13571-CP

The Idea of an Overlapping Consensus Revisited

1. Introduction John Rawls claims that a society must be stable to be just, and he argues that this stability requirement can be satisfied in a liberal constitutional democracy only if it achieves overlapping consensus. In an overlapping consensus, reasonable citizens endorse a common conception of justice, but they do so from within divergent conceptions of the good. Rawls advances this model in part in recognition of the burdens of judgment. These are factors that make it difficult to exercise judgment about certain subject matters, including morality and metaphysics.1 In view of these difficulties Rawls maintains we should strive in the public realm to achieve consensus only about distributive justice. It is commonly believed that the need for overlapping consensus is produced simply by the conjunction of the fact of reasonable disagreement with the requirement of stability. Rawlsian stability consists in part in satisfaction of the liberal principle of legitimacy.2 This principle states that reasonable individuals may be coerced only on grounds they recognize as having force. Since there is reasonable disagreement about morality and metaphysics, the thought here is, we should exclude these domains from public political deliberation on pain of coercing reasonable people on grounds they do not accept. As I argue below, however, there is an important passage where Rawls claims that the need for overlapping consensus is produced not only by these considerations but also by the further fact that there inevitably will be persons who are sincerely cooperative in supporting a liberal political regime but illiberal in their broader value commitments. As I explain below, this justification for the model of overlapping consensus is needed to defend it against the objection
1 2

Rawls (1993), 54-58. Rawls articulates his understanding of the problem of stability in A Theory of Justice at Rawls (1971), 496-504; he then revises this account in light of the fact of reasonable disagreement in Political Liberalism at Rawls (1993), 140-144, and in Part V of Rawls (2001).

that stability can be achieved without overlapping consensus. I thus argue that Rawlss mature account of overlapping consensus differs from, and is superior to, its standard interpretation. Ultimately I argue, however, that we should reject the model of overlapping consensus. This argument is a dilemma. If the defender of overlapping consensus opts for the standard interpretation, then her model is undermotivated because stability is possible without overlapping consensus. If this theorist instead grounds the need for overlapping consensus also in the endemic existence of citizens who endorse both a liberal conception of justice and an illiberal conception of the good, then satisfying Rawlss requirement of stability is undesirable.

2. The Standard Interpretation of Overlapping Consensus One important issue of Rawls interpretation is whether the object of an overlapping consensus is a single conception of justice or a family of conceptions sharing a constitutional consensus. A constitutional consensus, on Rawlss view, is a consensus on a regime where all citizens have an equal and adequate range of political liberties, an adequate range of social and economic opportunities, and no unmet humanitarian needs.3 The question about the object of overlapping consensus is whether in an overlapping consensus all citizens endorse the same principle for distributing socially produced goods beyond the constitutional minimum. Evidence for the difficulty of this point of interpretation lies in the fact that Samuel Freeman the foremost contemporary expositor of Rawls elides it in his account of overlapping consensus. According to Freeman, in an overlapping consensus citizens all agree on the same liberal conception (or at least on a liberal conception affirming the priority of basic liberties and a social minimum) on the basis of their own different comprehensive doctrines.4 This disjunction suggests the object of overlapping consensus is a family of conceptions; but the parentheses suggest that overlapping consensus on a single conception of justice has a place in the model. To
3

A constitutional consensus thus requires both the satisfaction of Rawlss equal liberties principle and the provision of a suitable social minimum. See Rawls (2001), 127-130. 4 Freeman (2007), 370; the parenthetical qualification is Freemans.

keep these sorts of overlapping consensus distinct, I call an overlapping consensus strict if its object is a single conception and loose if its object is a family of conceptions. The standard interpretation understands Rawls as requiring strict overlapping consensus, and there are several passages that support this interpretation.5 Important among these is Rawlss illustration of overlapping consensus, where he takes a reasonable Kantian, Millian utilitarian, and reasonable religious believer as representative citizens. Rawlss diagnosis of the burdens of judgment as the source of the fact of reasonable disagreement also suggests this interpretation.

3. What if the Utilitarians Take Over? When the need for stability is understood as requiring strict overlapping consensus, however, the requirement is objectionably strong. To make this point with flourish, imagine a citizen asking with mock horror: What if the utilitarians take over? What I have in mind here is not the prospect of a regime that permits slavery, routinely lies about its actions, or tortures prisoners when these actions are thought to enhance the greater good. I have in mind instead a regime following what Rawls labels the principle of restricted utility, one which implements the principle of average utility subject to a prior constraint that a suitable social minimum is achieved.6 The suitable social minimum includes what Rawls calls constitutional essentials, so the regime rules out slavery, torture, and routine government lying.7 But it does not practice the method of avoidance prescribed by Rawlss ideal of public reason, where citizens and officials self-impose a duty not to advance claims which are controversial or distant from the prevailing public political culture.8 The regime advocates its principle instead as regulating all action and it is willing to implement this principle coercively over the objections of reasonable dissenters.

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Rawls (1993), 145-150; see also Rawls (2001), 32-33. For Rawlss account of the principle of restricted utility, see Rawls (2001), 126-130. 7 For Rawlss account of constitutional essentials, see Rawls (1993), 227-230. 8 For Rawlss account of public reason, see Lecture VI of Rawls (1993), Rawls (1997), and Section 26 of Rawls (2001).

Overlapping consensus does not permit implementing the principle of restricted utility this way, but I can say without reservation I welcome the prospect of living in such a society. Even if this principle is erroneous, this society would greatly mitigate unfairness in elections and labor markets and would treat animals more humanely than we presently do. An advocate of strict overlapping consensus need not deny this. But full appreciation of what a great achievement this would be puts pressure on the desirability of Rawlsian stability as standardly understood. That the principle of restricted utility can achieve great reform while securing a suitable social minimum should enable it to command the allegiance and compliance of citizens regardless of whether they endorse the principle itself. If this conception of justice prevails in a society, that is, a reasonable Kantian should readily accept it even as she does not endorse its content. The Kantian should be glad this conception of justice prevails and should view the societys basic structure as an important source of moral learning for its citizens. But if this is right, then we should not require that all reasonable citizens view the prevailing conception as expressing their own considered judgments about justice.

4. Citizens Who Are Cooperative but Injudicious There is evidence that in his latest works Rawls was sensitive to these concerns. In my view it led Rawls to change his view of the object of overlapping consensus, although to my knowledge he does not explicitly indicate this. The evidence is that in the lectures leading up to and constituting the original edition of Political Liberalism (in 1993) Rawls uses the conception of justice formulation of the object of overlapping consensus, while in subsequent discussions (1995 and after) Rawls uses the families of conceptions of justice formulation.9 This suggests Rawls was led by his stability requirement to endorse consensus on a single conception of justice, but that he came to believe this model could not be achieved in a human society.

See Rawls (1993), xxxix; Rawls (1997), 607-608; and Rawls (2001), 90. I discuss the introduction to the paperback edition of Political Liberalism in Section 7 below.

Consider the following little-discussed passage from the introduction to the paperback edition of Political Liberalism, for example, where Rawls appears to deny that disagreements like those between a reasonable Kantian and utilitarian generate a need for overlapping consensus: 10 How is it possible for there to exist over time a just and stable society of free and equal citizens who remain profoundly divided by reasonable religious, philosophical, and moral doctrines? If the problem is how is this society to be stable for the right reasons then why should there be any fundamental problems with conflicting comprehensive liberalisms such as those of Kant and Mill, which already (lets suppose) endorse a just democratic regime, even if they do so for different reasons? Indeed, this seems an easy case. Thus, the question should be put more sharply this way: How is it possible for those affirming a religious doctrine that is based on religious authority, for example, the Church or the Bible, also to hold a reasonable political conception that supports a just democratic regime? The point is that not all reasonable comprehensive doctrines are liberal comprehensive doctrines; so the question is whether they can still be compatible for the right reasons with a liberal political conception. Rawls seems here to grant the force of the objection implicit in the query What if the utilitarians take over? He seems to say, that is, that in a society where all citizens are reasonable and liberal, stability is present and overlapping consensus is unnecessary. But disputes between Kantians and utilitarians do not typify contemporary political disagreements, nor will they for the foreseeable future. In our circumstances some people endorse a reasonable liberal conception of justice in conjunction with views that are illiberal, perhaps as a result of a poorly defended reliance on the authority of a religious text. This suggests that for Rawls these citizens pose a special threat to stability which gives rise to the need for overlapping consensus. The threat these persons pose, it should be emphasized, is not that they are religious. Religion can be liberal, and can be sophisticated; being religious is, after all, compatible with being Kantian or Millian. The threat under consideration arises specifically from those who treat a religious organization or text as having an epistemic authority which cannot responsibly be attributed to it. These illiberal persons may nonetheless be reasonable, on Rawlss view, if they do not present religious organizations or texts as authoritative for political purposes.

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Rawls (1993), xxxix; the parenthetical phrase is Rawlss.

To clarify this claim, let me distinguish two senses of reasonable that have currency in both ordinary language and philosophical discourse. One is Rawlss primary sense of the term, where reasonableness consists in interacting with others in a sincere spirit of cooperation. The reasonable in this sense do not attempt to free-ride on mutually beneficial conventions and do not attempt to force controversial views on others who reasonably deny them. To avoid confusion, I refer to the reasonable in this practical sense as cooperative. The second sense of reasonable is epistemic, where reasonableness consists in being sufficiently responsive to evidence and to theoretical norms of simplicity and systematicity when forming beliefs. I refer to the reasonable in this epistemic sense as judicious. Rawlss position thus is that although it does not entail judiciousness, cooperativeness suffices to make a person entitled to protection under the liberal principle of legitimacy. In particular he denies that judiciousness is necessary. But how can this be, when Rawls explicitly claims that reasonableness consists in part in willingness to recognize the burdens of judgment and to accept their consequences?11 The answer lies in the fact that for Rawls the burdens of judgment themselves admit of political and nonpolitical interpretations. Rawls characterizes the political idea of reasonableness as deliberately loose, saying it counts many familiar and traditional doctrines religious, philosophical, and moral as reasonable even though we could not seriously entertain them for ourselves.12 Then in a crucial footnote he adds:13 [C]omprehensive doctrines will themselves, as they present their case in the background culture, urge far tighter standards of reasonableness and truth. Within that culture we may regard many doctrines as plainly unreasonable, or untrue, that we think it correct to count as reasonable by the criterion in the text. That criterion we should see as giving rather minimal conditions appropriate for the aims of political liberalism. Someone who accepts the epistemic authority of a religious organization or text need not see acceptance of this authority as inconsistent with acceptance of the burdens of judgment. On his

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Rawls (1993), 54, 94. Rawls (1993), 59. On the next page Rawls asserts baldly that for political purposes being reasonable is not an epistemological idea. 13 Rawls (1993), 60n.

view the burdens of judgment may arise not because the authority of the organization or text is questionable for those who appreciate it, but rather because not everyone can appreciate that authority. But if he is also a political liberal, he will refrain from advancing political arguments grounded in that authority. Overlapping consensus is more plausible when understood as a response to the endemic existence in a constitutional democracy of these citizens who are cooperative but injudicious, not only as a response to the need for stability and the fact of reasonable disagreement. This explains the need for the ideal of public reason, even in light of the fact that public reason is not necessary to achieve stability in a society whose disagreements are typified by those between Kantians and utilitarians. Rawlss position in 1995 and thereafter is an advance over his 1993 position.

5. The Value of Stability When understood this way, however, the aim of overlapping consensus loses much of its appeal. The value of orientation towards consensus with others is questionable, that is, when they are injudicious. For one thing, this orientation encourages a societal deliberation more acceptable to the epistemically irresponsible, and so produces a lower-quality deliberation. The value of the civic friendship achieved through such overlapping consensus is also doubtful. This friendship is based on the fact of cooperation itself, and not on the conditions under which cooperation is done well. Such friendship is based on shared political values, but these values are shared only because we each believe achieving cooperation is more important than the particulars of the political values prevailing in society. The resulting model achieves as we might put it stability for the right reasons for the wrong reasons. I suspect Rawls endorses this conception of stability because he believes it is a fact of human psychology that cooperative yet injudicious persons are endemic to liberal constitutional democracies. This is held to entail that it is unreasonable to expect everyone to be judicious, and hence that the injudicious must be accommodated insofar as they are cooperative.

While I have questioned Rawlss understanding of stability in this essay, I do not here question Rawlss strategy of treating stability under some interpretation as a desideratum of justice. Thus I allow that if the psychological claim from the previous paragraph were true, that would defend overlapping consensus against the difficulties I articulate. But it does not suffice to note there are many such persons in contemporary democracies. The Enlightenment began just over three hundred years ago, and came to intellectual fruition and limited political fruition a hundred years later. The generations since have witnessed remarkable progress towards social justice; in the scope of history this is recent. Universal suffrage began to be achieved only after the first world war, universal public education only after the second, and the emancipatory effects of the cultural revolutions of the 1960s and 1970s have only begun. It is pessimistic to conjecture that injudiciousness is so ingrained in our psychology that it will be widely present in any liberal democracy. Present educational institutions are too poor, the influence of injudicious institutions is too great, to warrant that dark inference. Accordingly there is reason to doubt the adequacy of Rawlss fully developed rationale for overlapping consensus, even as it improves on the standard interpretation, since it trades on the inevitability of cooperative yet injudicious persons. This points us towards the spirit of an alternative position: just as Thomas Hobbess account of stability failed to recognize that political consensus (not only strategic compromise) was feasible, we can see Rawlss account of stability as failing to recognize that allegiance to a prevailing conception of justice need not be predicated on ones endorsement of it. If it is possible for almost all citizens to be judicious, then there is no need to fear instability when citizens hash out disputes in the political realm. Presently we should fear this, as most citizens are injudicious. But if this is not a permanent condition, then it should be treated as a nonideal circumstance. The only way to engage this dispute is with speculative developmental psychology, but there is some reason for optimism. Whether this optimism is warranted only time will tell, and that only if we perpetuate liberal democracy for centuries to come. Meanwhile I suggest it is more respectful to treat others as capable of judiciousness than to accommodate their injudicious reasoning.

Works Cited

Freeman, Samuel (2007). Rawls. Routledge, 2007. Rawls, John (1971). A Theory of Justice. Harvard, 1971. __________ (1982). Social Unity and Primary Goods. In Collected Papers. Ed. Samuel Freeman. Harvard, 1999. __________ (1993). Political Liberalism. Columbia, 1993. __________ (1997). The Idea of Public Reason Revisited. In Collected Papers. Ed. Samuel Freeman. Harvard, 1999. __________ (2001). Justice as Fairness: A Restatement. Ed. Erin Kelly. Harvard, 2001.