The problem of political stability–that is, the dilemma of how to secure enduring, legitimate political order–has long been the focus of much philosophical discourse and debate; 1 as a topic of analysis, it has exercised the energies and talents of a vast number of political theorists. Indeed, many of the most celebrated theorists have devoted a great deal of thought to trying to clarify and resolve the problem of political stability. This fascination and concern with political stability have been especially prominent in liberal political theory. For Thomas Hobbes, the individual whom is often identified as the progenitor of liberal theory, the need for political stability was paramount: without political stability, there could be no security for either life or liberty, and thus man’s existence could never be anything more than a chaotic, violent and bloody struggle for power–‘a condition of Warre of every man against every man’ (Hobbes, 1968: 196). Since its initial articulation by Hobbes, variants of this theme have often served as the foundation for liberals’ theorizing.
Following Hobbes’s lead, many liberal theorists have suggested that the best way to resolve the problem of political stability is to establish a social contract premised upon a widespread agreement on a single conception of justice to govern all citizens. It has frequently been argued that only by obtaining a voluntary, broad-based consensus on such a regulatory framework can individuals hope to secure the political stability needed to enable them to realize their full potential and thereby live personally fulfilling lives. However, as the sociopolitical diversity of modern societies has increased, so too has the difficulty associated with designing and, more importantly, achieving any such agreement. A number of eminent contemporary theorists have accepted the challenge posed by this situation and have directed their attention toward trying to develop a conception of justice that can effectively accommodate the increasing array of competing and conflicting views that are present in many existing polities, and in so doing secure the basis for political stability in ethnoculturally, religiously, and morally diverse societies. 2
One such theorist is John Rawls. With Political Liberalism Rawls directly confronts the problem of political stability in modern constitutional democracies and uses contractarian theory to suggest how this problem might be resolved. Rawls proposes a ‘political’ conception of justice as a means of effectively addressing the problem of political stability in contemporary pluralistic societies. He argues that a political conception of justice can secure what other conceptions of justice based upon comprehensive doctrines 3 cannot: namely, an overlapping consensus that can provide the basis for a just and stable democratic regime. 4 Essentially, an overlapping consensus is an agreement that is supported by all of the conflicting and irreconcilable comprehensive doctrines that are likely to survive in a just, modern democratic society (Rawls, 1993: 15). According to Rawls, by securing an agreement that can accommodate a wide diversity of competing and incommensurable religious, moral, and philosophical views, a political conception of justice can generate the conditions (which he believes are presently absent [Rawls, 1993: 4]) needed to produce a just and stable polity and thereby effectively resolve the problem of political stability in modern constitutional democracies.
Rawls argues that the unique character of his proposed overlapping consensus enables his paradigm to secure a degree of political stability which has thus far remained elusive. He contends that an overlapping consensus is distinct from and superior to previously proposed public agreements in that it has a ‘moral object and moral grounds’ (Rawls, 1993, 148), and as such it is not merely a purely prudential or instrumental agreement the continuation of which is dependent upon a ‘fortuitous conjunction of contingencies’ (Rawls, 1992: 594); an overlapping consensus is affirmed morally by its members, and this fact ensures that regardless of any changes in their personal circumstances or in the distribution of political power, the level of support for the overlapping consensus, and thus the degree of political stability which it secures, will not diminish. This essay will argue that contrary to Rawls’s claim, the overlapping consensus he proposes cannot possibly secure the degree of stable moral support that he suggests is necessary to achieve the political stability required to establish and maintain a well-ordered society (e.g., a just and stable constitutional democracy). Subsequently, pace Rawls, Rawlsian political liberalism cannot effectively resolve the problem of political stability in modern constitutional democracies.
The Necessity of an Overlapping Consensus
According to Rawls, an overlapping consensus is a necessary prerequisite for a well-ordered society: only by securing an overlapping consensus can one hope to obtain the type of political stability required to establish and maintain a well-ordered society. The need for an overlapping consensus is precipitated by the ‘fact of reasonable pluralism’– the inevitable and ineliminable presence of a plurality of conflicting and irreconcilable reasonable comprehensive doctrines (Rawls, 1993: 36). Rawls contends that the diversity of competing and incommensurable ‘reasonable comprehensive religious, philosophical, and moral doctrines found in modern democratic societies is not a mere historical condition that may soon pass away; it is a permanent feature of the public culture of democracy’, and as such it will develop and persist in all democratic societies (ibid.). Hence any conception of justice that hopes to secure the basis for a well-ordered society must be able to address effectively this fact. Rawls suggests that an overlapping consensus is alone in its ability to accommodate the fact of reasonable pluralism in a manner that can secure the basis for a well-ordered society.
Rawls argues that if we are to achieve the type of political stability needed to establish and sustain a just and stable democratic regime, then the public conception 5 of justice must secure the ‘right’ kind of stability: 6 that is, it must promote ‘ "stability for the right reasons" ’ (Rawls, 1996: xxxix, n.5). According to Rawls, ‘the problem of stability is not that of bringing others who reject a conception to share it, or to act in accordance with it, by workable sanctions, if necessary, as if the task were to find ways to impose that conception once we are convinced it is sound’ (Rawls, 1993: 143); rather, ‘Stability is secured by sufficient motivation of the appropriate kind’ (Rawls, 1993: 142-43). For Rawls, this means that citizens’ support for the conception of justice 7 must be motivated by the desire to act justly. In modern pluralistic societies, acting justly requires that citizens accept and be willing to act in accordance with the demands of reasonable pluralism. Rawls claims that the desire and willingness to act in such a manner is engendered ‘by living under a just basic structure’ (Rawls, 1993: 142). Individuals socialized under such a structure will normally acquire a sense of justice which recognizes the fact of reasonable pluralism and, subsequently, promotes the establishment of an overlapping consensus; they will realize that the type of stability needed to establish and maintain a well-ordered society can be obtained only by ensuring that the public conception of justice satisfies two criteria: 1) ‘it must be willingly and freely (emphasis added) supported by at least a substantial majority [of the citizenry]’(Rawls, 1993: 38); 8 and 2) citizens’ support for it cannot waiver, regardless of changes in their personal circumstances or in the distribution of political power. This final caveat necessitates that the overlapping consensus be more than a mere modus vivendi.
A modus vivendi, according to Rawls, is a purely instrumental agreement founded upon compromise and exhaustion (Rawls, 1996: xli). The parties to a modus vivendi support its establishment and continuation not because they believe it to be the ideal agreement for all concerned or even the most desirable agreement from a partisan perspective, but rather because they have exhausted all efforts to secure a voluntary or coerced obedience to their respective comprehensive views and, subsequently, have concluded that a modus vivendi offers the best possible option for the time being. Thus, under a modus vivendi, toleration of conflicting religious, moral, and philosophical views is simply the result of an inconclusive distribution of power–no single party commands sufficient power to suppress opposing and competing views (Baier, 1989: 774). Moreover, as the parties involved believe that the agreement holds no particular intrinsic value for them, apart from its ability to secure peace and political stability, they will, when they believe they are in a position to do so, abandon it and use their power to try to force others to obey the canon of their particular comprehensive doctrine. Hence, the perpetuation (and thus the stability) of a modus vivendi is dependent upon ‘circumstances remaining such as not to upset the fortunate convergence of interests’ (Rawls, 1993: 147). By being subject to the vagaries of circumstance and fortune, a modus vivendi can offer nothing more than a temporary solution to the problem of political stability and therefore it is unable to secure the kind of stability needed to establish and maintain a well-ordered society.
Rawls contends that an overlapping consensus is ‘quite different’ from and superior to a modus vivendi (ibid.); the principal and crucial difference between the two is the ‘moral object and moral grounds’ that characterize the overlapping consensus but are absent from a modus vivendi. According to Rawls, ‘the object of the [overlapping] consensus, the political conception of justice, is itself a moral conception ... [that] is affirmed on moral grounds’ (ibid.). As the overlapping consensus is concerned only with the political conception of justice, and because the political conception of justice can address ‘each citizen’s reason’ from within the framework of his or her own comprehensive doctrine (Rawls, 1993: 143), individuals are able to accept the demands of the overlapping consensus as being in some manner morally compatible with their respective doctrines. Rawls maintains that the presence of this shared moral affirmation ensures–to the extent that it is humanly possible to do so–that support for the overlapping consensus will remain stable regardless of changes to individuals’ personal circumstances, or ‘shifts in the distribution of political power’ (Rawls, 1993: 148); ‘those who affirm the various views supporting the political conception will not withdraw their support of it should the relative strength of their view in society increase and eventually become dominant’ (ibid.). For this reason, an overlapping consensus is, Rawls argues, ‘far more stable than ... [a consensus] founded on views … that regard the acceptance of the principles of justice simply as a prudent modus vivendi given the existing balance of social forces’ (Rawls, 1985: 250). It is the increased degree of stability secured by an overlapping consensus that makes it superior to a modus vivendi.
The ability of the overlapping consensus to be ‘more’ than a modus vivendi is an essential component of Rawls’s argument for the value, superiority and necessity of not only an overlapping consensus, but also of a political conception of justice (and, by extension, a Rawlsian model of political liberalism). According to Rawls, only if it is able to achieve a greater degree of political stability than can be obtained by a modus vivendi can it justifiably be claimed that his proposed overlapping consensus is superior to a modus vivendi. In turn, the value of a political conception of justice lies in its ability to provide the basis for an overlapping consensus that can secure the (greater) degree of stability needed to establish and maintain a well-ordered society; 9 indeed, the development of a political conception of justice is, according to Rawls, a necessary prerequisite for the establishment of an overlapping consensus.
Hence, there exists an intimate and interdependent relationship between an overlapping consensus and a political conception of justice: each requires the other to facilitate or justify its existence and ‘superior’ status. If a Rawlsian overlapping consensus is unable to secure a greater degree of stability than can be garnered from a modus vivendi, then Rawls’s argument for the value, superiority and necessity of an overlapping consensus and a political conception of justice would be (at the very least) severely undermined and lose much of its force; indeed, the ‘failure’ of the overlapping consensus would negate the primary purpose and value of a political conception of justice. Most importantly, if the overlapping consensus cannot generate a greater degree of stability than that available from a modus vivendi, then Rawls’s conception of political liberalism offers no new solution to the problem of political stability in modern constitutional democracies, and its suggested ‘practical’ value and superiority are therefore nullified.
The Relationship Between Moral Affirmation and the Stability of the Overlapping Consensus
According to Rawls, it is the unique character of the overlapping consensus that enables it to secure the type of moral support needed to achieve the degree of stability required to establish and maintain a well-ordered society. Unlike previously proposed public agreements whose stability has been predicated upon their success in securing widespread support for a conception of justice based upon a single comprehensive doctrine, achieving a stable overlapping consensus requires agreement on only a political conception of justice. By restricting its scope to the political conception of justice, the overlapping consensus allows the supporters of a wide diversity of conflicting and irreconcilable comprehensive doctrines to participate in and voluntarily support it without having to compromise, transgress or forsake any of their personal values or beliefs; in doing so, it enables the adherents of a plurality of competing and incommensurable comprehensive doctrines to affirm its establishment and continuation as morally compatible with their respective doctrines (Rawls, 1993: 147-48), and thus ensures the largest possible base of support.
Importantly, the purely political character of the conception of justice also allows participants in the overlapping consensus to disagree over controversial religious, moral, and philosophical issues and yet still maintain a constant level of moral support for the overlapping consensus. This type of flexibility, combined with the limited scope of the conception of justice, generates an increased degree of stability by significantly eliminating the possibility of divisive conflict between members of the overlapping consensus. All of these features combine to engender and secure the type of moral affirmation that Rawls claims is necessary to obtain the stability required to establish and maintain a well-ordered society.
The above achievements are made possible by Rawls’s use of ‘reasonableness’ as the supreme standard of judgement in public matters (e.g., questions concerning political justice). 10 According to Rawls, political stability does not require that citizens affirm as ‘true’ the public conception of justice; an overlapping consensus can be secured and maintained as long as citizens affirm the conception of justice as ‘reasonable.’ Indeed, Rawls contends that we must refrain from asserting that the conception of justice upon which the overlapping consensus is based is true, because to do so is not only unnecessary but also counter-productive: that is, to demand that the conception of justice be affirmed as true would make it impossible to obtain an overlapping consensus.
However, a problem emerges in relation to Rawls’s assertion that the conception of justice need only be affirmed as reasonable. If, as Rawls suggests, the degree of political stability provided by the overlapping consensus directly corresponds to the depth of its members’ moral affirmation of the conception of justice, and if we are to believe that the strength of this affirmation (and thus the degree of stability generated by the overlapping consensus) will not diminish following a change in members’ personal circumstances or in the distribution of political power, then it would seem that in order to ensure that the overlapping consensus always provides the necessary stability, its members must unfailingly support the conception of justice with an equal or greater conviction than that which they maintain for the most valued aspects of their respective comprehensive doctrines. If certain components of one’s comprehensive doctrine are affirmed with a greater strength than the political conception of justice (or any of its constituent values), then it is quite possible that a change in personal circumstances or in the distribution of political power will produce a situation in which the adherents of reasonable doctrines may come to believe that it is morally ‘right’ or necessary to withdraw their support for the existing conception of justice and try to enforce society-wide adherence to their own comprehensive views.
The danger with such a development is that should the original basis of the overlapping consensus begin to erode, its continued existence (and, subsequently, that of the well-ordered society) is unacceptably threatened. This threat could be easily overcome if it could be guaranteed that as citizens decide to abandon the overlapping consensus, there will be an equal number who will voluntarily and simultaneously chose to join it. Yet it is obviously impossible to provide such a surety.
One might argue (as does Rawls) that the design of the overlapping consensus helps to ensure that those whose comprehensive doctrines allowed them to become members will likely never be confronted with a situation that forces them to abandon it (Rawls, 1993: 155). Rawls maintains that should a conflict of values arise, it is unlikely that its ‘unsatisfactory’ resolution will precipitate the withdrawal of members’ support for the political conception of justice. However, Rawls, nevertheless, concedes that such a possibility exists (Rawls, 1989: 238; see also Rawls, 1993: 240-46). Hence the level of support for the public conception of justice could conceivably decrease to the point that the scope of the public agreement no longer satisfies the requirements associated with a Rawlsian overlapping consensus. At the very least, it would seem that the possibility of such a development is equal to the likelihood that voluntary support for the overlapping consensus will increase–something that Rawls believes will happen with the passage of time (Rawls, 1993: 142).
Whether this means that the perpetuation of the overlapping consensus requires the continued support of all of its founding members, would seem to depend upon the initial degree of support it achieved. If the overlapping consensus originally consisted of only a bare majority of the citizenry, then given that Rawls has stated that the establishment and perpetuation of an overlapping consensus is dependent upon it securing and sustaining the support of the majority of the citizenry, the maintenance of a stable overlapping consensus would indeed seem to demand the continued support of all of its ‘original’ members. Alternately, if it were the case that the founding membership consisted of a large majority of the citizenry–something which Rawls seems to suggest is necessary (Rawls, 1993: 38), then it might be possible for a certain percentage of this cohort to abandon the overlapping consensus without its withdrawal seriously jeopardizing the continued existence of the agreement.
However, regardless of how many citizens constituted the original compact, one things seems clear: once the overlapping consensus no longer includes the majority of the citizenry, the sociopolitical stability of the society is unacceptably threatened. If, as Rawls maintains, the overlapping consensus represents an amalgam of those citizens who freely, willingly, and sincerely support the public conception of justice, then once the majority of the citizenry exists ‘outside’ of the overlapping consensus, the situation becomes one in which the minority of the population is forcing the majority to adhere to its views: such a situation is, according to Rawls, both unacceptably unstable 11 and illiberal.
Does this mean that the continued existence of the overlapping consensus is dependent upon its founding and future members maintaining one set of beliefs for the entirety of their lives? The answer is both ‘NO’ and ‘YES.’ Because the overlapping consensus represents an agreement on only the public conception of justice, and given that the public conception of justice is concerned solely with the domain of the political, the perpetuation of the overlapping consensus does not require that its members maintain the same set of political and nonpolitical beliefs for the duration of their lives; however, the continued existence of a viable overlapping consensus–that is, a consensus that can secure the stability required to establish and maintain a well-ordered society–is conditional upon a certain number of its members (e.g., however many are needed to constitute a [large?] majority of the entire population) remaining sincerely and fundamentally committed to the political values that comprise the public conception of justice. 12 Hence it is not that members of the overlapping consensus need be prohibited from changing their views, per se; rather, the maintenance of a viable overlapping consensus demands that it sustain the voluntary support of a certain number of its founding members, and the satisfaction of this caveat necessitates that the preponderance of said members continue to endorse the political values associated with the public conception of justice.
Rawls does not perceive this requirement to be a threat to the stability of the overlapping consensus, because: 1) the political values that constitute the public conception of justice are values that all ‘reasonable’ citizens ‘can reasonably be expected to endorse’; 2) the majority of the citizenry of modern constitutional democracies is reasonable; and 3) all reasonable citizens will voluntarily maintain their support for these values because these values are understood to provide the best foundation for a public agreement that can secure the conditions that will enable all reasonable people to pursue freely and (hopefully) realize their visions of the good life (Rawls, 1993: 157). Hence the necessary support for the values in question, and, subsequently, the basis for a stable overlapping consensus, already exists and will continue to do so.
However, Rawls’s arguments also suggest that only ‘reasonable’ people can be counted on to maintain their commitment to these values; yet, if, as Rawls has argued, the establishment and perpetuation of a viable overlapping consensus is dependent upon its acquiring and sustaining the voluntary support of a majority of the citizenry, and if only ‘reasonable’ individuals can be relied upon to maintain their support for the overlapping consensus, then the perpetuation of a viable overlapping consensus would seem to require that the majority of the population be ‘reasonable.’ As noted, Rawls believes that the majority of the citizenry of modern constitutional democracies is reasonable, and thus, for Rawls, this caveat does not represent an obstacle to the achievement of an enduring overlapping consensus.
The principal problem with this prerequisite, however, is that it makes the establishment and stability of the overlapping consensus dependent upon the ‘reasonableness’ of citizens. As a number of theorists have noted, reasonability, especially in modern liberal societies, is, more often than not, heterogeneous in character (for example, see Neal, 1995; and Bohman, 1995). Subsequently, depending upon the definition of ‘reasonable’ that is employed, the cohort of ‘reasonable’ citizens may or may not represent the majority of the population; however, the overlapping consensus must contain a majority of the population if it is to provide the stability required to support a well-ordered society. Furthermore, even if the requisite number of citizens already were or became ‘reasonable’, there could be no guarantee that they would always remain so: reasonability is too fluid, too unpredictable a basis upon which to premise a person’s continued support for the prevailing definition of ‘reasonable.’ If reasonability is to provide the basis for a stable overlapping consensus, then all reasonable citizens will have to affirm and maintain the same definition of ‘reasonable’–specifically, Rawls’s definition: only by ensuring such a homogeneity can one be assured of securing the type of unwavering moral support required to guarantee the continuation of the overlapping consensus. Yet, if reasonability is heterogeneous and fluid, then surely it is not unreasonable to suggest that not all ‘reasonable’ people (even those socialized in a ‘just basic structure’) will voluntarily endorse or remain faithful to Rawls’s definition of ‘reasonable’ and its associated demands. As Patrick Neal has argued: ‘there are, have been, and will be many people (millions and millions!) who are at least as reasonable as John Rawls and … who do not believe in the values of political liberalism or the liberal version of tolerance’ (Neal, 1995). 13
Moreover, even if we restrict our focus to ‘reasonable’ citizens, as identified by Rawls, what is affirmed as reasonable by some may (and likely will) nevertheless be considered unreasonable or otherwise unacceptable by others. Rawls acknowledges as much when he concedes that there will be among reasonable people ‘reasonable’ disagreement on ‘matters of the first significance’ (Rawls, 1989: 238); issues will arise which involve questions (e.g., governmental policies on abortion, gay rights, euthanasia, the use of nuclear weapons, etc.) that generate such emotion and controversy that an appeal to public reason is by itself insufficient to resolve any disputes which emerge. If this is true, then there is no effective way to prevent divisive conflict between reasonable individuals’ fundamental values and the political conception of justice. However, if such conflict occurs, as, according to Rawls, it inevitably will (Rawls, 1989: 238; see also Rawls, 1988: 275; and Rawls, 1993: 240), then it is likely that support for the political conception of justice will fluctuate (e.g., ebb) and, when it does, the overlapping consensus will be unacceptably undermined.
Furthermore, if, as Rawls suggests, citizens’ initial and continued affirmation of the political conception of justice is predicated upon their belief that it condones only reasonable behavior, then it would seem that in order to maintain a constant level of ‘moral’ support for the political conception of justice (and, by extension, the overlapping consensus), all decisions justified by reference to it would have to be considered ‘reasonable’ by all participants in the overlapping consensus. However, Rawls concedes that even if we assume that all citizens define ‘reasonableness’ as the willingness to adhere to the demands of Rawlsian public reason, there can be no guarantee that every decision produced by the political conception of justice will be ‘reasonable’ (Rawls, 1993: 240). Subsequently, even if–for the sake of argument–we accept Rawls claim concerning citizens’ willingness to assign primacy to ‘reasonableness’ when confronted with a conflict between the ‘truth’ of their fundamental values and the demands of the political conception of justice, significant problems remain. If Rawls is to provide the basis for a stable overlapping consensus, then not only does he need to ensure that all participants in the overlapping consensus possess and maintain an identical understanding of what constitutes a reasonable demand, but he must also preclude the possibility of the political conception of justice producing ‘unreasonable’ decisions. Rawls, however, is unable to satisfy adequately either of these two criteria.
For all of the above noted reasons, it is insufficient to suggest or hope, as Rawls seems to, that citizens’ reasonability (in conjunction with the reasonableness of the public conception of justice) can or will ensure their continued support for the public conception of justice, and in so doing provide a secure basis for a viable overlapping consensus. If Rawls is to establish the foundation for an enduring overlapping consensus, he must somehow guarantee that the strength of each member’s moral affirmation of the conception of justice is at least equal to that which s/he has for his or her ‘most firmly held convictions’; if he cannot do so, then there is an ever-present danger that a change in individuals’ personal circumstances or in the distribution of political power will also result in a diminishment or substantial erosion of their moral support for the conception of justice, and, by extension, unacceptably threaten the very existence of the overlapping consensus.
Yet, if membership in the overlapping consensus requires only that one affirm the conception of justice as ‘reasonable’, then there is no way to ensure that the strength of members’ moral affirmation of the conception of justice ever is, or will always remain, equal to or greater than their support for their fundamental values–e.g., those values and beliefs that are most sacred to an individual: one’s ‘non-negotiable’ moral ‘truths’ (Klosko, 1996: 257). Rawls himself suggests that it is unlikely that those who affirm the conception of justice only as reasonable will ever support it with the same conviction with which they support their ‘most firmly held convictions.’ He concedes as much when he acknowledges that ‘[f]or many the true, or the religiously and the metaphysically well-grounded, goes beyond the reasonable’ (Rawls, 1993: 153). If we accept this claim and also (logically and reasonably) assume, as does Rawls, that most individuals believe their fundamental values to represent the ‘truth’ (Rawls, 1993: 60, 126-27), then surely those who affirm the conception of justice only as reasonable cannot possibly be endorsing it with the same degree of moral conviction that they maintain for their fundamental values. This means that should the public conception of justice support a decision that conflicts with one’s fundamental values–a situation that, as previously noted, Rawls admits is virtually inevitable–it is the conception of justice (and, by extension, the overlapping consensus) that will be abandoned, not one’s fundamental values. 14 If this is true, then the consensus achieved by Rawlsian political liberalism is not an overlapping consensus, as Rawls understands the term.
Thus it would seem that if Rawls hopes to guarantee that changes in personal circumstances or in the distribution of political power will not precipitate a decrease in support for the political conception of justice and thereby destabilize the overlapping consensus, then he must somehow ensure that individuals affirm the conception of justice as not just ‘reasonable’ but also ‘true.’ However, if individuals must affirm the conception of justice as true, then not only would the number of comprehensive doctrines that it could accommodate be drastically reduced, but by making such a demand, justice as fairness would be unequivocally abandoning its quest for metaphysical innocence (Neal, 1990: 42) and in so doing negating its ability to serve as the basis for an overlapping consensus, thus eliminating the possibility of Rawlsian political liberalism securing the degree of stability to which it aspires–e.g., that required to establish and sustain a well-ordered society.
Rawls suggests that there is an alternative to the above scenario: rather than believe that the emergence of a conflict between one’s fundamental values and the political conception of justice necessitates that one either support said values and reject the political conception of justice, or maintain his or her support for the political conception of justice and forsake said values, Rawls contends that citizens confronted by such a conflict ‘might’ simply choose to ‘adjust or revise ... [their] doctrines rather than reject [the political conception of justice]’ (Rawls, 1993: 160). But if the concern for political stability is a ‘practical concern’, then surely it is insufficient merely to suggest that citizens might choose to modify their comprehensive doctrines rather than reject the political conception of justice: ‘If the point of looking for arguments for stability is to see, before we attempt reforms, whether the reforms would be lasting enough to be worth the effort, then a bare possibility is a small comfort’ (Hill, 1994: 341). Moreover, as Michael Huemer (among others) has noted, when faced with such a conflict, individuals are just as likely to qualify or withdraw, even if only temporarily, their support for the political conception of justice as they are to attempt to accommodate it by modifying their comprehensive doctrines (Huemer, 1996; see also Klosko, 1993: 352-53). Indeed, it is difficult to fathom why anyone who believes that his or her comprehensive doctrine represents the ‘truth’–as most, if not all, individuals do–would even consider ‘adjusting’ or ‘revising’ it simply so that it can become or remain morally compatible with the public conception of justice. Even if we restrict our focus to the domain of the political, it remains unclear why a rational person would, or should, willingly subordinate what s/he perceives to be the ‘whole’ truth, in favor of something less ‘complete.’
Rawls seems to believe that in the case of a conflict between one’s fundamental values and the political conception of justice, all ‘reasonable’ and ‘rational’ persons will be willing to adjust or revise their comprehensive doctrines because 1) they recognize that establishing a well-ordered society will secure the greatest opportunity for them to pursue and (hopefully) live the life that they choose; and 2) they realize that the establishment and perpetuation of a well-ordered society requires the achievement of an overlapping consensus on a public conception of justice, and this is impossible if one makes truth the supreme standard of judgement for public matters. Hence, desiring a well-ordered society, reasonable and rational citizens will accept reasonableness as the supreme standard of judgement for public matters because they understand that only by so doing is it possible to achieve the required overlapping consensus; this acceptance of reasonableness as the ‘final court of appeal’ for public matters ensures that should a conflict arise between one’s fundamental values and the public conception of justice, citizens will readily consider ‘adjusting’ or ‘revising’ their comprehensive doctrines rather than simply withdrawing their support for the public conception of justice.
Rawls’s assumption to this effect is grounded in his belief that, generally speaking, the citizens of modern constitutional democracies realize that such polities will always contain a plurality of conflicting and irreconcilable reasonable comprehensive doctrines (e.g., they affirm the fact of reasonable pluralism) and, subsequently, they accept that it is ‘unreasonable’ and detrimental–to the extent that it is divisive and destabilizing and thus an impediment to the achievement of one’s goals–to demand that all citizens abide by a single understanding of the truth. Said citizens also recognize, Rawls contends, that given these ‘facts’, the stability they desire and require can only be secured if they remain faithful to the precept of avoidance: that is, if they refrain from publicly asserting or denying the validity of ‘any particular comprehensive religious, philosophical, or moral view, or its associated theory of truth and the status of values’ (Rawls, 1993: 150).
The Empirical Reality of Modern Constitutional Democracies
Rawls maintains that his claim that the majority of the citizenry of existing constitutional democracies affirms the concept of reasonable pluralism and faithfully adheres to the precept of avoidance is not simply hopeful conjecture on his part: it is an empirical fact (Rawls, 1993: 13, 15, 167; see also Klosko, 1993). In turn, Rawls suggests that given this ‘fact’, it can ‘reasonably’ be assumed that the citizens of a well-ordered society will also affirm the fact of reasonable pluralism and adhere to the dictates of the precept of avoidance. If this is true, Rawls argues, then there is also good reason to believe that these citizens, like those of modern constitutional democracies, will accept reasonableness as the supreme standard of judgement for public matters and be willing to adjust or revise their comprehensive doctrines when circumstances so demand.
However, empirical evidence concerning the attitudes and behavior of citizens of certain modern constitutional democracies would seem to suggest that the validity of Rawls’s belief is, at best, (increasingly) debatable. In particular, citizens’ willingness to voluntarily adhere to the precept of avoidance seems to be much less assured than Rawls suggests. Various studies conducted over the past fifty years reveal that when push comes to shove, many individuals are quite willing to publicly declare certain views to be unacceptable and demand actions which abridge many of Rawls’s ‘basic liberties.’ Such transgressions are particularly evident when one examines attitudes and judicial decisions surrounding the issue of censorship. 15 Evidence suggests that while citizens generally seem willing to accept, in principle, the fact of reasonable pluralism and the need to remain faithful to the precept of avoidance, this acceptance often fails to translate into the necessary concrete action: that is, when faced with a situation in which the practical demands accompanying acceptance of the fact of reasonable pluralism and adherence to the precept of avoidance conflict with firmly held personal beliefs, a significant percentage of citizens is often wont to act in a manner that reflects the fundamental principles and practical obligations associated with either the fact of reasonable pluralism or the precept of avoidance. 16 Moreover, a recent study suggests that contrary to popular belief, 17 this willingness to violate the precept of avoidance and abridge basic liberties–in Rawlsian esperanto, the willingness of citizens to act ‘unreasonably’–is a characteristic common to all segments of society. Hence it would seem that the reality of existing constitutional democracies does not coincide with Rawls’s vision. If the empirical foundation for Rawls’s claim that in the case of a conflict of values, citizens might be willing to revise or adjust their comprehensive doctrines, is as fragile as it appears to be, then there would seem to be no persuasive reason to believe that the citizens of a well-ordered society will, when it is necessary to do so, voluntarily subordinate the truth of their comprehensive doctrines and always act in accordance with the demands of reasonable pluralism and the dictates of the precept of avoidance.
One might challenge the validity of using past examples of ‘unreasonable’ behavior to question the existing degree of reasonableness or to argue against the likelihood of obtaining ‘reasonable’ behavior in the future; but, what are the alternatives upon which to base such predictions? History, at least, provides concrete examples that, when sufficient in number and similarity, offer a reasonable and justifiable basis for suggesting the probability of certain actions or outcomes. If certain circumstances or stimuli have been observed to generate the same response (e.g., unreasonable behavior), time and time again, then surely it is not unreasonable to argue that, barring some significant and unpredictable change in citizens’ behavior, it is likely that this pattern will, with few exceptions, continue. Conversely, in the absence of such a suggestive, discernible pattern, one can do little more than guess as to the probable response to a particular situation. Hence, although it may not offer a guarantee, historical precedent is surely as solid a basis for prediction as is available. From this perspective, evidence of past (and present) ‘unreasonable’ behavior would seem to provide adequate justification for the belief that certain circumstances are likely to elicit the same type of behavior.
Regrettably, at least in the context of contemporary history, examples of ‘unreasonable’ behavior seem to be discouragingly easy to find; indeed, much of recent history seems to support the argument that rather than becoming more ‘reasonable’ with the passage of time, humanity is becoming more ‘unreasonable.’ With alarming regularity, it seems, the daily news is filled with accounts of ‘unreasonable’ behavior: racist, homophobic and other hate-motivated crimes and killings; military coups; the brutal oppression of secessionist movements; the violent and bloody disintegration of multi-ethnic states; and, perhaps most frightening, instances of (attempted?) genocide.
It might be argued that Rawls has anticipated this ‘evidential’ problem (e.g., the existence of numerous concrete examples of individuals’ willingness to act ‘unreasonably’) and effectively confronts it via his use of, and emphasis upon, the concept of fundamental ideas. In essence, fundamental ideas are foundational beliefs that are innate to and guide the public political culture of a society. In the case of Rawlsian political liberalism, these fundamental ideas are represented by Rawls’s notion of society as a ‘fair system of cooperation’ (Rawls, 1993: 15, 50, 167), and his conception of persons as free and equal. Rawls contends that these ideas are ‘central to the democratic ideal’ and inherent in the public political culture of all democratic societies (Rawls, 1993: 167, 223); subsequently, these ideas are not simply metaphysical or psychological constructs but rather they are ‘fundamental political ideas’ that are empirically based and widely supported within the public political culture of modern constitutional democracies (Rawls, 1993: 13; see also Rawls, 1989: 240). It is the presence of and support for these fundamental intuitive ideas that provide the basis for Rawls’s claim that, in general, citizens of a well-ordered society will voluntarily accept the notion of reasonable pluralism and adhere to the demands of the precept of avoidance.
Rawls believes that individuals’ affirmation of the fundamental intuitive ideas, and, by extension, their acceptance of the concept of reasonable pluralism and the demands of the precept of avoidance, can and often will be implicit or unrecognized. This being the case, Rawls argues that it is possible for an individual to support publicly a claim that conflicts with both the notion of reasonable pluralism and the dictates of the precept of avoidance and yet still remain committed to the tenets of these concepts. Hence, an overt display of ‘unreasonable’ behavior does not necessarily represent a fundamental rejection of, or even a withdrawal of support for, either the concept of reasonable pluralism or the precept of avoidance. Moreover, the lack of a guaranteed, predictable correlation between one’s behavior and one’s level of commitment also means that the maintenance of a stable overlapping consensus does not require that individuals explicitly or even knowingly support either the concept of reasonable pluralism or the precept of avoidance. Thus, according to Rawls, citizens can publicly pursue claims that conflict with the notion of reasonable pluralism and/or violate the precept of avoidance–they can act ‘unreasonably’–without having to withdraw their support for either, and without seriously undermining the stability of the overlapping consensus.
However, whether it is possible (either in theory or in practice) to accomplish such apparent contradictions is irrelevant: what matters is how people act. If a judge rules that the suppression of communist propaganda or the rejection of the practice of affirmative action is justifiable and legal, then it hardly matters whether s/he unknowingly or otherwise supports principles that conflict with these decisions. Indeed, a penetrating self-analysis or Socratic interrogation may reveal that the judge’s decision does not coincide with his or her fundamental beliefs; but this revelation changes nothing: the presence of an underlying yet dormant support for certain principles does nothing to alter the consequences of the judge’s decision. If the judge’s ruling incites a riot, a post facto recognition of the ‘unreasonableness’ of his or her decision will not undo the damage resulting from the riot. The point is this: the stability of the overlapping consensus cannot be adequately safeguarded by the implicit or unrecognized affirmation of guiding principles and concepts (such as the fundamental intuitive ideas, and, by extension, the notion of reasonable pluralism and the precept of avoidance). If citizens are publicly allowed to reject the concept of reasonable pluralism and violate the dictates of the precept of avoidance, then surely the likelihood of ‘unreasonable’ behavior dramatically increases and with it so does the fragility of the overlapping consensus.
It might be objected that as Rawls has recently begun to focus less upon the ability of his theory to provide a viable solution to the problems currently troubling existing modern constitutional democracies, the value of criticizing its inability to resolve these problems is increasingly suspect. If Rawls has (at least to some extent) accepted that the viability of his theory is dependent upon the presence of circumstances and behaviors that may not currently exist–either in character or in degree–in any actual society, then is it still useful to suggest that his theory fails because in the face of ‘empirical’ evidence certain of his claims are shown to be invalid? Surely empirical studies are only damaging to the viability of Rawls’s theory if one assumes that Rawls meant (and, perhaps more importantly, still means) for his theory to address the problems currently distressing modern constitutional democracies?
While it may be true that Rawls no longer seems as concerned with or protective of the ability of his paradigm to resolve the problems of stability that currently trouble existing modern constitutional democracies, there nevertheless remains an inextricable and crucial link between the sociopolitical realities of existing modern constitutional democracies and the theoretical viability of Rawls’s paradigm. Given that Rawls himself has premised the credibility of certain of his fundamental claims upon their empirical verifiability (e.g., the fundamental intuitive ideas are inherent in the public political culture of nearly all democratic societies, and widely supported by the citizens of such societies), his recent retreat from emphasizing the correspondence between the circumstances confronting his theoretical society and the reality of existing modern constitutional democracies makes little difference in terms of the significance of his inability to address adequately the problems posed by empirical evidence that contradicts certain of his fundamental claims.
Having grounded the viability of his theory upon the presumed presence of and support for the fundamental intuitive ideas, 18 Rawls is forced into a corner: If he is to maintain the theoretical viability of his theory, he must somehow prove that such ideas are indeed innate to, and generally affirmed by the citizens of, existing modern constitutional democracies. If Rawls’s presumption to this end can be shown to be exaggerated or altogether unfounded, then the basis for a purely political conception of justice, and thus the foundation of Rawls’s entire theory, is unacceptably compromised. In this respect, the proposed incongruency between Rawls’s claim concerning the presence of and support for the fundamental intuitive ideas, and the empirical reality of existing modern constitutional democracies, significantly undermines (to say the least) the theoretical viability of his theory.
Does Rawlsian political liberalism offer an effective, viable solution to the problem of political stability in modern pluralistic societies? Can a Rawlsian overlapping consensus really secure the type of political stability needed to establish and sustain a well-ordered society? Rawls, expectedly, contends that the answer to these questions is ‘YES’; he believes that by enabling the achievement of an overlapping consensus, Rawlsian political liberalism can secure the type of public agreement required to establish a durable, just and free democratic polity, and thus successfully address the problem of political stability. However, if Rawls’s belief is to be validated he needs to, in effect, ‘prove’–or at least provide evidence that suggests that it is more than a ‘bare possibility’–that not only can an overlapping consensus be achieved, but once established it can be sustained and thus maintain the necessary degree of political stability.
Unfortunately, in the final analysis, Rawls is unable to accomplish the daunting task that he has set for himself. Even if one were to accept the (questionable) claim that a Rawlsian overlapping consensus is possible, Rawls’s argument remains troubled by a number of unresolved difficulties which suggest that even should an overlapping consensus be secured, it is unlikely that it could maintain the type of support that a Rawlsian well-ordered society demands. Perhaps the most problematic and implausible feature of Rawls’s theory is its requirement that individuals, when confronted with a conflict between their fundamental values and the demands of the political conception of justice, in effect, temporarily subordinate the ‘truth’ of their comprehensive doctrines and assign primacy to reasonableness as defined by the political conception of justice. Surely an individual ‘will be moved by the appeal to reasonableness ... only to the extent that he values reasonableness [more than he values the truth]’ (Huemer, 1996: 382), and there seems to be little reason to believe that many will do so. Certainly there exists no persuasive evidence to suggest that individuals will voluntarily and faithfully subordinate their fundamental ‘truths’ in favor of ‘reasonable’ propositions, even if requests to do so are restricted to issues within the ‘domain of the political.’ If anything, empirical data would seem to suggest that it is at least equally as (if not more) likely that in instances of conflict, individuals will opt to act in accordance with their understanding of the truth as defined by their respective comprehensive doctrines.
If this is true, then unless the majority of citizens unfailingly support the conception of justice with an equal or greater conviction than that which they maintain for the most valued aspects of their respective comprehensive doctrines, an overlapping consensus of the type that Rawls is seeking is impossible; if, when presented with a choice, there is (at least) an equal possibility that individuals will choose to act unreasonably (e.g., to obey the ‘truth’ of their comprehensive doctrines rather than assigning primacy to ‘reasonable’ propositions), then there is no way ever to secure the type of reliable support needed to sustain a Rawlsian overlapping consensus. Moreover, the ever-increasing doctrinal heterogeneity and corresponding plurality of public reasons that characterize contemporary liberal societies, and the subsequent increase in the possibility and likelihood of divisive conflict and sociopolitical fragmentation, further compound the significant difficulties associated with securing the conditions needed to achieve a Rawlsian overlapping consensus.
Despite these facts, the project of developing a viable framework for a stable overlapping consensus remains an extremely worthwhile and important endeavor. The ‘failure’ of Rawls’s monumental effort should not dissuade others from rising to the challenge; while success is the goal, its absence does not negate the value of such exercises. Indeed, to the extent that each ‘failure’ helps to highlight the problems that remain and must be addressed before the end goal can be achieved, it brings us one step closer to reaching a solution to the problem of political stability.
I would like to thank Catherine Bird, Triadafilos Triadafilopoulos and Leah Bradshaw for their helpful comments.
1. Brian Barry has suggested that if we 'rechristen the problem of stability as the problem of order … we can immediately recognize it as a central focus of political philosophy in all periods' (Barry, 1995: 880); John Rawls has argued that the problem of political stability 'is fundamental to [all] political philosophy' (Rawls, 1993: xvii).
2. This list would include such notable individuals as Bruce Ackerman, Ronald Dworkin, Jean Bethke Elshtain, Jürgen Habermas, Will Kymlicka, Charles Larmore, John Rawls, and Iris Marion Young.
3. Rawls juxtaposes his notion of a political conception against the concept of a general comprehensive doctrine. According to Rawls, the principal difference between a political conception and a general comprehensive doctrine lies within the scope of subjects to which each applies. Whereas a political conception is restricted to a particular domain–'the domain of the political' (Rawls, 1993: 38), a general comprehensive doctrine is one that 'applies to all subjects and its virtues cover all parts of life [e.g., political and nonpolitical]' (Rawls, 1996: xxxviii, n.4).
4. Unless specifically stated otherwise, I use, as Rawls has done, the terms democratic regime, constitutional democracy, and other similar terms interchangeably (Rawls, 1993: 11).
5. Henceforth, when referring to a political conception of justice, I will use the terms 'public conception' and 'political conception' interchangeably.
6. As Rawls states: 'what counts is the kind of stability, the nature of the forces that secure it' (Rawls, 1993: 142).
7. Unless specifically stated otherwise, all references to 'the conception of justice' should be understood as referring to the political conception of justice.
8. Though Rawls does, in places, add the qualification 'politically active citizens' (Rawls, 1993: 38), he fails to elaborate as to exactly what constitutes a 'politically active' citizen. Furthermore, I believe that my omission of this qualification is justified by Rawls's use of other less specific statements (e.g., Rawls, 1993: xvi). For an interpretation that supports this argument, see Klosko, 1993: 349-350.
9. Securing a greater degree of stability than that available from a modus vivendi, and securing the stability required to establish and maintain a viable overlapping consensus, are two different things.
10. According to Rawls, questions of political justice are questions which concern constitutional essentials and questions of basic justice–'a class of fundamental questions' (Rawls, 1993: 227). For a detailed account of exactly what type of issues Rawls considers to be 'constitutional essentials and questions of basic justice', see Rawls, 1993: 227-30.
11. Indeed, Rawls concedes that such a degree of alienation need not be reached before the stability of the society is unacceptably threatened: as Rawls notes, 'That subversive advocacy is widespread enough to pose a live political question is a sign of impending crisis rooted in the perception of significant groups that the basic structure is unjust and oppressive. It is a warning that they are ready to entertain drastic steps because other ways of redressing their grievances have failed' (Rawls, 1993: 346).
12. Political values are values that are concerned solely with political questions. The political values associated with justice as fairness are values 'that all citizens can reasonably be expected to endorse in light of their common human reason' (Rawls, 1993: 140). Examples of the political values which Rawls attributes to justice as fairness include the values of 'equal political and civil liberty; fair equality of opportunity; [and] the values of economic reciprocity' (Rawls, 1993: 139).
13. Other theorists who use different approaches to, in effect, make similar arguments, include Charles Larmore and Margaret Moore, to name two. For example, see Larmore, 1996; and Moore, 1996.
14. This conclusion is based upon the reasonable (and non-contentious?) assumption that individuals will normally act in accordance with the dictates of their fundamental values. Rawls, if only implicitly, accepts this claim (Huemer, 1996: 384; see also 376).
15. In regards to Rawls's analysis of the empirical data surrounding the issue of censorship, George Klosko has suggested that Rawls has 'overlook[ed] an enormous body of evidence against the anticensorship consensus he believes to exist in American culture' (Klosko, 1993: 352).
16. The 'evidence' here referred to is the data contained in studies such as those completed by Samuel Stouffer, David Barnum and John L. Sullivan, James Prothro and Charles Grigg, Herbert McClosky and Alida Brill, James Gibson, Paul Sniderman, and Yasmeen Abu-Laban. These individuals have produced a number of studies that examine the topics of consensus and tolerance among citizens of liberal-democratic societies. For example, see Stouffer, 1955; Prothro and Grigg, 1960; McClosky and Brill, 1983; McClosky and Zaller, 1984; Gibson, 1986; Gibson, 1989; Sniderman, Fletcher, Russell, and Tetlock, 1989; and Abu-Laban and Stasiulis, 1992. The findings of these and other similar studies have led George Klosko to argue that 'the pervasive intolerance of liberal citizens is one of the best attested facts of modern social science' (Klosko, 1993: 352).
17. The 'popular belief' to which I refer is the prevailing belief in the thesis of democratic elitism–the notion that while both ordinary citizens and elites tend to unanimously 'endorse democratic principles stated in the abstract', when confronted with a conflict or controversy, elites are far more likely to maintain their commitment to and support for democratic principles and practices (Sniderman, Fletcher, Russell, and Tetlock, 1996: 26-51).
18. According to Rawls, it is the inherent presence of and widespread support for the fundamental intuitive ideas that makes possible the development of a political conception of justice–the very foundation of his entire theory.
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Shaun P. Young is a policy
advisor for the Government of Ontario, Ontario, Canada, and a doctoral
candidate in the Department of Political Sciences at the University of
South Africa. He is also a member of the Editorial Board of Moral Musings.