Chicago-Kent Law Review

1994

Symposium on John Rawls's Political Liberalism.

*549 SITUATING POLITICAL LIBERALISM [FNa]

Lawrence B. Solum [FNaa]

No book of political philosophy since I read the great classics of the subject has stirred my thoughts as deeply as John Rawls' A Theory of Justice.

H.L.A. Hart [FN1]

I. Political Liberalism In Context

We have another book by John Rawls, Political Liberalism, [FN2] published in 1993 and the subject of this symposium. Already, Political Liberalism has been widely cited in law journals [FN3] and reviewed in a variety of publications. [FN4] This Foreword situates Political Liberalism in *550 contemporary legal and political discourse. Part I places Rawls's new book in context, briefly recalling the argument of A Theory of Justice, [FN5] and then exploring the influence of Rawls's work on contemporary legal thought. Part II provides a brief outline of Political Liberalism, relating its themes to the issues raised by Rawls's prior work. Part III introduces the contributions to the symposium. Finally, Part IV undertakes a summary accounting of the strengths and weaknesses of Political Liberalism.

A. A Theory of Justice and the Problem of Stability

John Rawls's A Theory of Justice is a modern classic, [FN6] and its impact on contemporary legal thinking has been profound. One indicator of the works influence is the staggering number of law review articles citing A Theory of Justice. [FN7] Another measure is its frequent citation in the opinions [FN8] of American courts -- a phenomenon that is *551 unduplicated by any other twentieth-century work of political philosophy. [FN9] This section provides a brief sketch of the argument of A Theory of Justice and then introduces the problem of stability that is taken up in Political Liberalism.

The basic argument of A Theory of Justice is familiar. Rawls advances a theory of justice which he calls "justice as fairness." [FN10] As Rawls explains, "the aim of justice as fairness . . . is practical: it presents itself as a conception of justice that may be shared by citizens as a basis of a reasoned, informed, and willing political agreement." [FN11] The elaboration of justice as fairness in A Theory of Justice proceeds in three parts. Part I, entitled "Theory," [FN12] presents the argument for two principles of justice. The full statement of the principles and the accompanying priority rules and general conception is as follows, with changes made in Political Liberalism noted in appropriate footnotes:

First Principle [FN13]

Each person is to have an equal right to the most extensive *552 total system [FN14] of basic liberties compatible with a similar system of liberty for all. [FN15]

Second Principle

Social and economic inequalities are to be arranged so that they are both:

(a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and

(b) attached to offices and positions open to all under conditions of fair equality of opportunity.

First [FN16] Priority Rule (The Priority of Liberty)

The principles of justice are to be ranked in lexical order and therefore liberty can be restricted only for the sake of liberty. There are two cases:

(a) a less extensive liberty must strengthen the total system of liberties shared by all;

(b) a less than equal liberty must be acceptable to those with the lesser liberty.

Second Priority Rule (The Priority of Justice over Efficiency and Welfare)

The second principle of justice is lexically prior to the principle of efficiency and to that of maximizing the sum of advantages; and fair opportunity is prior to the difference principle. There are two cases:

(a) an inequality of opportunity must enhance the opportunities of those with the lesser opportunity.

(b) an excessive rate of saving must on balance mitigate the burden of those bearing this hardship.

General Conception

All social primary goods -- liberty and opportunity, income and wealth, and the bases of self-respect -- are to be distributed *553 equally unless an unequal distribution of any or all of these goods is to the advantage of the least favored. [FN17]

The argument for the two principles is rich and complex and cannot be summarized here. Two important ideas deployed in that argument, the original position and reflective equilibrium, are discussed in the sections that follow. Very broadly, we might say that Rawls argues that the two principles are those "that free and rational persons would accept in an initial position of equality as defining the fundamental terms of their association." [FN18] The "initial position of equality" is specified by laying out a hypothetical choice situation, "the original position," where representative parties select from a list of alternative principles of justice from behind a "veil of ignorance" which excludes from the parties knowledge of "how the various alternatives will affect their own particular cases." [FN19]

Of course, the laying out of the original position, that is the specification of the conditions that characterize the position, will determine which principles of justice are chosen. This laying out is not done arbitrarily; rather, the selection of the conditions constituting the original position is constrained and justified in two ways. First, the conditions of the original position must be specified in a way that reflects widely shared beliefs about the freedom and equality of citizens. Second, a particular specification of the original position can be tested by assessing the principles of justice that would be chosen in that situation against our considered judgments about justice, both as applied to particular cases and at a relatively general or abstract level. As Rawls puts it:

In searching for the most favored description of this situation we work from both ends. We begin by describing it so that it represents generally shared and preferably weak conditions. We then see if these conditions are strong enough to yield a significant set of principles. If not, we look for further premises equally reasonable. But if so, and these principles match our considered convictions of justice, then so far well and good. But presumably there will be discrepancies. In this case we have a choice. We can either modify the account of the initial situation or we can revise our existing judgments, for even the judgments we take provisionally as fixed points are liable to revision. By going back and forth, sometimes altering the conditions of the contractual circumstances, at others withdrawing our judgments and conforming them to principal, I assume that eventually we shall find a description of the initial situation that *554 both expresses reasonable conditions and yields principles which match our considered judgments duly pruned and adjusted. This state of affairs I refer to as reflective equilibrium. [FN20] Thus, the first part of A Theory of Justice consists of an argument for the two principles, using the method of reflective equilibrium and the philosophical device of the original position.

Part II of A Theory of Justice, titled "Institutions," [FN21] gives content to the two principles by describing a basic structure that satisfies them. Rawls uses a four stage sequence to organize his discussion of such a structure. Stage one is the original position itself, in which the two principles are chosen. [FN22] Stage two is a constitutional convention, in which the parties in the original position define governmental powers and citizens rights. [FN23] Stage three is legislation, in which the justice of particular statutes and ordinances is assessed. [FN24] Stage four is application, in which the laws are applied to particular circumstances. [FN25] The second part of A Theory of Justice discusses particular rights, such as the liberty of conscience, [FN26] political rights, [FN27] and the rights to due process. [FN28] This part of the book also includes a discussion of economic institutions, including the provision of public goods [FN29] and taxation. [FN30] Finally, Part II includes an important discussion of legal obligation and civil disobedience. [FN31]

Part III of A Theory of Justice, titled "Ends," [FN32] discusses several topics. Perhaps the most important of these, so far as setting the stage for Political Liberalism is concerned, is stability. A conception of justice is unrealistic unless it can meet the criterion of stability. To meet this criterion, a well-ordered society -- one whose citizens affirm and attempt to act on the conception of justice -- must be able to sustain itself over time. As Rawls explains in the introduction to his second book, many of the differences between the two books arise from his efforts "to resolve a serious problem internal to justice as fairness, namely that the account of stability in Part III of Theory is not consistent *555 with the view as a whole." [FN33] In particular, A Theory of Justice relies on the idea of a well- ordered society in which citizens endorse justice as fairness on the basis [FN34] of a comprehensive (or partially comprehensive) philosophical doctrine. [FN35] But modern democratic societies are characterized by what Rawls calls "the fact of pluralism" -- the fact that there is a "plurality of conflicting, and indeed incommensurable, conceptions of the meaning, value and purpose of human life." [FN36] Thus, one might say that the purpose of Political Liberalism is to restate the idea of justice as fairness without reliance on a comprehensive moral doctrine as the basis of stability. Without such reliance, justice as fairness becomes what Rawls calls a "political conception," hence the title Political Liberalism.

At this point, I will postpone discussion of the problem of stability and its resolution in Political Liberalism and complete my discussion of its context by discussing three features of Rawls's work that have played an important role in contemporary legal theory, the original position, reflective equilibrium, and the idea of public reason.

B. The Original Position and Legal Argument

Rawls's argument for the two principles of justice uses the philosophical idea of the original position. Although the original position is a complex philosophical idea, the use of constructivist argument is familiar from ordinary moral discourse. When a parent asks a child who has hit her younger sibling to imagine how she would feel if her brother hit her, the parent is using a constructivist argument -- asking the child to construct her moral evaluation of her own action by laying out a hypothetical situation and asking the child to generalize from her own reactions to the thought experiment.

In the original position, the parties are behind a veil of ignorance; they choose principles of justice without knowledge of their intellectual *556 and physical endowments, their economic and social circumstances, or their plans of life. The original position has influenced the course of contemporary legal argument in two ways. The first influence is quite direct. Legal scholars have used the original position in a wide variety of contexts in order to make arguments about what is the fair or just legal rule. [FN37] Of course, this use of the original position is quite different from that envisioned by Rawls. Rawls uses the original position to justify principles of justice and not particular legal rules. [FN38] The appropriateness of employing the veil of ignorance in actual adjudication raises interesting questions, [FN39] but the influence of Rawls's thought on legal reasoning is unmistakable.

A second influence of the original position on legal thought is less direct. The communitarian critique of the liberal conception of the *557 self by Michael Sandel [FN40] and others such as Bernard Williams [FN41] has had a substantial influence on legal thinkers. [FN42] The gist of the argument is that Rawls's description of the condition of the representative parties behind the veil of ignorance in the original position implies that he is committed to a theory of the self. On this theory, the self is independent of its projects, commitments, and associations -- hence, the so-called unencumbered self. If Rawls were committed to such a position, then his view would be inconsistent with the fact of pluralism. Such a theory of the self could not be incorporated into what Rawls calls a freestanding view; a metaphysical view of the self could not be accepted by citizens with the many conceptions of the good that coexist in a modern democratic society and would exist in a well-ordered society that adhered to justice as fairness.

It is now widely recognized that Sandel was mistaken in his characterization of Rawls's position, [FN43] as critical legal scholars have acknowledged. [FN44] The veil of ignorance is not intended to reflect a *558 theory of the self; instead the veil provides a representation of a political idea about the freedom and equality of citizens. Nothing in justice as fairness rules out the idea that citizens may pursue conceptions of the good that specify a form of life for a community of voluntary association. Such a conception of the good could include an ideal of strong community, such as belief in the goodness of a form of association that is constitutive of the identities and ends of its members. Justice as fairness does, however, rule out, at least as forms of life, those conceptions of the good that require the state to coerce belief in a comprehensive moral or religious doctrine. [FN45]

It may be ironic that the veil of ignorance is the feature of justice as fairness that insures that parties in the original position will not disregard the interests of citizens with communitarian conceptions of the good. When we go behind the veil of ignorance and use the original position to reason about justice, we are forced to evaluate principles of justice with the possibility that we will be encumbered with the general kinds of commitments and associations that Sandel identifies. The original position is designed to insure that the parties will fairly represent the interests of encumbered selves in their constituitive communities and projects.

Sandel's criticisms have focused attentions on Rawls's recent work. Although Political Liberalism addresses a different problem than the one mistakenly attributed to A Theory of Justice, [FN46] Sandel's work has played an important role in focusing the attention of legal scholars on recent developments in Rawls's thinking.

C. Reflective Equilibrium and Legal Theory

As briefly mentioned above, the role of the original position in A Theory of Justice can only be understood in connection with the method of reflective equilibrium that is used to lay out the features of *559 the original position. [FN47] As H.L.A. Hart describes the role of reflective equilibrium in Rawls's theory,

Rawls regards his two principles as established or justified not simply by the fact that they would be chosen, as he claims they would, by the parties in the original position, but also by the general harmony of these principles with ordinary "considered judgments duly pruned and adjusted." The test of his theory, therefore, is in part whether the principles he identifies illuminate our ordinary judgments and help to reveal a basic structure and coherence underlying them. [FN48] Although Rawls's description of the method is striking and original, it is related to much older ideas in moral and political philosophy, and in particular to the method described by Aristotle in his Nicomachean Ethics. [FN49] A substantial body of philosophical literature has developed around Rawls's idea. [FN50]

From the point of view of legal theory, the most profound influence of Rawls's notion of reflective equilibrium has been on legal scholarship about judging and judicial method. [FN51] Indeed, judges themselves have used the method and noted a relationship between reflective equilibrium and common law adjudication. [FN52] Perhaps one of the most important (but difficult to pin down) routes of influence of *560 Rawls's idea of reflective equilibrium is via Ronald Dworkin's theory of law as integrity. [FN53]

An exploration of the influence of Rawls's idea of reflective equilibrium on Dworkin in particular and legal theory in general is outside the scope of this introduction, but the idea that common law adjudication uses a method like reflective equilibrium is a familiar one. Already decided cases, statutes, and constitutional provisions are like our considered judgments about particular cases. We construct legal theories that fit and justify the existing law. As in the case of reasoning about justice, it is likely that our tentative theory will not fit all the cases, statutes, and constitutional provisions. We then have two options. Take a prior case that is inconsistent with our tentative theory. It is possible that a prior case is mistakenly decided and that it will be confined to its facts or even overruled. It is possible that our tentative theory is mistaken and will need to be revised. In the law, of course, it is uncontroversial that "the struggle for reflective equilibrium goes on indefinitely," [FN54] but it is also uncontroversial that the case before a judge must be decided, so a temporary equilibrium must be reached.

D. Public Reason, the Law, and Religion

A more recent Rawlsian notion that has begun to influence legal discourse is his idea of public reason. The idea of public reason was introduced in several of Rawls's essays in the 1980s, [FN55] was extensively developed in his Melden Lectures entitled "The Idea of Free Public Reason" delivered in 1990, [FN56] and published in revised form in Political Liberalism. [FN57] Consider three features of Rawls's idea of public reason. First, Rawls understands public reason as the common reason of a political society. A society's reason is its "way of formulating its *561 plans, of putting its ends in an order of priority and of making its decisions accordingly." [FN58] Public reason contrasts with the "nonpublic reasons of churches and universities and of many other associations in civil society." [FN59] Both public and nonpublic reason share features that are essential to reason itself, such as simple rules of inference and evidence. [FN60] Public reasons, however, are limited to premises and modes of reasoning that can appeal to the public at large. Rawls argues that these include "presently accepted general beliefs and forms of reasoning found in common sense, and the methods and conclusions of science when these are not controversial." [FN61] By contrast, the nonpublic reason of a church might include premises about the authority of sacred texts and modes of reasoning that appeal to the interpretive authority of particular persons.

Second, Rawls formulates a particular ideal of public reason -- a standard for judging the appropriateness of the reasoning of citizens and officials. He does not apply his ideal to all actions by the state or even to all coercive uses of state power. Rather, his version of the ideal is limited (at least tentatively) to what he calls "the constitutional essentials" [FN62] and "questions of basic justice." [FN63] Thus, the scope of the freedom of speech and qualifications for the franchise would be subject to the Rawlsian ideal, but he does not resolve the question whether it would also apply to the details of tax legislation and the regulation of pollution control. [FN64]

Third, Rawls's ideal of public reason applies to citizens and public officials when they engage in political advocacy in a public forum; it also governs the decisions that officials make and the votes that citizens cast in elections. The ideal does not apply to personal reflection and deliberation about political questions; by implication it could not apply to such reflection or deliberation about questions that are not political in nature. [FN65]

*562 Although Rawls's development of the ideal of public reason is very recent, it has already had a significant impact on legal scholarship. [FN66] Notably, Rawls's views have begun to influence the debate over the relationship between religion and politics in general, and religion and judging in particular. [FN67] One area of controversy surrounds the question whether religious reasons should be excluded from political or legal discourse. Here Rawls's position has evolved. In Political Liberalism, Rawls adopts the distinction between the exclusive and inclusive views of public reason. [FN68] Affirmance of the exclusive view of public reason would mean "that, on fundamental political matters, reasons given explicitly in terms of comprehensive doctrines are never to be introduced into public reason." [FN69] The inclusive view allows "citizens, in certain situations, to present what they regard as the basis of political values rooted in their comprehensive doctrine, provided they do this in ways that strengthen the ideal of public reason itself." [FN70] Rawls now argues for the inclusive view. [FN71]

*563 II. An Outline Of Political Liberalism

Political Liberalism consists of an introduction and eight lectures which range over a wide variety of topics and explore many ideas in great depth. Some of the lectures are reworkings of the various articles that Rawls has published since A Theory of Justice, but each of the lectures contains important new material, some involve quite substantial revisions, and one of them, the sixth lecture entitled "The Idea of Public Reason," [FN72] is published for the first time in any form. This survey of the book will preview some of the main ideas, with a particular emphasis on introducing key concepts and avoiding some possible misunderstandings of Rawls's views. An attempt to summarize the book in a few paragraphs would be futile, but a very general mapping of the territory covered in Political Liberalism is possible.

The first lecture, titled "Fundamental Ideas," [FN73] introduces the basic ideas used in justice as fairness. In addition to the original position, [FN74] four ideas are explored. The first is the idea of a political conception of justice. [FN75] A political conception of justice is a moral conception that deals with the basic structure of society, that is the core political, social, and economic institutions. [FN76] Although a political conception of justice is a moral conception, it should be what Rawls's calls "a freestanding view." That is, a political conception of justice should be presented so that it does not depend on any comprehensive moral or religious doctrine. [FN77] For this reason, utilitarianism would not be a political conception of justice because utilitarianism is a comprehensive moral doctrine; utilitarianism takes a stand on the question of what constitutes the ultimate good.

The second idea is that of society as a fair system of cooperation. [FN78] "Cooperation," says Rawls, "involves the idea of fair terms of cooperation: these are terms that each participant may reasonably accept, provided that everyone else likewise accepts them." [FN79] In order for persons to be full participants in a fair system of cooperation, they must possess what Rawls calls "the two moral powers, . . . a capacity for a sense of justice and a capacity for a conception of the good." [FN80] A *564 capacity for a sense of justice is the ability to comprehend, act on, and apply a political conception of justice. A capacity for a conception of the good is the ability to form, revise, and pursue ones self-understanding of the good. [FN81] In sum, a political conception of justice establishes fair terms of cooperation applying to the basic structure of society among citizens with the two moral powers.

The third idea is that of a political conception of the person. [FN82] Rawls is concerned here with the charge that the original position involves commitment to a metaphysical doctrine of the person; a charge that he believes is mistaken. [FN83] The original position is intended to represent the political idea that citizens are free and equal. In particular, citizens in a democratic society conceive of themselves as: (1) having the moral power to form and act on a conception of the good, (2) being the source of self- authenticating claims, and (3) having the capacity for taking responsibility for their ends. The original position is intended to represent this political self-understanding. [FN84]

The fourth and final idea is that of a well-ordered society. [FN85] Such a society is one in which citizens accept the same principles of justice, in which the basic structure of the society satisfies and is known to satisfy these principles, and in which citizens have an effective sense of justice so that they generally comply with the requirements of the institutes that constitute the basic structure. [FN86] In addition, the first lecture makes an important modification to the two principles of justice, suggesting that a basic needs principle that is lexically prior to the equal liberty principle should be added. [FN87]

The second lecture, titled "Powers of Citizens and Their Representation," [FN88] introduces several additional ideas. The first of these is the distinction between the reasonable and the rational. The intuitive notion is that one can be rational, meaning that ones actions make sense in light of ones beliefs and desires, but unreasonable, meaning that one is unwilling to acknowledge the legitimate claims of others. Rawls puts it this way, "what rational but unreasonable agents lack is the particular form of moral sensibility that underlies the desire to *565 engage in fair cooperation as such, and to do so on terms that others as equals might reasonably be expected to endorse." [FN89]

Specifying the notion of the reasonable leads Rawls to introduce a subsidiary idea, the burdens of judgment. These burdens account for the fact that free institutions lead to pluralism, to a variety of comprehensive philosophical and religious doctrines about the nature of the good or ultimate value. Rawls argues that disagreement about such matters is reasonable given the difficulties of coming to consensus about them. These difficulties include: complex and conflicting evidence, disagreement about what is relevant and how to weigh the considerations that are relevant, the underdeterminacy introduced by hard cases, and the fact that there may be different kinds of normative arguments on both sides of a moral question. [FN90] Particularly important is the following factor:

To some extent (how great we cannot tell) the way we assess evidence and weigh moral and political values is shaped by our total experience, our whole course of life up to now; and our total experiences must always differ. Thus, in a modern society with its numerous offices and positions, its various divisions of labor, its many social groups and their ethnic variety, citizens total experiences are disparate enough for their judgments to diverge, at least to some degree, on many if not most cases of any significant complexity. [FN91] Given the burdens of reason, we should expect that citizens will disagree about many moral and political questions. Thus, the pluralism that characterizes modern democratic societies is a reasonable pluralism. [FN92] In addition to these topics, the second lecture discusses the publicity condition (the requirement that the conception of justice in a well ordered society be publicly known and accepted), [FN93] rational and full autonomy, [FN94] and moral psychology. [FN95]

The third lecture, titled "Political Constructivism," [FN96] contrasts Rawls's approach to two other views, Kant's moral constructivism and rational intuitionism. Political constructivism involves the construction of the content of a political conception of justice; in justice as fairness, it is the difference principle and the equal liberty principle *566 that are constructed. The original position is laid out in order to construct these principles. [FN97]

Rational intuitionism, a view that Rawls associates with Sedgwick and others, differs from political constructivism in four ways. First, rational intuitionism holds that moral principles and judgments, if correct, are true statements about an independent order of moral values, but political constructivism holds that principles of justice can be represented as the outcome of a procedure of construction, for example, as the outcome of deliberation in the original position. Second, rational intuitionism holds that moral first principles are known by theoretical reason; by way of contrast, the procedure of construction adopted by political constructivism is based on practical reason. Third, rational intuitionism employs a sparse conception of the person, holding that intuitive knowledge of moral first principles is sufficient to give rise to a desire to act from them; political constructivism instead uses a complex conception of the person, including the two moral powers, and of society. Fourth, rational intuitionism maintains that the truth of moral propositions consists in their correspondence to the independent order of moral values, but political constructivism uses the idea of the reasonable and does not take a stand on the question whether the principles of justice that are reasonable are also true. [FN98] More programmatically, rational intuitionism is a form of moral realism; political constructivism neither affirms nor denies moral realism. But a moral realist might affirm the principles of justice which emerge from political constructivism and add that these political values are ultimately supported by an independent order of moral values. [FN99]

Political constructivism also differs from Kantian constructivism in several ways. One of these differences is that Kant's theory is a comprehensivemoral doctrine, in which the ideal of autonomy regulates all of life; political constructivism is a political doctrine that does not address questions about ultimate purposes and sources of value. The remaining differences discussed by Rawls require an exposition of Kant's transcendental idealism and his view of philosophy as defense of reasonable faith, topics which are outside the scope of this brief outline. [FN100]

*567 Another topic taken up in the third lecture is objectivity, and the sense in which objective reasons exist from the political point of view. Rawls offers the following formulation:

Political convictions (which are also, of course, moral convictions) are objective -- actually founded on an order of reasons -- if reasonable and rational persons, who are sufficiently intelligent and conscientious in exercising their powers of practical reason, and whose reasoning exhibits none of the familiar defects of reasoning, would eventually endorse those convictions, or significantly narrow their differences about them, provided that these persons know the relevant facts and have sufficiently surveyed the grounds that bear on the matter under conditions favorable to due reflection. [FN101] With Warren Quinn, [FN102] Rawls sees this idea of objectivity as essentially a Kantian one. [FN103] This formulation of political objectivity is an important addition to Rawls's theory, but its adequacy is barely explored in Political Liberalism.

Rawls does qualify his claim in the following way:

I do not say that there being an objective order of political reasons consists in various activities of sound reasoning, or in the shared practice thereof, or in its success. Rather, the success of the shared practice among those reasonable and rational is what warrants our saying there is an order of reasons. The idea is that if we can learn to use and apply the concepts of judgment and inference, and ground and evidence, as well as the principles and standards that single out the kind of facts to count as reasons of political justice; and if we find that by reasoning in light of these mutually recognized criteria we can reach agreement in judgment; or if not agreement, that we can in any case narrow our differences sufficiently to secure what strikes us as just or fair, honorable or decent, relations between us; then all this supports the conviction that there are objective reasons. [FN104] Perhaps not yet fully appreciated is the Wittgensteinian character of the stance that Rawls takes at this point. Being able to state sufficient reasons for judgment "is already the best possible explanation of the beliefs of those who are reasonable and rational. At least for political purposes, there is no need to go beyond it to a better one, or behind it to a deeper one." [FN105] The insistence that there is no need for deep explanations is characteristically Wittgensteinian, and this is confirmed in the footnote to the previous quotation, in which Rawls says, *568 "we cannot ground these principals and canons of the validity of practical reason on something outside reason. Its concepts of judgment and inference, and the rest, are irreducible. With these concepts explanations come to and end; one of philosophy's tasks is to quiet our distress at this thought." [FN106] The parallel to Wittgenstein's Philosophical Investigations is unmistakable: as Wittgenstein says, "Explanations come to an end somewhere." [FN107]

The fourth lecture, titled "The Idea of an Overlapping Consensus," [FN108] addresses thequestion of stability -- a question that is central to the changes in Political Liberalism from Rawls's positions in A Theory of Justice. How can a well-ordered society which adheres to justice as fairness maintain its stability given the reasonable pluralism of comprehensive moral and religious doctrines that will exist? One part [FN109] of the answer to this question involves the idea of an overlapping consensus among reasonable comprehensive doctrines on a political conception of justice -- where a political conception is a freestanding view that does not derive from any particular comprehensive doctrine.

In this brief preview, two possible misunderstandings of the idea of overlapping consensus will be explored. First, the idea of an overlapping consensus is not the method for construction of principles of justice. One does not begin by asking what political principles are already the subject of agreement between the various religious and philosophical views that prevail in our society. This is because justice as fairness starts with political notions about citizens and society and uses those ideas to lay out the original position; the principles of justice are constructed without reference to the particular comprehensive doctrines that currently prevail. Those doctrines, recall, are excluded in the first stage of the original position. [FN110] Second, an overlapping consensus is not a mere modus vivendi, a peace treaty between warring conceptions of the good. Rather, the consensus is on moral principles (principles of political morality) that can be affirmed from *569 within the various reasonable comprehensive doctrines for good and sufficient reasons. [FN111]

Consider one final point that is addressed in the fourth lecture: what must the content of the overlapping consensus be? Must there be an overlapping consensus on the whole content of justice as fairness, or would it be sufficient to have an overlapping consensus on the constitutional essentials? [FN112] If the former, then there may be substantial practical difficulties given the complexity and subtlety of justice as fairness. If the latter, then several different political conceptions, including justice as fairness as one among many, could coexist. This possibility might enable a wider range of comprehensive conceptions to participate in an overlapping consensus. A comprehensive conception could participate if it included a conception of justice that included the same constitutional essentials as does justice as fairness, even though the various conceptions of justice might differ in some ways from justice as fairness. Thus, the overlapping consensus can be on a "class of liberal conceptions that vary within a more or less narrow range." [FN113]

The fifth lecture, titled "The Priority of Right and Ideas of the Good," [FN114] deals with the claim, made by political liberalism, that the right is prior to the good. In order to clarify this claim, Rawls explores several different ideas of the good that play a role in his theory. One of these is the primary goods, the list of goods that are considered by the parties to the original position in their deliberations. These goods include basic rights and liberties, freedom of movement and free choice of occupation, the powers and prerogatives of the positions available in economic and political institutions, income and wealth, and the social bases of self respect. [FN115]

Also in the fifth lecture, Rawls considers a number of objections, including those raised by Sen and Arrow, which focus on the differences in human capacities. These objections, which have been part of the important "equality of what?" debate, begin with the observation that different humans have different mental and physical abilities, different needs for medical care, and different needs for resources to realize their plans of life. [FN116] Take the example of differences in physical *570 abilities. Rawls notes that his theory assumes that all citizens have the capacity to be cooperating members of society; the theory does not address the question of justice toward persons who lack this capacity. Among those who do have this capacity, Rawls argues that satisfaction of the two principles of justice would entail that no injustice would be done to citizens with different physical or mental abilities. [FN117]

Another topic explored in the fifth lecture is the question whether, and in what sense, justice as fairness could be said to be "neutral" (a term that Rawls believes can be misleading) with respect to various conceptions of the good. [FN118] Rawls makes it clear that justice as fairness is not neutral in the sense that it treats all conceptions equally. [FN119] Unreasonable conceptions, including those that require injustice for their realization, will not be allowed as ways of life, although citizens may be free to advocate and believe in them. [FN120] Even among reasonable conceptions of the good, justice as fairness may discourage some conceptions and result in the eventual demise of others. For example, justice as fairness may require the education of children to a degree that will permit them to engage in social cooperation and participate in political institutions. But even this much education may be inconsistent with the flourishing of some conceptions of the good; these conceptions, while not unjust, nonetheless may not retain adherents who are exposed as children or young adults to forms of life other than that which is required by those conceptions. Justice as fairness is not neutral in the sense that it would give these conceptions an equal chance of surviving over the long run.

The sixth lecture, titled "The Idea of Public Reason," [FN121] has already been discussed. In addition to the points already made, it is important to remember that Rawls does not envision that the limits of public reason would be enforced by the state. Rather, he says,

Public reason is not, of course, a matter of law. As an ideal conception of citizenship for a constitutional democratic regime, it present how things might be, taking people as a just and well-ordered society would encourage them to be. It describes what is possible and can be, yet may never be, though no less fundamental for that. [FN122] Why should citizens adhere to an ideal of public reason that requires them to offer public reasons and sometimes even to refrain from appealing to their own deeply held religious or moral beliefs? The gist of Rawls's answer lies in the liberal principle of legitimacy: "our exercise of political power is proper and hence justifiable only when it is exercised in accordance with a constitution the essentials of which all citizens may reasonably be expected to endorse in light of principles and ideals acceptable to them as reasonable and rational." [FN123] It is because of this principle that "the ideal of citizenship imposes . . . the duty of civility -- to be able to explain to one another on those fundamental questions how the principles and policies they advocate and vote for can be supported by the political values of public reason." [FN124]

The sixth lecture also contains discussion of the Supreme Court as an exemplar of public reason. [FN125] This discussion briefly touches on a number of issues in constitutional theory, drawing on classical Lockean ideas and the recent work of Bruce Ackerman. [FN126] "Constitutional democracy is dualist," writes Rawls, "it distinguishes constituent power from ordinary power as well as the higher law of the people from the ordinary law of legislative bodies." [FN127] The Supreme Court is one of the institutions that protects the higher law from legislative infringement. It exemplifies public reason when it engages in constitutional interpretation, and the best interpretation of the constitution is the one that best fits and justifies the constitutional text, history, and cases. Here Rawls is drawing on Ronald Dworkin's view. [FN128]