative to whatever conception of justice one adopts? How can we know which disagreements are remediable or irremediable in the senses defined? Why does my definition of rational disagreement include disagreements which are likely to be remediable eventually by the usual methods of rationally resolving such matters? I address each question in turn.  §2 What is a basically rational conception of justice? I must answer by anticipating later results of this inquiry. A basically rational conception of justice is (i) a set of bona fide principles of justice which (ii) are consistent with a rational morality. A bona fide principle of justice is a principle which specifies a reasonable compromise among competing justice-based claims of different individuals in some s resources t distributive domain. Justice-based claims are claims to shares of society which individuals (or groups), in pursuit of their well-being, press as their due on the basis of just-making criteria such as desert, need, equality, rights or good-faith  16 expectations. A distributive domain is any distributive context (e.g. social roles, institutions, geographic areas, ethnic groupings) which, ideally, is sufficiently welldemarcated that outcomes or processes for the just distribution of valued things can be specified within it. A principle of justice embodies a reasonable compromise among competing justice-based claims in some distributive domain if it is “appropriately responsive” (in a sense to be explained) to patterns of informed expectations and sentiment about justice and can be approximated by some feasible distributive mechanism. A basically rational conception of justice, I said, must both include bona fide principles of justice and be consistent with a rational morality. But talk of a “rational morality will immediately arouse the deepest suspicion. If we must first take sides in intractable disputes in metaethics before applying the idea of rational disagreement to justice, have we not begged the most interesting questions? Informed people of good will are no more agreed on the ultimate nature of morality than they are on the demands of social justice. How then can we presume to judge what makes someone s understanding of the nature of morality rational or t irrational? While deferring my full answer to this important objection to Part II, I must issue at least a promissory note. We must provisionally introduce a moral framework to fix ideas and to define non-trivial limits to rational disagreement (otherwise this concept will simply become synoymous with skepticism about justice). Many disputes about justice arise because disputants have fundamentally confused views about morality. Rational disagreement about justice, in the sense I have in mind, is possible only between disputants who hold basically rational  conceptions of justice  -  or whose dispute does not turn on the fact that they don ‘t.  This last qualification is important for the feasibility of my project despite intractable disputes in metaethics. While I can define limits to rational disagreement about justice only at the cost of making certain metaethical  17 commitments, the broadly consequentialist framework I shall adopt does not beg all the interesting questions. For one, many theories of justice ruled out here as incompatible with this framework will contain plausible sources (i.e. plausible candidates for the status) of rational disagreements which are more or less analogous to those I shall discuss here. Therefore, what counts as a matter of rational disagreement, in the sense I have in mind, is not strictly relative to whichever particular conception of morality or justice one adopts. If it were, then obviously no greater consensus could be expected about the scope for rational disagreement than about those conceptions themselves. But many of the fundamental problems afflicting theories of justice  —  such as the justification problem, the priority problem, the aggregation-distribution problem or various commensuration problems  —  can be appreciated as rich sources  of rational disagreement from within many different conceptions of justice or morality. The prospects for achieving at least partial consensus on what issues are sensibly to be regarded as matters of rational disagreement about justice are far better, I think, than the prospects for achieving consensus on the best conception of justice (although achieving greater consensus of the first kind may ultimately promote greater consensus of the second kind). It is important to realize that the idea of rational disagreement about justice, while presupposing commitment to a strong enough moral framework to define limits to rational disagreement, does not presuppose similar commitment in order to identify plausible sources of rational disagreement. Even theories of justice which are incompatible with the broadly consequentialist moral framework I shall adopt will, in most cases, contain sources of rational disagreement which are closely analogous to those I identify here.  18 §3  How can we know which disagreements are remediable or irremediable in  the senses defined? My project is to find reasons for considering certain issues to be plausible candidates for the status of rational disagreements, without claiming epistemic finality for my findings. If a particular debate about what justice requires in some particular respect has divided informed people of good will for a long time, and if we can identify conceptual, normative or empirical issues about which, upon reflection, most of us are of divided minds within ourselves, then surely at some point we have reasonable support for the hypothesis that perhaps some of these issues cannot be rationally resolved, at least not currently, or not at the level of fundamental theory, or not by appeals to the concept of justice. 5 This is not to say that they must be irresolvable by any method whatever which we might broadly consider rational. Even if we came to realize that the demands of justice, or even of morality in general, are indeterminate in certain respects, it will generally still be rational to solve our disagreements by compromise rather than force. But a rational resolution to an issue, in this purely pragmatic sense of “rational”, does not preclude continued rational disagreement about this issue, in the sense of “rational” of interest to me here.  §4 Why does my definition include as “rational disagreements” not only irremediable disagreements, but also those which seem to us remediable eventually by the usual methods of clearer reasoning and better information? I have defined the concept to reflect the purpose I have in mind for it. Surely we want to use Two important (and easily confused) distinctions are that between fundamental moral theory and contextual judging, and that between the first-order and second-order level of moral reasoning. Fundamental theory, unlike contextual judging, abstracts from empirical particulars of specific contexts and assumes only general information about the nature of reality, knowledge and human values. The first order level of moral reasoning, unlike the second-order level, is the degree to which moral questions can be settled by appeal to fundamental theory or contextual judging, but without resorting to bargaining or other forms of purely pragmatic consensus-seeking in the absence of principled guidance. So not all matters which cannot be resolved at the level of fundamental theory must necessarily be resolved at the second-order level of moral reasoning: often, principled ways of contextual judging are also possible. And of course, second-order reasoning will in turn be constrained, in some ways, by fundamental theory.  19 “rational disagreement” in a sense in which saying, “Perhaps there is room here for rational disagreement” serves to signal to informed people of good will that we think all pertinent considerations and currently accessible information have been brought to bear on an issue without settling it, and that the debate has reached a stalemate of rehearsing inconclusive arguments over and over again. It is meant to signal the need to shift the debate to another level of reasoning, the second-order level of pragmatic consensus-seeking. 6 If I restricted the concept of rational disagreement so as to include only fundamentally irremediable disagreement, the resulting implications of normative finality would make its use far more controversial and would tend to shift debates simply to whether the disagreement at issue must, in fact, be forever irremediable. And this debate is likely to be as inconclusive as the earlier debate about what justice requires because, even if it is  true that no amount of relevant information or clearer reasoning will ever settle some disagreements, I believe that we can rarely know this truth with certainty. Our capacity for empirical discovery, and perhaps to a lesser extent our conceptual and moral frameworks, evolve in unpredictable ways and may change the terms in which we see our most perplexing dilemmas. But what about disagreements which seem irremediable at some abstruse level of theorizing but lead to normative agreement in practice? Moral reasoning is meant to solve practical conflicts, and without a practical conflict, there is no 6 am assuming that civil war or other brute-force attempts at dealing with first-order rational disagreement will, in most contexts, be ruled out by a basically consequentialist moral framework (and generally even by the informed self-interest of all parties involved). My claim, therefore, is not that appeals to justice must be altogether suspended at the second-order level of moral theory and give way to the use of force or threat of force. My claim is only that questions about the justice of various strategies of negotiating the terms of mutual accommodation in recognition of the scope of rational firstorder disagreement are different from questions about the fundamental constraints imposed by justice on distributive outcomes and processes. But clearly, the first-order/second-order distinction between levels of moral theory depends itself on a prior understanding of the concept of rational disagreement. Its normative content will, therefore, become clear only in the course of our inquiry. In what follows I shall be concerned purely with sources and limits of rational disagreement at the first-order level of moral reasoning although the problem of rational disagreement may, of course, reoccur in regard to the justice of various possible negotiation strategies for second-order accommodation in the face of rationally irremediable first-order disagreement about justice. —  20 problem for moral reasoning to solve. Why concern ourselves at all with disagreements which dissolve at the applied level? 7 It is a fortunate experience indeed that many metaethical and high-level normative differences do not, for a number of reasons, preclude agreement at the applied level. Different lines of moral reasoning often converge on the same decision. People with clashing metaethical convictions often share similar moral intuitions about some particular case. Supporters of different ideologies experience pressure to form coalitions with a common platform. And often a compromise on some second-best outcome will have clear advantages, from everyone’s point of view, over escalating the level of conflict. But the way I propose to use this concept, “rational disagreement” refers to currently or fundamentally irremediable disagreement about conceptual, normative or empirical issues at whatever level of moral reasoning they occur. Moral differences at various abstract levels often converge on agreement at the applied level, but in many cases they do not, and they are deep sources of many festering conflicts dividing human communities. In any case, agreement at the applied level despite strong disagreements at a more abstract level (e.g. the agreement of many conservatives and feminists about the desirability of outlawing pornography) is bound to create at best temporary moral bedfellows. But is perhaps the entire search for abstract principles of justice fundamentally misguided? Jonsen and Toulmin distinguish two very different accounts of ethics and morality: one that seeks eternal, invariable principles, the practical implications of which can be free of exceptions or qualifications, and another, which pays closest attention to the specific details of particular moral cases and circumstances.(2) 8 As will become clear, I fundamentally agree with Jonsen and Toulmin in endorsing a version of the second approach to moral decision-making. But I think we must be 7 Cf. Jonsen and Toulmin, The Abuse of Casuistry (1988). 8 Numbers in brackets following quotes give relevant page numbers in an author’s work, as listed in theBibliography. Titles or year of publication are given when more than one work by an author is listed. All references to Rawis’ work are to A Theory of Justice (1971), unless a year of publication is given.  21 careful not to draw a false dichotomy between case-based and principle-based ethics, as if our judgment in particular cases were dispensable in the search for principles or as if an appeal to principles were dispensable for our judgments in particular cases. The understanding of moral justification I shall defend, following Rawls, is the search for convergence among informed people of good will of their wide reflective equilibria between principles, judgments in particular cases, and background theories. On such a coherentist view of moral justification, both moral judgments and principles are rational according to the degree to which they mesh with a maximally extensive and coherent belief system (see Part II). 1.3 OBJECTIONS  Justice theorizing is a philosophical mine field. Almost every constructive attempt confronts paralyzing 9 objections. The following objections have been urged against my project, all of them serious enough that I can hardly proceed further without confronting them: Having decided that a disagreement looks irremediable, would that fact alone not be sufficient to make continued disagreement irrational? If so, the concept of rational disagreement would seem to be straightforwardly self contradictory Or if not self-contradictory, it would seem to lack sufficient unity for a meaningfully focussed project. In any case it does not seem to be interestingly different from skepticism. And at best, a project of identifying points of rational disagreement about social justice is a mere exercise in taxonomy or semantics.  §1 Is the concept of rational disagreement self-contradictory? Having decided  that a disagreement cannot be settled by drawing on information, arguments or methods currently at our disposal, would that fact alone not suffice to make continued disagreement irrational? The very idea of Hirremediability?l would seem At least two prominent contemporary justice theorists Rawls and Nozick have found it necessary to recant substantial parts of their original theories (cf. Rawis, 1985, 1988; and Nozick, 1989, 286-296). Gauthier is, I think, also forced to make major concessions (cf. Vallentyne, 1991, 25; 323-330). -  -  22 to limit the forms of disagreement that could be rational. It is surely irrational to persist in arguing once one realizes that one’s own position is not backed up by better reasons than one’s opponent’s position. Suppose it could be shown of conflicting positions about justice that none is ultimately rationally superior. This fact would imply, not that ongoing disagreement between proponents of opposing positions is rational, but on the contrary, that persisting in such disagreement would be utterly irrational. Therefore, the project of identifying points of rational disagreement about social justice, if successful, would make rational disagreement impossible. Therefore, my project is self-defeating. This objection depends on the fact that the term “rational ’ is, of course, t multiply ambiguous. If there are arguments in a dispute, understood by all parties, that can settle the issue in favor of one side, then we would surely want to call continued disagreement over this issue “irrational”, in some sense. But if there are no arguments in a dispute that can settle the issue in favor of one side, and all parties understand this fact, we would also want to call continued disagreement over this issue “irrational”, though clearly in another (incompatible) 1 sense. We ° must, therefore, distinguish two levels of normative disagreement: “first-order” disagreement at the level of fundamental theory or contextual judging, and “second-order” disagreement at a meta-level which recognizes the scope and limits of first-order agreement. Disagreement which is irrational if judged from this meta level may not be irrational if judged from the level of fundamental theory. The recognition of rational agreement at the level of fundamental theory should indeed 10 In view of the multiple ambiguities of “rational’, would it perhaps be clearer to speak of “moral undecidability”, and to abandon talk of “rational disagreement” altogether? (I owe this suggestion to Peter Danielson.) I am not convinced that such a terminological switch would more clearly articulate my central thesis: the claim that, at the root of many disagreements about justice among informed people with impeccable rational credentials, there often are unrecognized or as yet poorly understood conceptual, normative or empirical sources of rational underdetermination. The undecidability of certain moral issues is merely the effect of rational underdetermination which means that, in our search for the underlying causes of certain disagreements about justice, there is ultimately no way around making claims about what rationality does and doesn’t permit. (I shall argue in Part 2 that my choice of a fixed moral framework is itself constrained by rationally non-arbitrary considerations.) -  23 produce agreement at the meta-level that an issue must be resolved by other means than purely an appeal to fundamental theory. It is precisely my hope that a vastly clearer philosophical (and eventually public) recognition of the rational undecidability of many issues of justice at the level of fundamental theory or even at the level of contextual judging will motivate agreement on the need for consensus-seeking at the second-order level, free of mutual accusations of injustice. If the search for consensus at the second-order level is not simply to degenerate into a power struggle, however, it must be informed by an understanding of the reasons for first-order disagreement and itself be constrained by procedural principles of justice. Ultimately the hope is that all rational disagreements about social justice will turn out to be “remediable” in at least this sense  -  that informed people of good  will can recognize the ultimate reasons for a disagreement, recognize the impotence of fundamental moral theory or contextual judging to resolve this disagreement, and settle at the level of negotiated compromise. This does not mean that it cannot be rational for people to persist in their commitments to cherished personal values  despite the realization that these commitments are irremediably underdetermined 11 It does mean, however, that insofar as one’s cherished but rationally by reason. underdetermined commitments conflict with other people’s equally cherished and underdetermined commitments, the recognition of this underdetermination should cause a readiness, in informed people of good will, to find a modus vivendi while constricting the legitimacy of appeals to justice. This claim does not imply, of course, that the recognition of rational disagreement in a given case necessarily makes acting on one’s preferred course of action irrational. On any plausible account, considerations of justice are generally neither necessary nor sufficient for determining what makes actions rational or  As Larmore puts this point, “The fact that a conviction of mine about the meaning of life is controversial, rejected even by others whom I consider reasonable, may not offer me a sufficient reason to suspend belief in it, if it continues to make sense of my experience.”(52)  24 irrational. I certainly do not make the sweeping claim, therefore, that recognizing the existence of rational disagreement about one’s views about justice makes it generally irrational, from the perspective of some individual’s (or group’s) interests or desires, to act on these views. I only make the vastly more modest claim that such recognition makes it irrational to think that justice requires one’s preferred course of action.  §2 Does the concept of rational disagreement lack sufficient internal unity for a meaningfully focussed project? I have proposed to include certain empirical as well as conceptual and normative disputes within the extension of “rational disagreement”. But does such a concept not verbally unify what is, in substance, quite disparate? In the case of empirical disputes we disagree about cause and effect in complex social situations but agree on what truths would resolve them; whereas, in the case of fundamental conceptual and normative disputes, there is sometimes no truth to be found, or perhaps we disagree even on that. Let me make this objection as clear as I can. Is an inquiry with “rational disagreement” as its unifying concept a little like a book with “banks” as its unifying concept which includes chapters about lights or other objects arranged in neat rows, financial institutions, and the edge of water bodies? If I thought so, I could limit the extension of my central concept so as to exclude empirical issues. But I am convinced that this would be a mistake because, when it comes to disagreements about justice, conceptual, normative and empirical questions are often inseparably intertwined. For example, is it purely an empirical question what will in practice satisfy the idea that each person can justly claim an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme for all? Is it purely an empirical question whether mass starvation in the world should be conceptualized as a problem of overpopulation or of food distribution? Even where the empirical questions can be separated from the conceptual or normative ones, the  25 information required to settle some of the fiercest disagreements about justice is epistemically so inaccessible to us that we may have to classify them as fundamentally irremediable. For example, what exact mix of public and private ownership of the means of production will lead to whatever we may plausibly specify as the most desirable consequences overall? Or what total system of social institutions will, over time, make the economically poorest ten percent of the population as well off in absolute terms as possible? Might informed people of good will not be in (first-order) disagreement about the best answer to these questions  forever, simply because of the epistemic difficulties of assessing the different consequences of all the various options? Questions of social justice present themselves as a bundle of intertwined empirical, conceptual and normative threads, and trying to untangle the conceptual and normative threads in isolation from the empirical can’t work. Ideal theorizing that is not at least roughly guided by feasibility considerations has led, I believe, to a great deal of remoteness from the real-world debates about justice and has made many theories of justice, in Mapel’s terms, “unworkably complex” or altogether “senseless”. 12 My inquiry will, therefore, not exclude disagreement about intractable empirical matters from the rubric of rational disagreement.  §3  Is rational disagreement about justice simply skepticism by another name?  The possibility of rational disagreement would seem to imply that there can be conflicting principles of justice which are equally rational. Whether something is reasonably to be regarded as just would no longer seem to be the sort of question  12 An illuminating critique of theories of justice whose proposed “metrics of equality” are either “senseless” or “unworkably complex” is developed by David Mapel in Social Justice Reconsidered (1989). According to Mapel, “A metric is senseless if it relies on imaginary calculations that are impossible or if it fails to identify any common currency by which the relative value of different sorts of resources might be commensurated. A metric is unworkable if it requires information that is too complex and counterfactual to lead to practical pnnciples.”(6) He identifies crudal parts of Dworkin’s, Gaiston’s, Ackerman’s and Rawis’ theories of justice as senseless or unworkable.  26 that always has a disjunctive yes or no answer. How, then, is recognizing rational disagreement interestingly different from skepticism? Skepticism about justice can either mean that there are no true principles of justice to be discovered which exist in the nature of things independently of people’s shifting understanding of what is likely to promote their well-being. Or it can mean that there is no room between mind-independent truth and mere subjectivist preference for constructing a shared understanding of justice in a way that will be motivationally potent for rational persons. I admit the first but deny the second. Recognizing rational disagreement implies only that some conflicting conceptions of justice are equally rational, but not that all possible conceptions are. Skepticism about justice is certainly an understandable reaction to the normative disarray in current justice theorizing as well as to the rather indiscriminate use of justice-talk in everyday life. It is part of my aim in this inquiry to keep such skepticism at bay by retrieving a relatively modest rational status for appeals to justice.  §4 Is the project of identifying sources and limits of rational disagreement about justice a mere exercise in taxonomy or semantics? Just as we have made progress in the field of practical reasoning by labelling certain recurring fallacies, we can perhaps make progress in the field of justice theorizing by clearly naming recurring reasons for seemingly interminable disagreement among informed people of good will. There is power in naming; and by more clearly conceptualizing such recurrent sources of disagreement about justice  -  such as, for example, the criteria  definition and inclusion problems, the justification problem, the priority problem, the aggregrega tion-dis tribution problem, various other commensura tion problems, or the description-relativity problem  -  we may be better able to discern the presence  of these problems in specific normative disputes. Although initial attempts at mapping plausible sources and limits of rational disagreement will seem to yield  27 only a rather unruly collection of points, clearer ordering principles may emerge later on, as our insights deepen about the ultimate nature of such disagreements. Attempting to sort out the ways in which informed people of good will can reasonably disagree about what justice requires is not, I believe, merely semantically different from those approaches to social justice which offer a closed set of principles spelling out what justice requires. As Pogge puts it, What is needed is the recognition that knowledgeable and intelligent persons of good will may reasonably disagree about the fundamental issues dividing the world today (232). Despite the diversity of views about justice, the possibility of rational disagreement is often not conceded, and neither the sources nor limits of such disagreement seem to me to have been investigated in enough depth and detail. Progress in justice theorizing may need an expanded vocabulary  -  a vocabulary to characterize  normative indeterminacies in a way that allows people to express their first-order differences about justice without seeming to draw each other s rationality or good T faith into doubt. It would clarify the distinction between first-order and meta-level disagreement. It would not presuppose the adequacy of truth-valuational dichotomies for judgments about justice. The concept of rational disagreement, I believe, deserves a central place in debates about justice. If patterns of rational underdetermination could be conceptualized as focal points in work on justice and widely taught roster of fallacies taught in practical reasoning courses  -  -  much like the  it might dislodge some of  the dogmatism afflicting many disputes about justice. It might defuse conflicts by turning disagreements between people into uncertainty within each person. I see no more promising way in which many disagreements about social justice could be, if not resolved, then at least transcended.  28  PART 2: THE CHOICE OF A CONSEQUENTIALIST MORAL FRAMEWORK This part gives the rationale for relativizing the concept of rational disagreement to a particular moral framework and sketches reasons for provisionally accepting a  form of consequentialism.  2.1 DEFINING NON-TRIVIAL LIMITS TO RATIONAL DISAGREEMENT  §1 Making metaethical commitments to a particular moral theory, it might seem, is both unnecessary in the context of a thesis on rational disagreement about justice, and in any case bound to be unsuccessful. Why not define “rational tt in a framework-invariant way and then show how the problem of disagreemen ’ rational disagreement arises within some moral theories of current interest? To introduce a controversial commitment to consequentialism is not a step I have taken lightly. My original intent was to follow Rawls’ example of sidestepping intractable disputes in moral theory altogether and to focus my inquiry on characterizing plausible candidates for the status of rational disagreements as they arise across the spectrum of contemporary theories of justice. The problem turned out to be twofold. First, I accumulated a large and chaotic array of different points of disagreement which, from some moral perspective or other, could plausibly be characterized as ‘rational”. And second, the complete absence of any suggestion of principled limits to rational disagreement made my project seem to collapse into a defense of skepticism about justice. There can hardly be interesting limits to rational disagreement if any dispute about justice becomes immediately a matter of rational disagreement, provided only that a moral theory held by some people leaves this dispute irresolvable or provided only that any of these theories conflict with any of the others about how to resolve it. If a theist appeals to the dictates of God, a relativist to beliefs cherished within her  29 particular reference group, a subjectivist to the strength of her personal convictions, a moral realist to his intuitions about some Platonic realm of moral entities or properties, and a skeptic to the utter absurdity of moral claims, it is not difficult to imagine that they will possess little by way of a shared rational framework to settle specific disputes about justice. If we could narrow the range of prima fade acceptable moral theories to those fashionable among competent analytic philosophers at the present time  -  or even if we narrowed the range further by shortlisting only  disagreements within and between various forms of consequentialism, contractarianism, or rights theories as potential candidates for the status of rational disagreements  -  several vexing problems would still remain. First, if all moral  theories held by minimally competent analytic philosophers were accorded equal status, the scope for rational disagreement would still come perilously close to skepticism. For example, a morally clear-cut issue for a consequentialist may not be at all so clear-cut for certain types of contractarians: I am thinking here of Gauthier’s moral views about the mass extermination of cultural groups whose vastly inferior technology renders the expected benefits of cooperation less attractive than the expected benefits of outright extermination (1986: 231-2). Second, the task of deciding, with any precision, who to exclude from the ranks of minimally competent analytic philosophers would be fraught with difficulty, and there is in any case something embarassingly arbitrary about using, as one’s ultimate criterion for a moral theory’s rational status, simply current fashionableness among one’s own fraternity.  §2 But why not simply pick some moral theory or other and examine sources of rational disagreement within it, without making any claims about its rational superiority compared to other moral theories? Would clarifying such conceptual interrelationships not count as doing perfectly respectable philosophy? Why not abandon the ambitious idea that we might be able to say, about a given issue, that it  30 involves matters of rational disagreement  -  and instead contend ourselves with  saying that the issue involves matters of rational disagreement from the point of view of such-and-such a moral theory, but of course, if you happen to subscribe to some other equally acceptable moral theory, then of course it may not? Saying that will indeed be my failback option. But I don’t want to admit the defeat of my original hopes for this project so easily. I would seem to face three options for interpreting the concept of “rational disagreement”: (1) give up talk about rational disagreement simpliciter and admit that whether an issue is a matter for rational disagreement may well depend on which of several equally acceptable moral theories one adopts  -  and that in the end there are perhaps no interesting  limits to rational disagreement about justice at all; (2) find plausible candidates for the status of rational disagreements which arise whichever moral theory one adopts; or (3) take the plunge into metaethics after all and defend my stand. Weighing the pros and cons of each option, I found myself attracted to the third on the following grounds: (1) Talk of rational disagreement relative to a particular metaethical framework is at best uninteresting and at worst misleading if it is admitted that there are other, equally acceptable frameworks relative to which the same issue may  not involve matters of rational disagreement. Such an admission would turn the concept of “rational disagreement” into something of an oxymoron  -  unless of ,  course, everything becomes a matter of rational disagreement simply because it is rationally irresolvable within at least one moral theory or it is resolved by different equally acceptable moral theories in conflicting ways. But by relaxing the conditions for something to qualify as a rational disagreement in these ways, we have failed to distinguish rational disagreement from skepticism in any interesting sense. (2) Finding plausible sources of rational disagreement which arise relative to  every moral theory professed in good faith by sane people even if there were such -  disagreements  -  seems quite obviously uninteresting. If many different moral  31 theories  -  for example, the range of metaethical beliefs defended by analytic  philosophers today (some of whom are moral skeptics)  -  are taken as equally  acceptable from a rational point of view, then there exist no principled, non-trivial limits to rational disagreement about social justice. The fact that some identifiably analogous types of disagreement (e.g. the description-relativity problem) occur across different frameworks is simply an inconsequential curiosity. (3) Under the pressure of these considerations I wondered if I could perhaps provisionally endorse some moral theory after all. But which theory? Obviously, the theory which would emerge as the theory least ravaged by devastating objections from the widest possible reflective equilibrium of available moral theories.  §3 1 find myself forced, by the need to set non-trivial limits to rational disagreement, to relativize the concept of rational disagreement to a particular metaethical framework. And, in an attempt to avoid turning this concept immediately into an oxymoron, I find myself forced to embrace the chosen framework for constraining rational disagreements not simply as one attractive option among many equally reasonable competitors, but as the framework which, I claim, our widest possible reflective equilibrium is likely to identify as ultimately the most reasonable way to think about the basic nature of morality. But my attempt to claim, however tentatively, some degree of rational superiority on behalf of a certain form of consequentialism will immediately encounter a seemingly paralyzing objection: You have taken the fact of persistent disagreement about justice among informed people of good will as evidence for the possibility of rational disagreement. But just as informed people of good will have not converged on one ‘correct’ conception of justice, so they have not converged on one ‘correct’ metaethical theory. Debates about most or all of the moral theories you dismiss as rationally unacceptable are still very much alive in philosophy, and in fact many contemporary disputes about justice are between defenders of fundamentally different moral theories. The tension between your insistence on rational disagreement about justice and your  32 dogmatic denial of equally rational disagreement about moral theory seems irreconcilable. In philosophy we are quick to reject an enterprise when we detect an irreconcilable tension at its core. But while I admittedly face a dilemma, I think there may yet be a way to salvage my project. What exactly is my dilemma? If I don’t commit myself to any moral theory, I cannot draw interesting limits to rational disagreement about justice, and my project will be trivial. If I do commit myself to a moral theory, my defense of it will necessarily contain important gaps, and my claims about the limits of rational disagreement about justice will seem weak. Is there any way out? Rawis’ initially appealing suggestion that we could sidestep moral theory altogether in justifying a conception of justice turns out, in the end, to commit him to a deeply problematic pragmatic-communitarian metaethic (see below). Therefore, to set non-trivial limits to rational disagreement about justice, I see no way around taking sides in metaethical disputes. And I believe there are four lines of defense against the objection of being dogmatically blind to the possibility of rational disagreement about metaethics, four ways of weakening the force of this objection sufficiently to save the credibility of my project of identifying plausible candidates for rational disagreement about justice: (1) by outlining key elements of my reflective equilibrium-based rationale for choosing a consequentialist framework; (2) by conceding the tentativeness of my claims about the rational superiority of consequentialism and allowing a framework-relative interpretation of my findings as a failback option; (3) by stressing that plausible candidates for rational disagreement which I identify within a consequentialist framework will probably emerge, in analogous form, in at least some prominent rival frameworks as well; and (4) by making a case that the consequentialist framework I defend offers greater promise for identifying “principles of accommodation between moralities” than most other moral theories, including  33 Rawis’ own attempt to identify principles of justice by avowedly sidestepping metaethics altogether (Rawls: 1975, 540; cf. 1985). Let me say a few words about each of these lines of defense, (1) While I cannot fill in the details of a wide reflective equilibrium, I can at least make clear what job would have to be done to make a rational choice among alternative moral frameworks and to establish some presumption that it can indeed be done. (2) My inquiry is concerned with the scope for rational disagreement within  constructivist, non-foundational, distribution-sensitive consequentialism.’ I may admittedly be too optimistic about the prospect of an eventual convergence of the wide reflective equilibria of informed people of good will on the question of the most rational moral theory. Or perhaps some unexpected elaborations of the theories I reject are rationally superior to the consequentialism I adopt, from the perspective of a wide enough reflective equilibrium. Moreover, the fact that known meta-ethical options are flawed cannot rule out the possibility that additional options will be discovered. On the basis of the arguments I can offer I am certaintly not entitled to claim, nor do I claim, that those who reject consequentialism must inhabit a realm of superstition which places them beyond the reach of meaningful debate about justice. Those who endorse some alternative theory may interpret any claim p which I make about the sources and limits of rational disagreement as including an implicit proviso: “p if q”, where “if q” stands for  “if  CND  consequentialism or something relevantly similar is indeed the most rational way to think about morality.” The sort of consequentialism I sketch is indisputably a major contender among moral theories. 2 Therefore, even though this proviso Abbreviated CND consequentialism. This form of consequentialism will be clarified below (Sec 2.3 and 2.4). 2 A work that argues against contractarian and natural rights theories and clears the ground for consequentialist constructivism is L.W. Sumner’s The Moral Foundation of Rights (1987). A work that attempts part of the actual constructivist normative task is D.W. Haslett’s Equal Consideration: A Theory of Moral Justification (1987).  34 weakens the interest of my conclusions, it is still quite worthwhile to ask: “At what points can informed people of good will legitimately disagree about social justice,  assuming they share a broadly consequentialist framework?” (3) The limits to rational disagreement will strongly depend on which moral framework one adopts, but particular plausible candidates for the status of rational disagreements will not. For example, reconciling the tension between aggregative and distributive values (which I label the aggregation-distribution problem) is a rich source of rational disagreement within many theories; and so are the criteria definition and inclusion problems, the priority problem and several others. A number of candidates for rational disagreement which I identify within consequentialism will also emerge, mu tatis mutandis, within rival moral frameworks. If so, my efforts at clarifying their nature will not have been in vain, even if some moral theory turns out to be rationally superior to the form consequentialism I adopt here. (4) In assessing the charge that adopting a particular moral framework is dogmatic for purposes of identifying sources and limits of rational disagreement about social justice, one must appreciate a special pragmatic advantage of consequentialism: this framework has a great deal of context-dependent flexibility built in. It leaves a great many matters up to contextual judging which other theories would rule out at the level of fundamental theory. It can, therefore, accommodate politically (although of course not metaethically) a wide variety of rival moralities in a way in which such rival moralities could not accommodate each other. In complex, pluralist societies it can, I think, provide the “principles of accomodation between moralities” which Rawis speaks of by justifying a liberal type of social order (see Ch 3.4).  35 2.2 REFLECTIVE EQUILIBRIUM AS A METHOD OF MORAL JUSTIFICATION  §1 Before sketching my reflective equilibrium-based rationale for CND consequentialism, I must address this question: What exactly is the method of reflective equilibrium? Understanding this method is crucial for appreciating the limits to the certainty and precision we should expect in moral matters. We must see, according to Rawis, ...if the principles which would be chosen [in the original position] match our considered convictions of justice But presumably there will be discrepancies. In this case we have a choice. We can either modify the account of the initial situation or we can revise our existing judgments, for even the judgments we take provisionally as fixed points are liable to revision. By going back and forth, sometimes altering the conditions of the contractual circumstances, at others withdrawing our judgments and conforming them to principle, I assume that eventually we shall find a description of the initial situation that both expresses reasonable conditions and yields principles which match our considered judgments duly pruned and adjusted. This state of affairs I refer to as reflective equilibrium. It is an equilibrium because at last our principles and judgments coincide; and it is reflective since we know to what principles our judgments conform and the premises of their derivation. (19-20) On a superficial reading, Rawis’ idea of establishing a reflective equilibrium seems very simple  -  closely related, in fact, to the dialectic method of testing principles  against intuitively plausible counterexamples which moral theorists have employed all along. But Rawis is not arguing that simple coherence between principles and considered judgments is sufficient to justify acceptance of such principles. The method of reflective equilibrium differs from the traditional dialectic method in the way Rawls seeks to establish simultaneous coherence between our considered judgments about justice and a set of principles and between relevant moral as well as non-moral background theories and a description of a fair contractarian choice situation in which more or less the same principles of justice could plausibly be accepted. Relevant background theories sketched by Rawls include alternative moral theories, a theory of moral personhood, of procedural fairness, of the role of  36 morality in society as well as relevant findings of the social sciences, especially moral psychology. It might be thought that Rawis is trying to do even more than establish simultaneous coherence, namely simultaneous implication or derivability. He has sometimes been interpreted as arguing that his principles of justice are derivable from the contractarian choice situation independently of someone’s considered moral judgments about specific cases. 3 But this interpretation of Rawis’ argument, along with many criticisms based on it, are deeply misguided. Although Rawls misdescribes his theory repeatedly as “the contract doctrine”(e.g. 329), he does not, and could not, seriously claim that his original position has by itself the power to yield very determinate principles. And it would add a further layer of misunderstanding to construe Rawis’ original position as a fundamentally contractarian attempt to get moral conclusions from morally neutral premises, although here again Rawis originally misdescribes his theory as part of the theory of rational choice (cf. 16, 583). But he also clearly admits, “We want to define the original position so that we get the desired solution”(141). 4 Such statements have often earned Rawls the charge of circular reasoning (cf. e.g. Hare, 1973). But all Rawis claims, and can plausibly claim, is that our considered judgments about what constitutes a fair contractarian choice situation can be based on various background theories and kept independent, to some extent at least, of our considered judgments about what is just or unjust in particular cases; and that, therefore, trying to find a match or overlap between principles suggested by either set of considered judgements is not simply narrowly circular reasoning but establishes a degree of coherence among our moral beliefs which can be construed as 3 Ackerman, for example, seems unclear about the limited role of the original position in Rawis’ argument: “When the Rawisian Zero confronts the Infinite Choice Set, it is impossible to choose any principles of justice until he is endowed by his creator with some set of preferences to guide his judgment.”(339) As Rawls clarifies the role of the original position in his 1985 paper, “the original position is simply a device of representation: it describes the parties, each of whom are responsible for the essential interests of a free and equal person, as fairly situated and as reaching an agreement subject to appropriate restrictions on what are to count as good reasons.”(237)  37 the best sort of support which any such beliefs can ultimately have. Although Rawl& choice of words occasionally opens him up to misunderstandings, it is a serious mistake to criticize him as if he considered principles of justice to be derivable from the original position, independently of whatever principles are antecedently suggested to us by our considered judgements of what is just or unjust in particular cases. I think the way Rawis employs the method of reflective equilibrium must be understood roughly as follows. First he asks what could constitute a fair contractarian choice situation, based on our considered judgments about procedural fairness. Second he asks what set of principles of justice would be supported by our considered moral judgments about what is just or unjust in particular cases. Third he asks what subset of such principles would also be supported by a fair contractarian choice situation. Fourth he gives strong arguments about why the principles so identified must apply, not to the question of a given individual’s distributive share, but to the question of what overall distributive outcomes a just society’s basic structure must achieve. That most reflective people who followed Rawl& reasoning would in fact also converge on much the same set of principles was perhaps Rawis’ hope and, briefly, his promise. (I shall discuss the shortcomings of Rawl& approach from the point of view of identifying sources and limits of rational disagreement about justice in Ch 3.2.)  §2 Daniels helpfully clarifies reflective equilibrium methodology as a generally applicable method of moral justification. Following Rawis, he distinguishes narrow reflective equilibrium (the traditional dialectic method of testing principles against intuitively plausible judgments) from wide reflective equilibrium, which he characterizes as follows: The method of wide reflective equilibrium is an attempt to produce coherence in an ordered triple of sets of beliefs held by a particular person,  38 namely, (a) a set of considered moral judgments, (b) a set of moral principles, and (c) a set of relevant background theories... .We do not simply settle for the best fit of principles with judgments, however, which would give us only a narrow equilibrium. Instead, we advance philosophical arguments intended to bring out the relative strengths and weaknesses of the alternative sets of principles (or competing moral conceptions). These arguments can be construed as inferences from some set of relevant background theories... .We can imagine the agent working back and forth, making adjustments to his considered judgments, his moral principles, and his background theories. In this way he arrives at an equilibrium point that consists of the ordered triple (a),(b),(c).(258) The gist of the method of wide reflective equilibrium seems to me this: we must establish a first coherence between considered judgments about specific cases of a certain type and a moral principle which covers cases of this type, and a second coherence between these principles and relevant moral and non-moral background theories, with an important further proviso: the considered moral judgments which constrain our (moral and non-moral) background theories “must be to a significant extent disjoint” from the considered moral judgments that directly constrain our principle (Daniels, 260). “Coherence”, however, is a vague concept that may denote logical relationships of widely varying supportive strength, ranging from mere  consistency Of thematically unrelated beliefs, via increasing probability or derivability in some loose sense, all the way to deductive implication. Obviously, when we give coherence arguments in support of some controversial conclusion, we want in every case to make the connection of logical support between beliefs as strong as we can possibly make it. As I understand it, applying wide reflective equilibrium methodology (WREM) to the problem of justifying principles of justice essentially means constructing, on the basis of one’s considered judgments about justice in specific cases, general principles which imply these judgments and which can then be used to make new judgments, provided that (1) these principles are consistent with well established background beliefs such as, for example, the scientific world view, the findings of the various sciences, or well-founded beliefs about the hopelessness of  39 expecting a resolution to certain meta-ethical disputes; and provided that (2) the reasons that led one to espouse these background beliefs are, to some degree, independent of one’s considered judgments about justice in specific cases. This method, as Rawls himself notes (49), is somewhat analogous to the way scientists construct scientific hypotheses on the basis of empirical observations  -  hypotheses  which imply these observations and which can then be used to predict new observations (where such hypotheses are also independently constrained by relevant background beliefs, such as the mass of already well-confirmed scientific 5 Just as a sufficient number of false predictions derived from some theories). scientific hypothesis will eventually lead scientists to discard the hypothesis, so a sufficient number of intuitively unacceptable judgments derived from a moral principle will eventually lead proponents of WREM to discard a principle. Just as scientific method aims to establish the greatest possible coherence between observations, a particular hypothesis and all other relevant and already wellconfirmed scientific theories, so WREM aims to establish the greatest possible coherence between considered moral judgments, a particular set of moral principles and well-founded and relevant background theories. But that is as far as Rawls allows the analogy to go, at least in the case of principles of justice (49). Whereas (most) scientists presumably regard hypotheses which are maximally consistent with both observations and already well-confirmed scientific theories as approximating some mind-independent physical reality, Rawls does not regard principles of justice which are maximally consistent with considered judgments and relevant background theories as approximating any mind-independent moral 5 Daniels rejects this analogy between “considered moral judgments and observation reports” because accepting it seems to him to make reflective equilibrium methodology vulnerable to the “no credibility” criticism (27-3). That criticism is that the causal stories we can tell about how we came by our observations gives them credibility, whereas the causal stories we can tell about how we came by our considered moral judgments does not give them similar credibility. Daniels succeeds in pointing out plausible disanalogies between observation reports and moral judgments; but I do not see how that changes the point of the analogy, namely to illuminate the basic functioning of the method of reflective equilibrium in a helpful way.  40 reality. He leaves no doubt about his uncompromising anti-realism about principles of social justice. His two principles of justice, he says, are not regarded as a workable approximation to the moral facts: there are no moral facts to which the principles adopted could approximate. (1980, 564).  §3 What is the value of WREM as a method of justification in ethics, and in particular for principles of social justice? Is it our best method, is it one plausible method among several, is it completely worthless, or is it downright pernicious? There are arguments for all four views. There certainly is no guarantee, using WREM, that even thinkers who start out with roughly the same “considered moral judgments” will accept the same principles in the end. As Rawls himself states (50), it is not at all a foregone conclusion that different thinkers, seeking maximum coherence between their considered judgments about justice, principles and relevant background theories, must converge on pretty much the same principles. There is an important difference between moral theorists working back and forth between moral judgments, principles, and relevant background theories, on the one hand, and scientists working back and forth between observations, hypotheses and already well-confirmed scientific theories. In this “working-back-and-forth” process, observations are constrained by empirical input in a way in which moral judgments are simply not, or at least seem not to be to many thoughtful people. For a contractarian, for example, a particular way of specifying the choice situation and the principles derived from it may be in reflective equilibrium with that person’s considered moral judgments and background beliefs. For a religious person, the story of the divine origin of moral commandments, along with his particular religion’s set of commandments, may be in reflective equilibrium with that person’s considered judgments and background beliefs. For an intuitionist realist, the belief in the mind-independent existence of moral properties and in a moral  41 faculty of intuition by which they can be known, along with these intuitions themselves, may be in reflective equilibrium with his considered judgments and background beliefs. At best, someone may have examined absolutely every possible option of thinking about morality, but the moral principles and the account of their origin which she eventually accepts will only constitute yet another very wide reflective equilibrium with her considered judgment and background beliefs. A proposed method of justification for principles of justice would seem to be of dubious value, in fact downright pernicious, if it allows different thinkers, all of them using this method in good faith, to emerge with strongly conflicting ideologies while legitimizing the claim of each to have “justice” on his side. But there also seems to be a strong case for considering WREM to be trivial. It seems trivially true that, if any method can supply consensus on principles of justice, wide reflective equilibrium method can, because in the final analysis there would seem to be no reasonable alternative to it. The idea of converging wide reflective equilibria is simply a description of the dialectic process at its most general, carried through to a point of maximum coherence of all beliefs of all people about all things. If the idea of converging wide reflective equilibria is construed in this way, as I think it must be, then it is of course true that it is our only hope of reaching rational consensus on moral principles. The best we can ever do is to achieve one sort of reflective equilibrium or another, and the more aware a person is of all the coherentist pros and cons of the various alternative ways of thinking about the nature of morality, the more sophisticated his particular reflective equilibrium will be. In this sense, WREM subsumes all other methods of moral argument within its scope. We would seem, then, to have reached the paradoxical conclusion that WREM is both pernicious and trivial. On the one hand, using WREM has led different moral theorists to conflicting conceptions of justice. But on the other, there would seem to be no genuine alternative to WREM as our ultimate method of moral justification. How can we resolve this paradox?  42  The lesson to draw from the recent history of justice theorizing is not, I think, that WREM should be discarded as either pernicious or trivial. Instead we must recognize that the intellectual demands which this method makes on a moral theorist are so enormous and perhaps overwhelming that we can only have limited confidence in the claim of any one thinker to have established a conclusive wide reflective equilibrium for a particular set of principles. A plausible explanation for why using WREM to produce convergence in philosopher’s beliefs about justice has been strikingly less successful than using scientific method in producing convergence in scientists’ beliefs about the structure of the natural world would seem to me to be the following. Justice theorizing must draw on background theories in meta-ethics, metaphysics, epistemology, history and the social sciences, all of them fields of inquiry which involve such unsettled and elusive conceptual, normative and empirical matters that formulating readily testable hypotheses is rarely possible, and even informed thinkers acting in good faith are likely to emerge with substantially different conclusions. The unsettled state of knowledge in these fields does not, of course, imply that progress is impossible and could not lead to a progressive convergence of the reflective equilibria of different justice theorists. But justice theorists must, I believe, cultivate a fuller appreciation of the manifold possibilities for rational disagreement regarding the conclusions they have reached employing the method of wide reflective equilibrium.  2.3 CHOOSING CONSEQUENTIALISM IN REFLECTIVE EQUILIBRIUM  §1 I now want to sketch my understanding of how the method of wide reflective equilibrium applies to the problem of choosing a theory about the basic nature of morality. Justifying a metaethical theory by using WREM requires us, ideally, to examine all options and choosing that option which coheres best with  both our considered moral judgments and all relevant background theories which  43 we have found reason to accept. I shall mention briefly the eight metaethical options that struck me as prima facie plausible at some point, only to put aside the first five without further argument. The first five options, which I shall group together as  tlnon_constructivistfl  theories, include theistic moral theories, social relativism, subjectivism, all forms of moral realism, and radical skepticism. The next three options, which I shall call constructivist’ theories, employ rights-based, contractarian, or consequentialist methodologies, even though they all arise from the same basic understanding of the main job which morality as a social institution is to accomplish. The difference I want to mark by using the distinction between tT non constructivist” and tt constructivist” is suggested by Rawis when he explains his own Kantian constructivism: ...the parties in the original position do not agree on what the moral facts are, as if there already were such facts. It is not that, being situated impartially, they have a clear and undistorted view of a prior and independent moral order. Rather (for constructivism), there is no such order, and therefore no such facts apart from the procedure of construction as a whole; the facts are identified by the principles that result. (1980: 568) On my understanding (which seems compatible with t Rawls ) , what makes a moral theory ‘ constructivist” is that it regards morality fundamentally as a peculiar t product of human reason, a sui generis type of rational social construct whose central function is to promote the satisfaction of human interests by suggesting suitable ways of restraining and coordinating people?s behavior. Part of the idea of moral constructivism is the possibility that a variety of strongly conflicting systems of constraints on peopl&s behavior will be equally serviceable for doing morality’s job, although there will generally be a strong presumption against upsetting too many of people’s ingrained customs and habits all at once. By contrast, what makes a moral theory “non-constructivist” is that this theory does not accord reason a fundamentally creative role in constructing morality so as to promote mutual trust  44  and reconcile human interests, but (at most) a purely epistemic role in discovering morality’s pre-existing content. 6 An overview of five non-constructivist options in their simplest terms will be helpful at this point to establish our bearings. Theists generally think that a divine being’s commands are either the direct source of what is morally right and good, or our best epistemic criterion. Social relativists identify the moral right and the good with the laws or customs of some preferred social reference group. Subjectivists, the limiting case of relativists, consider the moral right and good to be matters of personal opinion. Moral realists hold that the right and the good involve natural or non-natural moral properties or entities existing independently of what anyone thinks about them. It is common, although certainly not necessary, for realists to be intuitionists, and to combine the idea that the right and the good are mind-independent realities with a distinctive doctrine about how we come to know this reality, called “intuitionism”. Radical skeptics, on the other hand, think that moral talk captures neither a mind-independent nor a mind-constructed rational order, but is altogether irrational in every sense of that word. What makes the above five theories non-constructivist? Theistic moralities are non-constructivist because they regard the content of morality as either metaphysically or epistemically given by God’s commands, rather than constructed by human reason in the light of an at least partial convergence of our evolving understandings of what sorts of behaviors will best promote collective and individual well-being. Social relativism (as I understand this term here) is non constructivist because it regards the content of morality as given by either the laws or customs of a social reference group, no matter whether these laws or customs pass reason’s test of being plausible means to well-being. Subjectivism (as I defined 6 Note that there is no suggestion in my definition of a constructivis t moral theory that it necessarily involves the use of game theory or decision theory to derive moral principles from a contractarian choice situation. This approach, although sometimes regarded as the paradigm of moral constructivism (cf. Gibbard, 265), is simply one of several prima facie plausible constructivist approaches to morality.  45 this term) is non-cons tructivist, because it simply regards the content of morality as determined by whatever happens to be the content of a person’s opinion about morality. Moral realism is non-constructivist insofar as it regards morality as somehow part of the basic ontological fabric of the universe. And radical skepticism is non-constructivist in the (utterly trivial) sense that it denies that morality, even if understood as an artificial construct of reason for the sake of promoting human goals, has rational status. For reasons of space I shall reject all these theories about the ultimate nature of morality out of hand here. But two questions arise: Could there be constructivist versions of the above theories? And do I mean to reject them simply because they are non-constructivist? The answer to the first question is no. There could, of course, be constructivist moralities whose normative content is identical with the normative content of one or the other of these theories, but the meta-ethical interpretation of this content would have shifted in such fundamental ways that it would only confuse matters to regard them as the same theories or to use the same labels for them. The answer to the second question is also no. I mean to reject the above theories, not because I claim to have an a priori argument to show that all non constructivist moral theories must be false, but because I think that each of these theories has its own characteristic shortcomings. What all non-constructivist options (aside from skepticism) have in common is that they accord human reason at best an epistemic role in discovering morality’s content, rather than a fundamentally creative role in constructing and improving morality to serve human purposes and interests. Before discussing prima facie plausible constructivist methodologies, I want to ask if I have perhaps left out important non-constructivist options. I might seem to have ignored Kantian ethics or non-constructivist forms of consequentialism, such as Aristotelian or neo Aristotelian teleology. But I think Kant’s moral principles consistency and the idea of respect for persons  -  -  the idea of moral  are best given a purely constructivist  46 interpretation. Non-constructivist forms of consequentialism (let me call them “teleologies”) face the question of how we could ultimately determine the good, apart from reflecting on people’s diverse interests, values and purposes and then using WREM to set certain broad limits to the range of minimally plausible forms of the good life. But if a teleological theory is highly pluralistic in the goods it wants to promote, regards morality as a mind-constructed device for overcoming certain obstacles to social cooperation, and accepts WREM as the method for constructing limits to what can plausibly be considered to constitute a good human life, then it differs at most in degree from the understanding of morality I am about to develop. 7  §2 Having set aside forms of non-constructivism, I will briefly consider three constructivist methologies which I shall call “rights-based”, “contractarian” and “consequentialist”. The methodology I want to adopt, in the end, is meant to be selected on the basis of a judgment, reached in the widest possible reflective equilibrium, about which of all prima facie plausible constructivist options is least afflicted with serious shortcomings. My efforts to sketch such a reflective equilibrium here will, however, necessarily be very truncated. First, let me clarify further what I take all constructivist options to have in common. For a moral constructivist, morality is a system of behavioral rules and attitudes, and social pressures to uphold them, which evolved in human history in a variety of ways and due to a variety of stimuli, but whose continued existence and normative force and content can be rationally justified  -  and justified purely in  terms of its necessary function in the promotion of people’s interest in well-being. But why is morality useful or even necessary for the satisfaction of people’s interests? Haslett summarizes lucidly what we ultimately need a morality for: It is important to be clear about the distinction between WREM and constructivism. Constructivism is a basic conception of the nature of morality. WREM is the ultimate method for deciding whether a conception of morality, or any particular moral belief, meshes sufficiently well with the rest of one’s total belief system to be rationally acceptable.  47 Why should a society have a code of morality anyway? At least part of the answer is that a decent code of morality enables there to be the degree of security, and of trust in others, that is necessary in order for there to be mutually beneficial interaction among people. It makes this security and trust possible, in large part, by making possible a much greater degree of uniformity, and thus predictability, in people’s behavior than there would otherwise be. In a society with a decent code of morality people will, because of this code, pay their debts, keep their promises, refrain from violence, tell the truth, and so on. Not all of the time, but most of the time. Therefore, to this extent, there will be a certain uniformity, and thus predictability, in people’s behavior, the kind of uniformity and predictability upon which security and trust depend. Making this uniformity, and thus predictability, possible is the job, or one of the main jobs, of a code of morality. (77) There can, of course, be rational disagreement about how sophisticated or welladapted or farsighted any particular moral code is in doing its main job, but it seems clear what this job is. It is to ensure enough uniformity and thus predictability in people’s behavior so as to create the necessary sense of security and trust in order to promote almost universally beneficial interaction. Another clear formulation that encapsulates the rational basis for morality is the following by Peter Railton. Think of morality, he says, as a set of behavioral restraints and recognized permissions and obligations that function within a group to promote co-ordination in those circumstances in which co-ordination would be mutually beneficial. Nothing here about representing an independently-ordered reality. Still, we can see how the need to discourage special pleading and free riders, to promote consistent expectations and co-ordination in the projection of existing norms into new cases, to have teachable principles and associated habits of conduct, to have publicly-ascertainable procedures for application, and so on, would create quite practical pressure on behalf of consistency, simplicity, generality, the avoidance of singularities, and the appeal to abstraction to mitigate conflict and to accommodate approximation.. ..A practice of discouraging singularities [special pleading by individuals] within the group becomes a closer approximation to a demand of universalizability as the group itself, or the reference group with respect to which it seeks to defend itself, becomes a closer approximation of all humankind. (187-8. Emphasis added.)  48 This description of morality’s function seems to me to provide the essentials for  explaining positive morality as well as for justifying changes to  it.8  It suggests how  moralities have evolved under practical pressure as norms of co-ordination. And to the extent that rational foresight can help us figure out which logically possible norms of co-ordination are practically superior to others in terms of what is to our “mutual benefit’, to that extent we will also be justified in choosing one particular content for these norms of co-ordination over others. It is true that Railton considers this account of morality “rather starkly practical  -  and perhaps therefore  incomplete”(187); but it is not clear what more we are justified in believing there to be to morality.  §3 That rational morality does not describe a given order independent of what we conceive to be to our benefit, but can only be constructed by fallible human beings out of their shifting understanding of what sorts of behavioral restraints will effectively serve their mutual interests, is one of the fixed points of my own moral understanding, supported by my widest and most stable reflective equilibrium. How, then, might we go about restructuring positive morality in a more rational way? 1. The rights-based approach: Although rights-talk is notoriously associated with theistic or realist moral theories, there seems to be initially no reason why rights could not, in principle, become fundamental building blocks of a constructivist moral vocabulary. In fact, the core idea of this approach seems temptingly simple. The core idea of a rights-based approach is to look to some salient human capacities, vital needs, widespread interests or other common It is obviously important not to confuse the moral beliefs people actually have (the positive morality) with the moral beliefs that would be rational for them to have (the rational morality). Sometimes the term “ideal morality” is used for what I call “rational morality”. This term, however, gives rise to confusion because any rational morality will have to be further subdivided into the moral beliefs which we should rationally follow under ideal circumstances and the moral beliefs which we should rationally follow under real-life circumstances.  49 features of human nature and simply to postulate rights of a certain content, scope and strength for possessors of such features. Constructivist rights theorists (e.g. Mackie; the early Nozick) may claim, for example, that the fact that individuals are capable of having their own ideas of the good should be construed as sufficient to give them a right of a certain strength and scope to seek their own good in their own way. One problem with taking rights as morally basic by linking them up with human interests, needs or capacities is that there seems to be no clear rationale for deciding which of potentially infinitely many interests, needs or capacities should be regarded as giving rise to rights of what sort of content, scope and strength. As Sumner asks, after reciting a familiar litany of currently popular, but strongly conflicting rights-claims: • .which aspects of our nature are the relevant ones? We are beings capable of choice do we therefore have liberty-rights? We are also beings capable of being injured by others do we therefore have claim-rights not to be harmed? We are also beings who need the support and assistance of others do we therefore have claim-rights to be given assistance? If we lack any of these rights, why do we lack them? If we have them all then how can our nature determine which is to take precedence when they conflict? How, in general, can we distinguish between the relevant and the irrelevant aspects of our nature without presupposing a particular outcome for the argument?... [N]ature, even our nature, underdetermines selection of a set of basic rights and thus provides no effective control over the proliferation of basic rights principles. (125-6). -  -  -  Linking features of human nature with rights-claims without any additional checks, it turns out, is far too simplistic a way to go about constructing a viable morality. Such a rights-postulating process might work in limited contexts if employed with restraint, but it couldn?t accomplish morality’s main job in a large-scale pluralistic society, because it will immediately lead to an unprincipled proliferation of conflicting rights-claims. As Sumner shows, there seem to be insuperable obstacles to building ways of avoiding such conflicts into the strength and scope of each right itself (1987; 92-126).  50 In addition to pure rights-based theories in which only rights are basic, there would seem to be hybrid theories for which both rights and goals are basic (e.g. Nozick, Dworkin). In these approaches, rights place absolute or at least very strong side constraints on the pursuit of goals, or goals are invoked to settle conflicts among rights. But hybrid theories face a dilemma. Either the rights postulated by such theories constrain the pursuit of consequentialist goals only in ways which seem ultimately more effective in promoting consequentialist goals  -  in which case  these rights are justifiable in terms of goals and therefore non-basic after all; or rights are basic and therefore not justifiable in terms of goals  -  in which case they  must postulate rights of a kind which will effectively hamper the pursuit of consequentialist goals without any compensating beneficial consequences. The first type of hybrid theory obviously collapses into indirect consequentialism, while the second needs a very strong rationale for recognizing goals while yet postulating anti consequentialist rights (and this rationale would then make rights non-basic after all). And for a moral constructivist, there is only one prima facie promising place where a rationale for anti-consequentialist rights could come from: contractarian arguments. Since the practice of generating substantive rights directly by an appeal to features of human nature does not seem to admit of any principled limit, since conflicts between such rights can only be sorted out by other considerations, since hybrid theories would inevitably seem to collapse into other approaches and since consequentialism can itself provide a clear rationale for rights-talk (see Ch 3.1), I can see no good reason why moral constructivists would want to admit rights as basic. But doesn’t this rejection of rights as basic building blocks of a constructivist morality overlook the way in which WREM is ultimately also rights-based  —  insofar  as WREM seems to presuppose everyone’s right to be convinced by reason of moral principles? (Peter Danielson, pers. comm.)  51 In reply I want to deny that WREM presupposes a wright” to be convinced by reason, in the sense in which “rights” are at issue here: as morally basic constructs which allow individuals or groups to make claims to certain means to meet/satisfy/develop certain human human needs/interests/capacities, where the mere existence of some need/interest/capacity is regarded as sufficient justification for the corresponding rights-claim. It is true, the philosophical demand for justification of moral claims can itself be grammatically reformulated as a rightsclaim, but this reformulation would, I believe, be misleading. The demand for justification is so fundamentally tied up with the very enterprise of making sense of the social phenomenon called morality that I would regard “the right to be convinced by reason” as of a clearly different order than all other rights. My claim about rights is simply that the prospects seem poor that constructing a morality purely by spelling out a list of basic rights will be able to do the job for which we need a morality in the first place. In fact, I would claim that no practical sense attaches to the idea of a “right to be convinced by reason”, because requiring a full understanding of the complex WREM-based rationale behind many moral principles and judgments would surely overtax most people’s rational capacities. I do not take the employment of WREM by moral philosophers to entail such a requirement.  2. The contractarian approach: The core idea of the contractarian approach is to conceive of constructing the rules of morality as analogous to negotiating the clauses of a multi-lateral contract. This core idea can be elaborated in various ways (e.g. Hobbes, Locke, Rousseau, Rawls, Scanlon, Gauthier). I find it useful to distinguish simple contractarianism, contractualism and mutual-benefit individualism. (1) Simple contractarianism wants to derive moral constraints on individual behavior or social policy simply from the idea that these constraints must be such  52 that individuals could voluntarily agree to them for their mutual benefit. But can this idea alone generate a morality? What sorts of principles would turn out to be accepted by contractarian bargainers is highly sensitive to how the conditions are specified under which the agreement is imagined to have been reached. That poses a dilemma for the simple contractarian. Either the conditions under which agreement on principles is reached are specified to include moral constraints or they are not. If the conditions under which principles are chosen are specified to include moral constraints (as in the case of Rawls’ “original position’), then obviously those constraints are not themselves based on contractarian reasoning and presuppose some other basis. If just any arbitrary specification of the contractarian choice situation is picked, then the particular principles chosen under those conditions will have no moral force, since different principles would have been chosen given a different arbitrary specification of the choice situation. Contractarian constructivists who choose the original position which will give them their own favorite principles obviously beg the question (unless they give consequentialist justifications for their choices  -  but then they are basically consequentialists, not  contractarians). Therefore, it would seem, simple contractarian approaches to constructing morality will fail (cf. Sumner, 1987a: 159-60; Ripstein, 115-137). Is this criticism, pressed strongly by Sumner, entirely fair? Is he not applying a double standard  -  rejecting the contractarian approach because of the  underdetermination of the choice situation, while construing the major indeterminacies of consequentialism benignly as leaving room for rational disagreement? It would seem, however, that the simple contractarian’s dilemma must be understood, not as a problem of underdetermination, but rather as a blatant case of question-begging. Contractarian bargainers cannot even begin to bring the logic of bargaining to bear on the problem of getting morality off the ground without first making morally loaded assumptions about features of the choice situation. Lomasky makes this point eloquently when he says,  53 Contract may be a useful heuristic for fixing attention on the agent-relativity of value to which political prescriptions must conform themselves, but neither inside nor outside of an original position is it able in a non-questionbegging way to establish generally binding principles of justice. (Th3-4) This is not to deny that the simple contractarian idea is methodologically useful, but it is best understood, in the manner of Rawls, as an expository device within reflective-equilibrium-based consequentialism, after various plausible moral assumptions have been made about the fairness of the choice situation. (2) Con tractualism conceives of morality as those social arrangements which can be publicly defended as reasonable, in the sense that persons who are motivated to seek informed, unforced general agreement on the terms of social cooperation will eventually converge on these arrangements as creating the greatest possible social space for their more or less widely differing ideas of the good. Contractualists (e.g. Scanlon, Larmore, Stout) use the idea of the social contract simply as a way to make vivid the point that morality is socially constructed out of both aggregative and distributive concerns of individuals. The idea of contractarian bargaining can model this construction in wide or narrow contexts in which the need for moral principles arises and, given certain moral presuppositions, can serve as a useful criterion for testing existing moral beliefs. These presuppositions  -  that the  agreement must be informed, unforced, general, and essentially liberal  -  can be  plausibly derived from consequentialist assumptions. In fact, the normative implications of contractualism and WREM-based consequentialism seem to me essentially indistinguishable. But if so, which is morally basic: consequentialism or contractualism? What, ultimately, matters morally? Is it the promotion of some interpersonal goal which can plausibly be regarded as maximizing well-being, or the achievement of unforced general agreement among informed, autonomous persons? I see no need for moral constructivists to be reductionist here. It would seem plausible that, in most contexts, the contractualist criterion can be given a  54 consequentialist rationale, and the consequentialist criterion a contractualist rationale. We could, therefore, plausibly aim to satisfy the consequentialist and contractualist criterion simultaneously and construct interpersonal goals which informed persons who are motivated to seek unforced general agreement on the basic terms of social cooperation would choose as affording the greatest possible social space for realizing different but equally acceptable conceptions of personal well-being. (3) Mutual-benefit individualism, however, is a different story. As I understand it, the core idea of this form of contractarianism prominently with David Gauthier  -  -  associated most  is to eschew any attempt at aggregating different  individuals’ interests in order to define interpersonal goals (of either a global or contextual nature), on the grounds that a rational person has absolutely no reason to pursue interpersonal or collective goals, except insofar as they happen to coincide with her personal goals. Rational persons are those who care only about maximal fulfillment of their own (“considered”) preferences, whatever these may happen to be. The project of mutual-benefit individualists is to reconstruct the social order in such a way that it embodies only those moral constraints which every person will almost always find it rational (in his actual self-interest) to comply with. It is easy enough, of course, to lower one’s moral standards to the point where they coincide with people’s perceived self-interest; but what is interesting about Gauthier’s theory is the claim that redesigning the social order along libertarian lines would lead to maximum informed preference satisfaction of all individuals (without, presumably, stunting their preferences in any objectionable way). Obviously, if mutual-benefit individualists have a blueprint for social reform so as to ensure maximal informed preference fulfillment  -  while avoiding any messy aggregation of the preferences of  different individuals in the manner of standard cost-benefit analysis  -  then it would  seem that Gauthier’s mutual-benefit individualism ought to be happily embraced by a consequentialist constructivist as well.  55 My main project in this inquiry disagreement about social justice  -  -  identifying sources and limits of rational  will obviously take a very different shape,  depending on the success or failure of Gauthiefs contractarian justification of libertarianism. I face a difficult decision. I clearly cannot proceed in my main project without judging the merits of Gauthier’s theory. To discuss the merits of Gauthier’s work in a few paragraphs would simply seem to be attacking a strawman. But to make space here for the extended discussion it deserves would threaten to overwhelm other stage-setting concerns for my main project. It seems to me best, therefore, to anticipate my conclusion but postpone my discussion of Gauthier?s theory to a later chapter where I assess the possibility for rational disagreement between egalitarian and libertarian liberalism (Ch 3.5). My conclusion will be that mutual-benefit individualism ultimately fails to justify libertarianism and offers only a very partial substitute for moral decision-making in terms of promoting interpersonal goals.  3. The consequentialist approach: The core ideas of a consequentialist approach, as I understand this term here, are concisely expressed by Sumner: I begin with some assumptions about the likely shape of a consequentialist goal. The raw materials for that goal will be an inventory of ultimate goods. Whatever other goods this inventory might include, it seems reasonable to suppose that in one way or another it will acknowledge the value of those states which are the standard sources or components of individual well-being: life, health, liberty, autonomy, sociality, the development and exercise of powers and abilities, and so on. These goods must then be collated into some global value. Whatever other considerations this global value might include, it seems reasonable to suppose that it will be aggregation-sensitive, thus that it will acknowledge the force of increasing the overall extent to which individuals enjoy these central ingredients of their well-being... .It might well consist of more than this [maximizing the sum of individual welfare], if it admits other particular goods as well or adopts a combinatory rule which is also sensitive to factors other than their aggregation. (201-2)  56 Sumner’s account exemplifies the undogmatic, non-foundationalist way in which consequentialist constructivists must approach their task. 11 Consequentialism, as I understand it, is that form of moral constructivism which says that we should give our morality whatever features are likely to lead to the most desirable combination of satisfied interests of individuals in their well-being. I shall call this goal the “ideal consequentialist goal” and clarify below what “desirable” here can plausibly mean. I shall also use the phrase “X promotes well-being” for the more cumbersome phrase “X promotes the ideal consequentialist goal ’ (where X can be anything whatever t  -  generally a principle, a right, an act, a judgment, a criterion, a decision, a policy, a state of affairs, a social institution, an attitude or something of that sort). The consequentialism I want to defend is both constructivist and non-foundational; constructivist, because it denies that moral properties would exist even if human beings had not constructed them to suit their purposes; and non-foundational, because it makes our understanding of what counts as “promoting well-being” dependent on a coherentist process of seeking a wide reflective equilibrium of relevant considerations (see below). Moreover, I want to defend a consequentialism which, in Sumner’s words, “adopts a combinatory rule which is also sensitive to factors other than...aggregation”(202). Three major questions arise: Why, of all imaginable consequentialisms, should we choose this particular form? Is its goal ultimately coherent? And how can we decide, in practice, what would count as having achieved or approximated this goal? 11 “Consequentialism” has, of course, been defined in many different ways. Traditional textbooks often define it, unhelpfully, as the theory which evaluates actions purely by their consequences rather than their intrinsic nature. Others define it as doing whatever will produce the most good or the best state of affairs overall (cf. Scheffler). Some define it as the moral theory which uses agent-neutral as opposed to agent-relative reasons (cf. Nagel). Larmore defines it as that moral theory which demands that we must hold ourselves responsible, not just for what we alone do, but also (to the extent that this is in our power) for what will follow because of what everyone else will do as a result of our acting this way (cf. 147-8). Raz lists seven theses as “historically associated with consequentialism”(268). To clarify the relations between all these definitions of consequentialism, and to weigh the pros and cons of each, would be a book in itself.  57  2.4 THE STRUCTURE OF CND CONSEQUENTIALISM  §1 Why pick the standard of promoting the most desirable combination of satisfied interests of individuals in their own well-being as our ultimate consequentialist goal? The answer is that given what we want a morality for in the first place, it makes sense to construct it out of individuals’ interests in their well being. It is a necessary (though not sufficient) condition for acceptable moral arguments that they must be practical and engage motivations that people have or could acquire through moral education. But why, of all the imaginable ways to construct a morality out of individuals’ interests and a minimally objective conception of well-being, should we pick exactly this way? Again my answer must ultimately appeal to a wide reflective equilibrium. This type of consequentialism seems to me best able to meet all serious objections to standard rule utilitarianism without giving rise to the objections afflicting perfectionist teleologies. In particular, it meets the objection that consequentialist aggregation fails to respect the “distinction between persons” or “individuals’ separate existences”, and therefore does not treat them with equal consideration. 12 The ideal consequentialist goal (to be clarified below) seems to me to embody the equal consideration principle in the deepest possible way. It is not easy to see what more it could possibly require to respect individuals’ separate existences than to use, as our guiding ideal, this consequentialist goal. In reply to the familiar objections to utilitarianism based on aggregation, Haslett’s lucid defense seems to me worth quoting at some length:  12 These two expressions come from Rawis and Nozick, respectively. For the debate about the merits of utilitarianism, cf. e.g. J.J.C. Smart and Bernard Williams, Utilitarianism: For and Against (1973) and Amartya Sen and Bernard Williams, eds., Utilitarianism and beyond (1982). I was persuaded of the merits of CND consequentialism by D.W. Haslett’s Equal Consideration: A Theory of Moral Justification (1987), which defends a version of it at length against anti-utilitarian objections.  58 ...a social pressure system, including the moral norms inherent in it, must be evaluated in terms of people’s interests.... [But] in terms of whose interests should it be evaluated? The answer proposed here is: In terms of everyone’s, giving each individual’s interests equal consideration. If, indeed, a socialpressure system is to be evaluated in terms of people’s interests, it is hard to see how, merely by insisting that everyone’s interests be considered equally, the utilitarian could thereby be accused of not taking the separation of persons seriously. But the critics might press matters still further. Why, they might ask, should we consider everyone’s interests equally, especially in that sense of “equal consideration” being defended here’ we should consider everyone’s interests equally because doing so is in everyone’s best interests. It is in everyone’s best interests in that, from a standpoint of self-interest, each of us would ourselves choose that we do so if fully informed and not subject to irrelevant influences if, in other words, our choice were made under ideal conditions, the very conditions, I submit, that would have to be met in order for our choice to have been made altogether freely. This is why equal consideration is justified; this is the connection between self-interest and morality; and this is the most profound reply to any who would claim that the utilitarian theory proposed here does not take the separation of persons seriously. For if evaluating social-pressure systems by considering everyone’s interests equally is in the best interests of each individual each separate, distinct individual then how could this utilitarian theory be said to treat anyone as a mere means? (221-2) —  —  —  Thoroughgoing individualists of the libertarian kind will, of course, remain unmoved by Haslett’s argument. They may see transaction-by-transaction calculations of mutual advantage, rather than the quest for impartial justifications of interpersonal goals, as the only promising motivation or rationale for social cooperation. I shall defer the discussion of libertarianism to Ch 3.5. The question I must address now is whether the proposed consequentialist goal is fundamentally intelligible, self-consistent or coherent. What exactly is “the most desirable combination of satisfied interests of individuals in their own well being”? The following account of the ultimate consequentialist goal seems to me to be the most plausible way to spell out the idea of achieving the most desirable combination of satisfied interests of individuals in their own well-being. The idea behind this goal is not very different from the idea underlying the Golden Rule or Ideal Observer theories of ethics, implemented from a perspective which is (in  59 principle) enriched by a full understanding of all other perspectives. I find a thought experiment suggested by Haslett useful (29-39), although I want to clarify its details and limitations. You can judge for yourself, in principle, what would be the required course of action from the standpoint of achieving the most desirable combination of satisfied interests of individuals in their own well-being. Imagine you yourself had each person’s life to live, and so experienced the interest of each person in her own well-being  -  including, of course, the very strong interests of most people in not  being seriously disadvantaged for the sake of other people’s greater well-being, as well as their interest in having pleasant hedonic states brought about by actual experiences rather than hallucinations. Suppose you had perfect knowledge of the extent to which each possible course of action would satisfy the interest of each individual in her own well-being. The interest I am talking about here is neither some paternalistic “objective” interest nor a completely unreflective “subjective” interest, but an idea of interest that reflects each person’s subjective interest  constrained by the very wide limits of rationally permissible interpretations of human well-being. Then, if you were guided by the consequentialist standard, you would choose the course of action which you would choose if you yourself had each separate person’s life to live (and were not, of course, permitted any inconsistencies across person-stages). Then, given the assumptions about perfect knowledge and the absence of other influences except concern for your own well-being at each person stage, you would choose a course of action within a certain range of equally acceptable courses of action. Other perfect knowers, going through the same thought experiment, will probably not settle on exactly the same course of action. The courses of action they would choose would, however, differ only to the extent that they would modify their unreflective subjective interest at each person-stage differently from you in the light of the very wide limits of rationally permissible interpretations of human well-being (cf. Sec 3.4.2). To the extent to which different people who strive for this  60 goal in an ideal way would settle on different courses of action, to that extent the ideal consequentialist goal may simply be fundamentally indeterminate. There is no reason I can see why the ideal consequentialist goal should not contain a degree of fundamental indeterminacy, in the sense that it permits a range of options. Because of this fundamental, as well as the vast epistemic, indeterminacy of this ideal goal, practical decision-making procedures will have to be adopted which are plausible contextual approximations to it.  §2 Let me explain the rationale behind three key components of my formulation of the ideal consequentialist goal. First: What all consequentialists must want, by definition, is to promote well-being in some plausible sense. Well being in this sense must be somehow related to people’s interests, but this relation isn’t simple. It is not plausible that simply allowing everyone to pursue their raw  subjective interests will promote well-being, because such interests may be selfundermining or socially destructive, and can completely miss the objective content of the concept of human well-being (see Sec. 3.4.2). But neither will forcing a person to pursue someone else’s idea of what his or her objective interests are (no matter how far these diverge from subjective interests) plausibly promote well-being because a person’s interests are, after all, constitutive of this person’s identity, and the free pursuit of one’s interests is perhaps the deepest source of human fulfillment. Any plausible empirical index of what makes people happy just does not bear out the claim that people’s happiness is a matter of everyone’s realizing the same determinate set of values. If neither the (distribution-sensitive) aggregation of raw subjective interests nor the satisfaction of rigidly objective interests plausibly captures what is involved in promoting well-being, then obviously consequentialists need some sort of compromise between the two. That is why I think we must, in defining the ideal consequentialist goal, temper the distribution sensitive aggregation of subjective interests with a theory of human well-being  61 which limits the range of interests whose satisfaction can count toward promoting well-being. The concept of well-being must, therefore, be regarded as having “objective” content which imposes broad limits on the range of interests whose satisfaction CND consequentialists think morally important (see Sec 3.4.2). Second: The ideal consequentialist goal requires you, first, to put yourself into the shoes or psyche of each person and to assess, from that person ‘s perspective, what is in his or her interest before trying to find a way that will best harmonize all people’s interests. Some such “perspective-switch” must obviously be incorporated into any consequentialist moral standard which is to do justice to the fact of our separate existences. You are to imagine that you yourself would actually be the person suffering every single one of the consequences of whatever course of action you settle on, with no compensation in a future life. But having done your imagining, you will actually have to decide on one course of action, because only one course of action can be realized in the actual world  -  and that means that some  people’s interests will unfortunately have to be frustrated and their well-being compromised. If you yourself suffered every single consequence without compensation, you would want to frustrate as few vital interests as possible, and certainly not sacrifice all of some people’s well-being for the sake of marginal increases in the well-being of the majority. So plausible second-best criteria to approximate the ideal consequentialist goal, as well as extremely difficult judgments, will be necessary. But no self-consistent standard otherwise  -  -  consequentialist or  can escape these judgments or avoid ever sacrificing some people’s vital  interests or even their entire well-being. There are genuine tragic choices where, no matter what we do, some people will have to suffer so that a greater number of others won’t have to suffer even more. So our proposed consequentialist standard permits the inevitable, for example, sacrificing some so that others may survive. But built into this ideal standard is, it seems to me, the most plausible conceptual procedure for capturing what giving equal consideration to everyone’s interests  62 would mean. How to make this conceptual procedure even remotely practical is another question, the problem of second-best approximation, which depends on first getting as clear as we possibly can about our ideal aim. Third: It may seem inconsistent of this standard to require you to find a resolution among conflicting interests from the perspective of having to live everyone’s life. The deep problem here is not that it is actually impossible for you to  know what everyone’s interests are. There clearly is a fact of the matter here, and there are in any case various practical ways to discover what people’s approximate interests are. But when it comes to harmonizing all the conflicting interests of individuals, there exists no neutral perspective, in addition to all the separate perspectives of individuals. To be sure, each individual can in principle harmonize conflicting interests from his perspective, but if all perspectives of all individuals become yours, which of the resulting perspectives should you choose to settle on the course of action that necessarily sacrifices some people’s interests for the sake of satisfying those of others? Whose perspective is the privileged one in whose interest the conflict will get resolved? I think this objection, while troubling, is not fatal to distribution-sensitive consequentialism. Take first a two-person universe in which the interests of A and B are in conflict. What would it mean to resolve the conflict by choosing the course of action which each would choose if each had both lives to live? If the conflict is resolved from A’s perspective, A’s interests would seem likely to fare better than B’s; if from B’s perspective, B’s interests would seem likely to fare better than A’s. A’s and B’s perspectives are the only ones there are; there is no third, neutral perspective from which conflicts could be resolved. But this is an oversimplified description of the situation. It is true that the conflict must be resolved from either one perspective or the other; it is not true that those two perspectives, after being subjected to the process described in our thought experiment, are necessarily very far apart. The very point of the thought experiment is that you imagine being the  63 subject of other persons’ experience. If each of two people came to know what the other person’s experience is like, then a psychological merging of perspectives could take place which would not be identical to the original perspective of either. It is this  enriched perspective which, in the real world, we can of course only approximate -  in the crudest way  -  from which the consequentialist standard asks you to resolve  conflicts between different people’s interests. If, in the two-person case, your judgment is informed by the impartial sympathy for both perspectives required by the Golden Rule, you would choose that course of action which ensures or promotes the well-being of both individuals together, wherever that is possible. You would not routinely maximize (total or average) interest satisfaction between A and B, because in that case, B might forever end up making sacrifices, and that is not the choice you would make if you actually had each life to live and experienced B’s interests, including his interest in not being seriously disadvantaged for the sake of maximizing interest satisfaction overall. In situations where sacrifices on the part of either A or B become inevitable, and the current level of well-being of both is roughly equal, both will be called upon to sacrifice some amount. In some tragic situations where, for example, one person’s life has to be sacrificed for the other’s survival, there simply may not be a morally preferred answer to the question of whose life should be sacrificed (although some procedural ways of settling this question may be morally preferable to others). It may still be objected, however, that it is far from clear how a definite decision results. Will at some point a commitment to maximization take over, or are there some distributive constraints built into the imaginative projection of myself as having everyone’s life to live? As McDonald has put this objection, What you picture [in the above thought experiment] is that when A looks at both his own and B’s life and B does the same their judgment will converge. The process of convergence seems to be causal. There is no perspectival criterion advanced, such as maximization. But then it may well matter how  64 A and B feel about the separateness of individuals. What if A is in his guts a maximizer and B a separator (valuing the separateness of persons more)? Moreover, what if A and B are not equally prudent in their enriched judgments what if A’s enriched sense of their interests leads him to approve of risking admittedly vital interests for trivial ones, just to add zest to life? To be sure A and B each picture what is best on the basis of their enriched perspectives. Neither leaves out of account something the other has included. But each values or weighs matters differently. Or to use another analogy, each colours the same picture with a different hue. (Personal comm.) -  In principle we could, of course, handle the sort of problems which McDonald raises here by requiring iterations of the ‘perspective-switch’ thought experiment until convergence is achieved. We can imagine the first attempt at achieving an enriched perspective to remain unenriched by such factors as people’s differing in risk aversion or being “maximizers” as opposed to being “separators” at heart. During the second run of our thought experiment, once the results of the first run are in, we can factor into our enriched perspectives a mutual appreciation of the extent to which risk aversion and maximizer-separator preferences are differentially distributed. Even given such mutual appreciation of differences, however, riskfriendly maximizers or risk-friendly separators may still weigh outcomes differently from risk-averse maximizers or risk-averse separators. Perhaps we need to imagine additional iterations of our ‘enriched perspective’ thought experiment to achieve sufficient convergence in our judgments about what constitutes the most desirable combination of satisfied interests of individuals in their well-being. But this suggestion strikes me as rather gimmicky. There is no denying that both problems McDonald raises  —  the problem of differences in risk aversion and  the problem of reconciling maximizing and distributive considerations  —  constitute  rich sources of rational disagreement about justice. There will be many occasions, then, when consequentialists will, at the first-order level of moral reasoning, converge on similar decisions only in a very limited sense. While the consequentialist well-being test will rule out some distributive options as unacceptable, the choice among a wide range of remaining options will have to be  65 made at the second-order level of moral reasoning, by seeking conventions of mutual accommodation through political bargaining. I cannot discover any way to spell out, in the abstract, just at what point we could allow maximization to take over without opening ourselves up to the charge of failing to respect the separateness of persons. We must admit, I believe, that at  level of fundamental theory divorced from specific contexts,  imagining myself to  have everyone’s interests can generally yield only very vague answers to the problem of resolving different people’s conflicting interests. We can say, for example, that it is generally better to satisfy a greater aggregate of interests of a larger number of people than a smaller aggregate of a smaller number, provided only that the vital interests of the few are not sacrificed for the less vital interests of the many.  At the applied level, however, once we know what the actual interests of people affected by a decision are, we will usually be able to make more or less confident qualitative judgments which strike a credible balance between aggregative and distributive considerations. I conclude that the proposed consequentialist goal is self-consistent, albeit afflicted with both fundamental and epistemic indeterminacies. How we are to judge, in practice, what best approximates this goal will be discussed in greater detail below (Ch 3.3).  §3 My project is to identify plausible sources and limits of rational disagreement about justice. I approach this project by (1) tentatively accepting a consequentialist moral framework as our most promising metaethical option; and (2) examining how this framework constrains principles of justice. But my approach faces the following objection: You insist that morality is constructed by ourselves as an instrument for the promotion of human well-being and that it constrains ideas about justice. But how can ideas about justice be constrained by your artificially constructed moral standards unless you yourself have built these constraints into them?  66 And how can you build these constraints into them, unless you already know what the right ideas about justice are? You reject the contractarian approach as question-begging. But isn’t your attempt to find rational constraints on permissible ideas about justice by deriving such constraints from your consequentialis t goal hopelessly question-begging as well? This seems like a devastating objection. But it rests on a misunderstanding. It interprets the constructivist project of contractarians and that of consequentialists in analogous ways: as a foundationalist enterprise. But while moral foundationalism is indeed characteristic of contractarians (at least of the mutualbenefit individualists among them), the form of consequentialism I endorse is coherentist rather than foundationalist. We cannot avoid talking metaphorically about our most central epistemic assumptions. What does the justifying of moral claims, on my account, is a web of cohering considerations whose basic geometry is governed by a clear understanding of what we want a morality for, and whose points of contact with the empirical world are both universal and contextual interests, a fairly open-ended conception of human well-being, social meanings and conventions, widespread and deeply ingrained patterns of expectations and sentiments, and the best available information about the state of the world and the causal workings of things. The ideal consequentialist goal, and plausible derivatives of it, are simply nodes in the web of our examined moral and non-moral beliefs, “Archimedean points’ within a reflective equilibrium upon which many strands of reasoning converge and from which many strands of reasoning radiate outward (cf. Rawls, 260). What I have called the ideal consequentialist goal is meant to sum up the general spirit and guiding direction of the consequentialist enterprise, and not somehow to stand alone as a self-evident, deductive foundation for moral decision making which is known prior to and independently of everything implied by it. My project of rationally reconstructing morality is, therefore, not linear in the sense of starting from independently justified foundations which then allow us to deduce principles of justice without circularity. We must construct all parts of our morality together in a coherent way, and cannot first produce an account of moral  67 foundations, untainted by any assumptions about justice, and then somehow derive standards to constrain ideas about justice. If our ideas about justice had to be consistent with moral standards which are untainted by assumptions about justice, then obviously justice-based considerations would be routinely overridden by the non-justice considerations contained in these moral standards. And that, as many critics of utilitarianism point out, would fundamentally conflict with our considered moral judgments. It would also conflict with our background theory of morality’s main job and would, therefore, be doubly ruled out by the method of wide reflective equilibrium. It is clear that morality’s job can only be accomplished by taking people’s justice-based claims seriously as an important source of information about their well-being and by avoiding as far as possible the destructive unleashing of their sense of injustice. Let me consider the feature of the basic consequentialist standard which seems perhaps most obviously question-begging. Why should consequentialist constructivism embody a general commitment, not simply to maximizing interest satisfaction, but also to considering different people’s interests equally? The rationale for including, at the core of the basic consequentialist standard, a commitment to equal consideration has to do with elementary facts about human psychology which Brian Barry, among others, has eloquently spelled out: Someone who was engaged in impartially choosing principles to govern his life with others would not endorse a principle on the basis of its favoring himself, his friends and relations, or those with whom he felt some kind of affinity. But in just the same way someone seriously engaged in the search for principles that could not reasonably be rejected by others engaged in the same search would surely recognize that it would be a waste of time (as well as a breach of good faith) to put forward a principle whose only merit was that it would be favorable to himself, his friends and relations, or those with whom he felt some kind of affinity. For it is obvious that those who were put at a relative disadvantage by such a principle would wish to reject it, and it could not possibly be said that they were being unreasonable in so doing. (1989: 290) In constructing the details of our basic moral standards, we had better incorporate from the start, as integral building blocks, some explicit reference to a sort of  68 impartiality which plausibly captures, as traditional utilitarian theories did not, the distributive concerns of individuals making claims qua individuals. The reasons are two-fold. First, the greatest well-being overall varies in direct proportion to the well being of individuals, and an individual’s justice-based claims to social resources are a useful, though far from infallible, source of information about what is likely to promote that individual’s well-being. Second, if an individual’s expectations to the shares of social resources which he sincerely regards as his due get disappointed in a way that cannot be explained to that individual in terms of the necessity of balancing competing claims of comparable urgency, there is a great likelihood of anger, humiliation, resentment and similar sentiments. These are, from a consequentialist point of view, undesirable in themselves and also have potential for being unleashed in socially destructive ways. That is why any plausible form of consequentialism must take the difficult job of balancing the competing claims of individuals to a share of social resources in a principled, publicly defensible way extremely seriously.  §4 It may be doubted whether distributive constraints on the aggregation of goods can themselves, consistently, become one of the goods to be factored into this aggregation. But “goods”, in the relevant sense, are simply whatever human beings care about within objectively plausible limits of what can constitute personal well being. “Constraints” on the aggregation of goods are whatever measures are necessary or useful to prevent individuals from sabotaging each other’s pursuit of personal well-being. Where do we get such constraints from? Where else, but from asking ourselves what basic types of goods we care about sufficiently to want to build them into the goals spelled out by our ultimate consequentialist goal. We sufficiently care about having the distinction between persons recognized in distributional matters to make the recognition of this distinction a justifiable consequentialist constraint. So by the definition of what makes something a good  69 and a constraint, respect for the separateness of persons is both a good and a constraint. In fact, whether one says that respect for the separateness of persons and happiness are both goods to be weighed against each other in pursuit of an acceptable mix, or that the one functions as a constraint on the pursuit of the other, is a purely semantic matter for a moral constructivist. Including the good of equal consideration, along with the good of happiness and possibly other values, into our ultimate consequentialist goal makes this standard more complicated to apply as well as fundamentally indeterminate in many cases. But no form of consequentialism could avoid this complication without becoming immediately vulnerable to persuasive counterexamptes. One cannot consistently criticize a fundamental moral standard both for not taking seriously the separateness of persons and for becoming more complex and less determinate as a result of doing so. Of course, the ideal consequentialist goal will require plausible second-best approximations to become normatively useful in specific contexts of application (see Ch 3.3). As we construct, or more accurately reconstruct and modify, the social pressure system called morality in a rationally transparent way, we can’t all at once toss everything out that exists either in the philosophical tradition or in the cultural world around us. Although nothing is beyond question, and every component of our morality must ultimately find its functional rationale in the whole, we must immediately distinguish two intertwined components of any practicable morality we are likely to end up with: components for which a universal rationale can be given in terms of the reasonable preconditions for any plausible type of social living; and a much larger proportion of components whose rationale is culturally or otherwise contextually relative to the way of life of specific groups and their self understanding as members of that group. To expect a non-contextual rationale for every component of our rationally reconstructed morality, or even to ask that the two basic types of components be neatly separable, is not a reasonable expectation of  70  the enterprise of constructivis t, non-foundational, distribution-sensitive consequentialism.  2.5 RAWLS’ AVOIDANCE OF MORAL THEORY  §1 If one of the greatest moral philosophers of our time thinks he can bypass most metaethical issues in justifying principles of justice, we cannot simply dismiss this idea. The case for explicit metaethical commitments (and for a broadly consequentialist commitment in particular) will be strengthened, I believe, by briefly considering Rawis’ rationale for wanting to avoid moral theory at almost any cost. In his later writings, Rawls still maintains that, ultimately, the wide reflective equilibria of different people will converge essentially on his two principles of justice. But he now gives these principles an explicitly pragmatic-communitarian interpretation (cf. 985, 1988). In ‘The Priority of Right and Ideas of the Good”, for example, he says the are several ways in which I would now revise the presentation of goodness as rationality; perhaps the most important would be to make sure that it is understood as part of a political conception of justice viewed as a form of political liberalism, and not as part of a comprehensive moral doctrine. The distinction between a comprehensive doctrine and a political conception is absent from Theory, and while I believe nearly all the structure and substantive content of justice as fairness (including goodness as rationality) is unchanged when it is seen as a political conception, the understanding of the view as a whole is very significantly shifted. Charles Larmore in his Patterns of Moral Complexity.. .is quite correct in vigorously criticizing the ambiguity of Theory on this fundamental matter. (1988: 254 footnote) If WREM applied to the problem of social justice is followed through beyond the conflict of ideologies  -  Rawls now seems to think  -  the ultimate equilibrium to be  reached does not yield a rationally superior moral theory, but merely “fundamental intuitive ideas viewed as latent in the public political cultur&’(1988, 252). These ideas alone can serve as principles of political accommodation among groups with  71 irreconcilably diverse moral beliefs. A theory of justice has a very limited role: defining whatever terms of political accommodation are most likely to promote peace and cooperation in a particular society. It would be a mistake to base one’s theory of justice on any controversial beliefs about the nature of morality, because only by not taking sides in the intractable debates of moral theory can a theory of justice discharge its social role. The terms of mutual accommodation among groups with diverse ideas of the good may be very different for different societies. In advanced pluralist democracies, Rawis claims, his own principles of justice define such a society’s best chance for achieving a reasonably peaceful and stable social 3 order.’ The hope that WREM allows the political philosopher to altogether avoid the complex debates in moral theory method of avoidance”(1988, 240)  -  -  a hope which Rawls perplexingly labels “the certainly has its initial attraction. But is this hope  justified? If wide reflective equilibrium methodology subsumes all other moral arguments within it  -  as I suggested above  -  then it seems doubtful that bypassing all  questions about the nature of morality is compatible with WREM. On the other hand, if no agreement on the nature of morality is realistically to be hoped for, then this verdict itself will, of course, become one of the well-established background beliefs to be factored into our reflective equilibrium. But it is far from clear that the fact of irresolvable disagreement about morality among informed people of good will  -  rather than implying moral skepticism  -  would imply that the task of justice  theorizing consists purely in making explicit whatever fundamental intuitive ideas latent in a society’s public political culture may best lend themselves to the purpose of mutual political accommodation among different groups.  13 The idea of justifying liberal principles of justice purely in terms of their ability to provide a modus vivendi is eloquently defended by Charles E. Larmore, Patterns of Moral Complexity (1987), p. 74-6 and 123-7.  72 A number of troubling questions arise in the face of Rawis’ pragmatic communitarian shift. Is the fact that some set of principles fulfills the social role of justice (i.e. defining terms of political accommodation) sufficient to accept them as principles of justice rather than, say, as a concession to power politics? Can -  principles actually fulfill the social role of justice unless they are first recognized or justified on independent grounds  -  that is, on the basis of an understanding of  justice as more than simply those widespread intuitions which will best promote political accommodation? Can reflective equilibrium methodology actually justify a suitable (i.e. sufficiently determinate) set of principles convincingly as principles of  justice to allow these principles to fulfill the social role of justice without involving any controversial metaethical commitments whatever? These issues are obviously important for an inquiry into the sources and limits of rational disagreement about justice. I want to approach them in two steps: First, why exactly did Rawis find it necessary to shift to such a pragmatic-communitarian justification of his theory? Second, is Rawl& new interpretation of his theory be convincingly derivable by applying WREM to the problem of social justice?  §2 What motivated Rawls’ pragmatic-communitarian shift? In “Justice as Fairness: Political not Metaphysical”, Rawis tells us that understanding his theory as a political conception of justice is intended to counter the criticism that this conception depends on philosophical claims I should like to avoid, for example, claims to universal truth, or claims about the essential nature and identity of persons. (1985: 223). The claims to universal truth Rawls wants to avoid are claims about which general conception of the nature of morality is rationally superior. “The essential point,” he says, is this: as a practical political matter no general moral conception can provide a publicly recognized basis for a conception of justice in a modern democratic state.... [Sluch a conception must allow for a diversity of doctrines and the  73 plurality of conflicting, and indeed incommensurable, conceptions of the good affirmed by the members of existing democratic societies. (1985: 225). The first and obvious reason for Rawls t shift in the interpretation of his theory of justice is his desire to find principles of accommodation between different moralities without taking sides in the intractable disputes of moral theory. But there is another important reason for this shift. By interpreting his two principles of justice, not as spelling out the demands of universal justice sub specie aeternitatis, but far more modestly as a basis for an overlapping consensus among citizens of advanced pluralist democracies, Rawls hopes to meet the communitarian objection about the nature of the self presupposed by his theory. Rawls’ description of the identity of the bargainers in the original position, stripped of most of their individuating characteristics, seemed to postulate a fictitious disencumbered” self which can make choices in splendid isolation from the particulars of its social the environment. Rawls had even claimed (although in a different context) that tt self is prior to the ends which are affirmed by it(56O). Communitarians such as Maclntyre, Sandel and Taylor were quick to argue that this Kantian idea of the self as choosing its goals according the universal dictates of reason is untenable: the self is embedded in a particular community and culture, it is constituted by its choices, and these choices are fundamentally 4 dependent on its social roles and relationships.’ Rawls answers this criticism in two steps. First, he stresses that the description of the bargainers in the original position was always intended, not to capture the essential nature and identity of persons for whom his theory defines just arrangements, but purely as an expository device designed to make vivid a  14 Cf. Maclntyre, After Virtue (1981) and Whose Justice? Which Rationality? (1988); Sandel, Liberalism and the Limits of Justice (1982); and Taylor, Hegel and Modern Society (1979). The Kantian idea of the self attacked by communitarians assumes, as Kymlicka puts it, “that the self is prior to its socially given roles and relationships and is free only if it is capable of holding these features of its social situation at a distance and judging them according to the dictates of reason.”(1990)  74 conception of what constitutes reasonable conditions of impartiality for choosing principles of justice (1985, 237). That Rawl& reply to his communitarian critics represents more than a minor clarification can be gleaned from his admission that .it was an error in Theory (and a very misleading one) to describe a theory of justice as part of the theory of rational choice, as on pp. 16 and 583. What I should have said is that the conception of justice as fairness uses an account of rational choice subject to reasonable conditions to characterize the deliberations of the parties as representives [sic] of free and equal persons; and all of this within a political conception of justice, which is, of course, a moral conception. There is no thought of trying to derive the content of justice within a framework that uses an idea of the rational as the sole normative idea. (237, footnote) • .  Second, Rawls now tries to make his theory of justice compatible with the communitarian idea of the self as embedded in communal practice simply by adopting a radically communitarian interpretation of his theory. He makes clear that his theory is not a universal theory of justice for human beings in a wide variety of cultural settings, but on the contrary a highly restricted theory applying only to persons whose identity has already been shaped by conditions prevailing in a particular type of community  -  namely advanced industrialized pluralist  democracies. Rawls stresses that his theory “starts from within a certain political tradition”, and it “tries to draw solely upon basic intuitive ideas that are embedded in the political institutions of a constitutional democratic regime and the public traditions of their interpretation’(1985, 225). People whose self has been shaped by such a cultural environment, Rawls seems to argue, will generally have the sort of self which values roughly his list of primary goods as all-purpose means to the satisfaction of their goals. Rawls’ pragmatic shift attempts to undercut the case of his communitarian critics by reinterpreting his theory as a version of communitarianism. But Rawls’ bid to join the communitarian camp seems to have made him few friends among communitarians. The debate seems simply to have shifted from the question as to  75 whether Rawis’ morally justified liberalism depends on an implausible theory of the self as detachable from its ends to the question as to whether Rawis’ pragmatically justified liberalism can take seriously the value of community as a fundamental ingredient of the good life for human beings.  §3 Is Rawis’ pragmatic-communitarian interpretation of his theory of justice consistent with regarding reflective equilibrium methodology as the ultimate method of justification? If the two were inconsistent, it is clear that Rawls would have to give up his pragmatic justification rather than WREM. Obviously, the idea that a pragmatically justified principle (i.e. one which promises to promote political accommodation) could override a principle which is justified by a wide reflective equilibrium (the greatest possible coherence of a moral theorist’s beliefs) is incoherent. Therefore, Rawls’ pragmatism is sustainable only if it is consistent with WREM. Given the central importance of showing the pragmatic justification of principles of justice to be fully consistent with and, in fact, implied by WREM, it is strange that, in Rawls’ 1985 paper, the only reference to his earlier much-acclaimed method of moral justification occurs as a parenthetical remark in the following context: We look, then, to our public political culture itself, including its main institutions and the historical traditions of their interpretation, as the shared fund of implicitly recognized basic ideas and principles. The hope is that these ideas and principles can be formulated clearly enough to be combined into a conception of political justice congenial to our most firmly held convictions. We express this by saying that a political conception of justice, to be acceptable, must be in accordance with our considered convictions, at all levels of generality, on due reflection (or in what I have called “reflective equilibrium”). (1985: 228) I admit to being puzzled by how this remark, or any of the other things Rawls says in his 1985 paper, could possibly be construed as sufficient to make the logical compatibility between WREM and the pragmatic thesis clear and convincing.  76 Although Rawis has weighty reasons for his pragmatic-communitarian shift, there are even weightier considerations for thinking that Rawls’ “method of avoidance” is inadequate for justice theorizing. (1) The epistemic worry: Rawis’ argument for bypassing moral theory relies heavily on the claim that no sufficient measure of agreement is to be hoped for in this area. But how does someone know this to be true, and with what degree of certainty? From the fact that universal agreement has not happened in the past, it does not follow that expecting a sufficiently widespread measure of agreement in the future is completely unrealistic. Can we categorically say that none of our metaethical options shows any promise whatever, if articulated with clarity, to win the adherence of at least a clear majority of rational people? In any case, such a rather pessimistic conclusion can obviously not be accepted by all justice theorists simply on the strength of our faith in Rawis’ judgment, but must be reached in wide reflective equilibrium, as the outcome of examining the pros and cons of our various metaethical options in the light of sociological realities. The pessimistic conclusion that the disputes of metaethics are intractable presupposes intimate acquaintance with these disputes and a deep understanding of the potential of each possible moral theory. In what sense, then, is it correct to say that justice theorizing can bypass moral theory? And how plausible is it for Rawls to imply that all justice theorists employing WREM must emerge with the pessimistic conclusion that no moral theory shows sufficient promise to become widely accepted as our most rational understanding of morality? Certainly not all justice theorists, applying the method of reflective equilibrium the way Rawls’ instructed them to do in A Theory of Justice, have ended up with Rawls’ skepticism about the prospects of finding some measure of agreement about the best understanding of morality by ruling out some currently popular metaethical positions as rationally unacceptable. (2) The pragmatic paradox: But suppose Rawls is right, and WREM forces the pessimistic conclusion on us that we cannot hope to resolve the conflict between  77 rival metaethical position or to win public acceptance for any such resolution. Would it follow that we must then adopt a purely pragmatic justification of principles of justice and accept whatever principles promise to work best, relative to a given society, in producing an “overlapping consensus”? It seems to me that the attempt to give a purely pragmatic justification for principles of justice confronts a somewhat analogous paradox to that which haunts William James’ attempt to give a pragmatic justification of religious belief.  J. L. Christian explains the pragmatic  paradox as follows: A human condition in which an idea must be believed to be true in terms of correspondence that is, one must be convinced that some object/event exists as a real entity before the idea can be considered to be true on the pragmatic test. For example, one must believe that immortality exists as a real event.. .before the belief in immortality can produce positive results in his life. (596) -  -  Let me make clear the analogy I see between the paradox faced by James and Rawls. Just as James’ pragmatic justification of religious belief will have little or no success in instilling such belief in the absence of support from antecedently held religious convictions, so Rawls’ pragmatic justification of principles of justice will have little or no success in motivating agreement on these particular principles in the presence of conflicting moral convictions. A pragmatic justification of principles of justice, if understood as merely pragmatic, will not have sufficient normative force in the minds of people to override their antecedently held beliefs about justice. People’s beliefs about justice are generally nourished by deep moral and often religious commitments. It would seem fairly obvious that even the most pragmatic conception of social justice must claim moral authority to overrule the dictates of  those moral and religious commitments which conflict with any such conception; and to that extent (which may be considerable) it cannot avoid taking sides in metaethical disputes. In ethics, what counts as a sufficient justification always depends on what is the best justification someone thinks he can get; and if someone  78 thinks that he can directly intuit the truth about social justice with absolute certainty, or simply look it up in some Holy Book, he will hardly take great interest (unless he has no choice and has already become convinced of the virtue of liberal tolerance) in Rawis’ pragmatic justification for a set of principles reached by a complicated process of wide reflective equilibrium, let alone accord them overriding moral authority.’ 5 Only insofar as Rawls’ reflective equilibrium arguments are acknowledged to have genuine moral force, therefore, will they persuade competing interest groups in society to strike a bargain that does not simply reflect power differentials and threat advantages. So when Daniels claims, “I think it is a virtue of reflective equilibrium that it leaves open metaethical considerations”(282), he seems to neglect seeing the issue from the perspective of those with strong metaethical commitments. (3) The indeterminacy of pragmatic justifications: Is it really plausible to think WREM necessitates regarding all and only those principles of justice as rationally acceptable which are justifiable in a purely pragmatic way? Are there any such principles at all? And if there are, do they resemble anything recognizable to people as giving each of them justice? And how convincing is Rawls’ claim that his two principles would be singled out from among a host of possibilities by a pragmatic justification? Two decades of criticism of Rawis’ theory have made it clear that the search for a purely pragmatic mode of political accommodation is highly unlikely to converge on his particular principles of justice. As Arneson stresses, Rawis’ hope of some core consensus in democratic society seems unduly optimistic: 15 Rawis only touches on this objection to his approach: “One might say.. ..that to develop a political conception of justice without presupposing, or explicitly using, a metaphysical doctrine, for example, some particular metaphysical conception of the person, is already to presuppose a metaphysical thesis: namely, that no particular metaphysical doctrine is required for this purpose.”(1985, 240 footnote) His reply: “Following the method of avoidance, I should not want to deny these claims.”(240). But can Rawis legitimately invoke the method of avoidance in answer to the charge that the claim of being able to avoid controversial meta-ethical assumptions is itself a controversial meta-ethical assumption?  79 the Kantian ideal [of persons who give priority to preserving the conditions for the exercise of their moral powers to choose and to cooperate with others on fair termsj is present in democratic culture but so are several other firmly rooted conflicting ideas, such as (a) competitive individualism, (b) patriarchal conservatism, and (c) Judeo-Christian benevolence... .Their adherents would... .politely decline the invitation to join in an overlapping consensus on Rawis’s egalitarian liberal principles of justice or anything remotely close to them. (705). • .  -  The argument at this point in the debate becomes admittedly somewhat subtle and elusive, and it is not clear who is begging the question against whom. I take Rawis to be arguing that a pragmatic accommodation is in everyone’s interest in precisely those situations where any particular group’s attempt to get the better of all others would have disastrous consequences for all groups, and that his two principles of justice spell out the most rational terms of this accommodation. Arneson can retort that there are many possible modes of accommodation that are pragmatically rational, some based purely on existing power differentials and threat advantages, others  -  such as Rawis own proposal  -  laden with more or less controversial moral  assumptions; and that Rawls has failed to give the various interest groups a compelling rationale to converge on his two principles as the terms of their mutual accommodation. Certainly, if history is the relevant test here  -  and for a  thoroughgoing pragmatist it would seem to be ultimately the only relevant test  -  it  seems clear that Rawis’ theory has made few converts in the two decades of its existence, even among serious students of his work.  §4 It seems to be Rawis’ view that, since we are not going to get agreement on a moral justification for a particular theory of justice, the task of the political philosopher at the present time is restricted largely to a sort of damage control in the face of this fact (cf. 1985, 227). But Rawis’ radical pessimism about the prospects of some modest measure of moral agreement among informed people of good will seems to be at least as controversial as Rawis’ optimism that, in the absence of moral  80 agreement, we can still get pragmatic agreement on his two principles of justice (or on any other usefully determinate set of principles). Therefore, Rawls pragmatic justification for his particular theory of justice can be considered to have failed on its own pragmatic terms. But even if Rawls is right that no agreement on a moral justification for a theory of justice is to be expected at the present time, it would not follow that the political philosopher is simply restricted to the role of mediator between interest groups, rubberstamping whatever forms of mutual accommodation may be feasible in a particular society at a particular time. If a strong reflective equilibrium-based case can be made for accepting a broadly consequentialist moral framework, and if this framework turns out to support a liberal social order, not simply as providing pragmatic terms of mutual accommodation, but as embodying morally justified principles of justice, then a liberal social order is quite likely to win the allegiance of many thoughtful people. Such allegiance, while falling far short of universal agreement, may contribute substantially to keeping a liberal regime stable. The consequentialism I defend stands in sharp and obvious contrast to the sort of modus vivendi pragmatism about a just social order which tries to be agnostic about the possibility of a rational moral theory and wants to leave the clutter of clashing moral dogmatisms in place. A pragmatism of this kind seems likely to collapse into mere power politics. Even though accepting a consequentialist framework for moral reasoning will not abstractly fix the demands of justice in a very precise general way, it does make the reasons for the uncertainties inherent in principles of justice at the fundamental level clearly intelligible. If appreciated as perhaps our most credible alternative to moral skepticism and Realpolitik, a broadly consequentialist understanding of morality may motivate people to settle many disagreements about justice at the level of negotiated compromise instead of allowing them to degenerate into raging confrontations.  81 PART 3: CONSEQUENTIALISM AND RATIONAL DISAGREEMENT ABOUT JUSTICE 3.1 DISAGREEMENT ABOUT JUST-MAKING CRITERIA  After clarifying the concept of social justice and other key concepts, this chapter considers two central disagreements associated with the cluster of considerations relevant to determining justice: the criteria definition problem and the criteria inclusion problem. 3.1.1 The concept of social justice  §1 The concept of “justice is almost invariably invoked whenever individuals or groups advance claims to society’s resources. As a first step toward clarifying this concept, we must obviously be able to establish some parameters of relevance, some basic agreement about what we take people to disagree about when they disagree about justice, some widely assumed core meaning of the concept of justice as opposed to competing interpretations of this concept.’ The common assumption most people seem to make when they argue about what is just or unjust is that certain valued things are certain people’s due or are  owed to them for a variety of possible reasons, and that social distributions of those valued things should try to give individuals their due. To say that the core meaning of “justice” is “to give everyone their due” is unhelpful, however, unless the notion of something being someone’s due is clarified. For what reasons, or on what basis, do people typically claim that something is their due?  1 It is not a foregone conclusion that there must be a common idea unifying all uses of this concept to enable people to argue meaningfully about what justice requires. It is quite plausible that the concept of “justice” can be understood in the manner of Wittgensteinian family resemblance. Such an analysis of the concept allows room for disagreement about some of the exact items which make up the cluster of just-making criteria, even if these criteria are regarded as constitutive of the core meaning of “justice”. There is also the more radical possibility that “justice” is used equivocally that there are really several senses of this term linked not even by family resemblance. But the sense of justice that I am interested in, that defines my subject matter here, is only that invoked (i) by individuals claiming something as their due, and (ii) by attempts to work out theories about how best to respond to such claims. -  82 This question is perhaps best approached negatively. People typically think that they have not been given their due (and speak of injustice) when it seems to them that, in the distribution of valued things, individual merits or achievements have been overlooked, needs disregarded, arbitrary inequalities introduced, rights violated, or expectations of reciprocity disappointed. In general we could say that considerations of justice arise in contexts where there are benefits or burdens to distribute, and where there are too many claimants (for the benefits) or not enough volunteers (for the burdens). Typically, arguments to decide the justice of an individual’s bundle of benefits and burdens appeal to a rather vaguely demarcated cluster of evaluative considerations, such as merit or desert, needs, equality, rights or expectations held in good faith. I shall call claims based on such considerations “justice-based claims” (without thereby implying that justice requires every such claim to be satisfied). In a preliminary way, then, we can define the core meaning of “social justice” as “appropriate responsiveness to the claims which members of a politically organized society make groups  -  -  as individuals or as  to a share of social resources in pursuit of their well-being, by appealing to  desert, need, equality, rights or good-faith expectations. 2 ” I now want to briefly clarify a set of important ideas: the distinction between a theory of justice and a mere conception; the “problem of social justice”; and the two separate levels at which I think the problem of social justice must be conceptualized. By a theory of justice I mean a systematic conception of justice which includes  2 We can usefully distinguish justice at the personal, the social and the global level. Personal justice applies ideas about justice to the distribution of goods in small-scale, usually face-to-face contexts. (I follow the practice of using the term “goods for both benefits and burdens.) Social justice applies ideas about justice to the context of goods whose distribution is thought to be a feasible and proper concern of political regulation. Global justice would go even further and apply ideas about justice to the distribution of goods among all people or even all sentient beings in the world. Although a persons initial understanding of the concept of justice is likely to arise out of experiences in the realm of personal justice, the transfer of our understanding between personal, social and global justice is clearly not all one way. The concerns of justice at these three levels grade into each other, but as will become clear, it would be a mistake to think that the distinction between them simply marks an expanding continuum involving only a quantitative increase in complexity (cf. especially Sec 5.1).  83 standards to assess the justice of important social distributions in a principled way, along with proposed justifications for these standards, and more or less detailed instructions for how to implement or credibly approximate them in practice. By a  conception of justice I mean any interpretation of what justice requires, no matter how confused, that goes beyond the core meaning of justice as defined above. A conception of justice, at its simplest, may be embodied in judgments about specific cases, or in principles at varying levels of generality and determinacy, or complex  -  -  at its most  as a well-elaborated, comprehensive theory. The problem of social justice,  which theories of justice try to solve, is how to resolve disagreements about social distributions in a way that has potential to become acceptable to rational people as an appropriate response to their justice-based claims and to lead to stable terms of mutual accommodation. It is important to distinguish two fundamental levels of the problem of social justice, because many of the disputes about justice stem from confusion between these two levels and failure to appreciate the difficulties of achieving a fit between them. Let me call these the level of “feeling injustice’ and the level of doing justice??, and explain briefly what happens at each level. (The asymmetry of terms here is intended, because I want to make the point that doing justice does not necessarily imply avoiding injustice, in every plausible sense of that term.) At the level of feeling injustice, individuals have strong expectations about what they can claim as their share of social resources in particular contexts, and they tend to feel anger, resentment or indignation (a “sense of injustice??) when such expectations are disappointed. By the familiar process of Humean sympathy, personally unaffected bystanders may, of course, experience much the same sense of injustice as the actual victims of perceived injustice. The expectations and sentiment about justice of all individuals collectively form a pattern of often conflicting justice-based claims to a society?s resources. At the level of doing justice, there usually exist a range of individual, social and political  84 alternatives about how to respond to the pattern of justice-based claims in such a way as to achieve a balance among these conflicting claims in a particular domain. No matter which alternative is chosen, some individuals’ justice-based expectations are almost always bound to be disappointed. Often the expectations which get disappointed are every bit as legitimate as the expectations which get met. One way to put this point would be to say that some injustices will usually be unavoidable in the process of doing justice. We could, of course, insist that the term “injustice” should not be used for what can plausibly be called ‘injustice” from the perspective of an individual, but only for what can plausibly be called “injustice” from some perspective that takes all justice-based claims of all individuals into account. One of the major challenges faced by a theory of justice is, in fact, to give usefully determinate conditions for diagnosing an injustice, and I shall raise objections both to making these conditions too permissive and to making them too restricted (Sec 3.3.2).  §2 As defined above, “doing justice” consists in an appropriate response to the claims to a share of society’s resources which individuals make in pursuit of their personal well-being, by appealing to such criteria as desert, need, equality, rights or good-faith expectations. But any substantive claim about which criteria are just-making considerations is bound to be controversial. Several distinctions are necessary to clarify the level of analysis in this chapter. The first and fairly obvious distinction is between those types of considerations that are held to be sufficient to judging justice in a specific domain and those types of considerations that are held to be relevant to making such judgments in general. I want to call a “just-making criterion” a consideration which is generally relevant to making judgments about justice. In contrast, I want to call a “principle of justice” a statement that spells out sufficient conditions for determining justice in some domain.  85 A note about the relationship between criteria and principles, as I define them here. A principle may obviously contain more than one criterion. The role of justmaking criteria in a principle of justice is either to specify conditions a person must meet to justly claim certain goods or to specify conditions which a distributive outcome or process must meet to be just. What someone regards as the “demands of justice” results from the set of all judgments that this person is willing to make about what things are just or unjust on the basis of applying his interpretation of all just-making criteria to all distributive domains. The task of justice theorizing is to reduce, as far as possible, the degree of rationally permissible intersubjective variability in identifying the demands of justice. We also need to distinguish commonly invoked just-making criteria from  ideal criteria. Commonly invoked just-making criteria encompass a fairly standard list: (1) desert; also referred to as ‘merit’ or “equity”, and variously interpreted as ability, effort, contribution or achievement; (2) needs; (3) equality, in the sense of non-discrimination on the basis of specified traits; (4) rights; and (5) good-faith expectations. Fairly clear examples of what are commonly regarded as non-justice considerations are such political values as national security or prestige, economic productivity, or environmental conservation. It will be convenient to call demands based on just-making criteria “justice-based claims”. But even if ordinary people draw the distinction between justice-based and nonjustice-based claims in a particular way, it obviously does not follow that a moral theorist cannot propose the  inclusion of additional considerations in the list of just-making criteria or the exclusion of commonly invoked considerations from this list. From the fact that all individuals in society, or members of certain groups, invoke a particular list of criteria when they make claims to society’s resources, it does not follow that a theory of justice will include all and only these criteria in formulating its proposal for what should count as an “appropriate response” to the overall pattern of expectations and sentiment about justice.  86 We can distinguish three connected sources of disagreement about justmaking criteria. There is controversy over how to define the exact nature of such commonly invoked criteria as desert, need, equality, rights or good-faith expectations; controversy over exactly which items should be included in the list of just-making criteria; and controversy over what to do when different criteria either presuppose unavailable resources, specify conflicting uses for available resources, or conflict in other ways. I want to call the first issue the criteria definition problem, the second the criteria inclusion problem and the third, following Rawis, the  (criteria) priority problem (cf. 40-45). Each commonly invoked just-making criterion would warrant a book, and numerous books have, in fact, been written about each. My own brief analysis in this chapter aims only to clarify the basic nature of the criteria definition and inclusion problems to set the stage for the vastly more complex analysis of principles of justice in the next chapter. But two major objections to my way of proceeding need to be addressed right away: the objection that analyzing justice in terms of a complex of just-making criteria is circular; and the objection that rights are not plausibly regarded as one of several criteria or grounds of justice, but form an independent though perhaps overlapping moral category.  §3 First, the circularity objection. As mentioned, each just-making criterion raises the question of its own criteria for being justifiably invoked or properly applied. Answering this question takes us back to justice. So analyzing justice in terms of a list of just-making criteria is circular. My claim is not, however, that we only need to enumerate a list of common just-making criteria, and we will know what justice requires. My claim is that the immensely complex idea of justice has normative constituents which are meaningfully distinguishable in terms of their separate functions in our moral vocabulary, and that exploring disagreements about them is a helpful way of  87 organizing our initial inventory of fundamental sources of disagreement about justice. Of course, a definitive normative account of what can legitimately be claimed on the basis of desert, need, equality, rights or good-faith expectations must await an adequate theory of justice. But in the absence of such a theory, and as a way of working towards it, how else could we get our bearings than from widespread understandings and deeply ingrained sentiments about the meaning of various justmaking criteria? These understandings and sentiments, like the concepts that have evolved to express them, are of course riddled with inconsistency, vagueness, and other complexities. What could a (consequentialist) account of justice be, if not essentially a proposal for sorting out those complexities and inconsistencies in such a way that the point of morality is preserved? Morality’s point  -  creating enough  predictability and uniformity in people’s behavior so as to generate the necessary sense of security and trust for beneficial mutual interaction  -  can best and in fact  oniy be preserved, if the claims of individuals in pursuit of their personal well being are taken very seriously. Taking them seriously, that is, achieving a reasonable compromise among the often conflicting demands of just-making criteria, will be a large part of the substance of any consequentialist morality.  §4 Second, the rights objection. Is it really plausible to consider rights to be merely one just-making criterion among several, or are rights perhaps best considered to form a separate moral category? What exactly is the relation between justice and moral rights? Which category is wider in scope  -  are injustices one  possible form of rights-violations, or are rights-violations one possible form of injustice? Do these categories perhaps have overlapping scopes? Or yet another possibility: are these categories, though conceptually and functionally distinct, perhaps extensionally equivalent? In our attempt to sort out conceptual (and associated normative) confusions, we must be very clear about what our analysis is supposed to accomplish. Obviously,  88 the task of conceptual analysis may be approached very differently by those who think that distinctions, such as that between justice and the rest of morality, or between justice and rights, are somehow carved into the nature of things or come to us from some Platonic realm of essences, and those who think that the ordinary usage of moral concepts and distinctions reflects a confused mix of irreducibly conventional, prudential, and historically or otherwise contingent elements. If one subscribes to the latter view, as I do, the question then arises whether one should approach conceptual analysis with rt eporting” or Hreforming intentions. Is the analysis meant to be faithful to ordinary usage and trace out its inconsistencies, or is it meant to stay only as faithful to this usage as is compatible with the goal of introducing greater coherence into our moral vocabulary? My objective here is again the latter: to differentiate between moral concepts with a consequentialist rationale in mind, by trying to assign to each that rationale that seems to me to cohere best with ordinary usage. Specifically, I want to assign rights-talk a place that makes sense in a coherent consequentialist conceptual scheme. If we take this approach, it seems certainly implausible to subsume all justice-based claims under the category of rights. As Sumner remarks, ‘Though rights will surely be part of the story in any adequate theory of justice they are unlikely to be the whole story”(1987a, 136). The concept of justice and that of rights can be functionally differentiated in terms of their consequentialist rationale. Rights-claims (from a consequentialist perspective) are fundamentally based in the recognition that exempting certain types of choices or interests of individuals or groups from the well-being test on every occasion will promote the greatest well-being in the long 3 run. Not all justice-based claims are, however, reducible to demands for the protection of types of interests or Although I shall develop my account of rights in terms of individual rights, there is nothing in the fundamental consequentialist rationale for rights that would seem to preclude the possibility of collective rights. Which collective rights particular social subgroups should have, or whether we should accept irreducibly collective rights at all, will of course again be subject to the consequentialist well-being test.  89 choices which, if recognized and socially protected as rights, would promote the greatest well-being overall. It is an open question if any particular claim based on desert, need, equality or good-faith expectations should be accorded the normatively potent (though not absolutely inviolable) status of a right. It is also an open question whether a particular right has anything to do with claims based on desert, need, equality or good-faith expectations (see below). Campbell comments helpfully on the relation between moral rights and social justice: There are in life many minor injustices whose rectification may be very much an optional extra(20)....it can be argued that rights have a narrower scope than justice. Rights seem most at home in limited areas where individual interests are protected by definitive rules....This may be important for the rectification of injustices done to individuals, but it does not seem to have the same foothold where matters of wider collective or ‘social’ justice are concerned. Unjustified economic inequalities, the absence of educational opportunity and discrimination in employment are all grave social injustices, but they are not objectives whose attainment can always readily be effectively pursued by means of legally enforceable entitlements.... (37-9) Although Campbell speaks of “legally enforceable entitlements” here, I think he clearly means to refer to moral rights protected by legal means rather than to purely legal rights in the conventionalist sense. Moral rights call for whatever social protection promises to be most effective (usually legal enforcement). Of course, rights-claims will pick out many of the same types of actions for protection as claims based on desert, need, equality or good-faith expectations, although the degree of protection may be quite different. A consequentialist understanding of moral rights arises, we said, from the recognition that protecting certain types of actions from being subject to the well-being test on each occasion will, in the long run, most effectively promote well-being. A consequentialist understanding of social justice arises from the recognition that promoting well being requires responsiveness to those claims to social resources which individuals make in pursuit of their personal well-being on the basis of criteria which they  90 allow others to use as a basis for similar claims and which they are capable of backing up with some of the fiercest sentiments known. Some of the justice-based claims people make will clearly be such that giving them rights-status will promote well-being in the long run. But clearly, some claim might satisfy the rationale for justice but not for rights. Could the reverse also be true  -  so that the scope of rights-claims would  overlap the scope of justice-based claims? In this case, some but not all rights-claims could be considered just-making criteria. I think the answer is no: consequentialists can safely subsume all rights-claims under the scope of justice-based claims. Rightsviolations can generally be regarded as one possible form of injustice. On the other hand, I think the temptation of regarding all injustices as necessarily rights-violations should be resisted. Given the function of rights in our moral vocabulary, a rights-based claim is meant to be normatively more potent, and capable of overriding, other moral considerations. Claims based on desert, need, equality and good-faith expectations will become rights if, and only if, giving them rights-status is likely to promote the greatest well-being overall. Certain needs-based claims may qualify for consequentialist rights-status in any society that can afford to meet these needs, but most justice-based claims will not qualify for rights-status, because that would give rise to far too many conflicting rights. This is not to deny, of course, that practically all justice-based claims and, in fact, all sorts of completely frivolous claims are popularly advanced in the normatively debased language of rights (cf. Sumner, 1987a, 2-4). But as consequentialists we have a fairly stringent criterion for generating rights which will disqualify many popular rights-claims. It is plausible to think that all rights-violations constitute injustices, but clearly less plausible to construe every failure to satisfy other justice-based claims as an injustice. In spite of widespread readiness to pronounce all sorts of things unjust, the problem of finding plausible necessary and sufficient conditions for what constitutes an injustice turns out to be extremely complex (cf. Sec 3.3.2). If  91 consequentialists do not want to deprive the concept of “injustice ’ of its normative t force by legitimizing its trivialization, then they cannot permit pronouncing failure to satisfy every claim based on a just-making criterion unjust, but only failure to satisfy those which survive an appropriate process of balancing the competing justice-based claims within some appropriately demarcated domain. But the function of according rights-status to certain justice-based claims is precisely to short-circuit the unpredictable vagaries of this balancing process to a large extent, and doing so may indeed be defensible on consequentialist grounds. So by assigning rights a place among my proposed ordering scheme for the unruly family of commonly invoked just-making criteria I do not mean to deny that my list (or any such list) contains important asymmetries, considerable mutual overlap and a sort of normative pecking order. Claims grounded in basic needs, for example, will generally have far greater moral weight than mere good-faith expectations; and different needs and expectations will in turn have varying degrees of moral weight. But while I am prepared to admit that the normative weight of rights-claims usually allows them to override other justice-based claims, and that rights-violations should usually count as injustices, as a consequentialist I cannot, of course, go so far as to accord rights-claims infinite moral weight. A person’s having a right may become compatible, morally, with her being prevented from exercising it, if the consequences of exercising this right would be sufficiently disastrous. 4 It is plausible, we said, that all rights-violations should count as injustices (and since rights can conflict, that obviously means injustices can sometimes become morally permitted). But should consequentialists affirm the converse as well: should all injustices count as rights-violations? Should we perhaps regard  Narveson seems to hold a wildly implausible absolutism about rights when he says, “If my right to drive a car is compatible morally with your forcibly preventing me from exercising it, then there is no point whatever in speaking of ‘my right”(1991, 331).  92 rights as the cut-off criterion to decide when disregard for some justice-based claim becomes an injustice? 5 It is, of course possible, to use the term “injustice” in a sense such that a failure to satisfy a justice-based claim is called an injustice only if it constitutes a rights-violation. I want to reject this usage for three reasons: (1) Since there may be situations in which none of the competing justice-based claims have the normatively potent status of moral rights, this usage would mean that, in such a situation, it would be conceptually impossible for an injustice to be committed. (2) The cumulative weight of such justice-based claims of many individuals may, on occasion, even outweigh some individual’s recognized moral right at some point, although rights usually will trump other justice-based claims. So it seems implausible to regard a violation of someone’s rights as a necessarily sufficient condition for the occurrence of an injustice, as a “cut-off criterion” which would somehow specify when failure to satisfy a claim based on another just-making criterion becomes an injustice. (3) We could, of course, postulate a particular sort of right, the right never to be unjustly treated, and indeed many people want to claim such a right  -  but I have three consequentialist objections against recognizing such a  right. First, postulating such a right would further debase the normative currency of rights, for two reasons: (i) it would make the actual existence of this right as indeterminate as the diagnosis of an injustice (and there are good consequentialist reasons for wanting to assign the normatively potent status of rights only to fairly determinate types of claims); and (ii) rights-violations would become as numerous as injustices (and there is a fairly clear consequentialist rationale for using the term “injustice” in a sense such that many injustices are morally defensible, either because they are unavoidable or because they are on balance morally preferable (see below). Second, postulating a general right of everyone not to be unjustly treated  I owe this question to Michael McDonald, along with numerous other questions which greatly helped  me clarify my position.  93 would be useless as a cut-off criterion, because invoking it would already presuppose that we know how best to balance the competing justice-based claims in some domain. Our consequentialist rationale for generating rights would be far too indeterminate to be up to the job of making rights a useful cut-off criterion for when to consider a failure to satisfy a justice-based claim an injustice. Certainly there seems nothing conceptually necessary about rights taking on this job. Third, making every injustice at the same time a rights-violation not to be unjustly treated’  -  -  a violation of the alleged “right  (after we already granted that every rights-violation can  plausibly be regarded as an injustice) will further contribute to the conflation of these two functionally distinct concepts and to the resulting conceptual and normative confusions. It is an understandable attempt at securing double protection against being victimized by injustice; but raising every injustice to the status of a rights-violation is simply bound to debase the normative currency of rights-claims. It is true that this analysis creates a situation in which someone can be done an injustice, and yet I do not want to say that there is a failure to respect a right. But that is precisely what, from a consequentialist perspective, seems to me desirable, given the relatively subordinate moral weight which I think we must assign to many of the things individuals want to call, and should legitimately be able to call, “injustices”. From a consequentialist point of view, I see the division of conceptual labor between morality, justice and rights somewhat analogous to the division of academic labor between a university as a whole, the faculty of humanities and the department of philosophy, but with lots of cross-appointments of faculty members in different departments within the humanities. I see nothing inconsistent about saying that, regrettably, someone’s rights have to be violated to avoid a major injustice. It might seem inconsistent for me to say, however, that even a minor injustice has to be committed in order to respect someone’s rights because, on my account, rights are part of the input into the process of balancing competing justice-  94 based claims, and if other justice-based claims lose out over a particular right in a particular case where the appropriate process has been followed, then no injustice would seem to have been committed. But this would be a hasty conclusion. There are reasons for wanting to use the term “injustice” in a sense in which it is legitimate for us to admit that we may have had to commit an injustice against certain individuals, even if overall we have achieved the morally best result possible under given circumstances (see below). In summary, then, rights seem to have all the requisite properties of a justmaking criterion, but clearly not every claim based on a just-making criterion gives rise to rights. And considering rights to be a criterion among others on a list of overlapping, complex just-making criteria is quite compatible with admitting the special normative force of rights.  3.1.2 The criteria definition problem Next we must wrestle with the criteria definition problem. It is tempting to pursue in detail the intricacies and interconnections of such complex concepts as “desert, “needs”, “equality”, “rights” and “good-faith expectations”, but doing so would make us lose the main thread of our inquiry. I shall, therefore, restrict myself to a few clarifying remarks about each criterion from a consequentialist perspective and mention some plausible points of rational disagreement.  §1 Desert Claims based on desert are central to real-life disputes about justice. What are desert-claims based on? The bases of desert, at least as understood in Western societies, are well analyzed by Sher, who differentiates six classes of desert-claims according to their justificatory basis (1987, 150-1). The first two classes include desert claims based on  traits of a person.  They can be non-moral traits. It makes perfect  sense to say, for example, that “The best-qualified applicant deserves the job”. Or  95 they can be moral traits, as when we say, “The virtuous deserve to be happy.” Sher’s other four classes include desert-claims based on features of a person ‘s actions. People’s sense of desert is affected by such factors as whether the action involves effort, involves competition, is freely willed, or is morally blameworthy. Again, it makes perfect sense to say that “People deserve the fruits of their efforts”, “People deserve prizes won in competitive performances”, “People deserve the foreseeable consequences of their freely-willed actions”, or “People deserve punishment for morally blameworthy actions” (cf. Sher, 1987, 150). A consequentialist understanding of desert arises from the recognition that recognizing individuals’ claims to social resources on the basis of conscientious efforts which serve a socially beneficial purpose will effectively encourage such efforts. For a consequentialist, then, there is no such thing as “desert” independently of a conception of what sorts of results count as socially beneficial. In merit-based hiring of job applicants, for example, what counts as merit is not fixed once and for all, but will change with our changing understanding of the social purpose that we want a particular profession or institution to serve. There will often be heated disputes, both because there can obviously be disagreement about the proper social purpose of an institution or profession, and also because job applicants who have worked hard to measure up to established criteria of merit have good-faith expectations that these criteria will not suddenly be changed. One fundamental dispute about desert that seems to go on without resolution, at least in the philosophical literature, is disagreement about the very coherence of desert-claims in a world of causes. Sidgewick brought this issue into sharp relief. Asking whether rewards for a person’s services should be apportioned to the effort made or to its utility for others, he argues that .the actual utility of any service must depend much upon favourable circumstances and fortunate accidents, not due to any desert of the agent: or again, may be due to powers and skills which were connate or have been developed by favourable conditions of life, or by good education, and why should we reward him for these 2 And certainly it is only in so far as moral • .  -  96 excellences are exhibited in human achievements that they are commonly thought to be such as God will reward. But by drawing this line we do not yet get rid of the difficulty. For it may still be said that good actions are due entirely, or to a great extent, to good dispositions and habits, and that these are partly inherited and partly due to the care of parents and teachers; so that in rewarding these we are rewarding the results of natural and accidental advantages, and it is unreasonable to distinguish these from others, such as skill and knowledge, and to say that it is even ideally just to reward the one and not the other. Shall we say, then, that the reward should be proportionate to the amount of voluntary effort for a good end? But Determinists will say that even this is ultimately the effect of causes extraneous to the man’s self. (283-4) Exactly this line of argument is invoked by Rawis to exclude desert altogether as a relevant criterion for determining the justice of society’s basic structure. Rawls defends his skepticism about desert in trenchant words: It seems to be one of the fixed points of our considered judgments that no one deserves his place in the distribution of native endowments, any more than one deserves one’s initial starting place in society. The assertion that a man deserves the superior character that enables him to make the effort to cultivate his abilities is equally problematic; for his character depends in large part upon fortunate family and social circumstances for which he can claim no credit. (104)6 In more explicit form, Sidgewick’s and Rawls’ argument against including desert among just-making criteria could be summarized as follows: 1. A person’s achievements are the result of ability, effort or circumstances. 2. A person’s circumstances are undeserved. 3. A person’s ability and effort are wholly the result of his endowments or motivations. 4. A person’s endowment and motivations are wholly the result of heredity and circumstances. 5. A person’s heredity and circumstances are undeserved. 6. If a person’s achievements are wholly the result of undeserved factors, then those achievements are not deserved. Therefore, a person’s achievements are not deserved. 6 But Rawis sometimes vacillates in his deterministic assumptions. In “Social Unity and Primary Goods”, for example, Rawis says: “As moral persons citizens have some part in forming and cultivating their final ends and preferences...But to argue this [that it is unreasonable to hold people responsible for unduly expensive tastes] seems to presuppose that citizens’ preferences are beyond their control as propensities or cravings which simply happen. Citizens seem to be regarded as passive carriers of desires. The use of primary goods. ..relies on a capacity to assume responsibility for our ends.”(168-9) I do not see how these statements could be made consistent with Rawis’s radical skepticism about desert.  97  The fourth premise of this argument can be made extremely plausible with the help of empirical support from biology, psychology or sociology. It represents, of course, the familiar determinist thesis that a person’s actions are merely links in an unbroken causal chain which started long before that person was born. From the thesis that no one can ever help doing what he actually does, it is tempting to conclude that no one ultimately deserves anything. But once the conclusion that ultimately no one deserves anything is combined with another alleged demand of justice which many find intuitively plausible, namely that people should be compensated for undeserved inequalities, a strongly persuasive chain of reasoning results: 1. Justice requires that people should be compensated for undeserved inequalities. 2. All inequalities are ultimately undeserved. 3. So justice requires that all inequalities should be compensated. 4. But justice also requires that the position of the worst-off group in society should be improved. 5. Some economic inequalities may be necessary to improve the position of the worst-off group in society. Therefore, justice requires that all inequalities should be compensated, except when economic inequalities are necessary to improve the position of the worst-off group in society.  These arguments (together with arguments about the “priority of liberty”) lie at the heart of Rawis’ theory, and many deep rifts in contemporary justice theorizing can be traced back to disagreement about some premise or other of these arguments. Let me only give the briefest synopsis here. Nozick, for example, forcefully challenges Rawls’ assumption that whatever results from something undeserved is itself undeserved. Nozick argues that unequal wealth may well be deserved, in the sense that no one is entitled to take it away from a person, if it results from something which this person simply has (such as natural endowments)  98 and which no one else is entitled to have (cf. 224-7)) Dworkin disagrees with Rawls that what people achieve as a result of effort and ambition is just as undeserved as what they achieve as a result of endowments, and therefore proposes social distributions which are, as far as possible, “endowment-insensitive but ambition sensitive”(1981, 311). Most of Rawls’ critics have argued that improving the position of the worst-off group in society is plausible neither as a necessary nor as a sufficient condition for identifying morally acceptable economic inequalities (see Ch 3.2). Some have denied that it is reasonable to prohibit tradeoffs between political liberty and economic gains when the loss of liberty would be small and the economic gains large (e.g. Barry, 1973.). Some have regarded the idea that people should be free to exercise their talents in the market as a much more plausible basic intuition about justice than that people should be compensated for undeserved inequalities (e.g. Nozick, Narveson), but many possible intermediate positions have also been defended. There is near universal consensus in the literature on social justice that reason neither requires nor perhaps even permits us to accept Rawls’ principles of justice. My aim here is not to trace the details of this protracted debate, which has been ably chronicled in a number of works, but only to locate a basic disagreement about desert. 8 We seem left with essentially three alternative interpretations of “desert” about which rational people may plausibly disagree (even though perhaps with varying degrees of rationality): (1) No one ever really deserves anything because the capacities underlying a desert claim are themselves wholly undeserved. (2) People deserve things in proportion to their justified desert claims, even though these  It is sometimes claimed that adopting an original position will necessarily blunt claims of desert. But the contrary seems to me true. Bargainers in the original position who don’t know their individual endowments, but know enough about human nature to appreciate how demoralizing and resentment provoking neglect of desert-claims is, will make sure to include a provision to reward desert in their principles. 8 E.g. Kymlicka (1990); Mapel (1989); Campbell (1988); Pettit (1980).  99 claims are based on wholly undeserved capacities. A person deserves rewards on the basis of ability and effort, not because these are the result of something which is itself deserved, but because they are manifestations of who a person is and of values we want to socially uphold. A person’s endowments and motivations are within the inner boundaries of his self, as well as expressing socially valuable qualities. (3) People deserve things in proportion to the extent that their effort and achievements result from the exercise of free will, properly construed. A person’s abilities, effort or motivations are more than simply products of heredity and circumstances; they escape complete causal determination in the relevant “desert-undermining” sense. The disagreement between those who hold (1) or (2) and those who hold (3) strikes me as remediable only if one of the knottiest philosophical conundrums, the free will problem, could be satisfactorily resolved. From a consequentialist point of view we want to say that, whatever the deep truth about human free will may be, recognizing claims of desert, in the sense of effort with socially beneficial results, promotes such effort, and therefore promotes well-being and is rationally justified.  §2 Need Need has such a central place among commonly invoked just-making criteria, and such strong support from people’s sense of justice, that theories of justice which exclude need (such as libertarian theories) provoke passionate opposition for that reason. If “need” is to be a credible just-making criterion, however, two senses of this concept have to be kept apart. In the relational sense, need is simply a relation between means and ends: “Person A needs good B to achieve goal C.” What someone needs, in this relational sense of “need”, is purely a matter of finding the proper means to satisfy a person’s preferences, no matter how frivolous they may be. Clearly, the relational sense of “need” is useless as a just-making criterion.  100 Braybrooke has tried to rehabilitate the concept of need in a sense in which it can be said that a person A needs goods of type B, not to achieve just any goal, but to facilitate that person’s basic physical and social functioning. Braybrooke calls such needs “course-of-life needs’ . Course-life-needs are needs which, unlike preferences, t human beings have in common. In distinguishing such needs from preferences, Braybrooke says, .while it must be acknowledged that in preferences other people may be so different as to be hardly understood, much less sympathized with, needs unite human beings in their conception of themselves.”(1987, 237) Braybrooke lists the following “course-of-life” needs: Needs based on physical functioning: the need to have a life-supporting relation to the environment; the need for food and water; the need to excrete; the need for exercise; the need for periodic rest, including sleep; the need for whatever else may be indispensable to preserving the body intact. Needs based on social functioning: the need for companionship; the need for education; the need for social acceptance and recognition; the need for sexual activity; the need to be free from fright and harassment; the need for recreation. (Cf. 1987,36) Braybrooke is also careful to distinguish these “matters of need” (which every person has to some extent) from “minimum standards of provision” (which reflect the actual extent of each need, and which will vary from person to person and for the same person at different times). Braybrooke allows that his list of core needs can be cautiously expanded  -  technology, resources and generosity permitting  -  to  accommodate other plausible candidates for course-of-life needs, such as the need for satisfying work or needs arising from the requirements of personality development. Whenever “fruitless” disputes occur about such expansions, Braybrooke recommends falling back on core needs. Against the obvious objection that satisfying some people’s needs comes at the expense of other people’s liberty, Braybrooke argues that an expansion of this list may itself be an exercise of liberty, provided the expansion happens as a result of social consensus (231ff). Braybrooke’s clarification of all these issues is illuminating, even though there remains room for  101 rational disagreement about a number of questions. What exactly should be included in the list of course-of-life needs; what minimum standards of provision should be contemplated; and how exactly can we regulate the expansion of this list? 9 Nevertheless, Braybrooke has made sense of the way needs can legitimately figure, and do in fact figure prominently, in disputes about justice. Course-of-life needs underlie many rights-claims and many expectations that are strongly backed by our sense of justice. It may well be an individuaPs strongest right and her most legitimate expectation that society’s decision-makers will not enact policies which would sabotage her basic physical or social functioning, policies which would make it harder or even impossible for her to meet her course-of-life needs. Often the causal chains are complex, and deprivations may be unforeseen side effects of wellintentioned policies, but there are many blatant cases all over the world where governments cater to the preferences of the privileged while leaving even the most basic subsistence needs of the poor unmet. It is hard to see any reason why those  whose course-of-life needs go unmet through no commensurate fault of their own, when there are potential resources to meet them, should feel any loyalty or respect for the laws and institutions of the country whose citizens they are.  §3 Equality Equality is a notoriously vague and contentious concept. I want to begin by distinguishing two senses: the inclusive sense, in which “equality” simply denotes an ideal of just individual shares, so that any injustice can therefore be conceptualized as a deviation from equality in this sense; and a non-inclusive sense, in which equality is one just-making criterion among others, and not every injustice can be conceptualized as a deviation from equality in this sense.  Although Braybrooke says, in reply to a critic, that “the book allows for uses of the concept of needs expanded as it were with unanimous consent”, surely a strict condition like unanimous consent will effectively squelch any expansion. (Cf. 1988, 520)  102 Equality in the inclusive sense can be used either as a purely formal criterion (i.e. one that is compatible with any possible distribution whatever if it is suitably described) or as a more or less substantive criterion (i.e. one which rules out some distributions as unacceptable). The prime example of equality in the inclusive sense, used as a purely formal criterion, is Aristotle’s principle of justice, according to which justice consists in treating equals equally and unequals unequally in proportion to their relevant differences (Cf. Bk V, Nichomachean Ethics). A good example of equality in the inclusive sense used as a substantive criterion is Honderich’s conception of justice: A society should seek to secure, as far as is practicable, lives of equal satisfaction for all its members. It should do this by in general seeking to secure, as far as practicable, equality of income and wealth, equality of respect (where that is other than....the mere recognition of the relevance of all persons), equal political and legal freedoms, the full development of the different potentials of individuals by means of education and in work, equality in housing and environment, equal medical care and provision for old age. (183) This is clearly an ideal of just individual shares, a master principle which defines what society owes each individual as a matter of justice. Like all such directly responsive, internally complex principles, it faces a multitude of problems. I shall consider these matters in the next chapter. The sense of “equality” of interest to me here is the non-inclusive sense, equality as a just-making criterion which leaves room for other just-making criteria, although it may overlap them. Equality in this sense is best regarded as synonymous with non-discrimination on some specified basis, such as race, sex, physical disability, sexual orientation, age or other features which are considered irrelevant to the just distribution of some good at issue. “Equality” is used in the non-inclusive sense if a certain good is specified along with criteria on the basis of which discrimination in the distribution of this good is forbidden.  103 Types of equality which have figured prominently in social justice theorizing are: equality of freedom; equality of opportunity and equality of outcome; equalityin-meeting-needs; equality of life chances; equality of resources and equality of welfare (or well-being or satisfaction); and equality of consideration, respect, concern, attention or treatment. Some uses of “equality” clearly involve the inclusive sense and some the non-inclusive sense. Equality of life-chances, equality of resources or well-being, or equality of treatment seem synonymous with an ideal of just individual shares and therefore involve “inclusive” equality. Equality-claims to more specific goods, such as equality of access to medical care or education, commonly specify criteria, in the form of features of persons, on the basis of which discrimination in the distribution of such freedoms or opportunities is forbidden, and therefore commonly involve ‘non-inclusive” equality. There are a variety of plausible general ways of characterizing what it means to treat people unequally or to discriminate against them. All are fraught with problems of interpretation, but they nevertheless provide some useful conceptual common ground. We could say that for something to constitute inequality or discrimination, two conditions must be met: there has to be (unjustified) harm inflicted on people; and some people must be harmed more than others in relevantly similar positions. Another roughly equivalent way of characterizing discrimination would be to say that discrimination exists whenever people are being placed at a serious disadvantage relative to some appropriate reference group, through no (commensurate) fault of their own, in the distribution of important social benefits. But perhaps the currently most widespread way of defining “discrimination” is to say that discrimination takes place whenever people are denied equal opportunity in acquiring X  -  where X stands for a variable domains of  widely valued goods whose distribution can be socially regulated. But what is equal opportunity in acquiring X? And how, apart from equality of outcome, can we tell if it has been achieved? I can only touch briefly on these  104 immensely complex issues here. For the sake of simplicity I want to restrict my discussion to one representative domain, desirable jobs. In this domain the shared core meaning of “equality of opportunity ’ seems to be the idea of distributing this t good on the basis of performance-related traits rather than on the basis of race, sex, age, political or religious beliefs, sexual orientation, disabilities or such traits, unless they are demonstrably performance-related. “Performance-related” here must mean “furthering the social purpose of the job in question”. Beyond this widely shared meaning of equal opportunity there are, however, three sharply different interpretations of this concept. (1) Equal opportunity in the pure performance sense could be held to exist if individuals are selected purely on the basis of performance-related characteristics, no matter whether they acquired them under highly privileged or strongly adverse conditions. (2) Equal opportunity in a performance/motivation sense could be held to exist if people are selected purely on the basis of performance-related characteristics and if all people with sufficient talent and motivation are assured of at least minimally favorable conditions for acquiring performance-related characteristics. (3) Equal opportunity in a performance/motivation/endowment sense could be held to exist if people are selected purely on the basis of performancerelated characteristics, and if people with sufficient natural endowment and motivation are assured of at least minimally favorable conditions for acquiring performance-related characteristics, and if people with similar natural endowments are assured of (roughly) similar motivating conditions to make them want to acquire those characteristics. Cauthen describes this third sense of equal opportunity in these terms: .every individual with similar gifts who makes the same effort should have equivalent life chances for success. Hence efforts must be made to overcome the hindrances of family and social background that inevitably cripple some in comparison with others. (77)  105 Rational disagreement is probably possible about how much effort on the part of society is required to equalize the life chances of people whose motivation to develop their gifts may have been crippled by their family and social backgrounds. Some defenders of equal opportunity in the performance/motivation/endowment sense argue that justice (and other considerations) require us to relax the standard performance-related qualifying criteria for members of groups in whose case discrimination may have denied opportunities or undermined motivation to acquire equal qualifications. Others argue that no relaxation of standards is involved if we can plausibly reinterpret the social purpose of the job, or our social goals in general, in such a way that membership in a particular racial, sexual or other group becomes itself a performance-related characteristic. Proponents of this view often propose to measure equality of opportunity by whether members of different racial, sexual and other groups are represented in each category of desirable jobs in proportion to their percentage of the total population. Given what we know about motivational and genetic factors, there is a poorly defined point at which such attempts at strict proportionality interfere with people’s authentic preferences as well as the autonomy of the family (cf. Fishkin, 1983). There is scope for rational disagreement about what equality of opportunity requires, but laying out the consequentialist pros and cons of each contemplated policy clearly can go a long way toward narrowing the scope for such disagreement.  §4 Rights What do we mean be calling something a “right”? Why should consequentialists recognize rights at all? And which rights should we recognize? (1) What are rights? Rights are meant to protect certain types of choices or interests of individuals or groups. Sumner’s lucid account makes clear just how complex a task it is to define a right in all its dimensions:  106 The content of a right is what it is a right to do or to have done; this is given by the content of its core liberty or claim. The scope of a right has two ingredients: the subjects of the right and its objects. The subjects of a right are those who hold it; this is given by the holders of the various Hohfeldian 10 advantages (liberties, claims, powers, immunities) which are ingredients of the right. The objects of a right are those against whom it is held; this is given by the bearers of the various Hohfeldian disadvantages (chiefly duties and disabilities) which are correlated with ingredients of the right. It follows that the content and scope of a right have been completely specified only when the content and scope of its several ingredients, both core and peripheral, have been completely specified. Finally, the strength of a right is its ability to override, or susceptibility to being overridden by, competing moral considerations. The strength of a right has been completely specified when its weight has been given relative to every sort of consideration with which it might compete. (1987a: 124)  (2) Why should rights be recognized at all? From the point of view of promoting well-being, it is clearly best if certain types of actions are always protected than if we engage in complicated case-by-case calculations about whether interfering with such an action would be more likely to promote well-being in this particular case. As Campbell explains this consequentialist rationale, As long as individuals have desires (however altruistic) on which they wish to act and as long as such acts are facilitated in a socially beneficial way by allowing the individual a range of legal powers with which to pursue his interests, then there is reason to have a rights-based system of rules. (188-9) For a consequentialist, something counts as a right if giving this extraordinary protection to the particular type of action so protected constitutes a good consequentialist gamble. Rights ultimately protect certain actions (which often, but not necessarily, constitute vital interests of the individual agent) from routine interference, even interference for the sake of whatever honestly seems, at the moment, to government officials or other decision-makers to best promote well being. Of course, such protection cannot be absolute; in extreme circumstances and  10 Sumner clarifies and elaborates Wesley Hohfeld’s pioneering (1919) analysis of the fundamental conceptual building blocks of legal rights for purposes of analyzing moral rights. (Cf. Sumner, 1987a: 1 8f)  107 after a special process of deliberation, interference with someone’s rights may be justified after all to avert a major disaster. (3) What types of actions are justifiably protected as rights? Some candidates for the status of rights are the right to life, to security of the person, to bodily autonomy, to certain forms of property, to the pursuit of happiness, to a rather open-ended list of civil and political liberties like freedom of speech and assembly, to a reasonably substantive equality of treatment in the allocation of sundry social benefits like jobs or educational opportunities, and a roster of welfare rights that are closely tied to elementary human needs. The welfare rights a society should recognize are of course relative to what the society can afford. There is room for rational disagreement, I think, both about what kinds of actions deserve protection as rights and how strong the protection should actually be. These questions are far too complex to be explored in the necessary detail here. Combining such general rights with specific circumstances, one can derive a plurality of more specific rights, though rarely in an uncontroversially deductive fashion. Derivations of this kind are fraught with potential for rational disagreement. The following reconstruction of the central argument in Shue’s book on Basic Rights provides an example of an attempt to derive welfare rights from liberty rights and, in effect, to challenge the moral status of this distinction: L If a society is not committed to protecting a small number of basic rights which are necessary for the effective exercise of any other right, a society does not really protect any rights at all. 2. All societies should protect some rights like everyone’s right to life, freedom or the pursuit of happiness. 3. Basic rights like the right to physical security (a right not to be murdered, tortured or assaulted) and the right to subsistence (a right to minimally adequate food, clothing, shelter, air, water and health care) are necessary for the effective exercise of any other right. Therefore, any society should be committed to protecting people’s right to physical security and subsistence.  108 Shue’s argument links up with. the disagreement about how best to interpret the concept of equality of opportunity. Shue’s argument makes a strong case, I think, that the pure performance sense of equality of opportunity must be rejected. It does not show, however, that equality in the performance/motivation/endowment sense can be demanded as a moral right, as is sometimes claimed by those who call for proportional representation of various groups in all desirable social positions. Desert-claims, needs and more or less urgently felt desires, demands for various forms of equality and expectations created in various ways can all too easily be expressed as, or translated into, rights-claims. Many disagreements about rights would be remediable if all the disputants shared a consequentialist moral framework and a rational conception of how rights must ultimately be justified within such a framework. But sometimes there are such intractably complex empirical issues involved that there is every reason to think that rational disagreement about the merits of conflicting rights-claims will persist indefinitely.  §5 Good-faith expectations By “good-faith expectations” I mean existing expectations of individuals, held in good faith, about what is their due and which, if ignored, arouse a sense of injustice. I speak of “good-faith” rather than “legitimate” expectations because I want to avoid the implication that claims based on such expectations are necessarily justified demands of justice rather than merely one type of justice-based claims. This category obviously overlaps all the other just-making criteria. Many, but surely not all, expectations which people hold in good faith about what is their due are need-, desert-, equality-, or rights-based. Good-faith expectations may also be based simply on established practice, law, reasonably hoped-for reciprocity or some other considerations. As I shall use this term, “good-faith expectations” is meant to refer to a residual category of considerations that are relevant to justice. Such a residual category is needed because sometimes it is not clear which, if any, of the other just-  109 making criteria has been disregarded, and yet a person may feel a sense of injustice and may indeed have a plausible case for complaint on grounds of social justice.’ 1 An example might be a sudden raising of university admission standards which dashes a person’s long-nurtured hopes for admission, or a drastic reduction in social insurance allocations. Or take the person who has spent years training to be a research scientist, encouraged in his belief that as a scientist he would be able to contribute greatly to society. Now he is ready to set up his research project. He has had good reason to believe that public funding would be forthcoming (the research has no sufficiently immediate commercial promise to interest private investors), but the government, in an effort to reduce the national debt, suddenly excludes the relevant category o research funding. Many good-faith expectations, as well as many rights-, desert- and equalitybased claims, appeal to reciprocity, to a sense that we should justly get something of value in return for giving something of roughly equal value. Other important types of expectations are based, not on reciprocity, but on established practice. It is expectations in this sense which, though underpinned by strong emotions, are often difficult to integrate with other just-making criteria. Rescher aptly called the dilemma that expectations pose from the point of view of justice the “Reformer’s Paradox”: the actual, existing distribution.. .is a very important one, from the standpoint of distributive justice. ..And this existing situation carries within it an existing body of claims, claims which must, in the interests of justice, be taken into account. Justice limits utility at exactly the point of the “Reformer’s Paradox”: Given an imperfect existing initial distribution, any redistribution in the interests of arriving, from the standpoint of justice, at a superior distribution runs headlong into the pattern of existing claims that cannot in -  But are all members of this residual class of just-making considerations necessarily “expectations”? If someone who lacks any expectation of getting x could nevertheless have a just claim to it, this residual class would obviously be misnamed. But is this a real possibility? Here, I think, we must again distinguish consequentialist from more metaphysical conceptions of justice. On a consequentialist account, if someone neither deserves x, nor needs x, nor has a right to x, nor expects to get x, nor is treated discriminatorily by not getting x, then I see no consequentialist rationale for thinking that it could possibly be a concern of justice that this person does not get x.  110 the interests of the very justice that provides the rationale for the entire enterprise be brushed aside as an irrelevant obstacle. (121) -  It is the stranglehold of long-standing expectation, among other things, which makes reforms of society’s “basic structure” in the name of justice extremely difficult. Such reform tends to fail, in large part because an abrupt break with goodfaith expectations mobilizes a tremendous sense of injustice in many people. When people have fashioned life plans based on the way things always have been, disappointing their expectations tends to arouse their sense of injustice. An example of a social practice which is in conflict with most plausible conceptions of equality, desert, need and moral rights and which, from these perspectives, seems strikingly unjust, but is arguably legitimated by good-faith expectations (and a few other consequentialist considerations), is the practice of inheritance. But there is tremendous room for rational disagreement about what makes an expectation a legitimate just-making criterion, and for how much it should count, especially if it is not based on desert, need, equality or rights.  3.1.3 The criteria inclusion problem  §1 If we survey the range of things which human beings value, we find a number of values which could plausibly compete with commonly invoked justicebased considerations in constraining social distributions. In other words, we need to distinguish the set of considerations that are held to make some distribution right, from the proper subset of considerations that are held to make it just. What is of value to human beings, and which values can plausibly take on the status of a political rather than a mere personal value is, of course, itself contested. But the range of plausible political values competing with justice may include -  depending on what is already included in someone’s conception of justice  -  freedom, happiness, peace and order, national security and prestige, economic productivity, artistic achievement, scientific progress, a sense of community and cultural integrity, cultural diversity, the preservation of valued traditions, the  111 conservation of the environment, or the needs of international development. It certainly seems possible that competing values could, on occasion, justifiably override considerations of justice. But some philosophers have regarded the value of justice as “indefeasible 12 ”, How could that be? To answer this question, we must clarify the basic options available for handling the criteria inclusion problem. One can simply take stock of the considerations commonly invoked as relevant to distinguishing just from unjust distributions, draw up a rough list of standard “just-making criteria” and then busy oneself with clarifying the complexities of each item on this list. But one can also exclude commonly invoked considerations from one’s list of just-making criteria or include some considerations that are not commonly invoked as relevant to distinguishing just from unjust distributions. Which option is chosen is not merely a semantic matter, but has potentially significant consequences, because by including within the scope of justice-based considerations many considerations commonly regarded as irrelevant to distinguishing just from unjust distributions (or by  excluding from their scope many considerations commonly regarded as relevant), one in effect proposes to realign the unusually strong sentiments which normally underpin justice-based claims with a new set of criteria. Such a proposal may or may not work. By diluting the commonly invoked list of just-making criteria with considerations normally thought to be completely irrelevant to giving individuals their due qua individuals, the concept of justice may simply lose some of its distinctive normative force. But because the cognitive and emotive aspects of peoples sense of justice are to some degree separable, there is clearly some room for such realignment by rational or non-rational means of persuasion. Non-rational persuasion by means of propaganda, “nationalist” appeals to common ethnic identities and various brainwashing techniques can probably  12 Cf. J.P. Day, ‘The Indefeasibility of Justice”, in Liberty and Justice (1987). Day mentions Socrates, Kant and Mill as holding a Principle of the Indefeasibility of Justice.  112 achieve much greater realignments, however, than someone can hope to achieve by means of a theory of justice which tries to offer rational justifications. A theory of justice cannot stray arbitrarily far from the prevailing pattern of people’s expectations and sentiments about justice if it is to be acceptable, or even  recognizable, to them as a theory of justice, and therefore to have sufficient potential to harness their sense of justice. Still, within hard-to-define limits, reasoned appeals  can substantially change some people’s minds and sentiments about justice. There is both hope and danger in the fact that some theories of justice have had large influence on political leaders who then set the machinery of public indoctrination in motion.  §2 Depending on what one includes in one’s list of just-making criteria, and on how much weight one attaches to these criteria relative to other political values, one can construe the relation between justice and other constraints on social distributions in several ways. Before I examine this relation, I must clear up a potential confusion about what exactly is meant by “constraints on social distributions”. Are there political values which are not constraints on social distributions? John Rawls seems to think so. Since his master principle of justice defines the distributive outcome which society’s basic structure as a whole must achieve to be just, and since he argues that the demands of justice are “uncompromising”(4), all constraints on social distributions must already be incorporated and somehow harmonized within his master principle. But he also says, A complete conception defining principles for all the virtues of the basic  structure, together with their respective weights when they conflict, is more than a conception of justice; it is a social ideal. The principles of justice are but a part, although perhaps the most important part, of such a conception. (9; emphasis added) Unless Rawls were considered to commit an inconsistency here, the only way I see to interpret his remarks is that he thinks that not all “virtues of the basic structure”  113 function as intended constraints on social distributions. But what would be an example of such a virtue? I cannot think of any political value that might not, under some conceivable circumstances, become an intended constraint on a social distribution. It is possible, however, that there are political values which do not  ordinarily function as such constraints, but are simply part of the cultural givens which no one questions. Examples might be cultural diversity or territorial sovereignty. To say that such values might not consciously or directly serve to justify distributions in a particular society cannot mean that they could not emerge as extremely important constraints on distributions under some conceivable circumstances. The question, “Are there political values which are not constraints on social distributions?”, is therefore best answered as follows. There are political values which do not ordinarily function as intended constraints on distributions; but all political values constrain distributions in indirect ways and all could become intended constraints under conceivable circumstances.  §3 What, then, is the relation between the demands of justice and other ordinarily intended constraints on social distributions? Thinking about this relation in a systematic way, in terms of mutually exclusive and jointly exhaustive categories, will require us to distinguish four basic types of views about the list of just-making criteria and two types of views about the combined normative weight of these criteria relative to other constraints on social distributions. I shall try to assign reasonably descriptive labels to each type and mention their advantages and drawbacks, and important representatives of each. I want to call the four views about the list of just-making criteria “the standard view” of justice, “the constricted view”, “the expanded view” and the “mixed view”, depending on whether a view accepts our standard list of commonly invoked just-making criteria as constitutive of justice-based claims or modifies this list in one of three ways: by excluding certain criteria, including additional criteria,  114  or both excluding and including criteria. Each basic view has two subtypes, which I want to call “the indefeasible view” of justice and ‘the defeasible view”, depending on whether a view denies or allows that the demands of justice must be balanced against, and can therefore be defeated by, other political values which constrain social distributions. The following table summarizes the distinctions I wish to draw between different views about justice:  Demands of justice need UQL be balanced against competing values  Demands of justice must be balanced against coinpeting values  Accepts commonly invoked justmaking criteria as constitutive of justice The standard indefeasible view of justice (Kant)  Excludes certain commonly invoked justmaking criteria  Includes certain additional justmaking criteria not commonly invoked  Both excludes certain common criteria tLLL includes new criteria  The constricted indefeasible view of justice (libertarians)  The expanded indefeasible view of justice a) the partly expanded view  The mixed indefeasible view of justice (Rawis)  b) the catch-all  The standard defeasible view of justice  (comrnonsense pluralism; eg.  The constricted defeasible view of justice (Marx?)  view jRescher?) The expanded defeasible view of justice  The mixed defeasible view of justice  Berlin) Table I: A taxonomy of views of justice, according to (i) whether the “standard list” of just-making criteria is accepted as constitutive of the concept of justice or modified; and (ii) whether other political values are accorded sufficient weight to require balancing with the demands of justice  I. The standard view of justice  1.  The standard indefeasible view: One can accept some list of commonly  invoked just-making criteria as constitutive of justice-based claims and deny other values sufficient weight  ever to override the demands of just-making criteria. This  position is well captured by the phrase “Let justice be done even though the earth  may perish”, and it can be clearly ruled out on consequentialist grounds. Although such a view of justice is a major problem in politics, I know of no  contemporary  115 justice theorist who defends it. Kant, of course, seems to have thought that not only the principles of justice, but all moral rules flowing from his Categorical Imperative, are absolutely inviolable. About retributive justice, for example, he says, The law concerning punishment is a categorical imperative, and woe to him who rummages around in the winding paths of a theory of happiness looking for some advantage to be gained by releasing the criminal from punishment or by reducing the amount of it in keeping with the Parisai motto: It is better that one man should die than that the whole people should perish.” If legal justice perishes, then it is no longer worth while for men to remain alive on earth. (The Metaphysical Elements of Justice, 100) Even if a civil society were to dissolve itself by common agreement of all its members (for example, if the people inhabiting an island decided to separate and disperse themselves around the world), the last murderer remaining in prison must first be executed, so that everyone will duly receive what his actions are worth and so that the bloodguilt thereof will not be fixed on the people because they failed to insist on carrying out the punishment; for it they fail to do so, they may be regarded as accomplices in this public violation of legal justice.” (The Metaphysical Elements of Justice, 102) -  Despite Kant’s many striking pronouncements about the uncompromising nature of justice and other moral imperatives, his derivations of the demands of justice from the two general formulations of the Categorical Imperative seem often obscure and controversial, and he does not seem to have come to terms with the crucial problem of how to handle conflicts between allegedly uncompromising moral imperatives. Minor and even major injustices seem inevitable in the life of any society, and it is hard to see any rationale for accepting with equanimity whatever consequences may result from prohibiting trade-offs between justice and other values, such as national security or great artistic and scientific achievements. Consequentialists will tend to accept many minor injustices and focus on preventing major ones; but how to draw a principled distinction here between “major” and “minor” is obviously a knotty problem. 2. The standard defeasible viezv:This is the commonsense view of political pluralists who see no reason why ultimately all virtues of the good society must be capable of principled integration which avoids the need for intuitive, context-  116 dependent balancing of competing virtues. Viewing justice as an important but defeasible constraint on social distributions, and including essentially those general types of considerations in the list of just-making criteria which individuals commonly invoke in pursuit of their personal well-being and back up with their sense of justice would seem to have the advantage of defining the concept in a way that is relatively consistent with ordinary usage and therefore avoids both the fanaticism of the exclusive view and the many pitfalls of the catch-all view (see below). Such a definition would clearly not preclude piecemeal attempts to get people to change their perspective about the precise implications of particular justmaking criteria in the light of a wide variety of consequentialist considerations. But it would make the demands of justice defeasible in the final weighing of distributive constraints imposed by all political values. Admittedly, ordinary usage is ambiguous on the question as to whether it can ever be right to commit an injustice, perhaps because admitting that values of major importance can sometimes be mutually exclusive is extremely painful. But either we admit that the properly balanced demands of commonly invoked just-making criteria must be further balanced against the demands of other important constraints on social distributions; in which case committing injustices must sometimes become justifiable. Or we deny that committing injustices could ever be justifiable; in which case we can never allow trade-offs between the properly balanced demands of commonly invoked just-making criteria and other important constraints on social distributions. We cannot have it both ways, and often people are simply confused on this point. We could, of course, stipulate that whenever the properly balanced demands of commonly invoked just-making criteria must reasonably be overridden by the demands of other ordinarily relevant constraints on social distributions, we will make a semantic adjustment in the ordinary meaning of justice and say that an injustice has not been committed after all. But from a consequentialist point of  117 view, such a semantic adjustment would seem to be a bad idea. First, such a meaning-change is likely to create conceptual confusion because it divorces the concept of justice from what individuals claim in pursuit of their personal well being and back up with their sense of justice. Second, the legitimacy of such a meaning-change in any given case would obviously be contingent on someones judgment of what constitutes the best trade-off between the properly balanced claims of just-making criteria and other political values. Such judgments are likely to be extremely controversial. Allowing a semantic adjustment in the ordinary meaning of justice, depending on the judgment of political decision-makers as to whether a particular trade-off was necessary, would seem to invite attempts to conceal the painfulness of such trade-offs and to dismiss justice-based grievances by glibly denying that any injustice has been committed. Allowing the suggested meaningchange would deprive us of the vocabulary to carry on this debate.  II. The constricted view of justice:  One can exclude from one’s list of just-making criteria some or even all considerations which are commonly regarded as relevant to distinguishing just from unjust distributions. “From each according to ability; to each according to need” has been a hugely influential principle of this kind. Many theories of justice exist which single out need, or desert, or rights, or equality, as the only just-making criterion. Many libertarians constrict just-making criteria to a single basic right, namely the right to use one’s own mind and body to make oneself better off as long as one does not thereby make others worse off. The constricted view of justice is motivated by a desire to make the seemingly chaotic diversity of justice-based claims manageable, but the price for severely constricting the list of commonly invoked just-making criteria is high. It will make one’s view of justice seem lopsided and almost certainly deprive it of any sufficiently close relation to individuals’ claims to social resources which are backed by their sense of justice. It will also have several  118 other drawbacks of the expanded view of justice, to be discussed below. (Ch 3.5 examines whether there could nevertheless be a sufficient rationale to adopt the libertarian view of justice.) One can, of course, hold either a constricted indefeasible view or a constricted defeasible view, depending on whether one either denies or allows other political values sufficient weight to override the demands of just-making criteria on some occasions. The first alternative will appear to be a peculiarly lopsided form of justice fanaticism, while he second would seem to give up most of the gains achieved by simplifying the list of just-making criteria when it comes to balancing the demands of justice with competing constraints on social distributions.  III. The expanded view of justice  1. The expanded indefeasible viezv: This view includes in the list of justmaking criteria some or all constraints on social distributions, many of which are not commonly regarded as relevant to distinguishing just from unjust distributions, and it regards justice as a value which can never override other ordinarily relevant constraints on social distributions. Here we must distinguish two varieties, which I want to call “the partly expanded view” and “the catch-all view”. (a) The partly expanded indefeasible view: It is possible to include in one’s list of just-making criteria some considerations not commonly invoked as relevant to distinguishing just from unjust distributions without, however, including all considerations ordinarily regarded as relevant constraints on social distributions. The indefeasible variant of this view would seem to share the drawbacks of the standard indefeasible view as well as the drawbacks of the catch-all view to a lesser extent. (b) The catch-all view of justice: This view simply expands the meaning of the term “justice” to incorporate all values that are ordinarily regarded as relevant to constraining social distributions. Rescher could be interpreted as making this move  119 when he includes “social utility” and “supply and demand?? among his eight ??canons of distributive justice (cf. Rescher, 73-81). It can be argued that ??social utility” or ??supply and demand?? involve many paradigmatic non-justice considerations, and regarding these values as constitutive of justice-based claims collapses a useful distinction that marks an important difference. Although it is ultimately a matter of semantics whether one uses ?justice?? as an umbrella term referring to an uncoordinated plurality of considerations many of which are not based on the claims individuals make to social resources and which they back up with their sense of justice, such a promiscuous use of this term would seem to me to have hardly any advantage and several drawbacks. It will lack any sufficiently close relation to individuals? claims to social resources which are backed by the sense of justice and will, therefore, necessitate another term for justice in this narrow sense. It will empty appeals to ??justice?? of their normative force. And it will almost certainly give rise to conceptual confusion and equivocation. As Campbell points out, If ?justice? is defined as the overall standard of social rightness, then logically no other value can stand prior to justice since all relevant values are subsumed under its umbrella.... It is possible arbitrarily to define justice as the prime social value and then to go on and fill in its content with whatsoever is thought to be morally most important in social distribution, and perhaps also in the aggregation of benefits and burdens. But this dogmatic approach has the effect of undermining our efforts at conceptual clarification by removing the constraints imposed by the informal logic of the language of justice in actual political debate, thereby rendering dangerously misleading any subsequent appeals to our ?intuitions? about what we think is ?just? or ?unjust?, for such intuitions are rooted in our operative rather than in our stipulative normative conceptions. (8) We can give the term ??justice?? any semantic content we like. But what we clearly cannot do is to save ourselves painful trade-offs between political values by simply conceptualizing all of them as considerations of ??justice?? If someone like Rescher succeeded in broadening the ordinary usage of the term  ??justice?I  in  the way he  suggests, we will still be left with the problem of how to conceptualize the type of  120 claims which individuals press as their due with the sort of passionate conviction characteristically associated with claims of desert, need, equality, rights and goodfaith expectations. 2. The expanded defeasible view: This view expands the list of just-making criteria without, however, going so far as to include all relevant constraints on social distributions, and it does not regard “justic&’ as an indefeasible value. It shares to a lesser extent the drawbacks of the catch-all view. The expanded view of justice, whether in its indefeasible or defeasible form, seems to me to lack any convincing rationale to outweigh these serious disadvantages. The possible exception is an expanded view which explicitly includes productive incentives as a just-making criterion. I shall discuss the consequentialist pros and cons of this version of the expanded view of justice below.  IV. The mixed view of justice This view both excludes from the list of just-making criteria considerations which are commonly regarded as relevant to distinguishing just from unjust distributions, and includes considerations which are not commonly regarded as just-making criteria. 1. The mixed indefeasible view: This mixed view regards the value of justice as indefeasible, that is, the demands of justice need not be balanced against competing constraints on social distributions. This, of course, is the view held by John Rawis (and also the view conveyed by various “ideals of the good society” proposed as theories of justice in the wake of Rawis’ theory). The mixed indefeasible view, as well as the indefeasible versions of the standard, constricted and expanded views of justice, all share the characteristic that they could, without inconsistency, be proclaimed in exactly the same ringing words with which Rawis begins his book: Justice is the first virtue of social institutions, as truth is of systems of thought. A theory however elegant and economical must be rejected or revised it if is untrue; likewise laws and institutions no matter how efficient  121 and well-arranged must be reformed or abolished if they are unjust. Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. For this reason justice denies that the loss of freedom for some is made right by a greater good shared by others. It does not allow that the sacrifices imposed on a few are outweighed by the larger sum of advantages enjoyed by many. Therefore in a just society the liberties of equal citizenship are taken as settled; the rights secured by justice are not subject to political bargaining or to the calculus of social interests. The only thing that permits us to acquiesce in an erroneous theory is the lack of a better one; analogously, an injustice is tolerable only when it is necessary to avoid an even greater injustice. Being first virtues of human activities, truth and justice are uncompromising. (3) Why does this paragraph seem so startling? The reason is that most readers will naturally assume the standard meaning of justice in terms of commonly invoked just-making criteria and jump to the conclusion that the writer proposes to defend what I have called the standard indefeasible view of justice. Obviously, if someone introduced beliefs about justice prior to telling his audience that he has switched to an unorthodox view of the meaning of this term, he might be accused of creating misleading expectations. And Rawls has indeed switched to an unorthodox view which assumes not only a radical departure from any ordinary list of just-making criteria, but also an even more radical departure from what is ordinarily regarded to be the immediate subject of justice-based considerations. For him, the “primary ’ t (immediate or direct) subject of justice is not the distributive share of an individual or group, but certain fundamental aspects of the entire set of distributive outcomes in society. Rawis can say that, for him, the demands of social justice are inviolable  oniy because he identifies these demands with all those considerations which he considers relevant to constraining social distributions in ordinary circumstances. So, of course, do proponents of the catch-all view. But the difference between any two views of justice could hardly be greater than that between Rawis’ mixed indefeasible view and Rescher’s catch-all view.  122 Suppose it were possible to find a set of constraints on social distribution which, under ordinary circumstance 3 s,’ coordinates the demands of all political values in a way that can be justified to individuals as giving each what he can reasonably demand in the name of justice and therefore promises to harness most people’s sense of justice in support of it. It would be natural and clearly defensible to identify this set of constraints as “principles of justice”. This, of course, is Rawis’ use of the term when he thinks of his theory not just as an alternative to the utilitarian account of justice (as outlined, for example, in Mill’s Utilitarianism, Ch. V or Sidgwick’s Methods of Ethics, Bk III), but, at least in the realm of political decisionmaking, as an alternative to utilitarianism as a whole. Although both the catch-all view and the mixed indefeasible view include all ordinarily relevant constraints on social distribution in their respective lists of justmaking criteria, the difference between these two conceptions of justice is now clear. Whereas the catch-all view considers just-making criteria to form an uncoordinated, perhaps incommensurable plurality of criteria whose demands must be balanced according to the intuitions of political decision-makers in specific contexts, the mixed indefeasible view welds some commonly invoked just-making criteria together with other constraints into a sort of social algorithm or at least draws the outlines of a social blueprint. By a “social blueprint” I mean distributive constraints on those social arrangements reasonably regarded as being of fundamental importance, constraints whose acceptance is required for any rational person, and which avoid any need for unguided intuition at this fundamental level. If we use “justice” in this sense, then, on the face of it, we might seem to need yet another term to describe the criteria which individuals invoke when they claim something as their due in pursuit of their personal well-being and back it up with their sense of justice. But of course, Rawls’ radical idea was that principles sufficient  13 Of course, national emergencies, such as the threat of military invasion, will justify a suspension of these constraints.  123 for constraining the distributive outcome of the entire system of basic social institutions could be found and justified as plausibly giving each individual his or her due qua individual (given that there is tremendous dispute about what this amounts to in any case). If Rawls’ project had succeeded, all would be well indeed. We would now have a social blueprint which would finally have laid major disputes about justice to rest. But that has not happened. Instead, Rawls’ proposal for a social blueprint at the level of society’s basic structure has triggered something of an avalanche of alternative visions of the good society, now standardly offered as theories of “justice”. The net result is perhaps more confusion than ever about the demands, and indeed the core meaning, of justice. It will be convenient to have additional terminology on hand to clearly distinguish the type of mixed defeasible view of justice which Rawls proposed from other views of justice that may be superficially similar. Theories of justice differ in a fundamental way, according to whether they attempt to be directly or indirectly responsive to individuals’ justice-based claims. Directly responsive theories, which take justice to be concerned with individual distributive shares, defend a standard of ideally just individual holdings of socially distributable goods, and they interpret justice as requiring redistributions of such goods from those who, according to this standard, have too much to those who have too little. Indirectly responsive theories like Rawls’, which take justice to be concerned with society’s basic structure, defend a standard of ideally just distributive outcome patterns or processes for certain important social goods, and they interpret justice as requiring a system of social institutions which will enforce these distributive outcomes or processes. 2. The mixed defeasible view: This view both includes and excludes criteria from the standard list, but requires that the demands of justice be ultimately balanced against other relevant constraints on social distributions. Since this view would combine the serious drawbacks of both the constricted and expanded views, and it would seem in the end to require intuitive balancing against other constraints  124 on social distributions, it would need a very strong rationale. I cannot think of any examples of this theoretically possible view.  §4 Contemporary justice theorizing is a conceptual swamp. Among many conceptual confusions, perhaps the most fundamental confusion has to do with the meaning of the term “justice” itself. Which of two very different meanings of the term “justice”, if any, should justice theorists adopt? Should we allow the legitimacy of equating “principles of justice” with the goal of finding a social blueprint for society’s basic structure organized as a whole? Or should we equate “principles of justice” with the vastly more modest aim of constructing principles which strike a consequentialist balance among people’s justice-based claims in fairly contextdependent ways? This conceptual decision will, of course, depend on the most reasonable answer to the question of whether a social blueprint for society’s basic structure is really possible. Before answering, let us get very clear about what such a blueprint would involve. (1) It would have to single out certain features from the total set of a society’s distributive outcomes as uniquely relevant to assessing the moral acceptability of these outcomes. (2) These features would have to be sufficiently straightforward that it becomes actually verifiable whether the total set of distributive outcomes prevailing in a given society at any given time has or doesn’t have these features. (3) The blueprint would have to suggest, at least in rough outlines, some feasible procedure for deciding which existing social institutions should be reformed in what ways so as to give the total set of distributive outcomes those features which would make it morally acceptable. (4) One particular proposal for how to single out these features and how to reform society in ways so that the total set of distributive outcomes would actually have these features must be justifiable to all rational people as the best practicable  125 response to the claims individuals make in pursuit of their well-being qua individuals, in order to have credible potential to enlist people’s sense of justice in support of this proposal. If there is realistic hope of justifying principles which meet these conditions  -  which both provide determinate constraints for the overall distribution of the benefits and burdens of social co-operation and can somehow be justified as best giving individuals what they can reasonably demand in the name of justice  -  then  the rationale for adopting the mixed indefeasible view of justice seems compelling. But if there are fairly compelling reasons for thinking that principles at such a high level of generality are destined to be normatively empty abstractions, or to involve unmanageable complexities, or to fit poorly with people’s justice-based demands, or to be hopelessly controversial for other reasons, then the rationale for sticking with something like the standard defeasible view of justice seems equally clear. (I shall examine this issue in the next chapter.)