Political Legitimacy and Luck

Tamsin Shaw Princeton University Draft: please do not cite Political Legitimacy and Luck Introduction Since political institutions have coercive powers, moral evaluation of them must begin with the question: under what conditions are they justified in coercing us? States and governments that meet such conditions can be said to be legitimate. The task of normative political theory may be seen as that of telling us what the conditions are which must be met. In this paper I shall examine one (at least prima facie) plausible and widely accepted condition of state legitimacy and will claim that it cannot be met through any intentional human effort. It requires reliance on luck. I shall also claim that acknowledgement of this reliance may impair our ability to sustain legitimacy, judged by this criterion, where it exists. Many people have found plausible the idea that the state only has a moral entitlement to exercise coercive power if its subjects accept that it has such an entitlement. I will refer to this as the popular acceptance condition. A state is legitimate, on this view, only if it is morally accepted by those coerced by it. This condition will need to be consistent with the realistic assumption that some people will not have thought about state legitimacy, but we can specify that it is hypothetical just in the sense that if they were to reflect on it, keeping their moral views fixed, they would accept the state as legitimate. This may be contrasted with the idea that legitimacy requires only moral acceptability in the sense of hypothetical acceptance of the state by idealized subjects. It might look as though popular acceptance is not just a discrete moral condition, but a necessary precondition of any form of legitimate rule, since acceptance of some sort is a necessary functional requirement of states. Complex modern states cannot rule by force alone. They require the cooperation of their subjects. But this functional requirement only demands as much popular acceptance as is necessary for stability. It is compatible with the coercive 1

suppression of minority dissenters. And it demands only compliance, rather than acceptance on normative grounds, so it may be secured through fear or through ideological manipulation. The popular acceptance condition, on the other hand, is a moral requirement. It derives from the view that anyone who is subject to the coercive power of the state is owed some justification that they can accept for that coercion. It requires that the state be acceptable to everyone. And as a moral requirement, it can be seen to incorporate two assumptions. It will not do for people s acceptance to be based on merely prudential considerations, such as the calculation that they will be better off if they obey rather than disobey the state to which they happen to be subject. The state must be acceptable to them on the basis of their moral beliefs. And it will not do for these moral beliefs to have been manufactured by the very power that they purport to legitimate. Acceptance must be uncoerced. 1 As we shall see, popular acceptance need not be taken to be a necessary and sufficient condition for legitimacy. It is compatible with a wide range of further conditions that can be independently specified. An objectivist about values might hold that acceptance is only valid if it involves reference to objectively correct standards for legitimacy. The motivation for endorsing the popular acceptance condition, in such a case, would be the intuition that although legitimacy requires conformity to objectively correct standards, the state of affairs prescribed by these standards cannot be coercively imposed on a population. It must be willingly accepted by them. Something like this intuition has of course for a long time found expression in the social contract tradition of political thought. Social contract theorists have attempted to discover an actual or potential basis of agreement that might sustain shared forms of political authority. Hobbes claimed to have identified a source of actual agreement in the universal desire for selfpreservation and hence our common desire for social peace. 2 However, this Hobbesean minimal agreement is sufficient only to justify the state per se and does not constrain the form that state power should take or specify its limits in relation to its subjects. Locke, on the other hand, thought that we could justify the coercive powers of particular states: they are legitimate just so long as the powers in question have been conferred by the actual consent of those subject to 1 Bernard Williams formulates this condition as the critical theory principle, which states that the acceptance of a justification does not count if the acceptance itself is produced by the coercive power which is supposedly being justified. Cf. Williams, Realism and Moralism in Political Theory, in In the Beginning was the Deed: Realism and Moralism in Political Argument (Princeton and Oxford: Princeton University Press, 2005), 1-18, at 6 2 Cf. Thomas Hobbes, Leviathan, ed. Richard Tuck (Cambridge: Cambridge University Press, 1996) 2

them. 3 This foundational liberal theory of political legitimacy is strongly voluntaristic. So much so that it is generally considered unfeasible today. Most political thinkers now accept that full voluntariness is impossible. The modern state is in important respects simply a non-voluntary form of organization. The enormously complex and extensive nexus of power that states now comprise is unavoidable for any individuals born in the modern world. And it is not clear that it could be intentionally eliminated from our collective lives by any conceivable human efforts. Not only is statehood per se unavoidable, but for many of us subjection to the very state that we are born into will be unavoidable, since leaving it will be unfeasible. It would be implausible to attribute even tacit consent to people on the basis of their behavior in such constrained political circumstances. 4 Citizens of actual societies cannot be said to have freely consented to conferring on states the powers that those states have acquired over them. Some modern heirs of the social contract tradition regret this fact and draw the implication that political legitimacy is impossible in the modern world. 5 Other thinkers claim that we can make do with something less than full voluntariness or consent, something more like popular acceptance, which plays the same legitimizing role without making unrealistic demands. Even if political life cannot take the form of an entirely voluntary scheme of cooperation, it is still intuitively plausible, as Bernard Williams points out, to draw a distinction between a society that is an example of the human capacity for intelligible order and one that exemplifies the human tendency to unmediated coercion. 6 An intelligible order of authority, for Williams, is one that makes sense to all the participants in it. There is a legitimation offered which goes beyond the assertion of power and this legitimation will make sense to everyone on the basis of their own normative convictions, assuming that those convictions are themselves uncoerced. 7 We 3 Cf. John Locke, Second Treatise, Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1960). 4 Cf. Simmons, Moral Principles and Political Obligations, 83-100 5 Cf. e.g. A. John Simmons, Justification and Legitimacy, Ethics, vol.109, no.4 (Jul., 1999), 739-771 6 Cf. Williams, Realism and Moralism, 10. 7 Ibid., 11 3

can make do, in other words, with a less extravagant ideal to define the morally relevant contrast with mere coercion. We will call this ideal the ideal of an internally intelligible order. 8 This ideal expresses a traditionally liberal value, that of the priority of liberty over (forced) happiness. 9 Such an order may be contrasted with what we will call a coercively just regime, that is, one which either uses or is prepared to use force to make its subjects conform to norms which they do not themselves necessarily endorse. The realization of the ideal of an internally intelligible order must involve popular acceptance. The ideal seems to me to be implicit in much contemporary liberal theory. Thomas Nagel sets out what he calls an ideal of quasi-voluntariness according to which a political system s coercive power is legitimate so long as there are independent reasons for everyone to cooperate voluntarily in the maintenance of such a system and respect its results. 10 Nagel s insistence on everyone s having independent reasons to cooperate is ambiguous. It is consistent with holding that merely hypothetical consent is a sufficient condition for legitimacy. This would be a nonvoluntaristic view, one that is compatible with a coercively just regime. But his stress on voluntariness is disambiguating. Nagel makes clear that the search for legitimacy is, for him, an attempt to realize some of the values of voluntary participation. 11 His aim is to try to show people living under non-voluntary political arrangements that it would be unreasonable of them to reject the option of living under such a system. 12 A political theory that has this aim has a persuasive, as well as an ideal function. 13 It therefore tries to be sensitive to the perspectives of the individuals whom the arguments are meant to persuade. 14 This project of persuasion clearly indicates an aspiration to generate a political order that is internally intelligible to its participants. 8 Jeremy Waldron identifies the central ideal of the liberal tradition as that of a social order that can be justified to the people who have to live under it. He sees this as being related to the Enlightenment impulse that is based on the demand of the individual mind for the intelligibility of the social world. REF 9 Simmons, Moral Principles and Political Obligations, 69 10 Nagel, Equality and Partiality, 37 11 ibid., 36. For Nagel, the problem of legitimacy is inseparable from the demand for voluntarism of some for, for the problem of legitimacy arises not simply because the state has the capacity to coerce us, but because political society requires a special involvement of agency or the will. Although membership may not be optional, the engagement of the will that is essential to life inside a society still generates a special presumption against [ ][arbitrary distinctions in the way that it engages us. He writes: One might even say that we are all participants in the general will. Cf. Nagel, The Problem of Global Justice, Philosophy and Public Affairs, 33, no.2, 113-147, at 128. 12 Equality and Partiality.,36 13 ibid., 21 14 ibid., 23 4

John Rawls, in his later work, seeks in a similar way to be sensitive to the perspectives of those whom his theory is meant to persuade. He outlines a form of political liberalism which adopts, he tells us, the liberal ideal of political legitimacy, namely, that social cooperation, at least as it concerns the constitutional essentials, is to be conducted so far as possible on terms both intelligible and acceptable to all citizens as reasonable and rational. 15 Justice as fairness, he tells us, must generate support by addressing each citizen s reason: Only in this manner is justice as fairness an account of political legitimacy. Only so does it escape being a mere account of how those who hold political power can satisfy themselves, in the light of their own convictions, whether political or fully comprehensive, that they are acting properly satisfy themselves, that is, and not citizens generally. 16 The contrast between an internally intelligible order and a coercively just regime is clearly playing a justificatory role here. As Brain Barry points out, in The Theory of Justice, Rawls holds that those who hold conceptions of the good that are incompatible with justice can be legitimately coerced. But in Political Liberalism, uncoerced consensus on the foundational principles of the regime is required. Dissenters would undermine the legitimacy of Rawlsian institutions. 17 In other words, Rawls mature position is shaped by his adoption of the popular acceptance condition. It has nevertheless been argued that the apparent concern with voluntarism in both Nagel and Rawls is insincere, that their constraint that acceptance be reasonable more closely resembles hypothetical consent than a demand for actual consent. It would not then involve a real commitment to actual acceptance as a moral requirement. 18 However, it is possible to make sense of both their commitment to normative standards for acceptability and their ideal of actual acceptance. We might see their aspiration to set out standards for acceptability as being motivated 15 John Rawls, The Domain of the Political and Overlapping Consensus, in Collected Papers, ed. Samuel Freeman (Cambridge, Mass., and London, England: Harvard University Press, 2001), 490. 16 ibid., 488 17 cf. Brian Barry, Review: John Rawls and the Search for Stability, Ethics, vol.105, no.4 (Jul., 1995), 874-915. 18 Cf. Simmons, Justification and Legitimacy, 761: contemporary Kantian and hypothetical contractarian political philosophies have illicitly appropriated the justificatory force of voluntarism while being (like Kant) in no real way motivated by it. Kantians think of institutional evaluation in terms of what ought to be chosen by the people that is, in terms of the moral quality of institutions, what makes those institutions good (virtuous, just, etc.) not in terms of people s actual choices. Cf. also Cynthia A. Stark, Hypothetical Consent and Justification, The Journal of Philosophy, vol.97, no.6 (Jun., 2000), 313-334, at 334: the fact that the source of the authority of political principles is, in hypothetical-consent theory, located in citizens rational willing does not make citizens compliance to those principles voluntary, if those citizens are not in fact willing to obey and are moreover, forced to obey by an external authority. So it is somewhat misleading for Nagel and Rawls to claim that hypothetical-consent theories reflect, to some extent, the voluntarist ideal. 5

by the aim of facilitating actual acceptance. 19 They can be seen as being guided, at least implicitly, by the ideal of an internally intelligible order. Popular acceptance, in other words, may be seen to play the role of a necessary but not sufficient condition in their theories of legitimacy. Contemporary liberal theory, then, seems to be animated by the ideal of realizing an intelligible order in Williams sense. The aim of producing such an order generates a distinctive burden. Since it demands that a regime be acceptable to everyone, it requires basic normative agreement. It is this need for agreement, I shall argue, that generates our reliance on luck. And I shall claim that this reliance will be inevitable whether or not moral realism is true, that is, whether or not rational convergence on normative truths is in principle possible. If this is so, we need to ask whether it should be disturbing to us. Normative political theory has often been seen to have a practical task, answering for us the question of how we should best organize our societies. If the best social and political order turns out to depend on luck, we will have to revise our ordinary sense of what this reflective enterprise can hope to accomplish. In particular, we will have to admit that it has nothing to say to the unlucky, that is, to those who currently live under illegitimate political arrangements. But I shall also argue that even those who are lucky might find this view disturbing; for what is implied is that we may be deluded in imagining that transparency and intelligibility can give us greater rational control of our social world. If in fact we are dependent on luck for basic agreement, there is no way in which we can intentionally order our evaluative priorities around the end of attaining political legitimacy, since no collective rational effort is likely to guarantee that outcome. For individuals living in societies where there is already basic agreement, the acknowledgement that the order of priorities they have adopted still leaves them at the mercy of luck and arbitrariness as far as legitimacy is concerned might be a disincentive to sustaining the compromises on which the current agreement is inevitably built. Theoretical reflection, in this case, would be corrosive to the very end endorsed by the theory. 19 Jeremy Waldron points out that hypothetical consent can potentially play an important role in the establishment of actual consent: If the lack of actual consent is to be remedied, the first step must be reform of the society so that consent becomes an imaginable option. Hypothetical contractarianism provides the basis for that step to be taken. Cf. Theoretical Foundations, 51 6

I. The nature of the required agreement What kind of agreement is minimally required by the popular acceptance condition? It need not be very deep. The condition does not demand, for example, that everyone subject to a state s authority share the same set of moral values, nor even that they hold in common a set of normative beliefs about political legitimacy. It requires only that everyone, in the light of whatever moral convictions they do hold, finds a particular set of political arrangements acceptable. It does not require that people endorse the popular acceptance condition itself. Ordinarily, we will evaluate political institutions with reference to a wide range of moral values, but still not all of our values will always be politically relevant. The category of politically relevant values may be fluid. Although some moral values will be stable members of this subset, others might have political relevance only where they happen to become implicated in situations in which the state must act, or when they are introduced into public debate as justifications for some state action. Moral values governing sexual relations, for example, might be fluid members of the relevant subset. Some politically relevant values hold greater weight for people than others. Some are moral deal-breakers. If the state does not conform to them it will be held to be illegitimate (examples of such moral deal-breakers might include the commitment to basic human rights, or to the upholding of sharia law). These deal-breakers might or might not be part of consciously formulated theories of legitimacy. And they might or might not be related in a systematic way to our other values. Where conflict amongst moral deal-breakers exists, there will be people who feel themselves subject to unacceptable forms of coercive power. So what the popular acceptance condition requires as the minimum necessary form of agreement is simply an absence of conflicting moral deal-breakers. There can be no merely procedural solution to the problem of eliminating conflict amongst deal-breakers. The employment of any procedure for resolving disagreement would already have to already presuppose the relevant kind of moral agreement. Majoritarianism, for example, would already have to presuppose agreement that the supreme principle of legitimacy is deferral to the majority and this principle must trump, for everyone, all other potential moral dealbreakers. This would be a peculiar moral position for anyone to take, inasmuch as it would involve regarding all of our substantive moral commitments, except for the bare majoritarian one, as defeasible by mere unpopularity. 7

The view that more substantive basic agreement is necessary is still compatible with support for democratic institutions. But the latter can only be legitimacy-preserving if we presuppose prior fulfillment of the popular acceptance condition. Democracy may be held to be a necessary condition for governmental legitimacy, or in other words, a means of selecting officeholders in a legitimate state. There may be broad scope for policy differences amongst these office-holders. But there must nevertheless be prior acceptance by all parties that the kinds of disagreements they represent are of a sort that can be resolved procedurally, by deferring to the will of the majority. Such acceptance will only make sense in cases where no moral deal-breakers are violated in deferring. If certain rights and freedoms, for example, are considered dealbreakers, those elements of the polity will have to be immune to electoral outcomes. The popular acceptance condition seems to require more than majority agreement in establishing the basic foundation for rule. The idea is that no one should be subject to a form of rule that they could not accept on the basis of their avowed moral beliefs. But this condition, like its forbears in the consent tradition, raises the problem of unanimity. If no exceptions are permissible, then it might seem that one anarchist could delegitimate a state. 20 No state is then ever likely to be legitimate. One solution is to regard this as a threshold problem and to accept that the threshold is vague. States will be just as legitimate as they are popularly accepted. Beyond a certain threshold they can be held to be by and large legitimate. Below that threshold they will be by and large illegitimate. The extent to which a state forms an internally intelligible order will be a question of degree. It might be thought that an alternative way of solving the unanimity problem is boundarysetting. Some normative constraints might be applied to the set of people who must agree, for example, through the specification that they should all be reasonable. The definition of reasonable will then restrict the kinds of values on which agreement has to be reached, keeping out potential deal-breakers and thereby increasing the likelihood of unanimity. And it will also serve to define a restricted political community to whom the popular acceptance condition applies, one that is not coextensive with all members of any actual community. 21 However, if such a method were to exclude, in a real case, most members, or even just a significant minority, of a given population, it would constitute an abandonment of the liberal ideal of quasi-voluntariness as opposed to a coercively just regime. If that contrast is serving any, 20 Cf. Simmons, Moral Principles and Political Obligations, 73 21 This constructivist strategy will be discussed in section IV. 8

even implicit, justifying role in the argument of a given theorist, it looks as though it will still be necessary to demand majority agreement in just the same way that the bare popular acceptance condition does. 22 The boundary-setting strategy just shifts the popular acceptance condition into the background, but as an implicit condition it raises the same threshold problem. The question, then, must be how agreement of the sort required by the popular acceptance condition can be achieved. And we must bear in mind that it cannot be achieved coercively, that is through ideological manipulation by the state that it is supposed to legitimate. What will be required in some independent mechanism for generating consensus. There is widespread disagreement about whether reason can itself generate consensus on moral issues. One s answer to this question will depend on one s meta-ethical position. But I will claim below that no matter what meta-ethical position we adopt, it seems unrealistic to suppose that any rational effort will yield the required form of agreement. The historical process might sometimes generate such agreement by accident, but it is hard to see how it could, without coercion, be intentionally achieved. II. Internal Intelligibility and Internalism about Reasons Williams s ideal of legitimacy does not look, prima facie, like a challenge to the practical ambitions of political theory. In fact, it looks as though it is precisely motivated by feasibility. The ideal of an internally intelligible order is invoked in order to restrain the ambitions, displayed by moralistic political theorists, to advance justifications for political power that people actually subject to that power could not in fact be expected to accept. 23 The version of the ideal that Williams offers is intended to be minimally morally exacting. It requires that states offer to each one of their subjects a justifying explanation for their 22 Any ideal of a just social system must presuppose that its realization requires conformity by an entire social order, and not simply some segment of a larger, unjust social order. Cf. e.g. John Rawls, who stresses that majority support is essential to the feasibility of a democratic society: an enduring and secure democratic regime, one not divided into contending doctrinal confessions and hostile social classes, must be willingly and freely supported by at least a substantial majority of its politically active citizens. His background assumption, then, must be that of widespread basic agreement. Ibid., 475. Cf. also The Idea of Public Reason Revisited, in John Rawls, The Law of Peoples (Cambridge Mass., & London, England: Harvard University Press, 1999), 139, where Rawls tells us that deliberative democracy requires the knowledge and desire on the part of citizens generally to follow public reason and realize its ideal in their political conduct. 23 Cf. Realism and Moralism, 10-11 9

power that is acceptable to them. In other words, the state must conform to local norms, or what makes sense to people in a particular cultural context. 24 Legitimacy can be intentionally achieved, then, by making political institutions conform to the state of affairs prescribed by these local norms. Because popular acceptance is here playing the role of a necessary and sufficient condition, the attainment of legitimacy looks as though it is simply a matter of political engineering. This is not to imply that it will always be simple to achieve what popular acceptance requires, but any attempt can be intentionally directed through instrumental reasoning towards the specified ends. Since Williams makes mere acceptance, rather than acceptance on the basis of recognition of the correct norms, a sufficient condition for legitimacy, his ideal looks particularly inclusive. It rules in states (theocracies, for example) that many liberal theories would rule out. 25 Many different kinds of regimes could meet his criterion. And this adds to the impression that it maximizes feasibility. What makes moralistic liberal theories look particularly unfeasible to Williams is their lack of any sound account of how convergence on liberal values is possible. He tells us that political moralism has no answer in its own terms to the question of why what it takes to be the true moral solution to the questions of politics, liberalism, should for the first time (roughly) become evident in European culture from the late seventeenth century onward, and why these truths have been concealed from other people. Moralistic liberalism cannot plausibly explain, adequately to its moral pretensions, why, when, and by whom it has been accepted and rejected. 26 His implication is that the best explanatory account of how liberal values have come to be accepted does not involve rational convergence on the truth. But absent the constraints of moralistic liberalism, he implies, no such account of convergence is required. We need only be concerned with the standards that make sense to the people in their particular historical and cultural context. Their regime has to be internally intelligible to them, in the light of their own normative beliefs. We do not have to insist that everyone, everywhere, should have converged on the very standards that we have converged on. 24 ibid., 11 25 Cf. Williams, Human Rights and Relativism, In the Beginning was the Deed, 71 26 Williams, Realism and Moralism, 9 10

This anti-universalism points to an important motivation for Williams view. His internalist account of practical reasons is driving this critique of political moralism. On this view, there are no universally binding moral reasons. An agent can have a real reason to act only if there exists a sound deliberative route between that reason and the contents of the agents existing subjective motivational set. 27 The motivational elements that comprise this include desires, along with dispositions of evaluation, patterns of emotional reaction, personal loyalties, and various projects, as they may be abstractly called, embodying commitments of the agent. 28 But on Williams view, as Christine Korsgaard points out, there are no universal, or rationally necessary motivations, such as pure practical reasons, that would apply to any rational being. 29 The view therefore implies that moral reasoning must take people as they contingently are, constructing a sound deliberative route from their particular, contingent motivational set. No moral or political theory can hope to persuade everybody, everywhere. Political theories, Williams claims, should not aim to persuade any possible rational being, but rather engage a particular ethical constituency. 30 This view is presented as being less demanding, in terms of the required convergence, than that of the political moralist. For where we disagree, he insists, we do not need the idea of an ultimately objective answer the answer, for instance, that would imply, if it were expanded enough, an account in terms of a universal moral psychology of where exactly at least one of the disputants had been in error. We need only something more restricted, the idea of the acceptable answer to this disagreement, an answer that might be reached in actual historical circumstances. 31 However, it is precisely the problem of disagreement that makes the ideal of internal intelligibility seem, on this view, unachievable by any intentionally directed process. 27 Williams, Internal and External Reasons, Moral Luck (Cambridge: Cambridge University Press, 1981), 102 28 ibid., p.105 29 cf. Christine M. Korsgaard, Skepticism about Practical Reason, The Journal of Philosophy, vol.83, no.1 (Jan., 1986), 5-25. On the view that internalism does not defeat universalism, cf. also Thomas Scanlon, What We Owe to Each Other (Cambridge, Mass., and London, England: The Belknap Press of Harvard University Press, 2000), appendix, 363-373 30 Williams, In the Beginning Was the Deed, 149. Cf. also In the Beginning Was the Deed, 25: Foundationalism can never achieve what it wants. Any such theory will seem to make sense, and will to some degree reorganize political thought and action, only by virtue of the historical situation in which it is presented, and its relation to that historical situation cannot be fully theorized or captured in reflection. Those theories and reflections will themselves always be subject to the condition that, to someone who is intelligently and informedly in that situation (and those are not empty conditions), it does or does not seem a sensible way to go on. Also, 28: no political theory, liberal or other, can determine by itself its own application. The conditions in which the theory or any given interpretation of it makes sense to intelligent people are determined by an opaque aggregation of many actions and forces. 31 Williams, Saint Just s Illusion, Philosophy as a Humanistic Discipline (Cambridge: Cambridge University Press, 1995), 147 11

On the internalist account, if I want to persuade others I must find a sound deliberative route from their subjective motivational set to my own claims about what ought to be done. If a constitutional monarch is a deal-breaker for people in my political community, but a socialist republic is a deal-breaker for me, I will have to hope that there is a sound route from their underlying desires, beliefs, and projects to my desired form of political constitution. And it will have to be a route that they all, or at least most of them, can comprehend, if sufficient convergence is to be achieved to generate an internally intelligible order. But since there are no rationally necessary motivations, there is no guarantee that such a route can be found. It will be a matter of luck. 32 It might be objected that if reason-giving fails, there are other non-rational forms of persuasion at our disposal. For the rationalist these methods will count as coercive. Those who value rational autonomy will object on moral grounds. But the coercion prohibition that Williams proposes as a necessary condition of legitimacy does not rule them out on these grounds. It stipulates only that the state should not itself have manufactured the normative beliefs on the basis of which it is being evaluated by its subjects. 33 There is no further stipulation about how basic consensus amongst its subjects must have been reached. Williams cannot, given his antiobjectivist internalism, demand rational convergence. And his acceptance of theocracies as potentially legitimate also implies that non-rational methods can be sanctioned. Religious institutions have powerful means of non-rational persuasion at their disposal, backed up by hundreds of years worth of accumulated experience in the psychological art of compelling agreement. Secularists have fewer resources at their disposal, but some might hope that they have sufficient rhetorical powers to compete for converts to their political values. Are there not, then, consensus-generating mechanisms that do not rely on either reason or state 32 John Dunn points out that the political implications of this view for those who do not have a lucky consensus, are bleak: [ ] if Nature cannot today be reasonably supposed to have a Law to govern it, the justification of human actions in conditions of intense conflict (as in other conditions) cannot rest ultimately upon interpretations of the requirements of authority. What else might it rest upon instead? One answer a highly skeptical one [ ] would be that it must rest upon brute culture or psychological fact: on what just happens to appear justified to the members of a particular group or to singular individuals (on what Williams calls their subjective motivational set ). I doubt if we can in any sense know this answer to be wrong. But it is worth pointing out that accepting it involves construing all human conflict simply and without residue as a collision of power, and categories of justification as mere plastic components within this field of power, without inherent power of their own modifying its grim contours. Cf. Dunn, The History of Political Theory (Cambridge: Cambridge University Press, 1996), 139-40. 33 Realism and Moralism, 10 12

coercion? If so, could they not be intentionally employed to produce convergence around our values? The first thing to note is that religions which have generated sufficient consensus to support a structure of political authority have not done so without the aid of the states that they purport to legitimate. And on the basis of historical experience it seems reasonable to conclude that a great deal of coercion is required to inhibit the emergence of dissenting sects. It seems equally unpromising, then, for secularists to pin their hopes on non-rational, or merely rhetorical, methods for generating convergence around a stable set of political values. This is an empirical claim, so of course it might turn out in the long run to be refuted by the facts. But we have some reason to expect consensus generated by non-rational means to be unstable. Non-rational forms of persuasion must appeal to the contingent dispositions of those being persuaded. And dispositions, unlike reasons, are mutable. As Rousseau saw particularly clearly, human imagination is limitless and all of our non-rational dispositions, our emotions, desires, loyalties, and hopes, are subject to its constant reinvention. 34 So agreement generated in this way will only be as stable as the dispositional basis to which the methods of persuasion appeal. It will be subject over time to rationally arbitrary fluctuations. It will be peculiarly dependent, in other words, on luck. When Williams refers to the ethical constituencies to which justifications for political power must be made, he must be presupposing a lucky, stable consensus. But there is nothing in his account of our subjective motivational sets to encourage the hope that we will be continually lucky. Neither can he offer us any means of mitigating our reliance on luck in promoting the kind of minimal political consensus that legitimacy requires. So Williams insistence that political theory should appeal to particular ethical constituencies presupposes rather than offers a solution to what is, on his account, the fundamental problem of legitimacy. What is required is that the popular acceptance condition be met. But the kind of agreement required by this condition may or may not, for the anti-objectivist, be attainable in any given time and place. We can hope that historical communities will generate coherent and stable sets of local norms. We can hope that other people in our own communities 34 supply ref. 13

will come to agree that our norms are the most acceptable. But we cannot, on this view, devise a means of realizing this hope through any intentional effort. III. Objectivism and Rational Convergence We might expect the objectivist, however, to have a route out of this problem. If there are in fact universally binding moral norms, then the combined rational efforts of human beings should lead to convergence. Unlike the kind of convergence that is achieved through non-rational means, it should be stable and predictable. The strongest regulative ideal, what we will call the Enlightenment ideal, would be that of an order that is fully internally intelligible, fully just, and free from any arbitrary exercise of power. It would involve governance by rational norms and not the arbitrary will of human beings. Probably no one has ever imagined that such a political order is fully realizable by fallible human beings. But the demand can be weakened in various ways that might make it more plausible. The moral objectivist might hold both that the state should conform to the correct norms and that it should be popularly accepted without demanding that popular acceptance involve recognition of the correct norms. The objectivist might be satisfied if political institutions and actions were to conform to the correct norms, in the absence of popular convergence on those norms, so long as this state of affairs were acceptable to people on the basis of their own normative beliefs. The problem with such a compromise is that it still leaves us hostages to fortune, insofar as it relies on rationally arbitrary convictions lining up in the appropriate way with what is objectively correct. Where this situation does obtain, we might or might not have a stable compromise. Where it does not obtain, we have no means of bringing it about. Actual recognition of the correct norms, on the other hand, would create transparency, intelligibility and stability. But this stronger, recognition model seems to be very demanding. However, we need not assume that it requires of us complete realization of the Enlightenment ideal. If what we want is both conformity to the correct norms and popular acceptance, we might achieve this whilst accepting that we will fall short of that ideal. We do not have to demand absolute removal of arbitrariness just so long as states do not violate norms that are deal-breakers for legitimacy. And we do not even have to demand explicit recognition of the correct norms, and of the state s conformity to them. We might make do with implicit acceptance, that is, the 14

absence of explicit adherence to moral deal-breakers that would conflict with them. 35 This more realistic model might plausibly be held to be sufficient for an internally intelligible order. However, even this less exacting model requires basic normative agreement to be established and maintained over time. One advantage of objectivism, we might imagine, is that it can explain how such stable agreement might be possible. Since on this view it is in principle possible as reasoned agreement, reliance on human contingency will be mitigated by reasoning. It can never be entirely eliminated, since human opinions, like our dispositions, are variable, but it may be diminished by whatever degree of rationality can be attained. Were it to be possible, convergence on the truth would, unlike non-rational convergence, lessen our reliance on luck. However, the objectivist does not necessarily have reason to be optimistic about the possibility of convergence. One basis for pessimism would be moral pluralism. On this view, expounded in its most influential form by Isaiah Berlin, there may be ineliminable conflicts between our values. 36 The demands of liberty and those of equality, to use his most famous example, may not coincide. This sounds like an anti-objectivist view, since it follows that there are moral questions to which no objectively correct answer can be given. Berlin himself insisted that he was not an anti-objectivist: pluralism is not relativism - the multiple values are objective, part of the essence of humanity rather than arbitrary creations of men's subjective fancies. But it does nevertheless open up a great deal of scope for rational arbitrariness in any moral system. So it may the case, if moral pluralism is true, that even ideal reasoners could not necessarily eliminate all conflicting moral deal-breakers. An internally intelligible order would still require lucky consensus. Unsurprisingly, some objectivists are reluctant to accept that moral pluralism is true. Ronald Dworkin points out just how difficult it is to defend it, asking: When are we entitled, not simply to the negative idea that we do not know what it is right for us to do, but to the positive claim that we know that nothing we do is right because, whatever we do, we do something wrong? The latter is an extremely ambitious claim: it purports to see the bottom of a dilemma 35 Both Ronald Dworkin and John Rawls take as a starting point for their political theories norms which, they claim, are implicit in the political culture of liberal democracies. Part of the task of political philosophy, on this view, is to set out explicitly our implicit commitments. Cf. Dworkin, Is Democracy Possible Here?: Principles for a New Political Debate (Princeton and Oxford: Princeton University Press, 2006); and John Rawls, Political Liberalism (New York: Columbia University Press, 1993). 36 Isaiah Berlin, Two Concepts of Liberty, Liberty, ed. Henry Hardy (Oxford: Oxford University Press, 1969, 2002 15

and see that there is no escape. 37 It may be the case that where we perceive apparently intractable conflict what is required is further rational reflection, further refinement of our understanding of the needs and values that appear to conflict. 38 Dilemmas that seem inescapable may turn out to be resolvable in non-obvious ways. This exhortation to further reflection, however, itself raises a problem for those who endorse the popular acceptance condition. For it indicates that moral reasoning is a complex affair. Even if we believe that there always are objectively correct answers, it is going to be very hard for us to get at them. Actual convergence, it seems, is still unlikely to come about as the product of spontaneous reasoning on the part of beings with widely disparate rational capacities, whose reflective capabilities will be constrained in different ways by their circumstances. Liberal theorists have, in the past, relied on religious arguments to justify optimism about popular rational convergence; it is not clear that any non-religious alternative is available. Various religious views purport to explain how everyone can arrive at normative knowledge by their own lights. They do not need very sophisticated intellectual capacities in order to know how they ought to act, since they will be moved to do what is right by some inner revelation, or they will be endowed with reason sufficient to comprehend God s purposes. The idea that we have basic intellectual equality of this sort has, as John Dunn has pointed out, been central to the liberal tradition since Locke. 39 But it is not clear that secularists have any grounds for such faith in the popular capacity to acquire moral knowledge. As Jeremy Waldron points out, Locke himself saw a tension between the cultivation of normative expertise that was central to his own philosophical project, and the basic faith, essential to his political vision, in the adequacy of ordinary human powers to discern normative truth. But in the end, his faith in the reliability of the ordinary human intelligence won out. 40 Locke relies on a religious argument to defend this claim, insisting that there is a threshold above which intellectual differences become irrelevant, and that threshold is determined by the capacity 37 Ronald Dworkin, Moral Pluralism, Justice in Robes (Cambridge, Mass. and London England: The Belknap Press of Harvard University Press, 2006), 110. Cf. also Thomas Nagel, The Fragmentation of Value, Mortal Questions. 38 Dworkin, Moral Pluralism, 111 39 cf. John Dunn, Western Political Theory in the Face of the Future, p.41, on Locke s view: Christian revelation and the god-given capacity for rational understanding gave all men who bothered to make the effort a clear grasp of how they should live their lives. 40 Jeremy Waldron, God, Locke, and Equality: Christian Foundations in Locke s Political Thought (Cambridge: Cambridge University Press, 2002), p.85 16

for abstraction and hence for reasoning to the existence of God. This capacity is sufficient for people to understand that they must follow God s commandments, given by faith and revelation. 41 But the atheist, for whom no such threshold exists, Waldron tells us, will be at a loss to explain why we should ignore the evident differences in people s rationality. 42 Waldron is concerned about the illiberal implications that seem to follow if there can be no secular justification for basic equality. But we might equally take this problem as a basis for concern about access to normative knowledge and hence the impossibility of uncoerced convergence. If people do not have equal access to normative truth, it is hard to see how an internally intelligible order could be constructed around the correct norms. The more complex the normative claims of political theorists are, the more unlikely it seems that all people could engage in such sophisticated forms of justification themselves. However, if those theorists claim to have normative expertise, can they not identify the correct norms for us? 43 Can they not then use rational persuasion to educate others, that is, to demonstrate that these norms are justifiable? The problem is that there are no recognized normative experts for secularists. For the religious, a priesthood has recognized authority in normative matters. But there is no secular equivalent to this institution. In the case of scientific knowledge, we can identify experts because there is a high degree of convergence and because we can identify specific forms of relevant expertise and specialized knowledge. We know that a powerful microscope will assist in the acquisition of knowledge about microbiology. But there is no normative equivalent of a microscope. And there is much less convergence amongst those who would claim expertise in this area of human knowledge. 44 41 ibid., pp.78-9 42 ibid., p.81. I have argued elsewhere that this consequence of secularism was of great concern to Nietzsche. Cf. Tamsin Shaw, Nietzsche s Political Skepticism (Princeton: Princeton University Press, 2007). 43 Berlin sees a reliance on experts as essential to the rationalist position. He tells us that Comte put bluntly what had been implicit in the rationalist theory of politics from its ancient Greek beginnings. There can, in principle, be only one correct way of life; the wise lead it spontaneously, that is why they are called wise. The unwise must be dragged towards it by all the social means in the power of the wise; for why should demonstrable error be suffered to survive and breed? cf. Two Concepts of Liberty, 197-8 44 Cf. Jeremy Waldron, The Irrelevance of Moral Objectivity, Law and Disagreement (Oxford: Oxford University Press, 1999), 164-188. 17

Bernard Williams pours scorn on the idea of such expertise. It is invoked with increasing frequency in questions of medical ethics. Williams tells us that consulting such supposed experts performs a number of functions: it enables ethical considerations to be presented in an institutionally recognizable form, parallel to a consultant s expertise, and as a secular alternative, or addition, to religious opinions. But he finds absurd the idea that we should place any confidence in such judgements: You need to accept some pretty startlingly strong presuppositions if you are to believe in these practices on their own terms. The supposed experts receive their qualifications by taking certain courses in philosophy, in particular in ethical theory and associated devices of casuistry. It is obvious that someone may acquire an excellent PhD in such topics and yet be someone whose judgement you would not trust on anything. 45 And one does not have to be a moral anti-objectivist to share this skepticism. Even if there were indeed people (such as philosophers) who had the relevant intellectual capabilities and were able to ascertain normative truth, most people would still be incapable of recognizing their authority. They would have no reason to defer to any particular individual who claims expertise in this area, for they would not be equipped to assess whose view really should be rationally binding for them. 46 If people are ill-equipped to arrive at normative knowledge by their own lights, they will also be ill-equipped to consider to whom it is rational for them to defer on normative issues. This does not mean that objectivists have to assume that convergence on the correct norms is impossible. There are objectivists who think that the very principles which philosophers find should govern our political lives have in fact been generally accepted, albeit only implicitly, in our political community. This is the view defended by Ronald Dworkin in Is Democracy Possible Here? He holds that two objectively correct, basic political principles, sufficient to ground a legitimate form of politics, are implicit in the normative commitments of most Americans, even though the concrete implications of these principles are disputed. 47 45 Williams, In the Beginning Was the Deed, 46 46 Cf. Alexander Nehamas, The Art of Living: Socratic Reflections from Plato to Foucault (Berkeley, Los Angeles, London: University of California Press, 1998), 80 47 Dworkin s view is that although not every American would immediately accept these two principles, still enough Americans on both sides of the supposedly unbridgeable divide would accept them if they took sufficient care to understand them. Cf. Is Democracy Possible Here?, p.7. I take this to mean not that sufficient reflection would require people to alter their fundamental normative commitments, but that the current normative commitments that most people hold would support these principles. 18