Social Justice in the Liberal State
Liberalism has two aspects, and they are both under powerful attack. Liberals believe, first, that government must be neutral in matters of personal morality, that it must leave people free to live as they think best so long as they do not harm others. But the Reverend Jerry Falwell, and other politicians who claim to speak for some “moral majority,” want to enforce their own personal morality with the steel of the criminal law. They know what kind of sex is bad, which books are fit for public libraries, what place religion should have in education and family life, when human life begins, that contraception is sin, and that abortion is capital sin. They think the rest of us should be forced to practice what they preach. The old issue of political theory—whether the law should enforce a state morality—is once again an important issue of practical politics.
The second side of liberalism is economic. Liberals insist that government has a responsibility to reduce economic inequality, both through its management of the economy and through welfare programs that redistribute wealth to soften the impact of poverty. But the “New Right” rejects the idea that these are responsibilities of government, and Reagan’s administration believes it has a mandate to curtail longstanding liberal programs, like food stamps, Aid to Families with Dependent Children, low-income housing, and legal services to the poor.
What is the connection between these two aspects of liberalism—its opposition to moralism in the social sphere and to inequality in the economic sphere? That is hardly an academic question. Liberalism has often been said to be incoherent as well as outmoded, just a ragbag of positions developed by different politicians who chose to call themselves liberals. It plainly requires a fresh statement of its fundamental principles and consequent policies. How the two aspects of liberalism are related has become an important practical question, because both the appeal and the content of liberalism will depend upon the answer.
Philosophers have debated two competing pictures of the foundations of liberalism. The first—liberalism based on neutrality—supposes that the fundamental structuring principle of liberalism is the principle that the government should be neutral in matters of personal morality, and that the liberal’s concern for economic equality is simply the consequence of applying that foundational principle to economic discussions. On this account, liberals believe in equality because—and only to the extent that—neutrality requires it. The second picture—liberalism based on equality—is very different because it supposes that the liberal’s emphasis on neutrality in personal morality is not the source but rather one consequence of a prior and more general commitment to equality, a commitment that already includes the ideal of economic equality. The social and economic programs of liberalism are therefore, on this second view, two sides of the same coin.
Liberalism based on neutrality has one immediate appeal: it does not take equality for granted, but rather proposes to show how some form of equality follows from neutrality. But this appeal carries a corresponding liability, because it makes liberalism much more vulnerable to the familiar charge that it rests on moral skepticism or nihilism. If liberals base their arguments on equality, then they can object, to moralists like Falwell, that enforcing any particular theory about how people should lead their lives—even the best theory—fails to treat people with equal respect, and is wrong for that reason—even if such liberals insist that some kinds of lives are better than others. But liberalism conceived as a position of neutrality cannot rely on an egalitarian defense. It cannot appeal to equality as a reason why government should not prefer heterosexuality to homosexuality, for example, because it holds that treating people as equals is the result rather than the ground of moral neutrality. It must find some other answer to the moralists, and skepticism, which argues that beliefs about how people should live are merely “subjective” and have no objective validity, is an obvious and familiar candidate.1 But skepticism seems exactly the wrong answer to make, because if the moral majority is wrong, and each person should be free to choose personal ideals for himself, then this is surely because the choice of one sort of life over another is a matter of supreme importance, not because it is of no importance at all.
There are other, less apparent differences between the two accounts of liberalism. Liberalism as neutrality can, in fact, do only a poor job of justifying the kind of economic equality to which liberals have been drawn in recent decades. It can provide no effective answer to the most powerful arguments now made in favor of the Reagan administration’s policy of curtailing or abandoning liberal programs of redistribution. I shall try to show why, and to expose other difficulties in liberalism as neutrality, by considering in some detail the recent defense of that position by Professor Bruce Ackerman, now of Columbia Law School.
Liberalism conceived as a concern for equality has difficulties of its own, however. It assumes, rather than defends, a particular conception of equality, and it seems to provide no reason why liberals are not committed to much more by way of redistribution than they have supposed. It suggests that they are committed to some ideal of flat equality of wealth, which could be achieved only by such severe constraints on economic activity that individual liberty would be jeopardized. In a companion essay, to be published in the next number of The New York Review, I shall try to show why, properly understood, liberalism as equality is not subject to these objections, and why it nevertheless offers a strong case against the economic programs of the New Right.
Professor Ackerman is an academic lawyer who has written extensively about the economics and law of social welfare programs. In Social Justice in the Liberal State he offers to define liberalism as a position of neutrality: he believes that an entire liberal theory of justice, including economic justice, can be constructed if we take only the idea of neutrality as axiomatic. His arguments are in fact poor, and do nothing to promote liberalism or to rebut the charge that its main ideas are confused and ill-founded. But his mistakes reveal fundamental weaknesses in the conception of liberalism as based on neutrality. The ideal of neutrality cannot be taken to be prior to that of equality unless neutrality is defined so broadly that even liberals must reject it.
Ackerman is far from clear about what that ideal really is. In his formal definition of neutrality he says that “No reason is a good reason if it requires the power holder to assert: (a) that his conception of the good is better than that asserted by any of his fellow citizens, or (b) that, regardless of his conception of the good, he is intrinsically superior to one or more of his fellow citizens.” He develops his argument through maddening dialogues between people with names like “Manic” and “Depressive” and “Shifty,” in which one person makes bad arguments supposedly showing the power of the neutrality principle, and the other then falls into “(Silence).” Neither his formal definition nor these coy dialogues notice an important distinction. Liberals argue, against the moral majority and other moral fundamentalists, that politics must be neutral in one particular way: among conceptions of the good life. Whatever we may think privately, it cannot count, as a justification for some rule of law or some political institution, that a life that includes reading pornography or homosexual relationships is either better or worse than the life of someone with more orthodox tastes in reading or sex. Or that a life suffused with religion is better or worse than a wholly secular life.
But this does not mean, of course, that liberalism is neutral in a different way: about what would count as a good society. Liberals can (and do) believe that politics should aim at a society of people who are happy rather than miserable, who respect rather than condemn one another, and who have an imaginative rather than a conformist approach to the question of what kinds of lives they should lead. Still less does it mean that politics must be neutral among principles of justice. A liberal cannot say that any appeal to a controversial theory of justice is a violation of his conception of neutrality, because liberalism is itself a theory of justice and is itself controversial. The only theories of justice liberalism can reject, simply on grounds of neutrality, are theories that assume that some people, or some conceptions of the good life, are better than others.
When Ackerman tries to rebut certain familiar justifications of economic inequality, however, he tacitly relies on the idea that neutrality forbids any appeal to any principle of justice whatsoever. Consider, for example, his argument why the rich should not be allowed to leave their money to their own descendants. Manic and Depressive are members of an expedition carried by a space ship to found a new community on an uninhabited planet, and they agree that justice requires them to have equal shares of the resources they find. But Manic manages by hard work to build his share into a fortune, and proposes to leave that fortune to Manic junior who will then begin his career much richer than Depressive junior. Manic is reduced to silence when Depressive junior asks him why he, Depressive junior, should not have the good of “initial equality” that Manic once had.
But Manic might have used the familiar argument of conservatives who achieved, in Reagan’s tax bill, the virtual elimination of the estate tax. He might have said that his equal start did not require invading anybody else’s right to dispose of what he had fairly earned. That answer would not have assumed that anybody was inherently superior to anybody else. So Depressive junior could not defeat it by relying on the idea of neutrality alone, unless neutrality is understood to disallow any arguments about justice at all, in which case liberalism as neutrality would be self-defeating. (Of course Depressive junior might well have a different reply to Manic’s new argument: he might be able to show that people do not, in fact, have the moral right that argument assumes, the right to dispose of their property in any way they choose. But his argument with Manic would then be an argument on the moral merits rather than from the ideal of neutrality alone.)
Ackerman’s other arguments against economic inequality must also rely, if they are to have any power, on this erroneous conception of neutrality. When the Reagan administration tries publicly to defend its savage cuts in welfare programs, for example, it appeals to the utilitarian justification that if the poor and unemployed are made worse off now, there will be less poverty and unemployment later, so that the community as a whole will be better off in the long run. We would probably reject this justification even if we accepted the utilitarian premise that justice consists in advancing the general good. Reagan’s economic policies have not worked for the general welfare, and there is growing evidence that they never will. But liberals should contest the utilitarian premise as well as this particular conclusion.
Ackerman thinks he can dispose of utilitarianism on grounds of neutrality alone, simply by pointing out that utilitarianism presupposes a particular conception of the good life, namely that a life of maximum pleasure is the best life to lead. In fact no sophisticated utilitarian believes anything of the sort. On the contrary, utilitarians think that the ethically best life is a life devoted to increasing the welfare of the community as a whole, which is rarely achieved by looking to one’s own happiness alone. Many contemporary utilitarians (R.M. Hare, for example, and John Harsanyi) argue for utilitarianism, not in the way Ackerman assumes, but on grounds of justice. They argue, in fact, that the only way for politics to treat people neutrally, without favoritism on grounds of inherent worth or virtuous life, is to minimize suffering and maximize happiness overall. They condemn any departure from programs designed to benefit the community as a whole as wrong precisely because they are not neutral.
It may follow from this conception of neutrality that certain kinds of people—those whose skills and talents are not in much demand, for example—will fare badly. But that is not, as Ackerman suggests, because utilitarians of this sort think them or their way of life less worthy; their worse treatment follows from this utilitarian theory of justice, which is designed to benefit the community generally, rather than being an argument for that theory. Neutrality does not rebut this case for utilitarianism unless neutrality means neutrality about justice. Other philosophers argue for utilitarianism on the different ground that a society that is, on average, happier or more successful is for that reason a better society. Neutrality does not rebut that argument, either, unless neutrality means neutrality about the good society.2
So the principle of neutrality does not have the force against opponents of economic equality that Ackerman supposes, unless the principle is made much stronger than liberals themselves can accept. Advocates of liberalism as neutrality make an even stronger claim, however. They claim that neutrality provides a positive case for some form of equality in economic well-being. Ackerman gives the following argument for this positive claim. The neutrality principle allows each citizen to assert, against any other citizen, the proposition which Ackerman calls the liberal “mantra,” namely: “I am at least as good as you are.” Neutrality prevents anyone from challenging that judgment, and therefore each person is entitled to an equal share of society’s resources. This argument collapses when we notice a dangerous ambiguity in the mantra itself.
If someone says, in the course of a political argument, “I’m as good as you are,” he might mean one of two different things. He might mean, “Each of us is as good as the other from the standpoint of political justification, because it cannot count, as a justification for any decision about the political or economic structure of our society, that either of us is inherently superior to the other, or that either’s idea of a valuable life is superior.” Interpreted in this way the “mantra” is a positive political principle; it is, in fact, only the principle of neutrality in a different form. Or he might mean something that is plainly different from this, namely: “My ideas about what makes life valuable are in fact at least as sound as yours.” In this interpretation the mantra is not a political principle but an actual evaluation of the speaker’s personal morality, which may be based either on the speaker’s confidence that no one’s vision of the good life is better than his, or on the speaker’s skepticism that no one’s vision has any objective merit at all.
There are striking differences between the claims the mantra makes under these two interpretations. People who are deeply committed to different personal ideals can nevertheless all accept the mantra interpreted as a political principle, no matter which one of them asserts it. But no such person can accept the mantra interpreted as an actual moral evaluation when it is asserted by someone whose convictions he himself has considered and rejected as unworthy. Only a community of radical skeptics could accept the mantra interpreted that way. Once we notice this distinction, then Ackerman’s use of the mantra becomes illegitimate in one way or another.
If we interpret the claim “I am at least as good as you are” in the first way, as a restatement of the neutrality principle, then the argument becomes no argument at all. That principle is entirely negative: it stipulates that some arguments cannot be used, and that is all it does. It does indeed prohibit certain arguments in favor of economic inequality, but it cannot supply, in itself, any positive argument for equality. But if we take the mantra to be an actual moral evaluation—the speaker’s estimate of his own conception of the good life—then the neutrality principle does not forbid the speaker’s neighbor from denying that evaluation. The principle says that the claim that one person’s conception of the good is better than another’s, even if true, provides no justification for treating them differently. It does not deny that one conception may in fact be better than another. Nor can it deny this, because Ackerman wishes the neutrality principle to be something that can be accepted not only by deep skeptics but also by men and women who have strong personal goals.
So the principle provides no barrier to your making the following reply to my argument that I must have as much of society’s resources as you because my ideal of the good life is at least as good as yours. “No, it is not. I do not say that the superiority of my own ideals provides any argument why I should have more than you. I might or might not have other arguments for that claim. But of course I think my own ideals are better than yours, so there is no reason why I should accept the false proposition, that yours are at least as good as mine, as providing any positive argument for anything.”
So neutrality, taken to be independent of equality, provides neither answers to the main contemporary arguments for inequality nor positive general arguments for equality. When Ackerman develops the details of the economic regime he believes neutrality requires, moreover, these are in certain respects distinctly inegalitarian.3 The constitution of Ackerman’s ideal economy is simple. In the first generation, each “citizen” is given an equal share of “manna,” which is an all-purpose resource. Each succeeding generation receives, at maturity, the same amount of resources as everyone else of the same age group, which must be at least what each member of the first generation received. (This is guaranteed by the provision that no one has a right to have children unless he has ensured for each of his children at least what he himself received on starting out.)
But this initial equality will by no means guarantee equal income even among those who have the same energy, tastes, and ambitions. Some people will prove adept at producing what others want to buy, and some will be lucky. Others will make miserable investments, or be unable to find hire at more than survival wages, or fall sick of a disease that doctors, free to set their own terms, will charge a great deal to cure. Most liberals would wish to adjust these rising and falling fortunes by some scheme of taxation and redistribution, or minimum wages, or social security, or public health service, at least so far as these programs are not too inefficient or damaging to other goals. But Ackerman’s version of liberalism has this cold message for most of those who end up with less income: you had a liberal education, you had your equal grain of manna, and no argument is available why you should be entitled to invade the manna of those more clever or skillful or simply luckier. This is, of course, very much the argument the New Right makes against programs to compensate those who lose out because their talents are few or their luck bad.4
Why does liberalism, in Ackerman’s version, deny people with less ability or worse luck the benefits of a redistributive tax scheme? Not for the utilitarian reason so popular with the New Right, that the poor in general will one day be better off if the creative powers of the rich are left untaxed. But rather because neutrality itself—supposedly the cardinal principle of liberalism—prohibits intervention in such a case. Or rather it does if at least one person in society—some romantic of ditch digging—supposes that a life of manual labor is the life of greatest dignity after all. Because then, Ackerman says, the judgment that someone who can only dig ditches is worse off than others would assume that some conception of the good life—the the romantic’s conception—is worse than other conceptions.
It is important to see that nothing of the sort follows from the kind of non-skeptical neutrality to which liberalism is in fact committed. The ditch digger need not say that the low-salaried life of a ditch digger is a contemptible life, but only that he would rather, for his part, have a higher salary and more of what money can buy. Ackerman, once again, has assigned too much power to the ideal of neutrality, and this time his mistake has produced an inegalitarian result.
I have not yet mentioned what Ackerman says is his most original contribution to liberal theory, which is his claim that “conversation,” as exhibited in the dialogues I mentioned, is the nerve of liberalism. He cites Jürgen Habermas as holding a similar theory, which suggests that Ackerman means that liberal principles of justice cannot be discovered by a priori arguments at all, because a scheme of justice has validity only if it is arrived at through actual conversations among real people. The task of liberal theory, on this account, would only be to describe the conditions apposite for liberal conversation, not to anticipate the results any such conversation would produce, and substantive liberal principles would be those that in fact emerge from actual conversations under those conditions.
But the argument of the book does not take up that suggestion. The theory it develops leaves very little room, except in matters of fine tuning, for the unanticipated results of actual conversation among real people to come. Ackerman’s dark remarks about the importance of conversation (and his reference to Habermas) are simply window-dressing for an entirely conventional form of argument in political theory. He uses “conversation” only as a metaphor for argument; the point turns out to be that a liberal conception of justice is one that can be defended by arguments meeting the test of the neutrality principle. This is not a novel addition to the root idea that liberalism depends on neutrality, but only a restatement of that idea.
In the companion essay I mentioned, to appear in the next issue of The New York Review, I shall consider the other and in my view more successful idea, that the principles of liberalism, including liberal neutrality among conceptions of the good, depend on the idea of equality instead.
(This is the first of two articles.)
Other arguments for neutrality, which do not rely on either equality or skepticism, have been proposed, but none seems sufficiently powerful. Mill suggested one: that society will discover the truth about the best way to live by allowing the maximum experimentation. But neutrality will in fact constrain as well as enhance experimentation, because some ways to live require an orthodoxy of morals supported by law and would be very difficult or impossible in a liberal society. See my recent article, “Do We Have a Right to Pornography?” Oxford Journal of Legal Studies, vol. 1, no. 20, p. 177. If experiment were our goal, we would do better to promote tolerance and neutrality in some communities, repression and orthodoxy in others. Some philosophers appeal to the idea of autonomy to justify neutrality. But this cannot advance the argument. Autonomy is a notoriously ambiguous idea; in its only pertinent form it is simply another name for neutrality—that is, for the idea that government should not seek to impose any way of life on individuals—and so cannot provide any argument for that idea. ↩
In my article “Liberalism” in Public and Private Morality, edited by Stuart Hampshire (Cambridge University Press, 1978), I said that a liberal will be drawn to rough equality in the distribution of wealth because “any other general aim of distribution will assume either that the fate of some people should be of greater concern than that of others, or that the ambitions or talents of some are more worthy, and should be supported more generously, on that account.” This seems to endorse liberalism based on neutrality in an argument similar to Ackerman’s and is vulnerable to the criticism I make here. It is in any case too cryptic. The liberal argument against utilitarianism depends on showing that equality is prior to neutrality, and that the correct conception of equality is what I have elsewhere called equality of resources. See my essay on liberalism as equality, to be published in the next issue of The New York Review, and “What is Equality? Part II,” in Philosophy and Public Affairs, Fall 1981. ↩
Other bizarre conclusions, beyond those I discuss in the text, include Ackerman’s theory of citizenship. He says that the test of citizenship in a liberal community (and therefore the test of having what he calls “rights”) is the ability actually to participate in a justifying dialogue, and, in particular, the ability to assert the liberal “mantra,” “I am at least as good as you are.” Young children cannot repeat the mantra, and are not citizens; neither are mentally diseased adults, who do not have the intellectual power to understand the mantra, and so have no rights. “The rights of the talking ape,” Ackerman tells us, “are more secure than those of the human vegetable.” Liberals may be surprised to learn that these are the consequences of their deepest political commitments. In fact none of this is necessary. If there is a rational argument why an infant or a mentally defective person should have at least some of the rights others have (for example, the argument that he or she can feel pain) and if this argument passes the test of neutrality, then why is it important whether the infant or the mental defective can in fact make that argument for himself? ↩
Ackerman does in fact think that people with appalling handicaps should receive “compensation” from society (he offers only the vaguest advice on how much compensation they should have) but the conditions he imposes turn out to be incredibly severe. Those who are handicapped or otherwise disadvantaged are entitled to compensatory payments only to the extent to which they are “genetically dominated” by others in society; this means that if someone who is handicapped can do some sort of job at least as well as most other people he will not qualify for compensation no matter how much he hates that job or how little it pays, provided only that someone else thinks a life at that job is desirable. Suppose the ditch digger is strong enough to be an excellent unskilled laborer but not clever enough to be anything better paid. He is not genetically dominated. He will not starve, but he will live and die with much less money than others. ↩