Figure 4-1. Orderings of partially normalized impartial spectators
The Nonideal
The Open Society
It takes all sorts to make a world.
—ENGLISH PROVERB
1 JUSTICE WITHOUT NORMALIZATION?
1.1 Normalization and Determinate Justice
CHAPTER II EXPLORED THE DEEP DILEMMA AT THE HEART OF THE “NORmalized” approach to ideal justice: the very normalization that defines the “correct” perspective in political philosophy leads to the conclusion that this correct perspective on justice cannot effectively identify its own ideal. Chapter III analyzed ways to ease this tension—abandoning a fully normalized perspective in favor of various partial normalizations. We saw that when a partial normalization generated enough diversity to drive effective searching it ultimately engendered disagreement on the ideal itself. It would seem—at least on first inspection—that we must choose between full normalization, which yields a definite theory of justice but makes it most unlikely that we can find the ideal, and relaxing normalization, which improves the chances that many will find better alternatives, but which yields disagreement about what ideal justice is.
This “first look” conclusion resonates with the trajectory of Rawls’s work. Throughout most of his career Rawls supposed that a theory based on a shared (or, which comes to much the same thing, a single) evaluative point of view will generate a determinate social contract. From the 1960s through the 1980s, philosophical inquiry into justice was largely dominated by the pursuit of such an “Archimedean point”: a description of an impartial, normalized chooser such that his choice would identify the correct principles of justice. As David Gauthier pointed out, “Archimedes supposed that given a sufficiently long lever and a place to stand, he could move the earth. We may then think of an Archimedean point as one from which a single individual may exert the force required to move or affect some object. In moral theory, the Archimedean point is that position one must occupy, if one’s own decisions are to possess the moral force to govern the moral realm. From the Archimedean point one has the moral capacity to shape society.”1 This normalized chooser was to identify a single, determinate ranking of social states. Rawls explicitly justifies the introduction of the veil of ignorance and maximin reasoning as a way to overcome what he saw as a gross deficiency in his 1958 “Justice as Fairness.” In that first version of his social contract, the second principle of justice was simply a Pareto condition that required inequalities to fall on the Pareto frontier of mutual benefit.2 The principle, however, did not say anything about where on the Pareto frontier society must settle. By the time Rawls wrote “Distributive Justice” he was convinced that this indeterminacy was a serious problem. “There are,” he wrote, “many such [Pareto-optimal] distributions, since there are many ways of allocating commodities so that no further mutually beneficial exchange is possible. Hence the Pareto criterion, as important as it is, admittedly does not identify the best distribution, but rather a class of optimal, or efficient distributions. … The criterion is at best an incomplete principle for ordering distributions.”3 Rawls’s work leading up to Theory, which shaped much of contemporary political philosophy, was to identify a normalized choice perspective that provided a theory of justice (“justice as fairness”), specific enough to give authoritative, determinate rankings of social states and/or institutions. By Political Liberalism this project is abandoned:
The view I have called “justice as fairness” is but one example of a liberal political conception; its specific content is not definitive of such a view. … The point of the ideal of public reason is that citizens are to conduct their fundamental discussions within the framework of what each regards as a political conception of justice based on values that the others can reasonably be expected to endorse and each is, in good faith, prepared to defend that conception so understood. This means that each of us must have, and be ready to explain, a criterion of what principles and guidelines we think other citizens (who are also free and equal) may reasonably be expected to endorse along with us. We must have some test we are ready to state as to when this condition is met. I have elsewhere suggested as a criterion the values expressed by the principles and guidelines that would be agreed to in the original position. Many will prefer another criterion.4
At this point, then, the argument from the original position is one test as to what reasonable people may be expected to endorse: it yields what Rawls calls “justice as fairness.” But “many will prefer” a different test; perhaps a differently described original position, yielding a different conception of justice. Those who wish to minimize the fundamental importance of this shift content themselves with saying that in Rawls’s later work a “family” of liberal views is still justified, one member of which is “justice as fairness.” Two observations are in order.
(i) In 1958’s “Justice as Fairness” a “family” of distributive views was also justified, and Rawls saw this as a core weakness in a theory of justice, which aimed at a well-ordered society that could agree on a determinate ranking of claims. On the original version of the contract we would have no shared conception of justice to resolve distributive disputes. In Theory Rawls searched for a well-ordered society: that is, “a society in which (1) everyone accepts and knows that the others accept the same principles of justice, and (2) the basic social institutions generally satisfy and are generally known to satisfy these principles.”5 As Samuel Freeman notes, it is anything but clear that this ideal of a well-ordered society survives the last developments of political liberalism.6 This surely is a fundamental change.
(ii) It is not as if Rawls identifies a single original position with a single normalized perspective that yields a “family” (i.e., set) of conceptions as its conclusion.7 Rather, Rawls suggests that different “tests”—say versions of the original position, employing different plausible normalizations of the choosers—will arrive at different conceptions of justice. So at the end we seem to be left with multiple reasonable original positions, or we might say, a set of arguments that, together, presuppose partial normalizations: choosers are not fully normalized across all original positions, since they differ in various reasonable original position set ups. In an interesting yet somewhat puzzling way, we are confronted with a family of liberal theories of justice—a variety of reasonable perspectives on liberal justice. Rather than a theory that gives rise to a family, it seems more apt to say that we have a family of theories.
One has to be an especially devout disciple of Rawls not to conclude that by the close of his political liberalism project the theory of justice was in disarray.8 Rawls insisted that a theory of justice was characterized by choice from a certain normalized perspective, but his later view allows multiple partially normalized perspectives that yield different conceptions of justice. However, if one acknowledges that there are other reasonable normalizations that yield inconsistent conceptions, in what sense can one plausibly claim that one has identified the principles of justice for the definitive ordering of social claims in a well-ordered society, based on one’s preferred normalization? To be sure, one can conjecture that, say, justice as fairness is the most reasonable,9 but in all our reasonable disputes one believes that one’s views are the most reasonable—that is, after all, why one holds them over competing views. But if “citizens will of course differ as to which conceptions of political justice they think the most reasonable,”10 on what grounds can I insist that others, who uphold differing reasonable conceptions, must conform to mine? Of course I can hope that “an orderly contest between them over time is a reliable way to find which one, if any, is most reasonable,”11 but that does not tell me what to do, here and now, when faced with reasonable disputes about justice. “Go ahead and impose your own preferred theory” does not seem especially attractive for a public reason view, even if one employs majoritarian methods or the Supreme Court to do so.
1.2 Sen’s Partial Normalization Theory
1.2.1 A Social Choice among Multiple Spectators. Although many philosophers have been dismissive, if not downright contemptuous, of Amartya Sen’s analysis in The Idea of Justice, it is one of the most important advances in the post-Rawlsian public reason project. It seeks to reconcile the idea of a definite theory of justice with the recognition that there is no single, normalized perspective from which to reason about justice. This latter point is one of the lessons to be derived from Sen’s parable of three children and the flute.12 Three children are quarrelling about who is to get a flute. If we consider only claims based on who can best use the flute, it goes to Anne, who alone can play it; if we consider only claims of need, it goes to Bob, who is so impoverished that he has no other toys;13 if we consider only claims to desert and self-ownership, it goes to Carla, who made the flute. We can construct a choice situation in which all will agree with any of the three distributions if we filter out information about the other relevant distributional criteria—that is, if we normalize the evaluative perspective (to a common evaluative standard) such that only one criterion matters. But all three qualify as reasonable impartial principles of justice, and there is no uniquely correct way to weigh them.14 “At the heart of the particular problem of a unique impartial resolution of the perfectly just society is the possible sustainability of plural and competing reasons of justice, all of which have claims to impartiality and which nevertheless differ from—and rival—each other.”15 Unless we invoke a highly controversial normalization procedure (for example, simply excluding information relating to desert), rational and impartial free and equal persons will rank the alternatives differently, disagreeing on the optimal element.
Even after we have done our best to identify impartial spectators (i.e., eligible partially normalized perspectives) who base their judgments on considerations acceptable to all, and who are free from bias and parochialism, Sen holds that we are left with multiple impartial spectators.16 We have multiple partially normalized perspectives. Even if we suppose that each impartial spectator could give a complete justice-based ranking of feasible alternatives,17 their rankings will only partially overlap. “There will, of course, be considerable divergence between different impartial views … [and] this would yield an incomplete social ranking, based on congruently ranked pairs, and this incomplete ranking could be seen as being shared by all.”18 Figure 4-1 provides a drastically simplified, stylized example of three impartial spectators ranking five alternatives. Here the ordering shared by our three impartial spectators (or, in the terms of our model, partially normalized perspectives) is a≻b,19 b≻e (so, by transitivity, a≻e). Notice that this is to apply a Paretian rule over impartial spectators: if for all spectators a≻ b, then according to the full (comprehensive) theory of justice, a is more just than b. Notice that while each impartial spectator can rank c and d, we might say that “reasonable conceptions of justice” disagree (for Spectators Alf and Betty, c≻d, but for Charlie, d≻c). On Sen’s view the (full) theory of justice cannot order c and d (or the pairs [c, e], [d, e]) as there is reasonable disagreement about their relative justice.
Much of Sen’s most innovative work has been on rational choice from incomplete orderings.20 He thus points a way out of Rawls’s conundrum. Even though we have multiple, inconsistent, partially normalized perspectives, if we allow our theory of justice to be incomplete, we can acknowledge that different perspectives will have sometimes conflicting unequivocal pairwise judgments of justice, and yet we still can generate rational choice based on consensus about justice in a wide range of situations. We can achieve definiteness (though not completeness of definite judgments) with only partial normalization.
1.2.2 Severely Constrained Evaluative Diversity. If, employing Sen’s idea of impartial spectators, we end up with a small group of eligible normalized perspectives, it seems plausible that the Pareto rule will generate an interestingly large class of pairwise comparisons, so that our (full) theory of justice, while incomplete, will not be empty. But as we increase the set of possible normalized perspectives so that the number of impartial spectators becomes large, the Pareto rule is apt to be of little help. As soon as a single spectator deems b≻a, the full theory cannot conclude that according to (overall, or complete) justice a≻ b. Is this a problem? The reply by a proponent of Sen’s view appears straightforward: plausible normalized perspectives about justice can disagree about a lot, but so too must they agree about a lot. Any normalization, a defender of Sen might say, partial though it might be, necessarily restricts the domain of possible orderings of the worlds to be evaluated. Worlds characterized by severe human rights violations and famine are not admissibly preferable to those that score very high on protection of rights and have sufficient food for all, on any plausible perspective on justice.21
While all this is true as far as it goes, it leads us right back to the core of Rawls’s worry concerning the diversity of reasonable views about the right or just: how deep and wide are these differences? Rawls insisted that the partially normalized views that resulted were all versions of egalitarian liberalism,22 but there is no sustained argument for this conclusion; if there are many political values that can be weighed in many ways, we have prima facie grounds for thinking that the set of eligible perspectives on justice may be rather larger than either Rawls or Sen intimated. And if we are confronted with a large set of diverse eligible perspectives on justice, then Sen’s Paretian rule is apt, after all, to be radically incomplete. It thus seems that Sen’s approach works well for the sort of limited diversity of eligible perspectives that Rawls sometimes seemed to have in mind but falters if we cannot make considerable progress in identifying a rather small set of appropriately partially normalized perspectives.
1.2.3 Complete Normalization of Social Worlds. But that is not the truly deep worry about Sen’s approach. Sen makes much of the fact that his account is based on a “social choice perspective,” which directly evaluates societies, states of affairs, or, we might say, social worlds, rather than focusing on rules or institutions. Drawing on Indian thought, Sen emphasizes the contrast between niti—which seems a severe, rule-based approach to justice related to deontology, and nyaya, according to which “justice is not just a matter of judging institutions and rules, but of judging societies themselves.”23 Nyaya is a broadly consequentialist idea—the focus of evaluation should be the state of affairs that constitutes a society, not simply its rules and institutions. “Justice is ultimately connected with the way people’s lives go, and not merely with the nature of the institutions surrounding them.”24 Thus, Sen insists, we must focus on evaluating the justice of entire states of affairs. “Even though the possibility of describing any state of affairs ‘in its entirety’ is not credible (we can always add some more detail) the basic idea of a state of affairs can be informationally rich, and take note of all the features that we see as important.”25
This raises a subtle but fundamental problem: Sen’s account supposes a full normalization in how the eligible perspectives characterize the elements in the domain {X} of alternative social worlds.26 Although Sen would appear to allow differences in evaluative standards (ES) such as desert, need, and so on, and the mapping relation (MP), in the form of different judgments by impartial spectators, the domain of social worlds in {X} and the relevant properties of these social worlds is fixed and fully normalized among the partially normalized perspectives (§II.1). If their exercise is to make any sense, the impartial spectators must order the same domain of social worlds, where the spectators agree on the options to be ordered (what social choice theorists often call “the feasible set”). Consider again figure 4-1. Our impartial spectators must agree on the identity conditions of a and b if we are to make sense of the conclusion that they agree that a≻ b. Now as we saw earlier (§III.2.4) states of affairs are not like artifacts or cities where we can identify the thing (perhaps via a name) but disagree about almost all its properties. The state of affairs simply is its relevant properties. So in this case to agree on the identity of any given option, a, is to agree on its relevant properties. If the spectators do not agree on its properties, they do not agree on what they are ordering, and so they cannot agree in their orderings. That all agree that a≻ b would not tell us much if they did not agree on what a and b are. If Alf’s “a” is really a′ and his “b” is really b′,27 then he is not really agreeing with Betty’s ranking that a≻ b.
It might seem that this problem could be overcome by partitioning these differently described social worlds (a and a′) into smaller social worlds about which they do agree. Suppose the impartial spectators come to realize that Spectator Alf has in mind by a′ the set of features {f, g}, while Spectator Betty identifies {f, j} as the relevant features of her a. Alf and Betty do agree on feature {f}, so we might think that they could agree to focus on the “small common world” defined by the intersection of a and a′—characterized by {f}—and rank that world in relation to others. But our spectators will not think this small world defined by {f} is very important, as it is divorced from other relevant features, which, when considered (recall the interdependencies of features [§II.2] may make all the difference when evaluating the justice of the “larger” social world). Given that the evaluation of a social world arises out of the evaluative standards (ES) as applied to the relevant features (WF), Alf’s and Betty’s judgments about a social world will change when they consider it as, say, possessing only relevant feature {f} and as possessing features {f, g}, so an evaluation based only on the shared, common, feature {f} will not be of much interest to either.
Another alternative—let us call this the common projection criterion—is that Alf and Betty use {f}, as it were, merely to identify a common social world, but Alf continues to see the world as composed of {f, g} and Betty {f, j}. We might say that Alf’s perspective cannot “see” feature {j} while Betty’s cannot see {g} as properties relevant to justice. But they do concur that “world a” is that world which they both see as possessing {f}.28 On this alternative each evaluates the full (large) social world as he or she sees it, but they individuate social worlds by the shared feature they both see, in this case {f}. This clearly avoids the problem of the “small-worlds” approach, as each evaluates the full set of relevant properties as he or she understands them. But recall that in our model social worlds are individuated by their full set of relevant features (§II.1.2). This was not arbitrary, for many worlds with vastly different justice will share many common features. Consider another world (let us assume that it makes sense to call it b), that Alf’s perspective identifies as {f, x} and Betty’s as {f, z}. If we use our common feature as the common identification criterion, both Alf’s a world, {f, g}, and his b world, {f, x}, will be publicly identified as the same social world—that world characterized by feature {f}. And of course the same will be true for Betty’s quite different social worlds, {f, j} and {f, z}. Worlds a and b are the same world as identified by common features, but Alf and Betty each see these as quite distinct, with different justice scores. Alf might well be confused by Betty, who sometimes when evaluating the {f} world gives it one score (that is, when it is a world she sees as {f, j}) and sometimes another score (when she sees it as {f, z}). As Alf sees it, she gives differing justice scores to the same common world. And the same will be true of Betty in relation to Alf’s evaluations. Each will see the other as inconsistent when each is, in fact, entirely consistent in their full world evaluations.29
The upshot is that the social choice approach to diversity requires normalization of the features of states of affairs. This is no mere formal point. Recall that, referring to the “intractable” struggles in our history of religious conflict, Rawls proclaims that “political liberalism starts by taking to heart the absolute depth of that irreconcilable latent conflict.”30 A fundamental reason why these struggles are so deep and wide is not simply (perhaps in some cases not at all) because various religious perspectives and secular worldviews have radically different understandings of the principles of justice (ES), but because they have fundamentally different understandings of the social world that principles of justice are intended to regulate (WF).31 An Evangelical Christian has a very different understanding of the social world—its real, underlying features—than does, say, a secular Darwinist philosopher. The social world of the Evangelical perspective is one where sin and sanctity are features of states of affairs; they are not merely values or preferences, but basic aspects of the ontology of the world that determine the circumstances of social life. These features simply do not exist in the social world of the secular Darwinist—as he sees it, they are illusions or fantasies. He has no categories that correspond to them; in his understanding of social worlds (WF) that are within the domain to be taken seriously, none has such properties. If he is being generous and “liberal-minded,” he may admit that Evangelicals have “preferences” to continue with their religious practices, and since preferences are indeed real, they at least count, but the underlying social world simply does not have the fantastic entities the Evangelical assumes. There is only one world, and it is the secular world revealed by science. This is the normalized world that all theories of justice, says the secular Darwinist, must presuppose.
This seems to be Sen’s view. It is revealing that nowhere in The Idea of Justice do we confront a serious discussion of religious perspectives, and the nature of a religious person’s social world—a critical issue in many, perhaps most, societies today. Sen defends freedom of religion as a sort of liberty to participate in one’s ancestral culture,32 but it is clearly supposed that any eligible impartial spectator will have a normalized secular, naturalistic, social ontology. The impartial spectators have different evaluations, but they categorize social worlds in the same way. However, we do not even begin to understand the problem of reasonable pluralism about justice if we translate the Evangelical’s claim of a duty to obey the word of God as a claim to a right to engage in a cultural practice. We see no hint in Sen’s writings of the worry that consumed Rawls’s later work—whether liberal justice can be endorsed from a variety of comprehensive views that interpret the world and the universe in fundamentally different ways. And that is not because of any oversight by Sen. Unless he strictly normalizes what constitutes the social worlds to be evaluated, his Paretian social choice–based solution to the problem of diversity of views about justice cannot possibly work.
It is important to stress that disagreements about the nature of the social worlds in which we live are neither peripheral nor can they be redescribed as value or preferential disputes (i.e., pushed into the evaluative standards element of a perspective). Some of our deepest and most intractable disputes are not about values or principles of justice, but about the world to which these principles apply. The most obvious instance is the long-standing and persistent struggle concerning abortion rights. Advocates of such rights see the case as decisively about fundamental rights of personal autonomy; opponents of abortion rights are depicted as having little sensitivity to a woman’s claim to control her own body.33 But this by no means follows, and often is simply not the case; opponents of abortion can be deeply devoted to such autonomy, but not in cases where it entails overriding another’s right to life. And, of course, in the abstract, most advocates of abortion rights would also draw back in such situations. The dispute is centrally about the social world to which the principles of autonomy and the right to life apply: the two social worlds do not have the same set of persons, and so even perfect agreement about abstract principles of justice would not resolve the dispute. It is only because so many moral philosophers agree with Sen that there is only a single, fully normalized, secular social world that the dispute has to be misdescribed as one simply about values or abstract principles of justice.
A similar problem has plagued discussions of the harm principle. Recall a classic objection by Robert Paul Wolff, who notes that according to Mill’s harm principle,
I am liable to others when I affect their “interests.” Society may interfere only in those areas of my life in which it has, or takes, an interest. Now this distinction between those aspects of my life which affect the interest of others, and those aspects in which they do not take an interest, is extremely tenuous, not to say unreal, and Mill does nothing to strengthen it. Mill takes it as beyond dispute that when Smith hits Jones, or steals his purse, or accuses him in court, or sells him a horse, he is in some way affecting Jones’ interests. But Mill also seems to think it is obvious that when Smith practices the Roman faith, or reads philosophy, or eats meat, or engages in homosexual practices, he is not affecting Jones’ interests. Now suppose that Jones is a devout Calvinist or a principled vegetarian. The very presence in his community of a Catholic or a meat-eater may cause him fully as much pain as a blow in the face or the theft of his purse. Indeed, to a truly devout Christian a physical blow counts for much less than the blasphemy of heretic. After all, a physical blow affects my interests by causing me pain or stopping me from doing something I want to do. If the existence of ungodly persons in my community tortures my soul and destroys my sleep, who is to say that my interests are not affected?34
Proponents of the harm principle, if they are interested at all in accommodating such “harms,” typically seek to depict them as psychological harms or offensive actions.35 No one truly has a basic interest in living in a society without homosexuality, or one free of ungodly rituals, since such religious worldviews are inadmissible in the normalized world of the secular harm principle. However, if people get really upset, that at least is real, and perhaps something can be done about that. This may be enough for the secular, normalized view, but it misses the point of the religious complaint.36 The complaint is not that one is getting upset; whether or not one knew about it, one’s interests would be set back by such behavior.37 Perhaps one of the most striking ways in which debates involving religious categorizations have been normalized (and in Foucault’s more sinister sense)38 in much contemporary liberal discourse is the redescription of religious-based disapproval of homosexuality as a disease, “homophobia”—a manifest effort to control a deviant categorization by labeling it as illness.39
Many of the same points apply to environmentalism and various forms of support for animal rights. Again, some of the claims of environmentalists and animal rights advocates can be translated into, say, a standard Western normalized world, where humans are the sole persons, but pain to all sentient creatures is bad.40 But many cannot. Those who see nature as an entity to be respected, or who hold that ecosystems have basic rights, do not live in this normalized world. Other examples abound. Even those who embrace almost all the details of the Rawlsian analysis of justice fundamentally disagree on its application to international or global justice, and surely one of the important reasons for this is a fundamental dispute whether “peoples” are entities with moral status.41 Here we have a stark reminder that agreeing on a theory of justice, without agreeing about the social world to which it applies, by no means guarantees agreement in judging social realizations.
None of this is to say that in a society where there is great disagreement about the social world we inhabit any perspective may legitimately insist that its social world be imposed on others. That in your social world ecosystems are persons, that God forbids homosexuality, or that jokes about sex are not funny42 does not itself tell me anything about what I am to do, or how I am to live with you. It is to insist however, that, unless our thinking about diversity takes seriously these extraordinarily deep disagreements about the nature of the social world (the categories used to characterize it), we will fail to understand what is required to live in a free and open society.
1.3 Muldoon’s Nonnormalized Contract
1.3.1 When Worlds Overlap. The most innovative and sophisticated work rethinking political philosophy in light of deep perspectival differences is that of Ryan Muldoon, who proposes a social contract free of normalization assumptions. Muldoon’s key insight is that, even if your and my social worlds do not categorize objects in the same way, we may still have common social “objects,” or, we might say, partial projections of objects, about which we can negotiate. Taking our cue from Muldoon, let us start with a simple case,43 as in figure 4-2. Alf, Betty, and Charlie have three perspectives on the same object; all can see the world in three-dimensional space. On Alf’s perspective the object is a two-dimensional circle, as it is on Charlie’s, though on Charlie’s perspective it is a different circle (it does not share the same spatial location as the one Alf sees). Betty sees the shape as a cylinder, but not as a closed one. Compare: to a research scientist, a fetus may be a source of stem cells; to a Catholic, a person with a soul; to a natural rights philosopher, a fetus may be a trespasser violating the rights of the mother-owner. That there is no normalized characterization of the real object that all must endorse does not imply that these non-normalized perspectives share nothing; they share partial characterizations of the object (or, we might say, they see different projections of the object). That, after all, is why the three can argue about the proper treatment of “the fetus” even though they ascribe very different properties to it—and so in a fundamental sense do not have the same object in mind at all. Notice that, in contrast to Sen’s social choice approach, which founders on disagreements as to the objects being evaluated, Muldoon makes such disagreement the center of his analysis.44
The core of Muldoon’s insightful—indeed revolutionary—proposal is that we can model social contracts as bargains about who has rights over an “object” while simultaneously acknowledging that the parties do not agree precisely about the nature of the object over which they are bargaining. Writes Muldoon:
If two agents have different categorizations, this means that they will not divide state space up in the same way. This is simply because they categorize the world differently, and so they have different conceptions of salience. … They are seeing the same thing, but just interpret it differently. As there is no neutral [or normalized] representation of the state space, we cannot take one partition as better than another, and so we cannot just pick one and require everyone to use it. This much is clear. But we also cannot just take the union of everyone’s partition sets and expect everyone to share this larger partition set. This is because there is no assurance that people can see the distinctions that are in other perspectives if they do not themselves hold them. So just as we do not have the same accounts of value (and hence utility functions), we do not have the same partition sets. But even though we cannot expect that individuals can adopt this union of all partition sets, we can describe the overall bargain by making reference to this union set, so long as we do not assume that the agents in the bargain themselves are aware of it.45
The overall bargain really concerns the union of Alf’s, Betty’s, and Charlie’s perspectives, for depending on how the bargain comes out, it will affect, as it were, the way the entire cylinder is used; but none of them see a closed cylinder, so none will think the bargain is about that (it will, from their individual perspectives, be a bargain about who has rights over which circle, or who has rights over an open cylinder).
Muldoon’s nonnormalized social contract, then, is an n-person bargain over the allocation of rights that, in one respect, is about rights over overlapping bits of the world, yet determines rights over the “full objects” in each perspective (when these full objects include the bits that are jointly seen). Note that this contract does not require that we share a normalized, or even partially normalized, perspective on the social world. Yet the allocation of rights applies to each nonnormalized social world and—if we accept the Nash bargaining solution on which Muldoon relies—each perspective can endorse the overall social distribution of rights.46
Muldoon’s contract yields public justification without normalization. The ultimate terms of association are justified to all relevant evaluative perspectives insofar as each perspective deems the terms ones that advance its concerns as far as reasonably can be expected, given the perspectives of others.47 Although Muldoon often sees his proposal as an alternative to public reason political theories, that is only because the dominant public reason views have been committed to strong normalization: public reason has typically been identified with the reason of the normalized public perspective—the liberal perspective.48 Muldoon, though, is correct that such traditional public reason views, rather than helping us devise a theory of justice for all, valorize one perspective and its understanding of justice. In response, those excluded either oppose public reason liberalism as a sectarian project, or draw back, alienated, into their own perspectives. The promise of public reason as providing a justified conception of justice in the midst of diversity goes unfulfilled. More than that: it becomes a screen for the dominance of a controversial secular social world.49 In the end, such public reason views are very similar to traditional moral theories, which are based on a normalized perspective claiming to be the uniquely correct way to identify the morally relevant properties of social worlds.50 Muldoon’s project promises to revive public reason as a doctrine that truly responds to our deep and enduring differences.
1.3.2 Dynamism and the Open Society. Muldoon insists that his understanding of the social contract is dynamic, stressing constant adaptation. As new perspectives enter and old ones die away, the social contract must adjust.51 Not surprisingly, he endorses John Stuart Mill’s stress on experiments in living, and the ongoing discovery of better ways to live together;52 conversely, he is especially critical of Rawls’s claim that in modeling a social contract, we should suppose the parties will be bound through an unpredictable future, and cannot renegotiate as they proceed.53 Constant changes in the perspectives of the population (for example, the immigration of Muslim groups), changes in environmental conditions, and discovery of better ways of living together all require that we conceive of the social contract as a set of dynamic, evolving bargains for mutual benefit, not a set of principles fixed “once and for all.” Because there is no normalized, fixed perspective from which to reason about fixed principles, the social contract is necessarily tightly coupled to the perspectives presently populating a society.
In a fundamental sense Muldoon is absolutely right: an adequate social contract (or theory of justice that can be justified to diverse perspectives) must have the resources to adapt to drastically changed conditions, both internally and externally. We must incorporate the Millian-Hayekean-Popperian insight that we are always refining our ideas about justice and our analysis of the conditions for its social realization.54 The notion of ideal justice as a fixed point not subject to revision is perhaps the most implausible assumption of what Popper called “utopian” theory (§II.3.4). On all this, we should follow Muldoon. However, Rawls’s supposition that we should conceive of the parties as choosing principles “once and for all” need not be interpreted as a statement of the fixed point view but, rather, as reminding us about two important facts about the very idea of rules of justice as a basis for social cooperation.
First, to endorse a rule of justice requires that the endorsement is “reversible”: if rule R specifies the way that roles 1 and 2 must relate to each other, for Alf, basing his judgments on perspective Σ, to truly endorse a rule requires that Alf endorses it whether he occupies position 1 or 2.55 If Alf endorses a rule because he believes he will solely occupy position 1 (say, he knows that he is only an employer and never an employee), in an important sense he does not endorse it as a requirement of justice (but as, say, a rule of self-interest). Even though our goal in a nonnormalized social contract is to uncover rules of justice that do not presuppose a normalized perspective (or small groups of such perspectives), we still seek terms of association that conform to some ideal of impartiality in the sense of reversibility. To say that a rule is not open to continual renegotiation is to stress that parties are bound by it, even on those occasions when it does not promote what their perspective deems important (including their interests). More pragmatically, if Alf’s endorsement of the rule presupposes that he will never occupy role 2, expected changes in circumstances (i.e., he becomes an employee) will lead him to abandon the rule, showing his endorsement of it to be unstable. In his early versions of his social contract theory, Rawls thus argued that the parties must suppose the agreement cannot be renegotiated should it turn out that they did not occupy the more advantaged positions. “They each understand further that the principles proposed and acknowledged on this occasion are binding on all future occasions. Thus each will be wary of proposing a principle that would give him peculiar advantage, in the present circumstances, supposing it is accepted. Each person knows that he will be bound by it in future circumstances the peculiarities of which cannot be known, and which might well be such that the principles are to his disadvantage.”56 Because one is bound by the choice of the principles over an extended period of time regulating circumstances that one cannot predict, a rational person will not seek to tailor the principles so that he gains advantages given his present circumstances, since these may unpredictably change, and he may end up on the losing end of rigged principles.57 In this case resisting calls for renegotiation because the facts have changed is fundamental to the very idea of what it means to endorse rules of justice.
Second, as Hayek so effectively argued, just because we want a society that is dynamic and constantly adjusting to new conditions, we need relatively stable social and moral rules.58 A deep source of uncertainty in social life concerns the actions and expectations of our fellows; binding us to common rules allows us to reduce this uncertainty and so engage in fruitful cooperation. Unless we are bound to relatively stable rules we cannot reduce this uncertainty. The basic moral rules of society, and the basic moral norms governing the political, provide the background for social and economic experimentation. Unless this background sets relatively fixed parameters as to, say, what claims of property are to be respected and what personal rights are to be guaranteed, innovators have insufficient settled points from which to plan. Innovation is not typically a planless, random activity; it is based on decentralized individual plans, and these plans and their coordination require important fixed parameters.59
To be somewhat less abstract, contrast two views of a dynamic society, in the sense of one that readily and continually admits new perspectives—say, immigration from ethnic or religious groups not presently represented or simply internal processes (such as recombination, §III.3.4) that regularly create new perspectives. On Muldoon’s proposal, such a society will acknowledge that the social contract will require continual revision, so the basic allocation of rights is being revised as new groups (with new perspectives) enter.60 But note that this can entail a high cost for current perspectives. While Muldoon rightly stresses that through the division of labor I can benefit from new groups and perspectives (see §IV.3.3), it also is the case that on his dynamic bargaining model I do not know the rules on which I shall interact with them, as the social contract will be renegotiated as they enter. So it will be harder to anticipate the costs and benefits. Supposing also, as seems to be the case, that most people are conventionalists and so endorse most of the rules they live under, they will certainly see one clear and significant cost in allowing immigration of culturally different groups: it is apt to significantly revise the current system of moral rules. Perhaps a worry about the nature of religious accommodation as it was negotiated in some Western European countries is that it was rather close to Muldoon’s model, being based on a bargain between different Christian sects, who all received their share of state influence and funding. Enter Muslim populations, and this basic bargain has to be renegotiated, and now with groups whose perspectives are less familiar. The result is apt to be great reluctance to accommodate Muslim groups: the costs are upfront and clear, the potential benefits in the future, and, given that we are unclear about the new allocation of rights, far less certain. In contrast, if our rules are able to secure significant stability in the face of new perspectives, although current residents will anticipate new interactions (some welcomed, some not) the basic allocation of rights and duties will not constantly change. And because the rules of the game will be relatively stable, there will be both a greater ability to plan how to interact with the newly arrived groups and far less cost—new arrivals do not mean new social contracts.
1.4 Not All Liberal Justice Is Fit for the Open Society
Let us draw together some of the lessons we have learned from our analyses of Rawls, Sen, and Muldoon. Under full normalization, the relation of a perspective Σ to judgments of justice is manifest; Σ draws on the five elements of its perspective61 to determine the justice of any social world. When we allow a theory of justice that itself seeks to accommodate multiple partially normalized perspectives on justice, so that we have fundamental disagreements about justice, we immediately confront the question of the relation of any given partially normalized perspective to the theory’s overall judgment of justice. As I argued (§IV.1.1), Rawls never really solved this problem: he allowed for a set of eligible perspectives based on different principles of justice (the family of liberal views), but he was never clear how the diverse set of “reasonable” perspectives could all be encompassed in overall, consistent judgments of justice in his theory. His political liberalism project understood some perils of normalization but did not see how we might arrive at way to relate each of the eligible perspectives to the interperspectival judgments of justice.
In §IV.1.2 we saw that Sen provides a method to integrate diverse evaluative standards into a theory of justice; each partially normalized view of justice (modeled as an impartial spectator) takes its evaluative standards and applies them to a common, normalized set of social worlds. If all impartial spectators agree that social world a is more just than b, then according to the full or complete theory of justice a is more just than b. As we saw (§IV.1.2.3), Sen’s procedure requires full normalization of the properties of the set of social worlds in the domain {X}; while Sen clearly makes progress in thinking about justice without full normalization, his social choice approach cannot accommodate significant differences about the justice-relevant features of the social worlds. This suppresses a great deal of perspectival diversity about the nature of the social world. But it also suppresses diversity of evaluative standards; some evaluative standards—such as religiously informed ones—make sense only if the world has certain features. If souls and knowledge of God’s will are not features of the social world, there is not much to say for a Divine Command theory (or, perhaps, even for a liberal egalitarian theory).62
Muldoon’s analysis overcomes this limit. It is useful to think of his account as making justice a vector of all the eligible perspectives.63 For any given array of perspectives, interperspectival justice is the result or upshot of the combined effects of the perspectives in the array. To use more philosophically familiar language, justice is “constructed” out of the entire set of eligible perspectives. The worry is that this ties interperspectival justice too closely to the set of current eligible perspectives, and so Muldoon’s proposal, insightful as it is, leaves something to be desired as a framework for a diverse and open society.
Recall that our problem is creating an overarching “liberal” framework for “republican” communities of moral inquiry and experimentation (§III.4.3). The liberal theory of justice can provide a framework for diverse moral perspectives only to the extent that those communities endorse the liberal framework as a bona fide just way to relate; the aim is to uncover a theory of justice that diverse perspectives can, to paraphrase Rawls, see as something they can live with.64 Now an open, liberal framework seeks to accommodate two realms of diversity. First, it seeks to accommodate the array of existing eligible perspectives in a society so that all of them can, in some way, endorse the claims of overall, interperspectival justice. In Sen’s impartial spectator model this is achieved via the Paretian rule: if all the eligible spectators hold that a is more just than b, then that is the conclusion of interperspectival justice. Note that in this case the interperspectival claim is necessarily endorsed by all perspectives. In Muldoon’s account, interperspectival justice is a rational bargain or compromise among all the relevant perspectives; it would normally not be the precise view of any one of them, but all presumably could endorse the compromise as rational from its own perspective. Second, however, a liberal framework accommodative to diversity seeks to be open to new perspectives, ones generated either internally or through immigration. It seeks to accommodate and harness the diversity not only of existing perspectives, but of new and yet unthought-of ones. It is the accommodation of this diversity that is the basis of a liberal society’s openness to inquiry and change—its accommodation of diversity is not tied to a specific array of diversity.
An open and just liberal society would simultaneously like to maximize its accommodation to both types of diversity, being respectful of current perspectives while being open to new ones. If a liberal order was concerned only with the first sort of diversity, Muldoon’s social contract would be a compelling solution: under a broad range of circumstances, each member of the social order can engage in bargains with all others, producing a contract which, in our terms, each perspective can endorse. But if a liberal order accommodates the diversity of existing perspectives by tying interperspectival justice very closely to the existing array of perspectives, it will be able to accommodate new perspectives only by altering the basic liberal framework of interperspectival justice. If the current framework is, as it were, constructed out of the specific materials present in the current array of perspectives—if it is responsive to that specific diversity configuration—it seems doubtful that new perspectives will generally fit in without significant, perhaps major, shifts in the liberal framework. Thus we might have a diverse society with a justified liberal framework that would nevertheless not be an especially open society, for innovation and immigration may well pose fundamental threats to its conception of justice. It may prefer to be what Rawls calls a “closed system.”65 This, I would venture, is no mere theoretical possibility, but a feature of many current liberal societies, whose very framework of shared life is threatened by inclusion of new perspectives not part of the current settlement.
However, another possibility presents itself. A liberal framework might be good at accommodating the existing array of perspectives because it is good at accommodating diversity per se. The framework’s success is not so much in accommodating its current set of diverse perspectives, but in accommodating diversity itself. Having developed an interperspectival conception of justice that does well at achieving the endorsement of diverse perspectives, additional diverse perspectives can be relatively easily accommodated. It is so good at working with difference that new and more difference is not a great challenge. On this view, a society can reach a point where, having developed a diversity-accommodative understanding of interperspectival justice, it has no difficulty being open to further perspectives. Here the liberal society is also an open society.
We are now in a position to refine our inquiry into a justified liberal framework: under what conditions can we live under a shared moral framework that is diversity accommodative because it is accommodative to diversity per se, and so is an open society? I shall argue (§2 of this chapter) that such a framework of liberal diversity seems most likely when our public social world is shaped by a set of characteristic features of the Open Society. I believe that we now have had sufficient experience of life in diverse societies that we can at least draw some tentative conclusions about the sorts of institutional structures and principles that are friendly to diversity per se. Of course, like any claims about social realizations these may prove wrong, but that, I take it, is a benefit of, not a worry about, the analysis. However, I shall argue in §3 of this chapter that even these diversity-friendly arrangements cannot make room for all perspectives; I try there to make some progress in identifying the limits of liberal diversity, and why these limits make sense in the context of defending the Open Society.
2 AN ARTIFICIAL, OPEN, PUBLIC SOCIAL WORLD
2.1 On Creating a Public Social World
2.1.1 The Idea of a Public Moral Constitution. Although it is seldom noted, Rawls’s later works are rife with references to the idea of social worlds. He employs the idea in various ways, two of which are of importance for our current discussion. On the one hand, Rawls refers to social worlds in a manner that suggests that they are broadly sectarian: when we are alienated, Rawls, says, “we grow distant from political society and retreat into our social world.”66 On the other hand, Rawls stresses that from the perspective of the original position “the parties in effect try to fashion a certain kind of social world; they regard the social world not as given by history, but, at least in part, as up to them.”67 Or, as he says in Political Liberalism, “insofar as we are reasonable, we are ready to work out the framework for the public social world.”68
Let us interpret this distinction as one between the social world that characterizes one’s “comprehensive perspective” and the “public social world” of rules and institutions that is collectively created by members of a society. In this latter sense, but not in the former, a public moral framework and basic institutions are a public social world—they compose it.69 We can think of the public social world of rules and institutions as an artificial social world, one whose existence is a feature of the coordinated mental states of its members.70 The critical point is that in a diverse, liberal society, this shared social world does not reflect a basic choice between the competing social worlds of the different perspectives. It does not have significant ontological commitments: it is our social world because these are the rules and institutions that we, collectively, conceive of and act on. As Rawls says, we can “fashion a certain kind of social world” through our joint choices and beliefs. The aspiration is for the various perspectives, each committed to its understanding of the nature of the social world and ideal justice, to find the public social world endorsable. If each perspective can make sense of the categories of the artificial social world and endorse their use (an issue that I put aside until §IV.3), we can have a shared artificial world without normalization. None of the perspectives that can relate to and endorse the artificial social world would find themselves normalized away, for each would be related to the public artificial world in a way that makes sense to that perspective.
Although I have employed the idea of social worlds extensively throughout this book, we can put much the same point in terms of developing a “public moral constitution” for our society.71 Our shared public social world simply is a stable, shared, moral, and political framework for living together. Its institutional structure provides common categories, and common sources of interpreting those categories, which allow us to share cooperative ventures characterized by what all perceived to be just social relations.72 Nevertheless, it is an institutional structure of our own collective creation.73 This is not to say that each perspective literally participates in its beginnings, but that it is continually maintained as a public perspective by the diverse perspectives that relate to and endorse it; for each participating perspective, the artificial public world is sustained by the way its categories can be related to the underlying social world the perspective identifies.
Such a public social world is required for a truly open society, for it provides relatively settled public categories, rules, and interpretations, which provide the necessary fixed points to allow for individual planning and dynamic changes. Just as markets are dynamic only because the rules of property and contract are not constantly being renegotiated, a dynamic and open society has a relatively stable public social world. But this is not a normalized social world, on which we base our theory of public reason. It is a common world that arises out of public reason: it is our collective creation.
This basic social moral framework for our common social world—our moral constitution—is not to be equated with any specific moral perspective, with its particular understanding of values, rightness, and the morally relevant nature of the social world. Rather, the core of this morality is a set of public, shared rules that provide the basis of shared normative and empirical expectations as to what others will demand of one, and how competing claims will be adjudicated. Such a system of shared expectations is critical in allowing groups of diverse agents to overcome many of the collective problems we face, such as helping us cooperate in “social dilemmas”—situations in which we will all do better if we cooperate than if we all act on what we take as best from our own perspective, but each can do even better by defecting on cooperation and do what is best from one’s own point of view.74 To use Rawls’s phrase, solving these sorts of collective problems is the sort of thing our public framework must do if it is to play its “expected role in human life.”75 Without shared normative expectations (what I expect other people ought to do, and what they think I ought to do) and empirical expectations (what I expect other people will actually do, and what they expect I will do), cooperation is impaired and social conflict aggravated.
An analysis of what I have called a moral constitution has obvious affinities with constitutional political economy, as developed by James Buchanan. Like the constitutional political economy project, my concern here is how highly diverse agents may converge on a set of rules to regulate their cooperative activities. And like Buchanan, I shall consider what sorts of rules might receive near-unanimous consent in a highly diverse society. On the face of it, one might think that a fundamental difference is that Buchanan’s project supposes selfish agents, concerned only about their own costs and benefits, whereas our concern is a diversity of perspectives on justice. While Buchanan at times does suggest a selfishness postulate, this is not essential to his core analysis, which is critically about our concern: agents who differ deeply in how they order the possible outcomes.76 Nevertheless, it is true that we are concerned here with a far deeper diversity, which goes beyond diversity of preferences to diversity in perspectives. The main difference, however, is that while Buchanan’s constitutional political economy tends to focus on the formal rules of the state—especially second-order rules about how to make and change rules—my concern is the informal moral framework that provides the foundation for state institutions. There is, of course, no sharp break between these; as we shall see, the informal moral framework often calls for legal rules to complete its tasks, and legal rules are typically ineffective without a basis in the moral constitution. Still, differences in emphases are important, and our emphasis is not so much the state but the moral framework that provides the foundation for an effective liberal state in the Open Society.
2.1.2 A Practice of Accountability. These common social rules, coordinating our empirical and normative expectations, are the warp and woof of our common existence, but unless we hold each other to them, individuals may give in to the temptation to go their own way—acting as they think best, given their point of view. This is not to say that they are selfish; defection from the set of shared rules occurs whenever one acts as one’s perspective deems best, putting aside the shared rules of social life. Consequently, maintenance of this shared set of rules requires a practice of public responsibility: a practice in which we hold each other responsible for failing to abide by our common rules. Maintaining a public moral framework requires maintaining shared expectations—rebuking people who do not act on the shared rules (their actions undermine empirical expectations) and those who make mistakes about what the rules require (and so undermine shared normative expectations). Recent empirical studies have proven overwhelmingly that cooperative individuals do care about policing these rules, often using their own resources to punish offenders.77 And societies where such public responsibility is lacking have sought methods to establish it, as a foundation for enhancing cooperation.78
Not only is the public moral constitution sustained by a practice of mutual responsibility, but, critically, it provides the necessary foundation for the very practice that sustains it. As Peter Strawson famously showed us, our social moral practices are inescapably about our reactions to what we perceive to be the goodwill or ill will of those with whom we interact. We make demands on them, and they on us; and we hold them (and ourselves) responsible for failure to meet these demands.79 The reactive attitudes—resentment, indignation, guilt, and so on—are fundamental to these relations of responsibility; we experience resentment because those who fail to meet our demands manifest an ill will toward us; we are indignant when, as a third party, we view others as the objects of such ill will. Strawson stressed that we do not really have the option of deciding whether or not we should care about the attitudes of others toward us in these practices: we cannot help but react to the ill will of those with whom we interact.80 Thus understood, the moral constitution is not centrally about objective judgments of the rightness or wrongness of the actions of others (and ourselves): it is a system of expectations embedded in our attitudes toward others, and our judgments of their intentions and attitudes toward us. When I hold another responsible I do not simply judge his action against some standard; I react to his ill will, his lack of respect or consideration.
However, if the other does not share my perspective on justice, the reactive attitudes are easily undermined.81 Even supposing that I have the correct perspective, so that I know what justice truly requires, if I live in a social milieu of reasonable diversity of perspectives—I acknowledge that others, entirely reasonably, have different perspectives on justice—I am thwarted in ascribing ill will to others. I demanded that they conform to a rule because it is part of a more just social world, but I acknowledge that on their perspective this is not so. Unless I think their perspective is manifestly unreasonable (and so we are on our way back to normalization), I must admit that their lack of uptake of my appeal to the rule does not manifest ill will. They just do not see that justice calls for conformity to it. And because they do not manifest ill will, the reactive attitudes, and so the practice of responsibility, do not get a grip. Thus simple appeal to my perspective on justice is not sufficient to sustain a practice of responsibility. However, a shared justified82 moral constitution, which articulates our shared normative expectations of each other, provides just this: when we possess such a constitution we endorse these shared expectations, and so violators are prime targets of the reactive attitudes. You knew that our moral constitution, which you endorse, requires conformity to the rule, and yet you failed to conform. Now that does typically manifest an ill will, a lack of due regard.
This relation of mutual support between the reactive attitudes and a public moral constitution is fundamental to a moralized social life. We require a public moral constitution to live cooperatively given our diverse moral perspectives; we maintain it through a practice of mutual responsibility. Following Strawson we can call this an analysis from the objective perspective on our constitution and the attendant practice of moral responsibility. But, as Strawson stressed, as participants in moral relations—when taking up the transactional or interpersonal view—we cannot help but make demands on them for consideration, and react when these demands go unheeded. From this view a public moral constitution endorsed by the diverse members of the social order grounds the very reactive attitudes it requires for its (objective) success.
2.1.3 Functionalism. From the objective (but not from the transactional) perspective the rules of the public moral constitution can be understood as serving a function. As I have just said, we can analyze the conditions that the constitution requires to successfully do its job. Again, it must be stressed that this functional character of the public constitution is not a general claim about morality, or admissible perspectives on justice, per se. Many perspectives on justice embrace an antitechnology conviction, namely that justice is not a technology to enable human cooperative social life—justice does not have functions or roles. A framework for the Open Society does not affirm or deny this conviction—it is a matter that is internal to a perspective on justice. Our concern here is not to identify the correct perspective on justice (which would simply add one more perspective into the mix), but to reflect on the public social world that we create in order to productively and cooperatively live together and to search our disparate understandings of justice. And that is a matter of creating what might be called a social technology of cooperative life.
The public moral constitution’s fundamental task of providing the framework for social life and cooperation can be achieved only when we coordinate on a common set of moral rules. Because the public moral constitution has the job of coordinating our normative and empirical expectations, it is to no avail for each to have a unique, idiosyncratic view of it. I can have a terrific theory as to what the ideal public moral constitution would be, but for me alone to act on it cannot do the job. Indeed, even if we all happened to share the same view of it (say, R was a rule of justice on all our perspectives) but we did not know this fact (i.e., there was not public knowledge of it), we would not have coordinated normative and empirical expectations about acting on R. What is required is that people actually share, and know that they share, common normative and empirical expectations about each other.83 Because of the functional requirement, a social morality thus has an existence requirement: only if a set of rules in a society is sufficiently widely shared among its members (they have the relevant shared beliefs, intentions, attitudes, and behaviors), and it is sufficiently widely known that they share these, can it be the public moral constitution of the society. The public moral constitution is partly constituted by the coordinated beliefs, intentions, and attitudes of the members of society. It is public not simply in the sense that it pertains to common matters (any morality can have public matters as its content), but it is also public in its constitutive conditions. Thus, a set of rules is the public moral constitution only if a social fact holds: only if the set of rules satisfies the existence requirement is it the “positive morality” of that society, and only if the set of rules is the positive morality of the society can it be its public moral constitution—its normatively justified social morality. That is why a public social world is not simply a matter of what can be justified, but what has been created.84
Although for simplicity’s sake it is useful to analyze the idea of a public moral constitution for a society, the moral constitution of the Open Society is actually characterized by a variety of sets of rules, regulating different areas of social life, different types of problems, over different areas. And often the same society will be characterized by competing sets of rules, followed by different parts of the population (see further §IV.4.2). As I have emphasized, the rules of our shared social life are tools to address a variety of shared problems; different problems require different tools, and their effective solutions require that they range over groups of varying sizes. The group that shares a problem, and so requires a rule to assist in its solution, will vary from problem to problem. The important work of Elinor and Vincent Ostrom, drawing on decades of research in a wide variety of social contexts, has shown how often informal social rules with an attendant practice of responsibility can be effective for a particular population to address its specific problems.85
Understanding a society as composed of a wide variety of social networks, addressing different problems at different levels in different networks, yields two insights into the institutions of the Open Society. First, as different people come together to solve their particular problems (say, about the use of a certain water supply or safety in their neighborhood), their shared concerns in solving this problem provide a robust basis for wide agreement on these particular rules or institutions. Even though their perspectives may be deeply diverse, they forge common small public worlds and common classifications when, as an interacting group, they confront problems that all participants appreciate. An atheist and an Evangelical may share neighborhood watch duties. In cases such as these, the very nature of the local problem helps produce convergence on common ways to contend with it. Those who would say that our differences are so great we cannot share any commonly endorsed rules conceive of the problem too abstractly. When we face commonly perceived problems that require coordinated action, those with deeply diverse outlooks are apt to devise and abide by common rules.
Second, for many matters within the same society, different social networks may gravitate to competing rules: witness the social networks of vegetarians, religious citizens, feminists, and libertarians. As we live among each other, we simultaneously live in different, and often competing, small public worlds: the common classifications of feminist social networks are distinctly different than the small worlds of libertarian networks (even though some may be members of both).86 Each cluster of perspectives forges its own common world—which is inherently richer and deeper than our general public world—while also offering to the public at large competing small social worlds, often seeking to attract other perspectives into its networks. In this way, the competition between the networks can be seen as ways to search for thicker, more substantive rules that might, from the bottom up, be taken up by larger numbers in the society. Recall the difficulties with the idea of small-scale social experiments (§II.4.1). Given the small number of such experiments on any specific problem, it is always difficult to determine the causes of the experiment’s outcome, and so whether its lessons can be transferred to other contexts. In contrast, in a polycentric system, competing networks can explore, in the same social circumstances, different rules; innovations can spread throughout a population as different perspectives take up what they see as a better social rule, perhaps displacing ones that are less suited to the group’s participant perspectives.87 This points to a model of normative change—and from the perspective of the group, normative improvement—in the Open Society.
Like most insights—that the moral constitution of a society may be transformed by gradual switching to a better, competing social rule—this one can enlighten us about much, but we must also recognize its limits. Many parts of the moral constitution have been changed by this process: the astounding changes that have occurred in Western countries over the last fifty years regarding rules regulating sexual relations is a striking example. However, other social rules require something like a simultaneous change of belief and/or attitudes among members of a social network. If a rule is held in place by a network of beliefs about what others expect one to do (for example, a norm among prison guards that all guards expect other guards to beat inmates and will ostracize one who does not), individuals will be reluctant to depart from what they see as firm social expectations. Here collective reasoning and/or some sort of legal intervention may well be critical (see §IV.2.6).88 There is no single analysis that accounts for all the dynamics of rule change in the Open Society. Moreover, we should not forget that, as the Ostroms’ analyses of polycentrism stressed, these diverse networks of organization must be united under global common rules when their small worlds collide.89 Still, the polycentric insight is that we should not make the mistake of equating the entire moral constitution with this overarching framework that applies to all.
2.3 Liberty, Prohibitions, and Searching
2.3.1 The Principle of Natural Liberty. It is a platitude that liberty is fundamental to the moral constitution of the Open Society: after the work of Mill, Popper, and Hayek, what more can be said? As Mill in particular so decisively demonstrated, an open, dynamic society must be based on freedom of thought and speech. If different perspectives are to communicate their insights, and hopefully enrich each other, an open society must secure the conditions for freedom of thought and ensure that the channels of communication are kept open. The Open Society is not a mere standoff or compromise between opposing perspectives, but a forum in which, while ignoring or even disparaging some, a perspective can gain from others. And just which others have something to teach one—which of their discoveries are discoveries one can make use of—is itself always a matter of discovery.
All this is as familiar as it is fundamental. There is no point in once again rehearsing these important insights. I believe, however, that we can say something rather less familiar yet enlightening about the place of freedom in the Open Society.
Rawls notes that although there are, in principle, an indefinite or infinite number of possible moral (or legal) rules, a moral (or legal) conception that seeks to guide behavior supposes a principle of closure: given such a closure rule, the system of rules can be complete and provide a full guide to behavior.90 Drawing on this idea, John Mikhail identifies one closure rule as:
The Principle of Natural Liberty: Whatever is not prohibited (and this includes the non-performance of specific acts) is permitted.91
On this closure rule, Alf consults the system of rules and determines whether his ϕ-ing is prohibited by some rule in the system; if it is not, then he is free to ϕ. This closure rule is intimately related to the standard formulations of the Principle of Natural Liberty that are to be found in liberal writings.92 For example, Stanley Benn’s grounding principle of morality is that those who are simply acting as they see fit are under no standing obligation to justify their actions to others (while those who interfere with others’ actions are under an obligation to justify their interference).93 As Benn says, “justifications and excuses presume at least prima facie fault, a charge to be rebutted.”94 If Alf has no justificatory burden he is permitted to act without justification—Alf has no charge to rebut, no case to answer. Thus on Benn’s view Alf is free to act until, as it were, he runs into a moral rule that regulates what he is doing. The moral code does not having a standing requirement that Alf be able to identify a permission to ϕ; it only requires that he not ϕ when so doing is prohibited (a requirement to ϕ can be understood as a prohibition on failing to ϕ). Thus, in the interpersonal context, Betty is not warranted, as it were, to call him out for ϕ-ing unless she can point to a prohibition that he has flouted. Benn’s point is that merely acting does not itself invoke the context of justification, because, according to the Principle of Natural Liberty, Alf need not, as a matter of course, cite a permission to act before acting; the context of prima facie fault arises only when Betty can point to a prohibition that his ϕ-ing appears to flout.
The Principle of Natural Liberty implies a basic asymmetry between action and objection to action.95 It is clearly unnecessary that, as a matter of course, Alf possesses a justification for ϕ-ing in the sense of showing that morality allows it; however, the claim that he should be stopped from ϕ-ing because it runs afoul of morality implies that there is a prohibition such that ϕ-ing is prohibited, and so the rule must be identified. Thus we can get from the closure principle to a moral objection principle:
The Interpersonal Principle of Natural Liberty: Alf need not possess a moral justification for ϕ-ing, unless ϕ-ing appears to run afoul of a prohibition. A morality-based objection to Alf’s ϕ-ing thus must be based on a justification of the form “Rule R prohibits ϕ-ing.”
This, I am convinced, was Benn’s basic point: it is Betty, the moral objector, not Alf, the actor, who has the onus, as a first move in the conversation, to cite a morally relevant reason for her stance. It is in this sense that in a system of natural liberty there is indeed a basic moral asymmetry in favor of voluntary action over moral objections to it.
Thus understood, the core of Natural Liberty is a closure principle. Now logically, a closure principle is not required for a system of rules. If all action types were specified, then theoretically each type could be binned into the prohibited or the permitted. Depending on the number of action types and the capacity of the learner, this list could be internalized by rote. In the case of human moral rule systems, however, it seems that the list of action types is vast and cognitive resources limited.96 Real human reasoners can learn only a relatively modest set of the moral rules, and they do not possess the cognitive resources to infer all the possible applications of the set of rules. Without a closure rule, humans deliberating whether to ϕ may simply be unable to determine the status of ϕ-ing. Such a system would lack decisiveness. A decisive system of rules, for any action ϕ, always allows, requires, or prohibits ϕ (with the “or” being exclusive). Formally, decisiveness is a consistency condition—for any action ϕ, the moral system is single functioned, providing one and only one answer.97 If the moral system is not single functioned in this way, it is in principle impossible that a person can always comply with it. This is obvious if the system fails to be single functioned because, for some action ϕ, it declares that in the same circumstances ϕ is both prohibited and required. Of course the system may yield “prima facie” or “pro tanto” contradictory judgments, which need to be weighed, and, as a practical matter, it may be very difficult to do the weighing. But these complexities are all consistent with the requirement that the system is not, in principle and all things considered, “overcomplete”:98 that is, inherently inconsistent. Another failure of decisiveness, undercompleteness, may seem less worrying. Here, in a context in which ϕ is a feasible option, the system does not generate any of the judgments: ϕ is required, ϕ is prohibited, or ϕ is permitted. Such undercompleteness also makes it impossible to comply with the system: if the system is undercomplete among “ϕ is permitted, ϕ is required, ϕ is prohibited,” one cannot always act in accordance with these rules, for the rules do not entail any instructions. One cannot go ahead and ϕ in this case, for that would be to suppose that ϕ is permitted, and that is what the system is incomplete about. And one cannot simply refrain from ϕ-ing, for the system is incomplete about whether ϕ is required.
As we have seen, a critical task of the moral constitution is to secure shared empirical and normative expectations within a group that allows coordination of behavior. To achieve coordination in cooperative contexts the rules must guide our expectations, so that one can anticipate whether a person must, must not, or may ϕ, and there is also a shared understanding of when one may demand that another ϕs (or refrain) and when one appropriately blames others for what they have done. A moral constitution that lacks decisiveness will thus to some extent fail to perform the very job that we require of it. Of course, every set of rules falls short of decisiveness in important ways: in some contexts the rules may by unclear, and perhaps multiple rules that imply inconsistent directives may apply to a single case. We shall see in §IV.4 that such imperfections can actually help make a system of rules more flexible. Nevertheless, the system of rules that makes up the moral constitution must generally be decisive if it is to play its expected role in coordinating the moral life of a diverse society. Note that decisiveness and closure rules are supposed by plausible systems deontic logic: “ϕ is not prohibited & ϕ is not required” imply “ϕ is permitted.”
2.3.2 The Residue Prohibition Principle. So (i) the presumption in favor of Natural Liberty can be interpreted as a closure principle, and (ii) a decisive social morality requires a closure principle. But it is not the only closure principle. Many appear to reject the Principle of Natural Liberty. Ranier Forst, for one, explicitly does so, insisting that only plausible “presumption” in favor of liberty is one of “equally justifiable liberty.”99 Contrasting to the Principle of Natural Liberty is:
All Liberal Liberties Are Specifically Justified: In a liberal society Alf only has a liberty to ϕ if he can provide a justification to all other persons.
This would capture Forst’s insistence that a person has a liberty only when this is an equally justifiable liberty. The All Liberal Liberties Are Specifically Justified Principle has a weak and a strong reading. On the weak reading this principle is very close to the Principle of Natural Liberty supposing we add a proviso: the Principle of Natural Liberty, as a closure rule, is itself a justified part of the moral system. The Principle of Natural Liberty would then be a justified closure rule, and Alf’s ϕ-ing is justified, as it is an action of his falling under this blanket justification. On this interpretation we might say “one is always justified in doing something that is not prohibited.” This, as it were, mimics the Principle of Natural Liberty, but it is not equivalent to Benn’s Interpersonal Principle of Natural Liberty, since Betty can indeed always challenge Alf, but he would always have an answer on the tip-of-his-tongue, that he has a justified presumption in favor of his action.
The stronger, and I think more interesting, interpretation is that Alf must always be able to show that ϕ-ing comes under some specific rule or principle that accords him a liberty to ϕ. Some have argued that a liberal society is not based on a general commitment to liberty, but to a justification of specific liberties that have value to us.100 We could, perhaps, have a liberal society that strongly values freedom in the form of a public moral constitution comprising an extensive list of permissions—a system of moral rules according to which one is permitted to act on one’s perspective, is permitted to do with one’s property as one pleases, is permitted to deliberate with others about superior answers to common questions, and so on. If this were our liberal public constitution one would be free to act if and only if one could cite a liberty (i.e., permission) to do so. Now as Mikhail notes, this would imply an alternative closure rule:
Residual Prohibition Principle: Whatever is not permitted is prohibited.
If this is the closure rule, a person is prohibited from ϕ-ing unless the system of rules permits ϕ-ing. Here we would see the opposite of the interpersonal dynamic that Benn points to: Alf is going to ϕ, and so Betty could quite intelligibly claim that he must be able to cite a permission to if he is not to act wrongfully. In an obvious sense there is always an onus on a rule-following actor to cite a permission before acting, to show that the Residual Prohibition Principle does not apply.
2.3.3 Moral Learning and the Two Closure Principles. Do people actually employ such closure rules when they act on deontic systems? Under what conditions do learners employ one or the other? Do they have to be taught, as one of the rules in a system, or do rule learners close the system themselves? In a recent series of experiments Shaun Nichols and I have explored these questions and have found that learners do indeed infer closure rules.101 In one experiment, for example, participants were told:
There is a Farm with squeaky mice, and all the mice are supposed to follow The Rules of Mice, written in a book. The Farm has four barns: Red, Blue, Yellow and Green.102
Some participants were given two prohibition rules:
The Rules of Mice Book has only two rules:
1. Squeaky mice are not allowed to be in the Red Barn
2. Squeaky mice are not allowed to be in the Yellow Barn.
Other participants were given two permission rules:
The Rules of Mice Book has only two rules:
1. Squeaky mice are allowed to be in the Red Barn
2. Squeaky mice are allowed to be in the Yellow Barn.
We had a third, mixed condition with these rules (counterbalanced for order):
1. Squeaky mice are not allowed to be in the Red Barn
2. Squeaky mice are allowed to be in the Yellow Barn.
All subjects were then asked whether mice were allowed in the green barn. Because rules typically call for action and so a rule follower must make a decision, in this experiment subjects were forced to take sides, requiring them to answer on a six-point scale,103 from “Mice are not allowed in the green barn” to “Mice are allowed in the green barn.”
Our hypothesis was that subjects trained on prohibition rules would infer the Principle of Natural Liberty as a closure rule, while those trained on permissions would infer a Residual Prohibition Principle. This was based on the supposition that learners suppose that their teachers are seeking to be efficient; the cases that are called to their attention are critical for understanding how to, as Wittgensteinians would say, “go on from here.” Thus, if the closure principle is Natural Liberty, the teacher should provide examples of prohibitions, for those are what you need to have pointed out to you. If the closure rule is the Residual Prohibition Principle, the teacher should point to permissions. Note in this experiment subjects cannot be understood as guessing what a missing rule might be; they know that this is the complete set of rules, so they are being induced to directly postulate a closure rule for the system. Interestingly, this means that a closure rule cannot be part of the system. The Rules of Mice contain only two rules, and a closure rule is not among them. They are thus not being taught a closure rule, or even instructed that there is one. Nevertheless, as we predicted, subjects did indeed tend to infer closure rules in the expected way: those trained on prohibition rules tended to infer that the mice are allowed in the green barn (as implied by the Principle of Natural Liberty) while those trained on permission rules tended to infer that they are not (as is implied by the Residual Prohibition Principle). In this task, responses in the mixed condition also differed from chance, with participants being significantly more likely to think that the new action was allowed when given an example of one prohibition rule and one permission rule.
Both closure rules can thus be taught. That subjects inferred the Principle of Natural Liberty even when they were told that the rules were complete (and the rules stated did not contain a closure rule) suggests that, pace the weak interpretation of the All Liberal Liberties Are Specifically Justified Principle, they did not see Natural Liberty as one of the rules of the system. Rather, they tended to see closure rules as operating on a complete system of rules that renders the system decisive. So far from being taught, they have grounds for concluding that it cannot be part of the Rules of Mice, yet they employ it.
2.3.3 Moral Decision Making in the Open Society. Both closure rules can be taught. If a morality is largely taught in terms of prohibitions people tend to infer the Principle of Natural Liberty, while teaching through permissions inclines them to the Principle of Residual Prohibitions. There is some tendency to infer Natural Liberty in the face of mixed teaching. Now there is a decisive advantage to teaching a public constitution focused on prohibitions and, so, the Principle of Natural Liberty. The very essence of an open society is that new perspectives are arising, which categorize actions and the world in new ways. As new act-types arise (i.e., those that are not categories in the original set of rules), a Residual Prohibition morality will sort them into prohibitions: act-types that are not on the list of the permitted are prohibited. Thus new ways of acting are morally prohibited. To be sure, eventually the system might be revised so that these new act-types are specifically sorted into, say, the permitted category, but that process of explicit revision will be relatively slow and will never comprehensively categorize all the new act-types that arise in dynamic societies. A residual prohibition system is thus conservative even if it enumerates extensive liberties: it will have great difficulty adapting to new environments, in which the social or individual value of engaging in certain action types fluctuates. Such a public moral constitution may be suited to a closed liberal society, but not an open one (§IV.1.4).
It might be thought that a residual prohibition system could cope with the emergence of new act-types through analogy or similarity. This is, indeed, a way in which change occurs in rule systems: a new type of action is reinterpreted as akin to some familiar one that is covered by an existing rule. In 2015, for example, the United States Federal Communications Commission categorized some activities of cable companies as public utilities,104 thus drawing cable companies’ provision of Internet services under rules originally designed for telephone providers. In similar ways, “blogging” can be categorized as publishing, “cyber-terrorism” as violence. And therein lies the problem. In all these cases the extensions of current categorizations are uncertain and controversial. There is real disagreement about these matters, and that is why centralized authoritative bodies such as the Federal Communications Commission make authoritative (and often highly controversial) rulings. In the informal system of social regulation that is the heart of our public moral constitution, when the Residual Prohibition Principle is operative new act-types are thus either simply prohibited (and so the morality is conservative) or are reinterpreted by individuals, thus rendering the scope of the rules highly uncertain, and so undermining their decisiveness.
In contrast, a public morality of natural liberty will sort new act-types as permissible; one is free to engage in a new type of action that is not covered by existing prohibitions. To be sure, systems of natural liberty are not immune to disputes about how to categorize new actions. Consider a rule that was clear in, say, 1980: one has the right to control information about (legal) activities that occur in one’s own home. Others are thus prohibited from obtaining and using this information for commercial purposes without one’s consent.105 As the new action type of web browsing arose, and Google can use information about one’s browsing history (that in one way is) “on one’s home computer” to select ads for future viewing, some argue that this new act-type should be included in the older prohibition against “commercial spying,” while others resist this analogy.
There is, however, a critical difference between the two systems, even in the face of uncertainty and dispute. In a natural liberty system, if a moral innovator does not conclude that the analogy holds, he will conclude that morality allows his innovative activity; in a residual prohibition system, unless the innovator concludes that a relevant analogy holds—that the new action type is analogous to a permitted type—he will desist. It is in this sense that a natural liberty system encourages experimentation and discovery. Moral experimenters—those who are exploring a new perspective on justice—need not first convince themselves that a new action type falls under a previous permission; they proceed as long as they do not conclude that the new type falls under a current prohibition. Given that in many circumstances any analogy to previous types of action will be very imperfect and so uncertain, this asymmetry is of great significance, freeing innovators from proving (to themselves) their freedom to discover.
It may seem that a public moral constitution rejecting the Principle of Natural Liberty could avoid the conservatism implicit in a residual prohibition system by appealing to:
The Proceed with Justification Principle: If one is engaging in some new action type γ for which there is no current permission in the system of moral rules, one may γ if and only if one can justify γ-ing to others.
For some, this may be a Kantian public reason principle, in which one justifies γ-ing to all free and equal persons; to a utilitarian it could be a principle that allows new activity to be justified by appeal to the general welfare. In environmental thinking, this could be a version of the “precautionary principle,” which allows new action when a clear case can be made that its benefits exceed the costs. All such views might insist that, by including this general principle within the system of rules, a residual prohibition system can be dynamic, allowing those new act-types that are justifiable, useful, and so on.
The Proceed with Justification Principle clearly lacks a sort of epistemic decisiveness; it is often extraordinarily unclear how these calculations are to be made. While, perhaps, in theory Proceed with Justification might have a definitive answer, it is most unlikely that people will be able to coordinate on it. At least from the perspective of our public moral constitution, and its aim to coordinate normative and empirical expectations, inclusion of such a principle scores badly on the functional desideratum (§IV.2.1.3). And in some cases, given our current information there may be no determinate answer we can reach, and so an even deeper idea of determinacy is violated.
Still, it might be thought that the costs in determinacy entailed by accepting the Proceed with Justification Principle are exceeded by the benefits. The benefits, however, are not great—even with the addition of this principle, moralities of residual prohibition remain hostile to the Open Society. As we saw earlier (§IV.1.3.2) much innovation depends on planning, but often enough innovators cannot justify their innovative activity, not only because they have little idea of its consequences, but because they have little idea of just what they are doing. A classic example is Alexander Fleming’s discovery of penicillin; when he noticed a “blob of mold” when cleaning out his Petri dishes, he did not know that he was about to discover penicillin.106 As Fleming remarked, “One sometimes finds what one is not looking for.”107 Fleming may well have been unable to justify his experiments that led to discovery of penicillin, because he did not know that was what he was doing, and no one could have known. There is no logic of discovery; some innovators seek a result and achieve something in the neighborhood, others find something entirely different, and others are not quite sure what they are doing or why they are doing it. If, before proceeding with their innovative activity the innovators must justify it, very often the justification will not be forthcoming, as they have no clear idea of what it is that they are trying to justify. And, if so, the Residual Prohibition Principle will once again come into play, with its conservative implications.
The public moral constitution of the Open Society, then, is largely a morality of prohibitions and requirements, for such a morality allows individuals maximal opportunity to explore novelty and diversity, and so explore their perspectives while still possessing a shared moral constitution—a common public world—via which they can coordinate their activities and advance claims against each other employing public rules and categories. This is not to say that permissive rules have no place, much less that all schemes of prohibitory rules provide adequate moral constitutions for an Open Society. It is to say, however, that the formal features of moral constitutions matter much more than many contemporary liberals have realized: some formal structures are much more hospitable to diversity per se than others.108
2.4 Reducing Complexity through Jurisdictions
A diverse society is, by definition, composed of heterogeneous agents—agents with different understandings of the social world, their options, and their values. On what I dubbed the “vector” account of justice under diversity, the moral constitution of a society is a resultant of the specific set of perspectives in that society (§IV.1.4). Because a moral constitution is tightly coupled with a specific set of perspectives, changes in that set have a strong tendency to produce changes in the public moral constitution. Consider, for example, a moral constitution that is the product of a bargain between all members of a society; each member bargains with the N − 1 other members, with the result being a specific moral constitution. This combination of heterogeneity of participants and holism of the bargain (everyone has some claims on everyone else) renders the system highly complex; a change in any perspective is apt to reverberate throughout, at a limit, changing all bargains and surely the public moral constitution as well. Complex systems exist between order and randomness.109 While they operate on general principles and some system states are possible while others are not, complex systems are exceedingly difficult to predict, and overall system states can be extremely sensitive to changes in the constituent heterogeneous elements.
Although we cannot eliminate complexity from networks of heterogeneous interactions, we have powerful reasons to seek to reduce complexity and secure a social order that provides relatively stable frameworks for interactions. As I have argued, this is necessary for an open society (§§IV.1.3–4). Confronted by diverse evaluative standards (or, more generally, perspectives), we could seek to commensurate them by a Sen-like aggregation system or via some sort of bargain; both methods commensurate, but they do so in a way that tends to tightly couple the social outcome to the existing sets of perspectives. The opposite approach is to decouple the perspectives, and so lessen the complexity of the system, so that changes in one do not automatically induce changes throughout. What I have elsewhere called “jurisdictional rights” serve this function.110 Rather than seeking to construct “a system of assessment that enables diverse interests to be brought together in a field of calculation,” this method aims “to keep them apart, in order to simplify the basis for decision making.”111
In effect, we say that in a society with n individual members, there are n separate spheres in which an answer … may be sought, each of which is, in theory, inviolable and particular to the individual who occupies it. A decides for himself what he should believe; B decides for herself; and so on. … In other words, we don’t approach the matter of “basic belief” as one which … requires that individuals’ judgments about this matter be aggregated (perhaps after normalization), with some one (collectively best) option binding on all. We see it, rather, as one which is devolved to individuals whose rights to decide the matter for themselves are scrupulously protected.112
Jurisdictional rights reduce complexity by decoupling the public moral constitution from changes in perspectives, allowing high levels of change in some perspectives without affecting the shared public world.
Consider again the example of religious accommodation (§IV.1.3.2). On one understanding of effective religious accommodation, a society is confronted with a set of religious perspectives (in Europe, traditionally Christian ones), and in many countries the accommodation took the form of a bargain—each religion ran its own schools, got a share of public funds, had representation on various national councils, and so on. We have here an example of what D’Agostino calls bringing the disputants into the “same field”; the result is to radically increase the complexity of the moral constitution. As the constituent perspectives recombine and fade away, and as new perspectives enter, continued application of the aggregation method will generate a constantly changing constitution (or else, more likely, the constitution will freeze the settlement at some past configuration of perspectives until the pressures for change overwhelm it). In contrast, jurisdictional rights to religious practice, teaching, and inquiry will be far more robust in the face of change just because, via separation, they weaken the linkages between the constituent perspectives and the common public world. And because of this, a moral constitution employing them is open to a wide range of new perspectives.
As D’Agostino points out, property rights and markets function in essentially this way.113 John Gray once noted, “The importance of several [i.e., private] property for civil society is that it acts as an enabling device whereby rival and possibly incommensurable conceptions of the good may be implemented and realized without any recourse to any collective decision-procedure.”114 Private property rights are quintessentially jurisdictional. To own property is to have a sphere in which one is free to act on, and explore, one’s perspective. Property allows us to create small social worlds in which a perspective, or at least elements of it, can be instituted without negotiation with others, and to a large extent without taking other perspectives into account.
Socialism has been understood either in terms of all property being held by the state or, more attractively, the doctrine that “ownership is or ought to be in the hands of the people, not the state.”115 But in either case socialism is manifestly unsuited to the Open Society. The attempt to genuinely respond to diverse perspectives in making innumerable allocation decisions puts tremendous—and unsupportable—weight on social aggregation mechanisms. Given that allocation decisions require complex value trade-offs, nothing less than a comprehensive, implementable social welfare function is required: some way to produce either a social ordering or an interpersonally comparable social utility scale.116 Given diversity of perspectives, a social welfare function that did not normalize the world features element of a perspective could not suppose canonical descriptions of the state of affairs being evaluated (§IV.1.2.3). Not surprisingly, then, efforts to implement socialism have been accompanied by public ideologies that strongly normalize the admissible evaluative perspectives.
The importance of property rights does not entail that distributional questions (concerning opportunities, income, and wealth) have no place in the political life of the Open Society. The justification of property rights and questions of distribution go hand in hand: one cannot maintain the importance of the institution of property rights while denying that their distribution is a matter of political competence. However, we must recognize that ideals of distributive justice are part of particular perspectives on justice, and in the Open Society no perspective has a special claim to have its ideals legally instituted.117 Questions of distribution, like so much, are matters of democratic politics. A democratic polity in the Open Society must beware of undermining the moral constitution that renders a shared public life among diverse perspectives possible, but it has many tasks that go beyond maintaining this general framework.
Although D’Agostino is surely correct that markets employ “separation,” their place in the Open Society is rather deeper. They are not simply one more jurisdictional device. To be sure, agents in the market pursue their evaluative standards as each understands them, but markets also are a fundamental way in which different perspectives can interact without normalization. Consider again Muldoon’s insightful analysis of the way in which different perspectives can bargain about some social object, without agreeing about the object’s features, and so in a fundamental sense, without truly agreeing what they are bargaining over (§IV.1.3.1). While I do not believe the moral constitution should itself be conceived as such a bargain, in market transactions this is precisely what constantly occurs. Alf wishes to sell his 1998 Subaru Outback; he sees it as a worn-out symbol of sensible middle-class attitudes and seeks something new, flashy, and more fun to drive. Betty is an environmentalist, who recognizes that driving used but reasonably fuel-efficient cars decreases her carbon footprint; and as an untenured assistant professor in a college of humanities, she sees it as showing her colleagues that she is not captured by American car culture and takes only the most utilitarian view toward automotive transport. But despite this, Alf can sell the 1998 Subaru to Betty, and they can agree on the terms of the exchange—though they do not agree about what Alf is selling and Betty is buying, they do, as Muldoon wonderfully demonstrates, have overlapping projections, which make their dealing possible.
Markets thus provide bridges between different perspectives; each sees the object in different ways (indeed, as different objects), but participants typically share enough so that, from the perspective of each, they can agree on what is being traded, and that each is better-off. It is thus not at all surprising that those who would have the moral constitution establish the supremacy of their perspective often disparage markets. Consider the artist who bemoans that gallery owners view his art as an investment, the environmentalist who insists that forests are not to be viewed as productive resources, the feminist who is adamant that it is degrading for women to sell their sexual favors, the conservative who insists that American flags must be revered and never used as a patch for jeans, or the Catholic who demands that stem cells not be sold for scientific research. Of course most perspectives claim that their characterization of the features of the social world (WF) is the correct characterization, and so other perspectives, which do not view the objects as possessing the same properties, are misrepresenting them. However, when, on the basis of their perspective, some insist that the characterizations of others are illicit, and so trades based on them should be prohibited, they are then insisting that incompatible perspectives be normalized away (i.e., deemed illegitimate). Such views often take the form of criticizing markets, and the deep assumption that what is traded is up to buyers and sellers.
To be sure, in any given community perspectives may converge on their conception of some objects and their properties, and so a moral constitution could prohibit some trades. More importantly, it may be impossible to allow some trades without deleterious effects on third parties, and there is no practical way to include them in the bargain.118 But as the moral framework increases the class of “taboo trades”119—trades that are conceived of as not respecting the “true character” of the objects—it is normalizing the public perspective, assuming a correct understanding of the social object and its value. To the extent it does so, the moral constitution impairs the ability of markets to perform their critical role in facilitating exchange and cooperation between those who understand their worlds very differently.
The Open Society arose in the great commercial cities of Western Europe. The widespread extent of their markets facilitated cooperation among those with deeply diverse religious and cultural backgrounds, who saw the world in very different ways. Without great reliance on markets, diverse perspectives will be unable to work out the terms of their myriad interactions—in which they do not fully agree on how to characterize their exchanges or the benefits obtained from them. No set of social rules could ever itself define the rational bargains for the daily interactions of a large, diverse society.
None of this, however, is to say that the rules of the market are beyond the ken of the moral constitution. There is good evidence that concern with fair, nonexploitative transactions is something approaching a universal feature of diverse societies.120 An especially important finding concerns play in the widely replicated Ultimatum Game. An Ultimatum Game is a single-play game between two anonymous subjects, Proposer and Responder, who have X amount of some good (say, money) to distribute between them. In the simplest version of the game, Proposer makes the first move and gives an offer of the form, “I will take n percent of X, leaving you with 100-n percent,” where n is not greater than 100 percent. If Responder accepts, each gets what Proposer offers; if Responder rejects, each receives nothing. If players cared only about the amount of X that they received, it would be rational for Proposer to, say, take 99 percent, offering Responder 1 percent. Responder would be faced with a choice between 1 percent of X and nothing; if the Responder cares only about maximizing the amount of X to be received, she will accept the offer. Since Proposer knows this, and since Proposer also will not choose less over more, Proposer will make the “selfish” 99:1 offer. This is not the observed outcome. In the United States and many other countries, one-shot ultimatum games result in median offers of Proposers to Responders of between 50 percent and 40 percent with mean offers being 30 percent to 40 percent. Responders refuse offers of less than 20 percent about half the time.121 Strikingly, while those in market societies throughout the world play Ultimatum Games in these ways, there is much more variance in small-scale, nonmarket, societies. Indeed, in some small-scale societies (the Machiguenga of the Peruvian Amazon and the Mapuche of southern Chile) the game is played in the relentlessly “selfish” way, as figure 4-3 indicates.122 The Machiguenga are essentially without markets; the Mapuche have limited acquaintance with markets. Note that fair play in the Ultimatum Game seems characteristic of market, but not nonmarket, societies. A plausible hypothesis is that market societies have developed moral rules—parts of their basic frameworks—for fair terms of interaction with strangers. The Machiguenga, for example, do not seem to have social rules regulating anonymous transactions with strangers and thus do not see anything unfair about “selfish” Proposer offers. Machiguengan Responders seem to simply view it as bad luck that they were not chosen as Proposers. The Mapuche do see “selfish” offers as unfair but do not seem to think there is a basic moral rule to which they can hold others accountable.
2.6 The Moral and Political Constitutions
I have been stressing the moral constitution of the Open Society, rather than the political constitution and the legal framework. Political philosophy has typically focused on the state and the law, often ignoring—indeed denying the existence of—the moral constitution. This has led to a state-legal-centric view of the regulation of the Open Society. A typical view in political philosophy is to take it as axiomatic that if there is an injustice the state should enact a law that prohibits it; if people have a human right to perform an act, or to a performance on the part of others, the law should make it so. The truth about morality dictates what justice demands, and the law must enforce it. Gerry Mackie has recently argued that this is an error. As he points out, there are hundreds of critical cases around the world in which deeply unjust practices—among them female genital cutting, caste discrimination, child marriage—have been widely criminalized yet continue to be practiced. Laws that depart from the basic moral and social norms of a society mostly likely will be ignored, often engendering contempt for the law. As Mackie, following Iris Marion Young,123 concludes, “Criminalization is an appropriate response to a criminal injustice, a deviation from accepted norms, its harmful consequences intended, knowingly committed by identifiable individuals, whose wrongdoing should be punished. It is not an appropriate response to a structural injustice, in compliance with accepted norms, its harmful consequences unintended byproducts, and caused by everyone and no one. The proper remedy for a harmful social norm is organized social change, not fault, blame, punishment.”124
In recent years students of social change have come to something of a consensus that effective legal regulation cannot stray too far from the underlying informal social rules.125 One of the most striking “social experiments” based on this insight was that of Antanas Mockus, mayor of Bogotá in the late 1990s and early 2000s.126 In terms of the present analysis, Mockus’s aim was to harmonize the moral constitution and legislation; he recognized that unless supported by the underlying informal moral and social framework, attempts to induce change though the law would not succeed. For example, Bogotá was characterized by a very high rate of traffic fatalities in the mid-1990s, with widespread disregard for traffic regulations. Mockus distributed 350,000 “Thumbs Up/Thumbs Down” cards that drivers could display in response to dangerous driving by others, to drive home the message that such behavior not only was illegal but violated the informal normative judgments of other drivers. Along with related programs, Bogotá witnessed a 63 percent decrease in traffic fatalities between 1995 and 2003. Similar programs based on harmonizing the law with informal social normative expectations led to decreases in water usage and, critically, homicides.
Of course the law does have a fundamental place in the regulation of interactions in the Open Society. Gillian K. Hadfield and Barry R. Weingast have developed an enlightening model of legal coordination according to which the critical function of law is to provide shared classifications of prohibited behavior among those with, essentially, different perspectives.127 In this sense law is absolutely critical in creating a shared social world. Nevertheless, the fundamental point of this section stands: political philosophers and policy experts have too often conceived of the legal system as an autonomous center of social regulation, failing to realize that its efficacy depends on harmonizing its requirements with the underlying moral constitution.
3.1 On Choosing without Agreeing on the Best
In the previous section I sketched a set of institutions that are hospitable to diversity as such. We now turn to the critical question of justification: in what sense can we say that a perspective on justice could endorse the rules of the public moral constitution? That is, under what conditions can Alf, holding perspective Σ, endorse these rules and institutions in a way that allows him to see them as a practice of moral responsibility to which he holds others, and accepts that others appropriately hold him accountable? I first consider the conditions under which some single perspective can do this, and then extend the analysis to examine the range of perspectives that might accomplish it.
Recall the problem with which we began this chapter. Rawls seemed unable to build his insight about deep diversity of views about justice into his contractual model. One can see why he might have been reluctant to build diversity into a contract: it is easy to assume that a contractual model that yields no unique result may be one that simply ends in a deadlock, and a deadlock is of no help at all in deciding what is just. In A Theory of Justice Rawls modeled the parties in the original position as ranking the various competing conceptions of justice in pairwise comparisons.128 But the choice depends on unanimity about what is ranked best in the set: if in your ranking you hold that x is preferred to y, and in my ranking y is preferred to x, we seem stuck. As Sen saw it, the social contract’s unanimity requirement appears to be a “straightjacket” that leaves us unable to make any choice at all.129 As Rawls came to recognize the diversity of reasonable conceptions of justice, he appeared to allow multiple original positions, which would yield multiple conclusions. But this leaves us without a conclusion about what justice is. At the end of a fifty-year quest, we have no coherent theory of justice. For some partially normalized perspectives we have one conception (say, “justice as fairness”), for another normalization, another theory. But what is the theory of justice?
Let us commence with a version of this problem. Instead of a set of theories of justice {T1… Tn}, let us substitute a set of alternative rules {R1… Rn}, which are proposed as part of the moral constitution over some matter regulating the interactions of a set of perspectives {Σ1… Σn}, which includes Alf’s perspective. We suppose these are strict alternatives in the sense that for every such rule in the set, other members provide inconsistent deontic requirements or permissions over the core cases which R-type rules are intended to regulate.130 I assume for simplicity’s sake that all perspectives (or, alternatively, all representatives of a perspective) {Σ1… Σn} strictly rank all the rules in {R1… Rn} in terms of their justice, as that perspective judges it.
It might seem that we have simply recreated Sen’s problem: in order for the choice situation to make sense, the different perspectives must be ranking the same thing, but it is precisely in their identification of the features of objects on which perspectives disagree (§IV.1.2.3). Recall, however, that a rule simply is a common public system of classification: it is a socially constructed artifact. The question for the perspectival “contractors” is how some artificial system of social classification relates to their perspective on justice: given their view of justice, they ask how well this system of social classification scores.131 For now I assume that they have a very high level of agreement as to the characterization of a given rule R; I relax this assumption in §IV.4.2.
Granting for now, then, that the perspectives agree on how they understand any given proposed rule, and given that our concern is a contract among deeply diverse perspectives, we clearly see the dead end of what we might call optimizing (i.e., best in the set) unanimity: it is almost certain that the perspectives will not agree on the best rule in the set. Of course we can guarantee optimizing by full normalization—if Alf’s perspective is the unique normalized perspective, then his choice necessarily identifies the best in the set; his choice defines the Archimedean perspective (§IV.1.1). At this point in our analysis the attractions of normalization have hopefully faded. Now ironically enough, it is Sen’s pathbreaking work on choice sets, maximal sets, and choice under incompleteness that helps rescue the contractual project from the specter of optimizing deadlock. To simplify, suppose that there are three rules in the set {R1, R2, R3}, which each perspective ranks from best to worse, and no single rule is ranked best by all perspectives. The perspectives disagree in their rankings of this set, yet, as Rawls so often stressed, they require a public moral constitution—a public social world. It will not do for some to insist that R1 is the one and only correct rule; given that other equally eligible perspectives hold that R2≻R1, how can a proponent of R1 claim that all must endorse it over R2? As Sen recognized, it is ranked higher on one evaluative perspective, but, since we have supposed that it is not the only perspective that matters, its conclusions are not determinative for other perspectives. The parties need to devise a public social world, but they do not agree about what is best.
Our parties are in a position similar to “Buridan’s ass,” the donkey who was precisely midway between two haystacks and could not decide whether to turn right (x) to eat from one or left (y) to eat from other, and ended up dying of starvation (z). Sen writes:
The less interesting, but more common, interpretation is that the ass was indifferent between the two haystacks, and could not find any reason to choose one haystack over the other. But since there is no possibility of a loss from choosing either haystack in the case of indifference, there is no deep dilemma here either from the point of view of maximization or that of optimization. The second—more interesting—interpretation is that the ass could not rank the two haystacks and had an incomplete preference over this pair. It did not, therefore, have any optimal alternative, but both x and y were maximal—neither known to be worse than any of the other alternatives. In fact, since each was also decidedly better for the donkey than its dying of starvation z, the case for a maximal choice is strong.132
Our contract among diverse perspectives is in the same position. If z is {¬R1, ¬R2, ¬R3}, and all concur that R1≻z, R2≻z, and R3≻z, all three rules are best elements in the set {R1, R2, R3, z}; they are all ranked higher than z, but there is no unanimous ranking of any pair in {R1, R2, R3}. However, if the parties do not choose from {R1, R2, R3} they know they will end up with z, which all deem their worst choice. Theirs is Buridan’s ass’s predicament: at this stage of their deliberation they cannot, via unanimity, select any of the three rules as the best, but if they do not choose they end up with z. And, as Sen suggests, only an ass would do that. Thus the contract among diverse perspectives may well have an outcome—a choice set (a set of best options) from which all the contractors have reason to endorse a choice. The important thing is not to get stuck with z.
We can divide the set of the rules {R1… Rn} into three parts. The critical divide is between the rules in {R1… Rn} that all perspectives agree are better than “z,” which we can define as no moral rule at all on this matter. If any of the perspective-contractors rank z above some proposed rule Ri that perspective deems it better to have the moral constitution silent on this matter than to include Ri. Another way of thinking of this is that Alf’s perspective cannot acknowledge Ri as the basis of a practice of accountability; Alf is not willing to have others hold him responsible for failing to act on Ri, nor is he willing to hold others accountable. Thus, faced with a choice between conforming to Ri and simply acting as his own perspective deems best, Alf would choose to act as he thinks best. Let us, then, define the socially eligible set of moral rules as all those rules that all perspectives in the contract rank as better than z.
It is important to stress that stating that a society forgoes a moral rule on this matter is not to say that it has no rule whatsoever about it. It is common to distinguish injunctive from descriptive social rules (or norms).133 On Cristina Bicchieri’s influential analysis, a descriptive norm is solely focused on a group’s empirical expectations of what others in the group will do. An example of such a norm is a pure convention, say of walking on the right side of a sidewalk or footpath. If one expects others to walk on the right side, then it is typically in one’s interest to also walk on the right. In the case of walking on footpaths (unlike, say driving cars on a busy road), one may sometimes deviate from the norm (say one is going to a next-door shop, and it is easier to walk against the current), and others are unlikely to be significantly disadvantaged by one’s deviation. Thus descriptive norms are not enforced; the sole motivation by Betty is to best promote her interests and goals by aligning with the actions of others. Still, overall, groups can achieve large-scale coordination simply by knowing what most others are likely to do. In contrast, injunctive social rules carry not simply empirical, but normative expectations: others expect one to follow them, and are apt to hold one responsible for violations. They can form a practice of mutual responsibility (§IV.2.1.2). Norms of fair division are such injunctive rules: subjects tend not only to follow fair division norms, but to blame and punish those who do not comply.134
While Alf’s core concern is whether a practice of responsibility regulating some matter is justified given his perspective, he also recognizes that a practice of accountability requires that other perspectives have reasons to comply: thus his concern in justifying a moral rule is whether all have adequate reasons to endorse injunctive rules. This is a stronger claim than saying all have an interest in conforming to a social rule. When thinking about the “no moral rule” option we should not conceive of it as precluding a descriptive norm about this matter. This is important, for the question whether to endorse some rule Ri is not simply whether we seek to achieve some coordination in some area of social life (a mere convention can do that), but whether this area is of such a nature and of sufficient importance that we must regulate it via (justified) injunctive rules—a system of shared normative expectations and demands, and quite possibly punishment. This is why a chaotic moral state of nature is an inappropriate benchmark for a contractualist theory, as if the absence of a moral constitution is no coordination at all. From the justificatory point of view, the absence of a justified injunctive rule about some type of social interaction may well be simply a descriptive norm or convention about it.
That said, injunctive moral rules often have great advantages over purely descriptive norms or conventions when social cooperation needs to be secured. Descriptive norms can be unstable: since they are sustained only by empirical expectations of general conformity, as soon as one begins to doubt whether others are actually conforming to the norm, one is apt to withdraw one’s compliance.135 Thus “trembling hands”—noncompliance with the norm caused by errors in applying it—may lead others to abandon the norm as they conclude that general conformity is breaking down (“Look at the people violating the rule; it isn’t much of a convention!”). In contrast, injunctive social rules are upheld by a system of normative expectations and demands and thus are designed to respond to noncompliance. Consequently, while the absence of an injunctive rule about some matter does not imply the absence of social cooperation, it often does imply imperfect and fragile cooperation. The simple game of the Stag Hunt provides a good example (figure 4-4).136
The best for both parties is to hunt a stag, but for that they must cooperate. While Alf cannot catch a stag alone, he can capture a hare alone, though the meat is much less than half a stag. It would seem that, since cooperating on hunting a stag is best for both, a descriptive norm (“We hunt stag around here”) would suffice. But note that if either Alf or Betty suspects that the other will not act according to the convention, he or she will be tempted to defect and hunt hare; in this sense the Hunt Stag/Hunt Stag equilibrium is fragile. An injunctive norm (“Hunt Stag!”) could change the game, allowing players to demand that the other Hunt Stag, and punish those who fail to. A practice of responsibility for hunting stag may well be to the advantage of both, even on a matter of simple coordination. When Alf and Betty seek to cooperate in situations with a Prisoner’s Dilemma–like structure (where each does best under universal cooperation rather than universal defection, but one does yet better if others cooperate when one defects), the case for an injunctive rule is obviously even more compelling.137
Thus whether a perspective ranks an injunctive moral rule above no such rule is the critical distinction for our contractors: any rule injunctive Ri ranked below the “z” option by a perspective is not eligible for that perspective; the set of rules that are eligible for all perspectives constitutes the socially eligible set. Now within this socially eligible set, some rule injunctive Rx could be judged by all contractors (i) as better than “z” but (ii) as a worse option than some other member of the socially eligible set. In more technical language, this rule would be Pareto dominated by another member of the socially eligible set. The set of rules that are (i) in the socially eligible set and are (ii) not Pareto dominated by any rule in the socially eligible set is the socially optimal eligible set.138 Clearly our contractors would prefer to select a rule from the socially optimal eligible set; to abide by an eligible rule that was, in the eyes of all, worse than another member of the socially eligible set would be unfortunate for all. They might feel a bit like asses—from everyone’s perspective on justice, they could do better. However, for our purposes the critical issue is the conditions under which a society could possess a socially eligible set, and so create a public moral constitution all can live with (whether or not it is optimal).
3.3 Abandoning the Optimizing Stance
Recall that our interest in a socially eligible set is that, even if all the perspectives in our contract cannot all converge on a single best rule for regulating some area of social life, they might converge on a set of injunctive rules, which all rank as better than no moral injunctive rule at all on this matter. For such an eligible set to obtain it must be the case that our contractors do not insist on what might be called the “optimizing stance”—that the only rule that is acceptable is one’s top-ranked rule. Here is where we must break with a great deal of moral and political philosophy, which identifies moral thinking with an optimizing perspective: thinking through the issue from his own perspective on justice Alf decides what is the best injunctive rule, or best principle, and so he concludes that, and that alone, is what morality requires. As Kurt Baier says, “Where interests conflict, there are many possible regulations dealing with the conflict. The directive embodying the regulation would not be properly moral (as opposed to being legal or conventional) unless it purported to be the best possible way of regulating such a conflict.”139 If Alf and Betty, who do not share a normalized perspective on justice, insist on the optimal choice as given by his or her perspective—each can see only as part of an acceptable moral constitution what he or she sees as the best rule—they will almost surely fail to endorse a set of eligible moral rules. Diverse perspectives will disagree about what is best because they disagree about justice. If we accept the optimizing stance, the idea of a contractarian theory of justice is either an illusion (because the contract, which was supposed to justify a conception of justice in the face of diversity, really presupposes a fully normalized perspective on justice) or a dead end (because no agreement will be achieved). But perhaps this simply shows the folly of a contractarian approach. Why shouldn’t a person insist on following his or her personal optimizing commitments? What good reasons could one have for not doing so?
The fundamental reason is that the optimizing stance precludes a great good—one which that very perspective on justice almost surely endorses—of a social life of widespread moral accountability (§IV.2.1.2). Suppose that Alf, occupying his perspective, insists that only his optimal rule is acceptable as a basis for the moral regulation of some important interaction (say, about the rights of bodily integrity), while Betty insists that only her (incompatible) optimal rule could qualify as the basis of a practice of moral accountability. When they meet each other Alf will not be able to suppose that a goodwilled Betty, who reasons about justice as well as he can expect of another, will see that she ought to conform to his preferred rule. Employing her capacity for rational moral reflection and agency, she has constructed a reasonable perspective on justice; given it, she simply cannot come to the conclusion that his proposal is the best rule (as we have seen, her perspective categorizes and evaluates the world differently). But if Alf recognizes all this, he cannot infer ill will on her part, for he too embraces the optimizing stance, and he sees her perspective on justice as a reasonable one. Thus their reactive attitudes at the heart of the practice of moral accountability are undermined—and thus also the practice itself.
The orthodox moral philosopher will insist that this is just too bad, but true justice is true justice, and Alf cannot renounce the conclusions of his perspective that his rule best tracks true justice.140 The Open Society, however, does not ask him to do so; indeed, if his perspective is to be part of a system that is morally improving (§IV.4), it is critical that he not renounce the conclusions of his perspective. Moral improvement depends on Alf (and others) seeking the best answers and, hopefully, convincing others that his is a better answer. What he must renounce is his claim that the optimal rule as identified by his perspective on justice is the sole acceptable basis of a system of moral accountability—that it must be part of our moral constitution. As we have seen, it is this insistence that undermines the practice of accountability—a practice that his own perspective on justice surely values.
Some moral philosophers are, as they say, willing to “bite this bullet” and accept that their optimizing stance precludes relations of moral responsibility.141 Strawsonians will be deeply skeptical that they really can leave behind their participant perspective in favor of the theory of morality endorsed from what they see as the objective perspective. Their insistence on the correct, objective point of view and their formal pronouncements are forgotten when they reenter the participant perspective of an agent among others and react to the slights, lack of respect, and ill will that they attribute to others when they conclude that their moral rights have been neglected. But even from the objective perspective of the moral philosopher examining a system of relations from the outside, a system of rules to which goodwilled rational moral agents cannot hold each other accountable must be a terribly flawed system, for we have good formal and empirical evidence that without accountability and punishment, systems of moral rules are invaded by defectors, undermining the very basis of moralized, stable, social cooperation.142
The optimizing stance is also self-defeating, once we take a more inclusive view of optimization. Our analysis in chapter II concluded that an individual perspective on justice will almost surely be unable to find its ideal; being confined to a neighborhood, the identification of its own ideal will be elusive. However, as we saw in chapter III, other perspectives can uncover parts of the landscape beyond one’s ken; revealing features of the social world that are not salient on one’s own view, they can help bring one’s own ideal into closer view. But this requires, we saw, a network of interconnected communities of inquiry—what we termed “republican communities of moral inquiry.” It is precisely the framework for such interactions that the moral constitution of the Open Society provides. Adopting the optimizing stance toward the moral constitution precludes one’s perspective participating in this framework for inquiry; relations of accountability, and shared empirical and normative expectations between one’s own perspectives and those from whom one could learn, will be undermined. To participate in shared moral inquiry with other perspectives on justice one must provide the foundations for moral relations of accountability in one’s interactions with them. To wish to learn from other views, while insisting that only one’s own view is correct and that all must live by it, is hardly a basis for a community of shared inquiry. By seeking to optimize in this way one forgoes optimizing in the sense of better understanding one’s own commitments regarding justice.
It might be wondered why, if one cannot insist that one’s ideal be institutionalized in the face of disagreement by other perspectives, one should care about improving one’s understanding of ideal justice. It would seem that the Open Society allows one to better know one’s ideal, but simultaneously instructs one not to pursue it. Why, then, care about the ideal? Those who believe that inquiry into ideal justice is more like theoretical than practical inquiry143 will not see this as a pressing worry, but those who accept that recommendations are critical to justice (§I.1.5), will indeed wonder what is the point of such moral “inquiry.” We shall return to the idea of moral improvement (§IV.4), but this much is manifest: the Open Society invites all to share their ideals, and show other perspectives how our common life can be made more just. Especially given the polycentric nature of the Open Society, ideals of a more just society can spread from one network to another, often deeply changing the public moral constitution. Sometimes this consists in the elimination of unjust categories such as racial or gender classifications, sometimes in the development of new rules of personal privacy and bodily integrity. That the public moral constitution denies the claim of any perspective to implement its controversial ideal of justice by no means implies that deeper understandings of different visions of the ideal do not help shape our common life together. The benefits of exchange of ideas among different communities of moral inquiry can be widespread even if none of the ideas is accepted as a blueprint for our shared moral life.
We can generalize this idea beyond inquiry into justice to more diffuse benefits. In a recent analysis of the conditions of tolerance and the gains from interacting with those with different ideological perspectives, Ryan Muldoon, Michael Borgida, and Michael Cuffaro develop a model based on Ricardo’s account of trade, which indicates that
as tolerance is a measure of how willing to engage with others with different ideological commitments one is, tolerance increases one’s chances of discovering a satisfactory tradeoff between material gains and ideological purity. This suggests, then, that if one has an interest in material gain, then one has a corresponding reason to become more tolerant. On this model, increased tolerance results in increased reward, even when the potential discomfort of engaging with someone with different ideological preferences is taken into account. From this model, we see that rational actors ought to choose to become as tolerant as they can, with the expectation that this tolerance will be amply rewarded. Tolerance, then, can be thought of not just as a liberal duty to others, but as a rational duty to oneself: to promote one’s own self-interest best, one ought to be more tolerant of others. Rationality thus motivates individuals to see others who are different as potential partners in exchange, rather than as merely potential sources of ideological conflict.144
Those with different perspectives—on justice, but on other matters too—provide opportunities for productive exchange based on comparative advantage; the more one fruitfully interacts with diverse others (even granting that this might offend some of one’s sensibilities about justice), the more opportunities for advantageous trades (or, more broadly, productive interactions). Again it is important that the Open Society arose in the great trading cities, in which not only different skills but different cultures and moral perspectives interacted. Thus satisfaction of a variety of goals typically strongly inclines against the optimizing stance. When people insist on their optimum choice as the only acceptable common rule, they preclude widespread acceptance of a practice of accountability that provides a framework for a wide-ranging system of cooperation among diverse agents, which provides innumerable opportunities for mutual benefit.
3.4 The Social Space of the Open Society
Rawls tells us that the aim of his account of public reason is to arrive at a public moral constitution “that all can live with.”145 In the terms of our analysis, the fundamental claim is that in a society with a number of perspectives on justice N, versions of the institutions of the Open Society (§IV.2) will be in the socially eligible set for a group of perspectives coming near to N. This is not to say that all, or indeed many, perspectives will rank rules consonant with the elements of the Open Society as the best rules by which to live, but they will be rules that a maximally large subset of perspectives can live with. Yet, as Rawls also observes:
No society can include within itself all ways of life. We may indeed lament the limited space, as it were, of social worlds, and of ours in particular; and we may regret some of the inevitable effects of our culture and social structure. As Isaiah Berlin long maintained (it was one of his fundamental themes), there is no social world without loss: that is, no social world that does not exclude some ways of life that realize in special ways certain fundamental values. The nature of its culture and institutions proves too uncongenial.146
Some perspectives will conclude that no moral rules at all are better than the moral constitution of the Open Society: they place little importance on a cooperative social life supported by a practice of accountability, little weight on the improvement of their own perspective’s ability to better locate its ideals, and little importance on a framework of mutual exchange. All this is possible—and no doubt occurs. But to conclude that the space of the Open Society is inadequate in the face of perspectival diversity is to retreat into the social world of one’s own perspective, forgoing the great benefits of a practice of accountability and productive interchange with diverse communities of moral inquiry.147
Many worry that, in a diverse society, any attempt to show that almost all perspectives must endorse a moral rule is doomed to failure: we are almost surely to be left with no socially eligible set.148 One response to this worry is, of course, to reflect again on the basic elements of the Open Society, and the great benefits that they provide almost all perspectives. But two other points should be kept in mind. (i) The polycentric (§IV.2.2) nature of the Open Society does not require that all perspectives must share all features of the moral constitution. While no doubt the most fundamental aspects must be shared by all (say, basic understandings of the contours of jurisdictions), we should not suppose that all rules must hold over the entire range of perspectives. Networks crystallize to solve commonly recognized problems—those seeking solutions to shared problems adopt rules to accomplish their aims. Those who worry that diverse societies have “empty eligible sets” take an overly abstract view of moral life and why we participate in it. (ii) However, it is by no means necessarily unfortunate that many moral rules will fail to be justified—we should not seek a maximally large eligible set or a comprehensive moral constitution. As Hayek stressed, the Open Society’s extension of the range and diversity of individuals to whom its moral rules apply inherently brings about a limitation of the content of those rules.149 If we compare the smothering moralization of the Victorian period with our contemporary moral constitution, we are struck by just how much less social morality regulates. It is a thinner, and a far less stultifying, moral constitution. Recent studies of social norms such as female genital cutting, racial discrimination, condemnation of homosexuality, and public gender inequality have made it manifest how many deeply oppressive social rules characterize various societies. That many perspectives conclude that such rules are worse than no moral rules at all on these matters is a great advance, not a handicap, in the development of the Open Society.
Nevertheless, Rawls and Berlin are certainly correct that, in the end, some perspectives will conclude that even the most fundamental elements of the Open Society are worse than no moral constitution at all. Some perspectives are, in the end, unable to share a framework of moral accountability with diverse others. Even the Open Society must be prepared to normalize to some, hopefully to a very small extent. Such “Excluded Perspectives,” which cannot find sufficient space in the Open Society, will almost surely be those that are committed to the optimizing stance, or some near approximation to it. Faced with different rules to live by, the Excluded Perspectives can live only by those that they think best, and so they cannot endorse the characteristic institutions of the Open Society, which seek to provide as much space for all as is possible. Such perspectives may live along with, but are not part of, the Open Society, treating its rules as at best mere descriptive norms rather than moral injunctions. Here, we still can do deals with such perspectives on a purely instrumental basis focusing on mutual benefit150—insofar as effective deals can be done without a supporting moral framework that undergirds trust among strangers.151 Philosophers are apt to worry whether, in the absence of accountability relations, we can still act to defend ourselves against such strangers in our midst, and coerce them if need be. Nothing I have said here denies that the Open Society may exercise such defense, including through the law.152 There is no reason we should leave ourselves at the mercy of those who refuse to live on terms that others can endorse. Yet such Excluded Perspectives are apt to be a source of social conflict and instability. Alienated from the public social world, Excluded Perspectives take refuge in the social world of their comprehensive conception, while viewing the moral constitution of the Open Society as alien oppression. It is a great loss to all when any perspective is, as it were, normalized out of the social contract, though no doubt such loss can be only minimized, not entirely avoided.
4 IMPERFECT COORDINATION ON THE MORAL CONSTITUTION
4.1 Coordination as Diversity Reducing
Thus far the most that could be claimed is that versions of the rules characteristic of the Open Society (§IV.2) will be in the socially eligible set of a very wide range of perspectives, and no effective basis of social cooperation could achieve a more widespread endorsement. Even granting that, I have said nothing about how any rule, specific enough to be part of a practice of responsibility, might be selected. We can, for instance, think of a range of rights of privacy; different perspectives will rank them differently given their understandings of justice. That a contract yields a socially eligible set with no optimal element does not tell us how to choose from this set, only that we have reason to make a choice (§IV.3.1).
On Peter Vanderschraaf’s insightful analysis, this means that the parties to our “contract” are in the true “circumstances of justice.” On his non-Humean account of the circumstances of justice, they can be modeled as a “conflictual coordination game … with multiple strict equilibrium points such that the parties engaged in the game differ over their most favored equilibria. In a conflictual coordination game, the parties have open to them a variety of ways to coordinate, but their interests conflict over which way to coordinate.”153 In our case, they disagree in their rankings of the rules of justice over some matter in the socially eligible set, but they recognize that a moral constitution obtains only when they successfully coordinate on one of them. Figure 4-5 provides a toy game example of the basic problem of our perspectival contractors in the circumstances of justice.
Unless they coordinate on one member of the socially eligible set, they do not have a mutually acknowledged rule, which provides the basis of a practice of responsibility in which they share the same normative expectations (§IV.2.1.2). Either Rule RA or RB is better than lack of coordination (no shared rule at all, the “z” option), and thus both are Nash equilibriums: if they coordinate on RA or RB neither can achieve a better outcome by unilateral defection, acting on the alternative rule. If Alf acts on RA, Betty’s best response is to also act on RA; if Betty acts on RB, Alf’s best response is also to act on RB. If Alf justifies his action because it is called for by RA it must be the case that not only is RA in the socially eligible set, but it is the rule on which they have coordinated, and so both have empirical and normative expectations that they will act on it. A justified appeal to RA presupposes that it is the rule from the socially eligible set on which they have coordinated (even though Betty believes it is not the best, given her understanding of justice). As we saw earlier, the functional nature of the moral constitution implies an existence requirement (§IV.2.1.3). This points to a fundamental revision in theorizing about public reason and justice, which has not been appreciated (indeed, it has not been glimpsed) by most of those who are content with justifying a “family” of liberal conceptions. The justification of a rule of justice depends not simply on the reasons of the parties for specific rules, but on their coordination on some single eligible element. The justification of an appeal to a rule of justice R as a basis of a practice of moral accountability in a group requires (i) it is in the socially eligible set of that group and (ii) they have been able to coordinate on it.
Note that the very need for the group to coordinate on a rule is inherently diversity reducing: the value of coordination simultaneously decreases diversity within a group (by inducing them to select within the socially eligible set), leading members to converge, while increasing the diversity (of moral constitutions) between groups.154 Different societies are apt to coordinate on different constitutions, even if they share the same socially eligible set. Thus we can expect significant diversity among the moral constitutions of open societies even when each has the same range of perspectives represented.
This choice from the eligible set can be made in a wide variety of ways. Sometimes we can envisage a procedure that all would accept, say, some form of democratic vote. But here too we are likely to find disagreements about the best procedure—one thing democratic theory after Arrow must realize is that there is no flawless way of voting over three or more options.155 “When sincere and good people differ,” Nozick observed, “we are prone to think they must accept some procedure to decide their differences, some procedure they … agree is reliable and fair. … [But] this disagreement may extend all the way up the ladder of procedures.”156 However, the core lesson from Sen’s work is not that we must justify a meta–choice procedure to determine what, from some metaperspective, is the best in the eligible set, but that rational agents will see the need that a choice is made. In our case, they will see the need to coordinate on some member of the socially eligible set as the rule that they will employ in their moral constitution. Experimental evidence in many-generational-iterated impure coordination games indicates that, indeed, people settle on a tradition of playing one or the other (pure) equilibriums, despite their disagreement on which is the best way to coordinate. In deciding what equilibrium to play, the current generation draws on both the history of play and, more importantly, a socialization process in which the present generation teaches and passes on current conventions to the next generation.157 In another work I have shown how social evolution can secure a similar result.158
Philosophers generally assume that this variety of reasonable ways to practically overcome the indeterminacy of justification is regrettable. Surely, they reason, it would be best if there were some aggregation method that unequivocally and uncontroversially determined what the rational choice to be made from a set of eligible options is. Without such a determinate and uniquely best decision procedure (Condorcet voting, a rational bargain, etc.), even if a society manages to solve the coordination game in figure 4-5 (say by a social process that has produced a constitution with RA), Betty will continue to push for her favored RB. The matter, after all, was not definitely, rationally settled. Thus the never-ending pursuit of the philosopher’s Holy Grail of THE DETERMINATE SOLUTION. I believe this is a fundamental mistake. It is the very absence of an unequivocal and determined best solution to the problem of equilibrium selection that is the engine of moral improvement in the Open Society.
4.2 The Changing Moral Constitution
To see this, consider first a sort of indeterminacy that I have thus far been ignoring. I have been supposing that the relevant perspectives concur on the classifications that constitute the public rules, and thus when they coordinate on Ri they coordinate on what they see as the very same rule (§IV.3.1). To be a bit more formal, we have supposed that they agree on Ri in the following sense: in circumstances C, Ri prohibits (requires) (ϕ-type actions. We also have supposed that they agree in their interpretation of the classification of circumstances (states of affairs) that constitute C, and the classification of actions as ϕ-type. However, given that perspectives see the social world very differently, we might expect that they will disagree in how they understand the relevant circumstances and classifications. Even supposing that they concur on the core or paradigm cases, they might differ on “how to go on” in less obvious cases. To a great extent, the judgments of the large majority are apt to dictate what the proper interpretation is; if we wish to coordinate, then we will typically follow the large majority’s belief on what that involves. Because participants in a practice of responsibility have empirical and normative expectations as to how others should act, when these expectations are not met, they will call each other out. So long as (i) it can be observed what action Alf (occupying perspective ΣA), thinks R calls for, and (ii) the majority concludes that this action clearly disappoints their expectations about R-compliant behavior, they will be able to call Alf out and reestablish coordination. Thus the specification of a rule is by no means a onetime act, but an ongoing process. Again, note how important it is that the rule be part of a practice of moral accountability, rather than simply a descriptive norm (§IV.3.2).
In some circumstances C, though, it may not be manifest to the large majority what the relevant rule is, and so Alf may be able to exploit this ambiguity by choosing the rule that allows him to act as he prefers (ranks best), and yet still meet the normative expectations of others. In an important series of experiments, Bicchieri and her co-investigators have found that exploitation of such norm ambiguity is easily induced. In a notable experiment with Alex Chavez, subjects played Ultimatum Games (§IV.2.5). In the Bicchieri-Chavez study 106 college students played Ultimatum Games with limited options and different amounts of information provided to the Responders. In what they called the “full information” condition, Proposers had three choices on how to split $10: (5, 5), (8, 2) (the 8 going to the Proposer), or a flip of a coin between the (5, 5) and (8, 2) options. Responders knew that these were the Proposer’s options, and which option the Proposer chose. Assuming that the Responders think the coin toss is fair and will accept its outcome, the expected payoff of the coin flip for Proposers is .5(5) + .5(8), or 6.5, higher than the expected 5 from the equal-split option (recall that simple [8, 2] offers are very likely to be rejected, leaving the Proposers with nothing). Participants were quizzed on their normative expectations, and it was found that coin toss was widely seen as fair by Responders, and most Proposers correctly believed that Responders thought so. Thus in the full information condition we would expect that Proposers would tend to select “coin,” as it gave them a higher expected payoff than equal splits (it is important that they correctly expected Responders to accept the outcome of the toss). This would be a case of Proposers exploiting rule ambiguity: since both equal splits and equal chances seem like fair ways to divide money (both were thought by Responders to be rules that apply to this circumstance), Proposers could take a more selfish choice (with the expected payoff of 6.5 rather than 5) and yet still meet the normative expectations of Responders. In the “limited” information condition, Responders knew that the three options were available to the Proposers, but they did not know which was actually chosen; all they knew was whether the offer was (5, 5) or (8, 2), but they did not know how the (8, 2) offer came about (whether it was the result of a coin or a selfish offer). In this condition Bicchieri and Chavez expected that more Proposers would select (8, 2). Because the Responders did not know how the outcome was selected, and so it could have been selected by a toss of the coin in which (8, 2) was selected, Responders could not judge whether or not the choice was selfish or in conformity with the equal chances norm. Consequently the Proposers would expect that Responders may well accept (8, 2), and so be tempted to make the low offer. In the “private information” condition, the Responders did not know that coin toss was available to Proposers, and Proposers were aware that Responders thought that direct (5, 5) and (8, 2) splits were the only options. In this final condition Bicchieri and Chavez did not expect Proposers to choose coin; even if it was truly the coin that selected (8, 2), Responders would take this as simply a selfish choice on the part of Proposers, and so be highly apt to reject. The predictions were well borne out. Subjects did seek to exploit norm ambiguity, systematically selecting the action most advantageous to them when doing so satisfied—or at least did not clearly flout—normative expectations.159
When there is normative ambiguity individuals can choose what rules to follow, and so can act on their preferred rule which, in this situation, is competing with another. Bicchieri and her coworkers’ studies were designed to highlight the choice of norms in light of self-interest, but we should not forget that interest often tracks broader normative commitments: those who seek normative change often do so because they do not think their interests are sufficiently catered for. More generally, normative convictions given one’s perspective on justice may also figure into rule choice in ambiguous situations. This is significant. Because it is important to coordinate on a rule from the socially eligible set, and each coordination outcome is a Nash equilibrium, and because, further, the rules of the moral constitution are part of a practice of responsibility and so one is apt to be called out for violation, it would seem that once we coordinate on a rule we are locked into it. Rule ambiguity loosens this. Individuals can explore and promote alternative rules, not simply by flouting the current rule and so risk being held accountable and perhaps punished, but by exploiting the ambiguity of normative situations to act on what one’s perspective deems to be superior rules (in the socially eligible set) while still satisfying the normative expectations of others. Indeed, in one study Bicchieri and Hugo Mercier found that when exploiting normative ambiguity, a person is apt to be concerned with providing a “public justification” that shows that the action is reasonable.160 Norm innovation and improvement are consistent with acting within the scope of a public moral constitution; the very ambiguity that results from the inevitable lack of complete agreement on what the moral constitution requires provides the opportunity for improvement of the moral constitution of the Open Society. As Hayek observed, “it is, in fact, desirable that the rules should be observed only in most instances and that the individual should be able to transgress them when it seems to him worthwhile to incur the odium this will cause. … It is this flexibility of voluntary rules which in the field of morals makes gradual evolution and spontaneous growth possible, which allows further modifications and improvements.”161 In cases of rule ambiguity one may do so without risking the “odium” normally associated with breaking the rules of a practice of accountability.
4.3 How Diversity Maintains the Open Society
Diversity, I have been arguing, is the source of improvements in the moral constitution of the Open Society. Diverse perspectives can apply their different understandings of justice to explore new rules. In situations of rule ambiguity, those with a revisionary perspective can take advantage of the space of ambiguity to act on what they see as the best rule that will not run head-on into existing normative and empirical expectations. If other perspectives concur on the advantages of the revisionary rule, the moral constitution can develop in ways that a wide range of perspectives will see as a clear improvement. It is important that this process does not require unanimity; as long as the revised rule is within the socially eligible set of the relevant network, there can be movement throughout the socially eligible set (which, of course, itself can expand) without all concurring with this movement. We can expect constant tension between those perspectives seeking to explore modifications of the moral constitution and those seeking to uphold the current one. These tussles, conflicts, and disagreements about the rules are inherent in the Open Society of diverse moral perspectives, each seeking ways of interacting that move us toward its view of greater justice. So long as this movement is within the socially eligible set of rules, changes do not amount to one perspective imposing its view of justice on the others, which would undermine the relations of accountability on which the moral constitution of the Open Society depends.
It would appear, however, that this constant disagreement about the rules and attempts to change that are resisted show that the Open Society cannot achieve the sort of stable coordination on rules of justice that Rawls sought. Although traditional moral and political philosophy may intelligibly insist that stability is not itself a desideratum of morality or a theory of justice,162 when we take up the search for a moral constitution something like stability is of critical importance.163 Stability is the tendency of a moral constitution to return to a justified equilibrium (in which acting on a moral constitution is the best reply to others doing so) in the face of both internal and external shocks that induce deviation from it.164 If we are seeking to evaluate a moral framework, we need to know whether it provides the basis for a stable justified moral constitution in a narrow or a wide range of conditions; if the former, we may well doubt that the constitution can perform its expected function given the vicissitudes of human life. Now Rawls, and almost all political philosophers who have considered the matter, have supposed that stability is induced by homogeneity and endangered by diversity. A society that shares the same basic outlook on justice, it is thought, can weather storms better than one in which people have diverse perspectives on justice. Rawls’s proposed solution to the problem of stability in A Theory of Justice was to argue for a surprising degree of homogeneity not only concerning justice but in our understanding of the good, which would lead us to remain faithful to justice as fairness, even in the face of injustice by others. His later work, acknowledging greater diversity not only about the good but about justice itself, struggled to show how such a deeply divided society could nevertheless be stably just.165
The idea of a society that is apt to maintain just social relations in the face of endogenous and exogenous disruptions can be understood in two ways: stability and robustness. Let us call “stability” the tendency of a system to return to the same equilibrium, and “robustness” the tendency of a system to maintain an equilibrium (on a justified moral constitution)—a robust system returns to an equilibrium, but not necessarily the same one.166 To better see the contrast compare two societies, A and B. Society A is a highly normalized society. All the admissible perspectives share the same view of justice; not only do they agree on what the best rule of justice is, but they agree in their overall rankings. Thinking the same way, they arrive at the same conclusions. They agree on the best choice; if there is anything else in the eligible set, it is Pareto dominated by the single best element. In such a society there is very little pressure to abandon the optimizing stance (§IV.3.3) as everyone can have their optimal choice. There will be no good reasons for people in A to accept that one should live with less than the best rule. As Baier says, the sole moral rule will be identified with the best rule. And so it may well be that the socially eligible set reduces to a singleton. Everyone accepts, and knows that others accept, one correct view, which many will see as the only correct view (it is in this sense that A is homogeneous). Society B, in contrast, has not achieved moral agreement on one and only one constitution as the best; for all rules in the constitution there is a large eligible set with deep disagreement about the best element. Although for any rule in the constitution there is a working coordination on it as the rule they will live by, normative ambiguity and more explicit movements to move within the socially eligible set are a cause of ongoing efforts by many perspectives to change the moral constitution in what they see as a more just direction.
To fix ideas, take just one rule in the moral constitution of each society, R, say, a rule that marriage is a long-term monogamous commitment between two adults. Suppose further that the current rule in both A and B about this matter is R, but in society A rule R is the not only the universally agreed-on best rule, but the only rule in the socially eligible set, and all have settled on it; in contradistinction, in B rule R is in the eligible set but some perspectives are actively seeking to replace it with R*, another rule in the socially eligible set. Now consider what occurs if, say, under a wave of religiosity (such as has occurred periodically in America) or immigration, a perspective arises that strongly believes that polygamy is the best form of marriage, and certainly is an acceptable form of marriage. Should this perspective grow, society A’s moral constitution will be under stress; it has been premised on the assumption that all acceptable perspectives must agree on what is the best option. It thus must either simply deny that the new perspective is “reasonable” or begin searching for a new consensus on the best marriage arrangement. Its stability now looks illusory—it was based on an assumption that the constitution is a stable response to a certain array of views, but is unable to adjust to the inclusion of a new one. In this sense it is a liberal, but not an open, society (§IV.1.4). In contrast, society B has a number of marriage rules in the socially eligible set, which the perspectives order differently. It thus witnesses debate and contestation; perhaps our polygamous perspective seeks to exploit rule ambiguity, advocating lifelong polygamous cohabitation with claims to common law rights. Society B thus has the resources to adjust to the new perspective, and give it social space to press its case for change. Society B is robust as it can maintain its justification by either maintaining the R equilibrium or moving to a new, R*, equilibrium. The moral constitution is more fragile in A; it has fewer moral resources to adapt to changing perspectives (given that it was based on normalization, this should not be surprising). A society that has significant moral disagreement within a socially eligible set has greater resources to maintain a basic charter for its social world that all can live with. Such a society will often exhibit a sort of punctuated equilibrium, converging on an equilibrium for a sustained period and then, after disruption, gravitating to a new one, but always within the set of the type of rules all can live with.
The worry arises, however, whether this robustness actually invites instability. Consider representative persons Alf and Betty in, respectively, societies A and B, again both of which have justified constitutions with rule R. Suppose at some point in society A people are overwhelmingly acting according to this R-including constitution; Alf, a member of A, will act on it so long as his commitment to maintain a practice of accountability (and the coordination benefits it helps secure) plus his expectation of being punished outweigh his temptation to defect in order to better pursue his perspective’s ideals. Radically simplifying, then, for Alf to continue acting justly it must be the case that (letting p indicate the relevant probability):
(EQ. 1) p[benefits (practice of responsibility)] ≥ p[benefits (defection)] − p[costs (punishment)]
The probable benefits of continued moral relations based on the R-including constitution only need outweigh the probable benefits of defection discounted by probable punishment. Contrast this to Betty, in society B. She has an additional incentive to defect on the moral constitution—the expected payoff that her defection might drive B to, say, her favored R*-including constitution. So for her to have reason to conform to the current R-including constitution, it must be the case that:
(EQ. 2) p[benefits (practice of responsibility under R-constitution)] ≥ p[benefits (defection)] + p[benefits (practice of responsibility having achieved R*-constitution)] − p[costs (punishment)]
The probable benefits of moving society to what she sees as a better moral constitution can provide her with a moral reason to violate the present moral constitution. And even if probability of [benefits (of getting R*-constitution)] is very low, she would still have incentive to pursue it when, given rule ambiguity, others would accept both R and R* as meeting their normative expectations. (Again, rule ambiguity is highly conducive to rule innovation.) In contrast, when it is clear that only action in conformity with R will meet normative expectations, and so Betty can expect to be held accountable and perhaps punished for R*-based action, her incentive to act on R* will be much less (as eq. 2 indicates). To be sure, if Betty thinks there are enough like-minded others so that they could actually move to the R*-constitution and this action will be important in doing so, then she may still act on R*. Other things equal, Betty in society B will thus have more incentive than a comparable Alf in A to defect on the R-including moral constitution. We face the prospect that the very possibility of change to another eligible constitution, which is required for robustness, will tend to destabilize the current moral constitution, inducing people to defect in order to achieve a moral constitution they consider superior. Here then, is our problem: how do we achieve sufficient stability while also allowing us to exploit the moral resources that promote robustness and moral change?
As equation 2 shows, increasing punishment certainly can induce stability on a specific equilibrium by discouraging those who would seek to move to another moral constitution in the eligible set. Although recent analysis shows that punishment is indispensible in maintaining equilibrium on norms and moral rules (§IV.2.1.2), the problem with punishment is that it can potentially stabilize any equilibrium, in or out of the eligible set.167 And, of course, liberals rightly recoil at the prospect of a social order that can be sustained only by high levels of force.
A moral constitution requires significant stability if it is to perform its coordinating task, helping to settle expectations about future interactions while, at the same time, it should possess sufficient flexibility to be capable of responding to disruptions by switching to a new equilibrium, and encouraging the search for a better constitution. Now we can imagine ideal members of a moral order that have precisely the correct trade-off rate between valuing stability and inducing change, but, of course, we do not know at any particular time what this trade-off rate is. In environments with a low rate of change, stability is generally appropriate; in times of storm and stress, flexibility is apt to be more valuable. And, in any event, we should no more expect homogeneity on this value than on any other. But that is not such a great worry, for we do not really need individuals to agree on the optimal trade-off rate. Recent studies in cultural evolution, the philosophy of science, organizational theory, and democratic theory converge in showing that diverse populations—those that are divided between more reformist/innovative agents and those that incline toward conservative or conformist values or behavior—often arrive at better collective outcomes than those characterized by a single type.168
Consider a society such as BDIV, divided between those who are critical of the existing constitution, searching for ways to improve it, and those who place high value on stability and so are very reluctant to move to a new equilibrium. Contrast this to society BCON, an orderly society whose members all value stability, and society BREF, a society of reformists whose members all place high value on achieving what they see as the best constitution (though, of course, the various reformists will not concur on what that is). There is strong reason to think that under a range of environmental conditions, BDIV will outperform BCON and B REF in the sense of better maintaining a justified moral constitution over a sustained period. As Page demonstrates, there are two lines of analysis that support this: averaging and decreasing returns to type.169 (i) Homogenous BCON populations will perform very well (a) in environments with minimal disruptions and (b) assuming that it has initially achieved a justified equilibrium. BCON will perform badly when (c) there are severe and regular disruptions that render the current equilibrium difficult to maintain and (d) the current equilibrium is not in the socially eligible set. On the other hand, BREF does well under (c) and/or (d), but worse than BCON under conditions (a) and (b). In a range of environments homogenous BCON and BREF groups will experience wide variation in their ability to maintain a justified constitution; in contrast the diverse BDIV is almost certain to have less variation in its performance, and it can be shown that systems such as BDIV, with less variation, generally outperform less diverse systems such as BCON and B REF.170
(ii) A similar result can be shown by appealing to decreasing returns to type.171 Suppose we start out with BCON and replace n conservative members with reformist members, where n constitutes a small proportion of the society. This new group, BCON *, will almost certainly outperform BCON; given that there is still a large proportion of conservative members, the small n of conservatives lost will not much reduce the impact of the prostability perspective, but the small n of reformist citizens will make contributions that otherwise would not exist, alerting the other citizens to new possibilities and problems (for example, that the current equilibrium is flawed in ways not previously appreciated). If we think in terms of one’s marginal value to achieving a long-term justified moral constitution, the new n reformist members have a higher marginal value than the conservative members they replaced.172 Both lines of reasoning support the conclusion that, while a diverse society may depart from its current equilibrium, it possesses underlying features that enhance its ability to maintain itself in the face of external and internal changes.
4.4 The Perspectives of Reform and Order
The moral and political constitutions of the Open Society require both stability to maintain an equilibrium, and dynamic exploration of better rules. Jonathan Haidt, drawing on moral psychology rather than diverse system dynamics, has recently come to much the same conclusion: different types of perspectives focus more heavily on one or the other of these tasks and thus complement each other. Haidt’s research provides support for the idea that those devoted to a reformist ideology (which he associates with liberals) and conservatives do indeed have different basic moral outlooks, and that these different moral outlooks yield different orientations to alterations in the current moral constitution. Haidt’s hypothesis that moral reasoning is grounded in six “foundations” or “dimensions” is given in figure 4-6. Haidt finds that liberal subjects display responses and justifications that more strongly focus on liberty/oppression and care/harm dimensions. We must be careful; this is not to say that they are without “intuitions” based on the other foundations, but that their reactions are more inclined to those two foundations (or dimensions) as are, especially, their justifications. Thus on their view, morality is essentially about treating all as free and equal, avoiding harm, and ensuring that needs are met.173 In contrast, Haidt argues, those associated with conservative political views have a stronger tendency to rely on all foundations, both in their reactions and justifications.174
The range of foundations on which Haidt’s conservatives draw bears out the long-held view that conservatives tend to be guardians of the current moral constitution. Conservative subjects are far more apt to be loyal to current moral rules and respect their authority even to the point of seeing them as sacred (they are not understood as mere social rules).175 And they are ready to expend resources in policing them, ensuring that others do not cheat. As Haidt concludes, their moral outlook supports the importance of protecting our current “moral capital,” our practices that ensure a cooperative and peaceful social life. “Moral communities are fragile things, hard to build and easy to destroy. … If you don’t value moral capital, then you won’t foster values, norms, practices and identities, and technologies that increase it.”176 He continues:
If you are trying to change an organization or society and you do not consider the effects of your changes on moral capital, you’re asking for trouble. This, I believe, is the fundamental blind spot of the left . … It tends to overreach, change too many things too quickly, and reduce the stock of moral capital inadvertently. Conversely, while conservatives do a better job of preserving moral capital, they often fail to notice certain classes of victims, fail to limit the predation of powerful interests, and fail to see the need to change or update institutions as times change.177
Haidt is led to the nineteenth-century idea of the parties of order and of change: “Here’s the most basic of all ideological questions: Preserve the present order, or change it? At the French Assembly of 1798, the delegates who favored preservation sat on the right side of the chamber, while those who favored change sat on the left. The terms right and left have stood for conservatism and liberalism ever since.”178
Haidt’s work in moral psychology leads him to a conclusion that I have reached by another route: that a moral and political order composed of diverse perspectives performs better—from the moral point of view of the Open Society—than a homogeneous order of either alone. As Mill stressed,
A party of order or stability, and a party of progress or reform, are both necessary elements of a healthy state of political life; until the one or the other shall have so enlarged its mental grasp as to be a party equally of order and of progress, knowing and distinguishing what is fit to be preserved from what ought to be swept away. Each of these modes of thinking derives its utility from the deficiencies of the other; but it is in a great measure the opposition of the other that keeps each within the limits of reason and sanity.179
The philosophical quest for THE DETERMINATE SOLUTION, like ideal theory itself, expresses the desire for the intellectual comfort of convincing oneself that issues have been definitely settled (in one’s own mind) that are never definitely settled. We do not know what the possibilities are, or the real nature of our proposed solutions. Today’s solution is tomorrow’s problem. If we all agreed on what is settled our moral constitution would ossify—serving not as the framework of a dynamic open society but as a monument to our past aspirations.
1 Gauthier, Morals by Agreement, p. 233. Compare Rawls, A Theory of Justice, p. 511. John Thrasher and I consider this matter in far more depth in “Rational Choice and the Original Position.” See also the insightful analysis of Wolff, Understanding Rawls, part 2.
2 The standard Pareto condition is that a given allocation of goods is Pareto efficient when no one can gain more without someone else having less. Presently (§IV.1.2.1) I shall have recourse to a Pareto criterion for collective decisions: if everyone in some group holds that x is better than y, then by this Pareto rule the collective decision must be that x is better than y. While these two criteria may appear very different, both stem from the aim of being able to say that one social state is unambiguously better than another in a way that does not require trade-offs between gains for some and losses for others. In the allocation rule, if we can move from state S1 to state S2 and some gain and no one is worse off, then the Pareto criterion recommends it. We should keep on making such moves until the distribution is Pareto efficient in the sense described above—at that point changes can only be made by weighing gains for some against losses for others. In the collective choice context, if some people prefer x to y and others y to x, we need to weigh the two sets of preferences to arrive at an outcome; if, however, everyone agrees that x is better than y, we have a clear case of improvement without weighing preferences (or counting votes).
3 Rawls, “Distributive Justice,” p. 135. Compare Theory of Justice, p. 121.
4 Rawls, Political Liberalism, pp. 226–27. Emphasis added, paragraph break deleted.
5 Rawls, A Theory of Justice, p. 4. Emphasis added.
6 Freeman, Justice and the Social Contract, pp. 255–56.
7 As we shall see later in this chapter, to do this would require fundamental changes in the nature of argument from the original position, as it would introduce basic disagreement about justice into the choice situation. For an attempt to model such an original position see Muldoon et al., “Disagreement behind the Veil of Ignorance.”
8 Some might argue that political liberalism is concerned with legitimacy, not justice. Even if so, this would not show that a coherent theory of justice remains. A theory of legitimacy is supposed to analyze a citizen’s attitudes and obligations toward a state that is not fully just; but that very idea supposes that citizens have a coherent view of what social justice is in a society in which reasonable citizens disagree, as well as supposing that they have some grounds to seek to legislate their favored view over the reasonable objections of others. “It’s only about legitimacy” is not a magic phrase that can make these issues disappear. What is the liberal theory of justice?
9 Rawls, Political Liberalism, p. 381.
10 Rawls, “The Idea of Public Reason Revisited,” p. 578.
11 Rawls, Political Liberalism, p. 227. Notice the echoes of the Enlightenment View (§III.4.3). Given Rawls’s account of reasonable pluralism and its inevitability under free institutions, appealing to convergence of reasoning here looks, ad hoc, indeed desperate.
12 Sen, The Idea of Justice, pp. 12–15.
13 Though what he will do with a flute he cannot play isn’t obvious. Sen says the flute “will give him something to play with” (ibid., p. 13), rather suggesting that he will use it as fancy stick or like a party favor that can make a loud noise. If he learns to play it, then Anne’s case is weakened. If he does not learn to play it, it is unlikely to satisfy his needs for long.
14 That is, we do not share a mapping function (§II.1.1).
15 Sen, The Idea of Justice, p. 12. Emphasis added.
16 Adam Smith also suggests a plurality of impartial spectators. See Theory of Moral Sentiments, e.g., pp. 78, 82.
17 This is a simplification; Sen’s solution does not require that each spectator can give a complete ordering. Drawing on Sen, I have shown how such incompleteness can be addressed in The Order of Public Reason, pp. 303–10.
18 Sen, The Idea of Justice, p. 135.
19 Read “a is preferred to (or ranked as more just than) b.”
20 See, for example, Sen, “Maximization and the Act of Choice.”
21 See here David Estlund’s list of “primary bads,” Democratic Authority, p. 163.
22 Rawls, Political Liberalism, pp. 6, 7n.
23 Sen, The Idea of Justice, pp. 20–21, 210.
24 Ibid., p. x. Emphasis added. See also p. 410.
25 Ibid., p. 214. Emphasis added.
26 Of course, for Sen {X} need not include the ideal.
27 Where, of course a ≠ a′ and b ≠ b′.
28 As we shall later put it, {f} is the common projection of their different perspectives on this social world. See §IV.1.3.1.
29 It might seem that another alternative would be for them to characterize their joint (interperspectival) social worlds by the unions of the properties they each see. For world “a,” this would be Alf’s {f, g} and Betty’s {f, j}, so the interperspectival identity of world a is the world with properties {f, g, i}; in this case neither Alf nor Betty sees the world as having all three properties. This raises a number of deep puzzles. For one, Alf is committed to employing a criterion of individuation that relies on properties that he does not think world a possesses. Suppose his is a Marxist perspective: he may be committed to the interperspectival world a being characterized by property rights, exploitation (two features he sees), and the violation of God’s commands (a feature Betty “sees” that he thinks bizarre)! Leaving that puzzle aside, the union procedure still will not give a unique account of individuation. Suppose Betty continues to see a world with simply {f, j}, but Alf sees two worlds, one with {f, g} and one with {f, g, j}. On the union account, given Betty’s perspective, both of Alf’s worlds have the same interperspectival identity of {f, g, j}, but this fails to distinguish Alf’s {f, g} and {f, g, j} worlds, which he is apt to evaluate differently. Most puzzling of all, the union account “creates” a multitude of “new worlds” simply by combining the properties of the worlds identified by different perspectives. Because the perspectives see radically different features in these worlds, they will evaluate the union of their properties very differently, thus leading to almost unlimited diversity in the orderings of our impartial spectators, and so undermining the use of Sen’s Paretian rule.
30 Rawls, Political Liberalism, p. xxvi, 4. Emphasis added.
31 Ibid., p. 17.
32 Sen, The Idea of Justice, p. 237.
33 See Rawls, Political Liberalism, pp. 243–44n.
34 Wolff, The Poverty of Liberalism, pp. 23–24.
35 I am criticizing myself here. See my Social Philosophy, chap. 8.
36 Note that even Wolff appeals to both torturing the soul, which certainly depends on a religious categorization, and destroying sleep, which does not.
37 For a fascinating analysis of harms that presuppose controversial views of the social world, see Muldoon, “Perspective-Dependent Harm.”
38 Foucault, Discipline and Punish, pp. 177ff.
39 Similarly, those who reject feminist claims, or, more generally, feminist perspectives, are very often labeled “misogynistic,” normalizing feminism such that only a pathological emotional state could explain opposition. Normalization of one’s political position by depicting opposing perspectives as pathological is becoming something of a fashion; witness John Tomasi’s (idiosyncratic) labeling of classical libertarians, who believe social justice is normatively objectionable, or presupposes an erroneous view of the social world, as suffering from “Social Justicitis” (by which he means, oddly, “Social Justice–phobia”). Free Market Fairness, chap. 5. The very thesis of the present work has been described as a sort of illness; see Estlund’s “Utopophobia.”
40 The morality of this normalized world is what some call WEIRD—Western, Educated, Industrialized, Rich Democratic—morality. See Haidt, The Righteous Mind, chap. 5.
41 “Liberal peoples have three basic features: a reasonably just constitutional democratic government that serves their fundamental interests; citizens united by what Mill called ‘common sympathies’; and finally, a moral nature.” Rawls, The Law of Peoples, p. 23.
42 They are not aptly categorized as jokes at all; they are not jokes in that social world, but forms of domination.
43 Muldoon, Beyond Tolerance, chap. 3.
44 This is not to say that some of the problems with the common projection criterion that we explored in §IV.1.2.3 do not appear in Muldoon’s contract. It is possible that Alf will distinguish two different bargains that, as far as Betty is concerned, have the same projection. In terms of our shape example, Alf may sometimes see an oval and sometimes a cylinder, but if these always have the same projection for Betty—in both cases Betty sees a cylinder—she will think his valuations inconsistent, for she will not be able to see why he values (what looks to her as) the same cylinder differently at different times. His individuation of the bargain differs from hers.
45 Muldoon, “Justice without Agreement.”
46 There is considerable debate about the appropriateness of the Nash bargaining solution to moral justification. Ken Binmore defends it in Natural Justice. For a period David Gauthier endorsed the Nash solution, before abandoning the idea that moral contractarianism should be modeled on bargains. See his “Twenty-Five On.” For Rawls’s criticism, see “Justice as Fairness,” p. 58n. Rawls, as have many others, worried about the way that the Nash bargaining solution is sensitive to threat advantage: “To each according to his threat advantage is hardly the principle of fairness.” Although Muldoon relies on the Nash solution he is not adverse to alternative solutions so long as the equality of participants is respected. Muldoon, Beyond Tolerance, chap. 6. For a defense of a modified Nash bargaining solution that mitigates some fairness concerns, see Moehler, “The (Stabilized) Nash Bargaining Solution as a Principle of Distributive Justice.”
47 We can understand the idea of what can be “reasonably expected” as articulated by the relevant bargaining axioms—especially symmetry. See Thrasher, “Uniqueness and Symmetry in Bargaining Theories of Justice.”
48 As in Quong, Liberalism without Perfection, esp. chap. 1, part 2. See my “Sectarianism without Perfection? Quong’s Political Liberalism.”
49 See Haidt, The Righteous Mind, chap. 5.
50 On this point see Van Schoelandt’s analysis in “Justification, Coercion, and the Place of Public Reason.”
51 Muldoon, Beyond Tolerance, chap. 6.
52 Muldoon, “Expanding the Justificatory Framework of Mill’s Experiments in Living.”
53 See Rawls, “Justice as Fairness,” where uncertainty about the future is fundamental to the choice of the principles. Rawls insists that modeling the agreement as nonrevisable is fundamental to the contractual nature of the project. See his “Reply to Alexander and Musgrave,” p. 249.
54 For Hayek, see The Constitution of Liberty, pp. 23–24.
55 I consider this requirement more fully in The Order of Public Reason, pp. 299–301.
56 Rawls, “Justice as Fairness,” p. 53. Buchanan and Tullock also proposed such a veil of uncertainty in The Calculus of Consent, pp. 77ff.
57 Note that this argument seeks to secure some of the results that the veil of ignorance achieves in the later formulations. See Kohlberg, The Philosophy of Moral Development, pp. 190–201.
58 See Hayek, Law, Legislation, and Liberty, vol. 1, Rules and Order, esp. chaps. 2 and 3.
59 On the importance of individual planning, see Hayek, “The Use of Knowledge in Society.”
60 Muldoon, Beyond Tolerance, chap. 6. Muldoon recognizes that the challenge to his approach is that we have far fewer fixed points, and thus we are without stable principles of justice. He hopes, however, that his account provides for periods of stability.
61 Evaluative standards, the features of social worlds, a mapping relation, a similarity ordering, and a distance metric.
62 See Waldron, God, Locke and Equality, esp. chap. 3.
63 I say “eligible” because a theory will restrict the set as views of justice that should be taken seriously. What is important at present is that the set of eligible perspectives is assumed to be quite large. I turn in §IV.3 to the limits of what can be considered eligible.
64 Rawls, “Kantian Constructivism,” p. 306.
65 Rawls, A Theory of Justice, p. 7. Rawls sees this as a simplifying assumption that could be relaxed later; here we see that it may not be easy to relax given some methods of accommodating diversity.
66 Rawls, Justice as Fairness, p. 128.
67 Ibid., p. 118.
68 Rawls, Political Liberalism, p. 53. Emphasis added.
69 Ibid., pp. 41, 77.
70 There are a number of different ways of theorizing about these coordinated mental states; different accounts can underwrite the claims made in the text. For various approaches, see the essays in Lagerspatz, Ihäheimo, and Kotkavirta, eds., On the Nature of Social and Institutional Reality.
71 Rawls, “Kantian Constructivism in Moral Theory,” p. 326. See further my essay “Moral Constitutions.”
72 This is why it was deeply mistaken for Sen to accuse Rawls of “institutional fundamentalism” (The Idea of Justice, p. 82). It is only through institutions that those with deeply divergent perspectives can share a common, public social world. See further my “Social Contract and Social Choice.”
73 For a careful and insightful analysis of the importance of institutional structures, see Van Schoelandt, “Rawlsian Functionalism and the Problem of Coordination.”
74 The importance of shared rules for overcoming such dilemmas is confirmed not only by theoretical investigation, but by practical fieldwork. See, for example, Bicchieri, Norms in the Wild; Ostrom, “Collective Action and the Evolution of Social Norms.”
75 Rawls, “The Independence of Moral Theory,” p. 286.
76 This project commences with Buchanan and Tullock, The Calculus of Consent. On the assumptions necessary to that analysis, see Thrasher and Gaus, “The Calculus of Consent.” Cf. my essay “The Limits of Homo Economicus.”
77 The experimental literature confirming this is extensive. Much of the critical work has been done by Ernst Fehr and his colleagues; see, for example, Fehr and Fischbacher, “Third Party Punishment and Social Norms.” For an excellent overview, see Bowles and Gintis, A Cooperative Species, chap. 3. See also my “Retributive Justice and Social Cooperation.”
78 The most famous “fieldwork” in a large urban setting is that of Antanas Mockus in Bogotá, who, as mayor, devised a variety of methods to instill a sense of public responsibility for social rule violations. For a short overview, see “Building Citizenship Culture in Bogotá.” See further §IV.2.6.
79 Strawson, “Freedom and Resentment.”
80 Ibid., p. 197.
81 See further Bringhurst and Gaus, “Positive Freedom and the General Will”; and my The Order of Public Reason, chap. 4.
82 On justification, see §IV.3 below.
83 See Chwe, Rational Ritual.
84 Contrary to what some have alleged, this claim does not involve a naturalistic fallacy. The social fact is necessary, not sufficient, for a normative public moral constitution. See my “On Dissing Public Reason.”
85 For excellent analyses of the overall project of the Ostroms and its relation to diversity of perspectives, see Aligica’s insightful Institutional Diversity and Political Economy. For a general overview, see Aligica and Boettke, Challenging Institutional Development.
86 On the importance of “reference networks” to actual rules, see Bicchieri, Norms in the Wild, chap. 2.
87 For a model of such a process see Boyd and Richerson, The Origin and Evolution of Cultures, chap. 12.
88 See Bicchieri, Norms in the Wild, chaps. 1–2; Bicchieri and Mercier, “Norms and Beliefs.”
89 See Aligica, Institutional Diversity and Political Economy, pp. 58ff.
90 Rawls, A Theory of Justice, pp. 300–301.
91 Mikhail, The Elements of Moral Cognition, §6.3.1.
92 See, for example, Feinberg, Harm to Others, p. 9; Rawls, Justice as Fairness, p. 44; Mill, The Subjection of Women, p. 262. See also Mill, On Liberty, p. 299.
93 Benn, A Theory of Freedom, p. 87.
94 Ibid.
95 A feature to which some object. See Wall, “On Justificatory Liberalism”; Hillinger and Lapham, “The Impossibility of a Paretian Liberal.” As Sen notes, to deny this asymmetry implies that “everyone’s right to do anything whatsoever is made conditional on non-opposition by others.” “Liberty, Unanimity and Rights,” p. 227.
96 As Gilbert Harman argues, the ideal of a belief system that is deductively closed, or complete under logical implication, is neither required by rationality nor realistic for humans. Reasoning, Meaning and Mind, pp. 21–23.
97 See May, “A Set of Independent Necessary and Sufficient Conditions for Simple Majority Decision,” p. 681.
98 For a discussion, see Sen, On Ethics and Economics, pp. 66ff.
99 Forst, “Political Liberty,” p. 242. Emphasis in original.
100 Dworkin, “Liberalism,” pp. 124–25. According to Macedo, “an account of basic liberties is itself a product of the justificatory enterprise. … No general presumption of liberty as non-interference forms a prior baseline.” “Why Public Reason?,” p. 13. Macedo’s reference to “basic” liberties makes it difficult to interpret his view, which he takes as constituting a rejection of natural liberty. A system of morality that accepts a principle of natural liberty can insist that important, basic liberties such as freedom of speech are specially justified, and that is why they are morally protected (a view that, indeed, Rawls seems to take). In relation to, say freedom of speech, one possesses not only a blameless liberty to speak in public, but a claim right to do so. Macedo’s deep worry, like Forst’s, seems to be that the Minimal Principle of Natural Liberty attributes to Alf a blameless liberty to ϕ that is itself exempt from the need to be morally justified, and that unacceptably biases the moral system toward liberty rather than, say, equality or claims of justice, which do face the burdens of justification. Quong has similar worries. See his “Three Disputes about Public Reason.”
101 Gaus and Nichols, “Moral Learning in the Open Society.”
102 This experiment was partly inspired by the work of Cummins, “Evidence for the Innateness of Deontic Reasoning,” and “Evidence of Deontic Reasoning in 3-and 4-Year-Olds.”
103 In other treatments, with compatible results, subjects were given a seven-point scale, which allowed them to sit on the fence by choosing the middle. Interestingly, subjects trained on permissions seemed far more likely to sit on the fence (not knowing what to do) than those trained on prohibitions.
104 Federal Communications Commission, Report and Order on Remand, Declaratory Ruling, and Order, http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db0312/FCC-15–24A1.pdf.
105 See Benn, A Theory of Freedom, pp. 289–91.
106 See Royal Society of Chemistry and American Chemical Society, The Discovery and Development of Penicillin, 1928–1945.
107 Ibid.
108 The analysis presented here concerns the distinction between, on the one hand, prohibitions/requirements and, on the other, permissions. This should not be confused with Hayek’s case for prohibitory rules over requirements. Hayek stressed that it was a fundamental mistake to follow Hobbes and J. L. Austin in seeing laws as commands. Although he recognized a continuum, Hayek emphasized that at one end is a quintessential command, which seeks to drastically reduce the feasible options open to the agent (at a limit to simply one act), and a prohibition that does not seek to prescribe specific actions in specific circumstances (and so reduce the feasible set to a singleton) but rather prohibits certain specific conduct, allowing complying individuals to choose their course of action from a slightly pruned set of options. For Hayek, the crucial difference between the two extremes is that prohibitory rules allow individuals to use their information to form plans and respond to novel situations while requirements do not. There is more to this point than most philosophers think, but developing it would take us too far afield. See Hayek, The Constitution of Liberty, p. 150. Compare Adam Smith, Theory of Moral Sentiments, pp. 78–82.
109 See Page, Diversity and Complexity, chap. 1; Waldrop, Complexity. See also §II.2.2.
110 The Order of Public Reason, §18. See also my Justificatory Liberalism, pp. 199ff.
111 D’Agostino, Incommensurability and Commensuration, p. 104.
112 Ibid., p. 105. Paragraph break deleted.
113 Ibid. See also The Order of Public Reason, pp. 374–80.
114 Gray, Post-Enlightenment Liberalism, p. 314.
115 Wiles, Economic Institutions Compared, p. 40.
116 For an excellent analysis, see Mueller, Public Choice III, chaps. 23–24.
117 For a more thorough analysis of this question, see Van Schoelandt and Gaus, “Political and Distributive Justice.” I have also considered these matters in The Order of Public Reason, pp. 509–29.
118 See Satz, Why Some Things Should Not Be for Sale.
119 For a study of people’s different understandings of “taboo trades” and their relation to ideology, see Tetlock, “Coping with Trade-Offs.”
120 For a discussion of this matter, see my essay “The Egalitarian Species.”
121 Bicchieri, The Grammar of Society, p. 105. For a helpful overview see Güth and Tietz, “Ultimatum Bargaining Behavior.” See also van Damme et al., “How Werner Güth’s Ultimatum Game Shaped Our Understanding of Social Behavior.”
122 Henrich and Smith, “Comparative Evidence from Machiguenga, Mapuche, and American Populations.” The Machiguenga and the Mapuche are small-scale societies; the other results are from urban university students in the United States, Israel, and Indonesia. The Ultimatum Game does not show significant variance in play on the basis of age or gender.
123 Young, Responsibility for Justice.
124 See Mackie, “Effective Rule of Law Requires Construction of a Social Norm of Legal Obedience.” My thanks to Gerry Mackie for discussions about this matter.
125 In addition to ibid., see Bicchieri, Norms in the Wild; Bicchieri and Mercier, “Norm and Beliefs”; Platteau, Institutions, Social Norms and Economic Development; Stuntz, “Self-Defeating Crimes.”
126 For a short description of this experiment, see Mockus, “Building Citizenship Culture in Bogotá.” For an in-depth treatment, see Mockus, “Bogotá’s Capacity for Self-Transformation and Citizenship Building.” See also http://www.corpovisionarios.org.
127 Hadfield and Weingast, “What Is Law?” For an application of this model to broader themes concerning public reason, see Hadfield and Macedo, “Rational Reasonableness.” Van Schoelandt demonstrates the superiority of an alternative application (to that proposed by Hadfield and Macedo) in “Rawlsian Functionalism and the Problem of Coordination.”
128 Rawls, A Theory of Justice, p. 106.
129 Sen, The Idea of Justice, p. 135.
130 The difficulty in further formalizing this idea is to distinguish R-type rules that are inconsistent with other R-type rules from other types of rules (Q-types) that may yield deontic prohibitions, requirements, or permissions that in some specific case are inconsistent with those yielded by the relevant R-type rule, and so are in that sense inconsistent with the R-type rule. It is, for example, the difference between assigning inconsistent property rights (a clash of alternative R-type rules) and property rights clashing with a right to assistance (a Q-type rule). If one holds that all rights must be compossible this problem will not arise, but then one must choose over entire schemes of rights (entire moral constitutions) rather than over individual rules. For a more thorough analysis of the idea of alternative social rules, see The Order of Public Reason, pp. 267ff.
131 On a plausible contractarian account, the evaluation of proposed rules will be what Sen calls “comprehensive”: the perspectival representatives will consider how well the rules do on both procedural- and outcome-justice. See §I.2.2.
132 Sen, “Maximization and the Act of Choice,” p. 184.
133 See, for example, Cialdini, Kallgren, and Reno, “A Focus Theory of Normative Conduct”; Bicchieri, The Grammar of Society, chap. 1; Mackie, “Effective Rule of Law Requires Construction of a Social Norm of Legal Obedience.” I am employing the idea of a “descriptive norm” widely here, to include conventions.
134 See Fehr and Fischbacher, “Third Party Punishment and Social Norms.”
135 Bicchieri, The Grammar of Society, pp. 29–43. For a different analysis of how conventions become injunctive rules, see Sugden, “Spontaneous Order.”
136 See Bicchieri, The Grammar of Society, pp. 39–40.
137 It is because injunctive rules can solve such problems that, as the Ostroms have shown, it simply does not follow that the state and law are necessary for solving “tragedy of the commons” problems—where resource use has Prisoner’s Dilemma–like properties. See Ostrom, Governing the Commons.
138 In Sen’s terms, the optimal socially eligible set is the joint choice set for our contractors. In The Order of Public Reason the optimal eligible set was defined in a less demanding way, requiring only what Sen calls a “maximal set” rather than a choice set (the elements of the choice set are always part of the maximal set, but not vice versa). I employ the latter, more demanding idea here because the logic of choice is more manifest and the problem simpler. See Sen, Collective Choice and Social Welfare, pp. 1–20.
139 Baier, “Moral Obligation,” p. 226. Emphasis in original.
140 See, for example, Mack, “Peter Pan Strikes Back”; Arneson, “Rejecting The Order of Public Reason.”
141 See, e.g., Wall, “On Justificatory Liberalism,” pp. 143–44.
142 On these matters see The Order of Public Reason, chaps. 3 and 4.
143 See here Estlund, “Utopophobia,” pp. 132ff.
144 Muldoon, Borgida, and Cuffaro, “The Conditions of Tolerance,” p. 330.
145 Rawls, “Kantian Constructivism in Moral Theory,” p. 306.
146 Rawls, Justice as Fairness, p. 154. The passage also occurs in Political Liberalism, p. 197.
147 Rawls, Justice as Fairness, p. 128.
148 See, e.g., D’Agostino, “The Orders of Public Reason.”
149 Hayek, Law, Legislation, and Liberty, vol. 2, The Mirage of Social Justice, p. 146.
150 The idea is wonderfully explained by Moehler, “The Scope of Instrumental Morality.”
151 There is reason to doubt this. Unless Betty is committed to injunctive norms, she is apt to keep the bargain only if threatened with punishment. She will be tempted to play “snatch” rather than “exchange.” See Schwab and Ostrom, “The Vital Role of Norms and Rules in Maintaining Open Public and Private Economies.”
152 This distinguishes the present analysis from that of some followers of Rawls, who seem to be committed to the impossible project of always justifying coercion. For an excellent analysis, see Van Schoelandt’s “Justification, Coercion, and the Place of Public Reason.”
153 Vanderschraaf, “The Circumstances of Justice,” p. 330. Vanderschraaf’s overall analysis differs from that presented here; on his view justice appears to exclude settling on a Nash equilibrium in pure strategies, leading instead to a correlated equilibrium in which everyone gives up something. I have argued elsewhere that such a “compromise requirement” is not appropriate in the context of rule selection, especially once dynamic considerations are taken into account. The Order of Public Reason, pp. 403ff.
154 For a general analysis, see Page, Diversity and Complexity, pp. 109–10, 138–40.
155 Some, such as Donald Saari, have recently argued the Borda count is manifestly the best. For a critical analysis, see Risse, “Why the Count de Borda Cannot Beat the Marquis de Condorcet.” For Saari’s reply, see “Which Is Better: The Condorcet or Borda Winner?”
156 Nozick, Anarchy, State and Utopia, p. 98.
157 Schotter and Sopher, “Social Learning and Coordination Conventions in Intergenerational Games,” p. 507.
158 See my The Order of Public Reason, chap. 7.
159 Bicchieri and Chavez, “Behaving as Expected.” See also Bicchieri and Chavez, “Norm Manipulation, Norm Evasion.” In an attempt to replicate the first experiment’s results with children it was found that young Responders, though they reported the coin toss to be fair, rejected the outcome when they ended up with a low offer. See Castelli et al., “Fairness Norms and Theory of Mind in an Ultimatum Game.”
160 Bicchieri and Mercier, “Self-Serving Biases and Public Justifications in Trust Games.”
161 Hayek, The Constitution of Liberty, p. 63.
162 This is, alas, a fairly widespread view today. See, for example, Cohen, Rescuing Justice and Equality, part 2; Estlund, “Human Nature and the Limits (If Any) of Political Philosophy.” For a sustained, characteristically intemperate, critique of stability, see Barry, “John Rawls and the Search for Stability.”
163 “Other things equal, persons in the original position will adopt the most stable scheme of principles.” Although the “criterion of stability is not decisive,” if the parties find that a conception is unworkable, this would force a reconsideration of their initial choice. Rawls, A Theory of Justice, pp. 398–99, 472, 505.
164 Ibid., p. 401; Weithman, Why Political Liberalism?, p. 45. On the idea of a justice equilibrium, see also my “A Tale of Two Sets.”
165 I make this argument in some detail in “The Turn to a Political Liberalism.”
166 I am following Page, Diversity and Complexity, pp. 149–50.
167 See Boyd and Richerson, The Origin and Evolution of Cultures, chap. 9.
168 See, for example, ibid., chaps. 1 and 2; Weisberg and Muldoon, “Epistemic Landscapes and the Division of Cognitive Labor.”
169 Page, Diversity and Complexity, chaps. 6 and 7.
170 This result relies on several theorems, which show the benefits of averaging performance over a wide variety of circumstances. See ibid., chap. 6. Recall how averaging across diverse perspectives increases predictive performance (appendix B).
171 Page, Diversity and Complexity, chap. 7.
172 Various caveats are necessary here, of course. If reformist and conservative citizens tend to come into conflict and so destabilize the constitution, then the benefits of diversity may be swamped. See Page, Diversity and Complexity, pp. 194ff. My aim here is not to show that diversity never poses problems for the Open Society, but that diversity of perspectives on justice has critical, and almost always overlooked, benefits.
173 Haidt, The Righteous Mind, chap. 5.
174 Ibid., p. 161. “Very conservative” respondents rely more on authority and loyalty. In the discussion referred to here, Haidt was relying on an earlier version of this theory, which specified only five foundations; some of the foundations are differently characterized in this earlier version.
175 Ibid., p. 290.
176 Ibid., p. 293.
177 Ibid., p. 294. Emphasis in original.
178 Ibid., p. 277. Emphasis in original.
179 Mill, On Liberty, p. 253.
