Archive for November, 2009

WE (bibliography)

November 24, 2009




The following works have proved useful beyond their mention in footnotes, or are recommended for further reading.


Of General Philosophical Interest


Chappell. T. D. J. Understanding Human Goods:  A Theory of Ethics.  Edinburgh:  Edinburgh University Press, 1998.


De George, Richard T. “Ethics and Coherence.” Proceedings and Addresses of the American Philosophical Association (1990): 39-52. 


Dembski, William A. and Michael Ruse, eds. Debating Design.  Cambridge:  Cambridge University Press, 2004. 


Devine, Philip E. The Ethics of Homicide. Ithaca, NY.: Cornell University Press, 1978. Notre Dame: University of Notre Dame Press, 1990.


—–.  Natural Law Ethics. Westport, Conn.: Greenwood, 2000.


Kant, Immanuel.  Critique of Judgment. Trans and ed. J.H. Bernard. New York: Hafner, 1951.


Kass, Leon.  “The Wisdom of Repugnance.”  New Republic 216 (1997). Reprinted in Larry May, Shari Collins-Chobanian, and Kai Wong, eds.  Applied Ethics: A Multicultural Approach.  4th edition.  Upper Saddle River, NJ.:  Pearson/Prentice-Hall, 2006.  Pp. 670-683.


Korsgaard, Christine et al. The Sources of Normativity. Onora O’Neill ed. Cambridge:  Cambridge University Press, 1997.


Kripke, Saul. Wittgenstein on Rules and Private Language. Cambridge, Mass.: Harvard University Press, 1982.


MacIntyre, Alasdair. After Virtue. Rev. edition. Notre Dame: University of Notre Dame Press, 1984.


——. Dependent Rational Animals. Chicago: Open Court, 1999.


——. Three Rival Versions of Moral Enquiry. Notre Dame: University of Notre Dame Press, 1990.


Pinker, Steven.  The Blank Slate.  New York:  Viking, 2001.


Putnam, Hilary.  The Threefold Cord:  Mind, Body, and World. John Dewey Essays in Philosophy, No. 5.  New York: Columbia University Press, 1999.


Rescher, Nicholas. Pluralism. Oxford: Clarendon Press, 1993.


Rorty, Richard. Consequences of Pragmatism. Minneapolis: University of Minnesota Press, 1982.


Soper, Kate. What is Nature?  Oxford:  Blackwell, 1995.


Stout, Jeffrey. Ethics After Babel. Boston: Beacon Press, 1988.


Wheeler, Samuel, III. Deconstruction as Analytic Philosophy.  Stanford:  Stanford University Press, 2000.


Wittgenstein, Ludwig. On Certainty. Ed. G.E.M. Anscombe and G.H. von Wright. Trans. Denis Paul and G.E.M. Anscombe. New York:  Harper, 1972.




Social and Political Philosophy


Agamben, Giorgio.  State of Exception.   Trans.  Kevin Attell. Chicago:  University of Chicago Press, 2005.


Arnhart, Larry. Darwinian Natural Right. Albany, NY: SUNY Press, 1998.


Allen, Anita L. and Milton C. Regan, Jr., eds. Debating Democracy’s Discontent. Oxford: Oxford University Press, 1998.


Alperson, Philip, ed., Diversity and Community:  An Interdisciplinary Reader. Malden, MA.:  Blackwell, 2002.


Aristotle. Politics. Carnes Lord, ed. and trans. Chicago: University of Chicago Press, 1984.


Arkes, Hadley. First Things. Princeton: Princeton University Press, 1986.


Berger, Peter and Thomas Luckmann. The Social Construction of Reality. Garden City, NY.: Doubleday Anchor, 1967.


Berkowitz, Peter, ed. Varieties of Conservatism in America.  Stanford, Calif.:  Hoover Institution Press, 2004.


——.  Varieties of Progressivism in America. Stanford, Calif.:  Hoover Institution Press, 2004.


Bird, Colin. The Myth of Liberal Individualism. Cambridge: Cambridge University Press, 1999.


Bonner, Stephen Eric, ed. Twentieth Century Political Theory. New York:  Routledge, 1997.



Burke, Edmund. Reflections on the Revolution in France.  Conor Cruise O’Brien, ed.  London:  Penguin,



Collingwood, R. G. The New Leviathan.  Rev. edition.   Ed. David Boucher.  Oxford:  Clarendon Press,



Connolly, William E. Identity/Difference. Ithaca:  Cornell University Press, 1991.                                           


Copp, David. Morality, Normativity, and Society. New York:  Oxford University Press, 1998.    


Devine, Philip E. Human Diversity and the Culture Wars. Westport, CT.: Praeger, 1996.


Dunn, John.  The Cunning of Unreason: Making Sense of Politics.  New York: Basic Books (Perseus), 2000.


——-. The Political Thought of John Locke. Cambridge: Cambridge University Press, 1969.


Dyzenhaus, David, ed.  Law as Politics: Carl Schmitt’s Critique of Liberalism.  Durham:  Duke University Press, 1998.


Eagleton, Terry. The Idea of Culture.  Blackwell Manifestos.  Malden, MA.:  Blackwell, 2000.


——. Literary Theory:  An Introduction. Oxford: Basil Blackwell, 1983. 


Elbow, Matthew W. French Corporative Thought, 1749-1948.  New York: Octagon, 1966.


Elshtain, Jean Bethke. Democracy on Trial. New York: Basic Books, 1995. 


—–. Who are We? Grand Rapids, Mich.: Eerdmans, 2000.


Figgis, John Neville. The Divine Right of Kings. Introduction by G. R. Elton. Gloucester, MA:  Peter Smith, 1970.


Finnis, John. Natural Law and Natural Rights. Oxford: Clarendon Press, 1980.


Fish, Stanley et al. “Can Postmodernists Condemn Terrorism?” The Responsive Community. 12, no. 3 (summer 2003): 27ff.


French, Peter A. The Virtues of Vengeance.  Lawrence:  University Press of Kansas, 2001.  An analytic defense of one form of atavism.


Freud, Sigmund. Civilization and its Discontents. Trans.  Joan Riviere.  Ed.  Thomas Crofts.  New York:  Dover, 1994.


—–.  Totem and Taboo.  Trans. A. A. Brill.  New York: Vintage (Random House), 1946.  Both books are classic explorations of the atavistic roots of morality; see Rieff, below, for commentary. 


George, Robert P. and Christopher Wolfe, eds., Natural Law and Public Reason.  Washington, DC: Georgetown University Press, 2000.


Gauthier, David. Moral Dealing. Ithaca: Cornell University Press, 1990.


——-.  Morals by Agreement. Oxford:  Clarendon Press, 1986.


Gilbert, Margaret. Living Together. Lanham, Md.: Rowman and Littlefield, 1996.


——-.  On Social Facts.  Princeton: Princeton University Press, 1989.


Gentile, Giovanni.  Origins and Doctrine of Fascism.  New Brunswick:  Transaction, 2002.


Goodin, Robert E. and Phillip Pettit, eds. A Companion to Contemporary Political Philosophy. Oxford: Blackwell, 1993.


Gray, John. Post-liberalism. New York: Routledge, 1993.


——-. The Two Faces of Liberalism.  New York:  New Press, 2000.


Gregor, A. James. Giovanni Gentile:  Philosopher of Fascism.  New Brunswick:  Transaction, 2001.


Guttman, Amy and Dennis Thompson. “Moral Conflict and Political Consensus.” Ethics 101 (1990):  64-87.


Goodman, Michael F., ed. What is a Person? Clifton, NJ:  Humana Press, 1988.


Grasso, Kenneth L., Gerard V. Bradley, and Robert P. Hunt, eds., Catholicism, Communitarianism, and Liberalism. Lanham, MD:  Rowman and Littlefield, 1995.


Habermas, Jűrgen. Between Facts and Norms. Trans. William Rehg.

      Cambridge, Mass:  M.I.T. Press, 1996.


——-. The Future of Human Nature.  Trans. William Rehg, Max Pensky, and Hella Beister

 Cambridge:  Polity, 2003.


——-. The New Conservatism.  Ed. and trans. Shierry Weber Nicholsen (Cambridge, MA:  M.I.T.    

            Press, 1989). 


Hacking, Ian.  Social Construction of What?  Cambridge, MA.:  Harvard University Press, 1999.


Haldane, John. “The Individual, the State, and the Common Good.”  Social Philosophy and Policy. 13, no. 1 (1996):  59-79.


Hampshire. Stuart. Justice Is Conflict. Princeton Monographs in Philosophy. Princeton: Princeton University Press, 2000.


Henrie, Mark C. “Re-Constituting American Conservatism.” Modern Age. 41, no. 4 (fall 1999): 368-73.


Hirschman, Albert O. Exit, Voice, Loyalty. Cambridge, MA:  Harvard University Press, 1970.


Ignatieff, Michael. Isaiah Berlin: A Life. New York: Owl (Henry Holt), 1998.


Kennedy, Ellen et al., “Special Section:  Carl Schmitt and the Frankfort School.” Telos no. 71 (spring

1987): Pp. 37-109.


Kallen, Horace. Cultural Pluralism and the American Idea. Philadelphia: University of Pennsylvania

Press, 1956.


Kalyas, Andreas and Jan Muller, eds.  “Symposium:  Carl Schmitt Legacy and Prospects.”  Cordozo Law Review. 22 (May 2000): Pp. 1469ff.


Kekes, John. Against Liberalism.  Ithaca: Cornell University Press, 1997.


—–. “Moral Conventionalism.” American Philosophical Quarterly 22 (1985).


—–. The Morality of Pluralism. Princeton, N.J.: Princeton University Press, 1993.


Lasch, Christopher. The True and Only Heaven: Progress and its Critics. New York: W.W. Norton, 1991.


Lewis, Wyndham. The Art of Being Ruled.  New York:  Harper Brothers, 1926.


Locke, John. Two Treatises on Government. Peter Laslett, ed.  Student edition. Cambridge:  Cambridge University Press, 1988.


Machievelli, Nicollo. The Prince.  Trans. and ed. Harvey Mansfield. Chicago:  University of Chicago Press, 1985.


McCarthy, Thomas. The Critical Theory of Jürgen Habermas.  Cambridge, Mass.:  M.I.T. Press, 1978.


Manent, Pierre. An Intellectual History of Liberalism. Rebecca Balinzki, trans. Princeton: Princeton University Press, 1994.


Margolis, Joseph.  Culture and Cultural Entities.  Dodrecht:  Reidel, 1984.


Marty, Martin. The One and the Many. Cambridge, Mass.: Harvard University Press, 1997.


Mouffe, Chantal, ed. The Challenge of Carl Schmitt. London, Verso, 1999.


Murphy, John W. Postmodern Social Analysis and Criticism. Westport, Conn.:  Greenwood, 1988.


Mussolini, Benito with Giovanni Gentile.  “The Doctrine of Fascism” (1932). /Germany/mussolini.htm.  Accessed March 29, 2007.


Nagel, Thomas. Equality and Partiality. New York: Oxford University Press, 1991.


Phillips, Anne. The Politics of Presence.  Oxford:  Clarendon Press, 1998.


Picone, Paul et al., Special Issue: Carl Schmitt: Enemy or Foe? Telos no. 72 (summer 1987).  The

discussion continues in nos. 73 (fall 1987) and 74 (winter 1987-88).


Pojman, Louis P. and Robert Westmoreland, eds., Equality:  Selected Readings.  New York:  Oxford University Press, 1997.


Rawls, John. A Theory of Justice. Cambridge, MA: Harvard University Press, 1971; rev. edition,                                 1999.


——.  The Law of Peoples. Cambridge, MA: Harvard University Press, 1999. 


——.  Political Liberalism. New York: Columbia University Press, 1993.  The introduction to the paperback edition (1996) seriously modifies Rawls’s theory.


Raz, Joseph. The Morality of Freedom. Oxford: Clarendon Press, 1986.


Rieff, Philip. Freud:  The Mind of the Moralist.   Garden City, New York.  Doubleday Anchor, 1961. 

      Esp. chap. 7, “Politics and the Individual.”


Rosenblum, Nancy L. Membership & Morals:  The Personal Uses of Pluralism in America. Princeton:  Princeton University Press, 1998.


Rousseau, Jean-Jacques. The Social Contract. Maurice Cranston, trans. and ed. Baltimore, MD: Penguin, 1968.


Sandel, Michael. Democracy’s Discontent. Cambridge, MA.: Harvard University Press, 1996.


——.  Liberalism and the Limits of Justice. 2nd edition. Cambridge: Cambridge University Press, 1998.


Scanlon, T. M. What We Owe to Each Other.  Cambridge, MA.:  Belknap Press (Harvard University Press), 1998.


Schmitt, Carl. The Concept of the Political.  Trans. George Schawb. Commentary by Leo Strauss, trans.  J. Harvey Lomax.  New Forward by Tracy B. Strong.  Chicago:  University of Chicago Press, 1996.


——.  The Crisis of Parliamentary Democracy.  Trans. Ellen Kennedy.  Cambridge, MA:  MIT Press, 1985.


—— On the Three Types of Juristic Thinking.  Trans.  Joseph W. Bendersky.  Westport, CT:  Praeger, 2004.


Schwab, George.  The Challenge of the Exception.  2nd edition.  New York:  Greenwood, 1989.


Scruton, Roger. The Meaning of Conservatism.  Totowa, N.J.: Barnes and Noble, 1980.                   


Searle, John. The Construction of Social Reality. New York: The Free Press, 1995.


Shain, Barry Allan. The Myth of American Individualism. Princeton: Princeton University Press, 1994.


Singer, Peter, ed. Ethics. Oxford Reader.  Oxford:  Oxford University Press, 1994.  Pt.  II sec. B.  “Common Themes in Primate Ethics.”


Smelser, Neil J. and Jeffrey C. Alexander, eds. Diversity and its Discontents. Princeton:  Princeton University Press, 1999.


Steinfels, Peter. The Neoconservatives. New York: Simon & Schuster, 1979. 


Strauss, Leo. An Introduction to Political Philosophy. Detroit, M I: Wayne State University Press, 1989.


Taylor, Charles.  Sources of the Self. Cambridge, MA.: Harvard University Press, 1989.


Walzer, Michael.  Spheres of Justice. New York: Basic Books, 1983. 


——. Thick and Thin. Notre Dame: University of Notre Dame Press, 1994.


Wolfe, Christopher and John Hittinger, eds. Liberalism at the Crossroads. Lanham, MD: Rowman and Littlefield, 1994.  2nd edition, 2003.   John Hittinger’s essay on David A.J. Richards and Russell Hittinger’s essay on Roberto Unger are omitted from the second edition.


Wolin, Sheldon.  The Seduction of Unreason.  Princeton:  Princeton University Press, 2004.


Woolf, Robert Paul. In Defense of Anarchism. New York: Harper Torchbooks, 1970.


White, Stephen, ed. The Cambridge Companion to Habermas. Cambridge: Cambridge University Press, 1995. 


Young, Iris M.  Justice and the Politics of Difference. Princeton: Princeton University Press, 1990.





Journalistic, Historical, and Polemical Works


Arens, W. The Man-Eating MythAnthropology and Anthropophagy.  New York:  Oxford University Press, 1979.


Bacevich, Andrew J. The New American Militarism. Oxford:  Oxford University Press, 2005.


Baffler.  P. O. Box 378293, Chicago, Illinois 60637.


Barash, David. Beloved Enemy. Amherst, NY:  Prometheus, 1994.  


Besnabes, Nicholas. A Splendor of Letters.  New York:  Harper Collins, 2003.


Boggs, Carl. The End of Politics. New York: Guilford, 2000.


Brands, H. W. The Strange Death of American Liberalism.  New Haven:  Yale University Press, 2001.


Buchanan, Patrick. Where the Right Went Wrong.  New York:  Thomas Dunne Books (St. Martin’s Press), 2004.


Caute, David. The Year of the Barricades:  A Journey through 1968.   New York:  Harper and Row, 1988.


D’Souza, Dinesh. The Enemy at Home:  The Cultural Left and its Responsibility for 9/11.   New York:  Doubleday, 2007.


Ellis, Frank. Political Correctness and the Theoretical Struggle.  Auckland, NZ:  The Maxim Institute, 2004.


Fernández-Armesto, Felipe. So You Think You’re Human?  A Brief History of Humankind.   Oxford:  Oxford University Press, 2004.  On the dust jacket the title appears as Humankind: A Brief History.


Finnegan, William. Cold New World: Growing Up in a Harder Country.  New York:  Random House, 1998.


Fischer, David Hackett. Albion’s SeedFour British Folkways in America.  New York: Oxford University Press, 1989.


—–.  Liberty and Freedom.  Oxford:  Oxford University Press, 2005.


Fitzgerald, Frances. Cities on a Hill. New York: Simon and Schuster, 1986.  A thick description of four radically different contemporary American communities.


Frank, Thomas. One Market, Under God.   New York: Anchor Books (Random House), 2000.


——.  What’s the Matter with Kansas?  New York:  Metropolitan Books (Holt), 2004.


Frum, David. “Unpatriotic Conservatives:  The War against America,” National Review (7 April 2003). 


—–. and Richard Perle, Ridding the World of Evil.  New York:  Random House, 2003.


Fukuyama, Francis. The End of History and the Last Man. New York:  Free Press, 1992.  Not as

            complacent as its reputation.


Gitlin, Todd. The Sixties.  Toronto: Bantam, 1987.


—–.  The Twilight of Common Dreams.   New York: Metropolitan Books, 1995. 


Gerzon, Mark. A House Divided. New York: Tarcher/Putnam, 1997.


Hedges, Chris.  American Fascists.  New York:  Free Press, 2006.  Cambridge liberalism at bay, and in

consequence more than a little hysterical.  But it contains a useful essay by Umberto Eco, “Eternal Fascism:  Fourteen Ways of Looking at a Blackshirt.”


Hudson, William. American Democracy in Peril. Chatham, NJ: Chatham House, 1995.


Hunter, James Davison. Before the Shooting Begins.  New York:  Free Press, 1994.


Krugman, Paul. The Great Unraveling.  New York:  Norton, 2003.


Longman, Philip. The Empty Cradle. New York:  New America Books, 2004.  


Phillips, Kevin.  Wealth and Democracy:  A Political History of the American Rich.  New York:

 Broadway Books, 2002.  


Putnam, Robert D.  Bowling Alone.  New York:  Simon and Schuster, 2000.


Singer, Peter. The President of Good and Evil.  New York:  Dutton, 2004.


Sunstein, Cass. Princeton:  Princeton University Press, 2001.


Tushnet, Mark. Taking the Constitution Away from the Courts.  Princeton:  Princeton University Press,



Weikart, Richard. From Darwin to Hitler.  New York:  Palgrave Macmillan, 2004.  Reasons to be

 nervous about the ideological deployment of Darwinian biology.  


West, Rebecca. Black Lamb and Grey Falcon. New York:  Viking, 1941. On (now former) Yugoslavia. 


Wolfe, Alan. One Nation, After All.  New York: Viking, 1998.





Empire, Nationalism, Sovereignty, and Secession


Aleinkoff, T. Alexander. Semblances of Sovereignty.  Cambridge, MA.:  Harvard University Press,



Anderson, Benedict. Imagined Communities.  Rev. edition. London: Verso, 1991.


Aronowitz, Stanley and Heather Gautey, eds. Implicating Empire:  Globalization and Resistance in the

 21st Century.  New York:  Basic Books, 2003.


Barber, Benjamin.  Jihad vs. McWorld.  New York:  Ballantine, 1996.


Bartelson, Jens.  A Genealogy of Sovereignty.  Cambridge: Cambridge University Press, 1995.


Benier, Ronald, ed. Theorizing Nationalism. Albany, NY.: SUNY Press, 1999.


Brecht, Arnold. “Sovereignty.” In Hans Speier and Alfred Kähler, eds. War in Our Time. New York:

 Norton, 1939: Chap. 3.


Brown, Peter G. and Henry Shue, eds. Boundaries.  Totowa, NJ:  Rowman and Littlefield, 1981.


Buchanan, Allen. Secession. Boulder, CO.: Westview, 1991.


—–.  “Theories of Secession.” Philosophy and Public Affairs 26, no. 1 (winter 1997):  31-61.


—- and Margaret Moore, eds.  States, Nations, and Boundaries.  Cambridge:  Cambridge University

Press, 2003.  Approaches to the question of boundaries and justice of a wide range of traditions, showing the tensions in each of them.


Bucheit, Lee C. Secession: The Legitimacy of Self-Determination. New Haven: Yale University Press,



Caplan, Richard and John Feffer, eds. Europe’s New Nationalism:  States and Minorities in Conflict. New

 York: Oxford University Press, 1996.


Chang, Nancy et al. Silencing Political Dissent:  How Post-September 11 Anti-Terrorism Measures

Threaten Our Civil Liberties.  New York:  Seven Stories Press, 2002.


Chua, Amy.  World on Fire.  New York:  Anchor, 2004.


Cockburn, Alexander. Corruptions of Empire.  London:  Verso, 1988.


Copp, David. “International Law and Morality in the Theory of Secession.”  Journal of Ethics 2 (1998):



Crawford, Netta. “Just War Theory and the U.S. Counterterror War.”  Perspectives on Politics. 1, no.

       1 (March 2003): 5-26


Connor, Walker. The National Question in Marxist-Leninist Theory and Strategy. Princeton:

            Princeton University Press, 1984.


Enzensberger, Hans Magnus. Civil Wars from L.A. to Bosnia. New York: New Press, 1994.


Feuer, Lewis. Imperialism and the Anti-Imperialist Mind. Buffalo, N.Y.:  Prometheus, 1986.


Folz, Robert. The Concept of Empire in Western Europe. Shelia Ann Ogilvie, trans. New York:

  Harper & Row, 1969.


Fowler, Michael Ross and Julie Marie Bunk. Law, Power, and the Sovereign State. University Park PA:

Pennsylvania State University Press, 1995.


Friedman, Thomas L. The Lexus and the Olive Tree.  New York:  Farrar, Straus, and Giroux, 1999.


Franklin, Julian H. John Locke and the Theory of Sovereignty. Cambridge: Cambridge University Press,



Goldstein, Leslie Friedman.  Constituting Federal Sovereignty.  Baltimore:  Johns Hopkins University

Press, 2001.


Gordon, David, ed. Secession, State, and Liberty. New Brunswick:  Transaction, 1998.


Greene, Felix. The Enemy:  What Every American Should Know About Imperialism.  New York:

 Random House, 1970. 


Greenfield, Liah. Nationalism: Five Roads to Modernity. Cambridge, MA:  Harvard University Press,

            1992. Combines American chauvinism with a complacency about modernity.


Gordon, David, ed., Secession, State & Liberty. New Brunswick, NJ: Transaction, 1998.


Halper, Stefan and Jonathan Clarke. America Alone:  The Neo-Conservatives and the Global, Order.

  Cambridge:  Cambridge University Press, 2004.


Hobsbawm, Eric. “Some Reflections on ‘The Break-up of Britain,’” New Left Review. 105 (1977):  3-23.


Hirst, Paul Q., ed. The Pluralist Theory of the State. London: Routledge, 1989.  The Introduction situates

the ideas of G. D. H. Cole, John Neville Figgis, and H. J. Laski in the context of contemporary British politics.


Huntington, Samuel P. The Clash of Civilizations and the Remaking of the World Order.  New York:

Touchstone, 1997.


Ignatieff, Michael. Blood and Belonging. New York: Farrar, Straus and Giroux, 1993.


Jackson, Robert H. Quasi-States. Cambridge: Cambridge University Press, 1990.


Jacobsohn, Gary and Susan Dunn, eds. Diversity and Citizenship. Lanham MD: Rowman and Littlefield,



Kammen, Michael. A Machine that Would Go of Itself:  The Constitution in American Culture. New

            York: Knopf, 1986.


Kaplan, Amy and Donald E. Pease, eds. Cultures of United States Imperialism. Durham, N.C.: Duke

 University Press, 1993.


Kaplan, Robert D. The Coming Anarchy: Shattering the Dreams of the Post-Cold War. New York:

 Random House, 2000.


Kennedy, Paul.  The Rise and Fall of the Great Powers.  New York:  Random House, 1987.


Koebner, Richard. Empire. Cambridge: Cambridge University Press, 1961.


Krasner, Stephen D. Sovereignty: Organized Hypocrisy. Princeton: Princeton University Press, 1999.


Kupchan, Charles. The End of the American Era.  New York: Knopf, 2002.


Levy, Jacob T. The Multiculturalism of Fear. Oxford:  Oxford University Press, 2000.


Lichtheim, George. Imperialism. New York: Praeger, 1971.


Lugo, Luis E., ed. Sovereignty at the Crossroads? Morality and International Politics in the Post-Cold

 War Era.  Lanham, MD:  Rowman and Littlefield, 1996.

Margalit, Avishai and Joseph Raz. “National Self-Determination.”  Journal of Philosophy 87, no.9

(September 1990): 439-461.


McKim, Robert and Jeff McMahan, eds. The Morality of Nationalism. New York: Oxford University

 Press, 1997.


Miller, David and Sohail H. Hashmi, eds. Boundaries and Justice.  Princeton:  Princeton

University Press, 2001.  The approach to these issues of a wide range of traditions, showing the

tensions in each of them.


Miščevič, Nenand. Nationalism and Beyond.  Budapest:  Central European Press, 2001.


—— advisory ed., Nationalism. The Monist.  82, no. 3 (July 1999).


Miller, David and Sohail H. Hashami, eds.  Boundaries and Justice.  Princeton: Princeton University Press, 2001.


Mills, Nicholas, ed. Arguing Immigration. New York: Simon and Schuster, 1994. 


Nagel, Robert F. The Implosion of American Federalism.  Oxford:  Oxford University Press, 2001.


Noonan, John T., Jr., Narrowing the Nation’s Power. Berkeley, CA.:  University of California Press, 2002. 


Norton, Anne. Leo Strauss and the Politics of the American Empire.  New Haven:  Yale, 2004.


Nye, Joseph, Jr., The Paradox of American Power.  Oxford:  Oxford University Press, 2002.


Rabkin, Jeremy.  Why Sovereignty Matters. Washington, DC: AEI Press, 1998.


Periwal, Sukumur, ed. Notions of Nationalism. Budapest: Central European Press, 1995.


Pfaff, William.  “American Destiny.”  Commonweal. 129, no.10 (17 May 2002): 13-17.  On the “utopianism of globalization.”


Philpott, Daniel. Revolutions in Sovereignty. Princeton: Princeton University Press, 2001.


Scheffler, Samuel. Boundaries and Allegiances.  Oxford:  Oxford University Press, 2002.


Schmitt, Carl. The Nomos of the Earth in the International Law of the Jus Publicum Europaeum. Trans. and ed. G. L. Ulmen.  New York:  Telos Publishing, 2003.


Schuck, Peter H. and Rogers M. Smith. Citizenship Without Consent.   New Haven:  Yale

 University Press, 1985.


Shapiro, Ian.  Containment.  Princeton:  Princeton University Press, 2007.


Smith, Rogers M.  Civic Ideals: Conflicting Visions of Citizenship in U.S. History. New Haven: Yale University Press, 1997.


Soros, George.  The Bubble of American Supremacy.  New York: Public Affairs, 2004.


Stiglitz, Joseph E.  Globalization and Its Discontents.  New York:  Norton, 2002.


USA Patriot Act. Accessed

      January 21, 2004.


Wellman, Christopher Heath.  “Nationalism and Secession.” In R. G. Frey and Christopher Heath

Wellman, eds.  A Companion to Applied Ethics.   Blackwell Companions to Philosophy.  Malden, Mass.:  Blackwell Publishing, 2003: Chap.  20.


Wilks, Michael. The Problem of Sovereignty in the Later Middle Ages. Cambridge: Cambridge University

Press, 1963.                      



Race and Ethnicity


Alland, Alexander, Jr. Race in Mind:  Race, IQ, and other Racisms.  New York:  Palgrave Macmillan,

2002.  A critical review of the revival of scientific racism (or alleged racism).


Appiah, Kwame Anthony. “Racisms.” In David Theo Goldberg, ed., The Anatomy of Racism. Minneapolis:  University Of Minnesota Press, 1990.  Pp. 3-7.  Also in James Rachels, ed., The Right Thing to Do.  3rd edition. Boston: McGraw Hill, 2003. Chap. 28.   Also in Larry May, Shari Collins-Chobodian, and Kai Wong, eds., Applied Ethics:  A Multicultural Approach. Upper Saddle River, NJ:  Pearson/Prentice Hall, 2006. Pp.485-496.


Baldwin, James. The Fire Next Time.  New York:  Dial, 1963.


Bamshad, Michael J. and Steve J. Olson, “Does Race Exist?” Scientific American.  289, no. 6 (December 2003): 79-85.


Blum, Lawrence. “I’m Not a Racist, but …”: The Moral Quandary of Race.  Ithaca, N.Y.:  Cornell University Press, 2002.  Well argued, but suffers from unwillingness to criticize complaints of racism as oversensitive.


Boxhill, Bernard.  Blacks and Social Justice.  Rev. edition.  Lanham, MD:  Rowman and Littlefield, 1992.


Cahn, Steven, ed.  Affirmative Action and the University.  Philadelphia:  Temple University Press, 1993.


——.  The Affirmative Action Debate.  New York:  Routledge, 1995. 2nd edition, 2002.  Especially Pt. IV on Diversity.


Carr, Leslie G. “Color-Blind” Racism.  Thousand Oaks: Sage, 1997.


Chávez, Lydia. The Color Bind. Berkeley: University of California Press, 1998.


Cohen, Carl and James R. Sterba. Affirmative Action and Racial Preference:  A Debate.   Point/Counterpoint.  Ed.  James R. Sterba.  Oxford:  Oxford University Press, 2003.


Delgado, Richard ed., Critical Race Theory: The Cutting Edge. Philadelphia:  Temple University Press, 1995.


DeMott, Benjamin. The Trouble with Friendship.  New York:  Atlantic Monthly Press, 1995. 


Dillard, Angela. Guess who’s Coming to Dinner Now? Multicultural Conservatism in America. New York: New York University Press, 200l.


D’Souza, Dinesh. The End of Racism.  New York:  Free Press, 1955.


Dummett, Michael.  “Aquinas Medallist’s Address,” Proceedings and Addresses of the American Philosophical Association 77 (2003): 15-20.


Eastland, Terry.  Ending Affirmative Action:  The Case for Colorblind Justice.  New York:  Basic Books, 1996.


Ezorsky, Gertrude.  Racism and Justice:  The Case for Affirmative Action.  Ithaca:  Cornell University Press, 1991


Franklin, A. Todd. “The New Enlightenment:  Critical Reflections on the Political Significance of Race.” In Robert L. Simon, ed., The Blackwell Guide to Social and Political Philosophy. Malden, Mass.:  Blackwell, 2002.


Gates, Henry L. et al. Speaking of Race, Speaking of Sex. New York:  New York University Press, 1994.


Glazer, Nathan. We Are All Multiculturalists Now. Cambridge, MA.: Harvard University Press, 1997. Surprising capitulation by a longtime foe of multiculturalism.


Goad, Jim. The Redneck Manifesto:  How Hillbillies, Hicks, and White Trash Became America’s Scapegoats.  New York: Touchstone, 1997.


Herrnstein, Richard J. and Charles Murray.  The Bell Curve.  New York:  Free Press, 1994. 


Kymlicka, Will. Multicultural Citizenship. Oxford: Clarendon Press, 1995.


—— and Magda Oplakski, eds., Can Liberal Pluralism be Exported? Western Political Theory and Ethnic Relations in Eastern Europe.  Oxford:  Oxford University Press, 2001.


Levin, Michael.  Why Race Matters.  Westport, Conn.:  Praeger, 1998.  Defense of racism by a professional philosopher.


Matsuda, Mari J. et al., Words That Wound. Boulder, CO: Westview Press, 1993.


Nomos XXIX: Ethnicity and Group Rights. Ian Shapiro and Will Kymlicka, eds. New York: New York University Press, 1998.


Oliver, Revilo T. America’s Decline. London: Londinium, 1982.


Outlaw, Lucius. Of Race and Philosophy. New York: Routledge, 1996.


Rodriguez, Richard. Brown. New York:  Viking, 2002.


Sowell, Thomas.  Race and Culture:  A World View.  New York: Basic Books, 1994.


Steele, Shelby.  The Content of our Character. New York: St. Martin’s Press, 1990.  On the manipulation of racial guilt as a political strategy.


Swain, Carol. The New White Nationalism in America.  Cambridge:  Cambridge University Press, 2002.


Threnstrom, Abagail and Stephan Thernstrom.  America in Black and White.  New York:  Touchstone, 1997.


———.  No Excuses.  New York:  Simon and Schuster, 2003.

———,  eds. Beyond the Color Line.  Stanford:  Hoover Institution, 2002.


Wolf-Devine, Celia. Diversity and Community in the Academy:  Affirmative Action in Faculty Appointments. Lanham: Rowman and Littlefield, 1997.




Sex and Gender (including Abortion)


Arkes, Hadley.  Natural Rights and the Right to Choose.  Cambridge:  Cambridge University Press, 2002.

            Commentary on recent abortion politics by a participant.


Boonin, David. A Defense of Abortion.  Cambridge:  Cambridge University Press, 2003.


Devine, Philip and Celia Wolf-Devine, eds. Sex and Gender:  A Spectrum of Views.  Australia:  Wadsworth Thomson, 2003.  Contains a wide range of selections and an extensive bibliography (including Web sites), none of which is repeated here.


Edwards, Rem B., ed.  Advances in Bioethics, vol. 2, New Essays on Abortion and Bioethics.  Greenwich, CT.:  JAI Press, 1997.


Fox-Genovese, Elizabeth. “Wrong Turn:  How the Campaign to Liberate Women Has Betrayed the Culture of Life.” Life and Learning 12 (2002):  11-22.


Garber, Margaret. Vice Versa.  New York: Simon and Schuster, 1995.


Geller, Thomas, ed. Bisexuality:  A Reader and Sourcebook.  Ojai, CA.: Times Change Press, 1990.


Hall, Donald E. and Maria Pramaggiore, eds. RePresenting Bisexualities.  New York:  New York University Press, 1996.


Journal of Homosexuality.  Haworth Press.


Klein, Fred, M.D. The Bisexual Option.  New York:  Arbor House, 1978.


Mill, John Stuart. The Subjection of Women.  Many editions.


Pojman, Louis and Frank Beckwith, eds. The Abortion Controversy: 25 Years after Roe v. Wade, 2nd edition.  Belmont, CA.:  Wadsworth, 1998.


Rose, Sharon et al., eds. Bisexual Horizons.  London:  Lawrence and Wishart, 1996.


Soble, Alan.  The Philosophy of Sex and Love.  St. Paul:  Paragon, 1998.


——- , ed.  Sex from Plato to Paglia.   2 vols. Westport, CT:  Greenwood, 2006.  Comprehensive, mainly from a cultural left standpoint.


Tooley, Michael et al. Abortion: Three Perspectives.  Oxford:  Oxford University Press, 2009.


Wolf, Charlotte, M D. Bisexuality.  London:  Quartet, 1977.


Wolf-Devine, Celia.  “The Hegemonic Liberalism of Susan Moller Okin.” In Christopher Wolfe, ed.

            Liberalism at the Crossroads, 2nd edition.  Lanham, Maryland:  Rowman and Littlefield, 2003.  Chap. 3


Young, Katherine and Paul Nathanson.  “Answering Advocates of Gay Marriage.” Emory University.

May 14, 2003.  http;//, Accessed March 19 2007.  The authors remark, “There is nothing wrong with homosexuality.  One of us, in fact, is gay.  We oppose gay marriage, not gay relationships.”






Ali, Tariq. The Clash of Fundamentalisms:  Crusades, Jihads, and Modernity.  London:  Verso, 2002.

  The perspective of an atheist from an Islamic background.


Anderson, Eric A.  “The Paradox of Public Secularism.”  Faith and Philosophy. 23, no. 2 (April 2006): 137-155.


Asad, Talal.  Formations of the Secular:  Christianity, Islam, Modernity.  Stanford:  Stanford University Press, 2003.


Augustine, St. The City of God.  The portions of this book most important for political theory are excerpted in Political Writings.  Michael W. Tkacz and Douglas Kries, trans.  Ernest L. Fortin and Douglas Kries, eds. Indianapolis: Hackett, 1994.  Pp. 3-201.  I have used both Marcus Dodds’s translation and the original Latin for the rest.


Aquinas, St. Thomas. Summa Theologiae. Many editions.


Barber, Benjamin. Jihad vs. McWorld. New York: Times Books, 1995.


Bellah, Robert. The Broken Covenant. New York: Seabury Crossroad, 1975.  On civil religion.


Berger, Peter L. The Sacred Canopy. Garden City, NY: Doubleday Anchor, 1969. Standard discussion of the social role of religion, which accepts the secularizing liberal Protestant meta-narrative.


——–.   and Richard John Neuhaus, eds. Against the World for the World: The Hartford Appeal and the Future of American Religion.  New York:  Seabury, 1976.


Bloom, Harold. The American Religion.  New York:  Simon and Schuster, 1992.


Burleigh, Michael.  Earthly Powers: The Clash of Politics and Religion and Politics in Europe, from the French Revolution to the Great War.   New York:  HarperCollins, 2005. 


———-.  Sacred Causes:  The Clash of Religion and Politics, from the Great War to the War on Terror.   New York:  HarperCollins, 2007.  The two books provide a detailed discussion of the “political religions” that arose after the French Revolution, and the crosscurrents of their relationships to the older sort.  As he approaches the present, the author’s animosities intrude excessively into the narrative.


Bush, George W.  We Will Prevail.  National Review Book.  New York:  Continuum, 2003. 


Calvin, John. Institutes of the Christian Religion. Henry Beverage, trans. Grand Rapids, MI: Eerdmans, 1957.


Carroll, James.  Crusade:  Chronicles of an Unjust War.  New York:  Metropolitan, 2004.


Coons, John E. and Brennan, Patrick M.  By Nature Equal.  Princeton:  Princeton University Press, 1999.


Cromartie, Michael, ed. Peace Betrayed?  Essays on Pacifism and Politics.  Washington, DC:  Ethics and Public Policy Center, 1990.


Derrida, Jacques. Acts of Religion. Ed. Gil Anidjar.  New York:  Routledge, 2002.


——.  The Gift of Death. David Wills trans. Chicago:  University of Chicago Press, 1995.


—–.  and Gianni Vattimo, eds. Religion.  Cultural Memory in the Present, eds. Mieke Bal and Hent de Vries. Stanford: Stanford University Press, 1998. 


Devine, Philip E.  Relativism, Nihilism, and God. Notre Dame: University of Notre Dame Press, 1989.


Figgis, John Neville. The Political Aspects of S. Augustine’s ‘City of God.’ Gloucester, MA.: Peter Smith, 1963 (orig.: 1921).


First Things.   Institute for Religion and Public Life. 156 Fifth Avenue, Suite 400.  New York, New York 10010.


Finnis, John. Aquinas. Oxford: Oxford University Press, 1998.


Fletcher, George P. “In God’s Image:  the Religious Imperative of Equality under Law.” Columbia Law Review.  99 (1999):  1608ff.


Gentile, Emilio.  Politics as Religion.  Trans. George Staunton.  Princeton:  Princeton University Press, 2006.


George, Robert P.  The Clash of Orthodoxies:  Law, Religion, and Morality in Crisis.  Wilmington, DE: ISI, 2001.


Gilby, Thomas. The Political Thought of St. Thomas Aquinas. Chicago: University of Chicago Press, 1958. See especially chap. 7, § 5, on St. Thomas’s conception of the common good.


Grasso, Kenneth L., Gerard V. Bradley, and Robert P. Hunt, eds., Catholicism, Communitarianism,

 and Liberalism. Lanham, MD: Rowman and Littlefield, 1995.


Haldane, John.  Faithful Reason.  London:  Routledge, 2004.


Hancock, Ralph C. Calvin and the Foundations of Modern Politics.  Ithaca, NY: Cornell University Press, 1989.


Heim, Joseph Charles. “The Demise of the Confessional State and the Rise of the Idea of a Legitimate Minority.” Nomos. 32 (1990): 11-23.


Hittinger, Russell. The First Grace: Recovering the Natural Law in a Post-Christian World.  Wilmington, DE: ISI Books, 2003. 


Hook, Sidney. Religion in a Free Society.  Lincoln:  University of Nebraska Press, 1967.


Holifield, E. Brooks. Theology in America.  New Haven:  Yale University Press, 2003.


Hollenbach, David, S.J., The Common Good and Christian Ethics. Cambridge:  Cambridge University Press, 2002.


Jenkins, Philip. The Next Christendom:  The Coming of Global Christianity.  Oxford:  Oxford University Press, 2002.


John Paul II. ”Fides et Ratio.” Origins. 28, no. 19 (22 October 1998):  317-347.


—–. ”Veritatis Splendor.” Origins. 23, no. 18 (14 October 1993):  297-334.


Johnson, Phillip E. Reason in the Balance. Downers Grove, Ill.:  InterVarsity Press, 1995.  A leading intellectual spokesman for the Religious Right.


Johnston, Mark and Cynthia Sampson, eds. Religion, the Missing Dimension of Statecraft. Published under the auspices of the Center for International and Strategic Studies. New York: Oxford University Press, 1994.


Jordan, Mark D.  Telling Truths in Church:  Scandal, Flesh, and Christian Speech.  Boston:  Beacon Press, 2003.


Juergensmeyer, Mark. The New Cold War? Religious Nationalism Confronts the Secular State. Berkeley, CA.: University of California Press, 1993.


——-. Terror in the Mind of GodThe Global Rise of Religious Violence.  Berkeley. CA:  University of California Press, 2000.


Kaufman, Peter. Redeeming Politics. Princeton: Princeton University Press, 1990.  On the use of religion for political purposes.


Kolakowski, Leszek.  God Owes Us Nothing.  Chicago:  University of Chicago Press, 1995.


Lee, Patrick. Against the Protestant Gnostics.  New York:  Oxford University Press, 1987.


Lincoln, Bruce. Holy Terrors:  Thinking about Religion after September 11.  Chicago:  University of Chicago Press, 2003.  Contains a valuable documentary appendix.


Longley, Clifford.  Chosen People: The Big Idea that Shaped England and America.  London:  Hodder and Stoughton, 2002.


Markus, R.A. Saeculum. Cambridge: University Press, 1970.  On the political aspects of St. Augustine’s thought.


Maududi, Sayyid Abdul A’la. Islamic Law and Constitution. Lahore, Pakistan:  Islamic Publications, 1992.


Milbank, John. Theology and Social Theory. Oxford: Basil Blackwell, 1990.


Miller, William Lee.  The First Liberty.  Expanded and updated edition.  Washington. DC:  Georgetown University Press, 2003.


Murray, John Courtney. We Hold These Truths. New York: Sheed and Ward, 1966.  Classic Roman Catholic discussion of civil liberties as “articles of peace.”


Oates, Stephen B. Let the Trumpet Sound:  The Life of Martin Luther King, Jr.  New York:  Harper and Row, 1982.


O’Donovan, Oliver. The Desire of the Nations.  Cambridge:  Cambridge University Press, 1996.


——— and Joan Lockwood O’Donovan, eds. From Irenaeus to Grotius:  A Sourcebook in Christian Political Thought.  Grand Rapids, MI.: William B. Eerdmans, 1999.


Plantinga, Alvin.  Warranted Christian Belief. New York: Oxford University Press, 2000.


Qutb, Sayid.  Social Justice in Islam.  Trans John H. Hardie.  Ed. Hamid Algar.  Oneonta, N.Y.:  Islamic Publications International, 2000.


Radner, Ephraim and Philip Turner.  The Future of Communion:  The Agony of Anglicanism and the Future of a Global Church.  Grand Rapids, MI:  Eerdmans, 2006.  On the problem of “diversity and integrity” within one religious community.


Ramadan, Tariq. Western Muslims and the Future of Islam. Oxford:  Oxford University Press, 2004.


Religious Commitment and Public Life. Modern Schoolman. 78, nos. 2 & 3 (January/March 2001).


Schmitt, Carl. Political Theology: Four Chapters on the Theory of Sovereignty. George Schwab trans.  New Foreword by Tracy B. Strong. Chicago: University of Chicago Press, 2005.  Contains a valuable Bibliography on Schmitt.


Steinfels, Peter. A People Adrift.  New York:  Simon and Schuster, 2003.


Waldron, Jeremy. God, Locke, and Equality. Cambridge:  Cambridge University Press, 2002;


Walzer, Michael.  The Revolution of the Saints. New York: Atheneum, 1972.


Weber, Eugen.  Apocalypses.  Cambridge, Mass.:  Harvard University Press, 1999.


Weithman, Paul J. Religion and the Obligations of Citizenship.  Cambridge:  Cambridge University Press, 2002.


Witham, Larry A. Where Darwin Meets the Bible.  Oxford:  Oxford University Press, 2002.


WE (conclusion)

November 24, 2009


            There are three conclusions to this book.  The second considers how we might conduct the debates that take place in a religiously and ideologically mixed society, in order to minimize the element of violence and deceit in politics, and thus avert ‘barbarism’ as R. G. Collingwood understands it – not the absence of civilization but its conscious rejection.[1]   The second examines what happens when reasonable public discourse fails, and speaks of the degeneration of We-formation into barbarism.  The third speaks of the possibility that politics might be informed and transformed by grace, though the political activity of those who believe in it.  While reasonable public discourse does not require any particular religious belief, those who hold Christian beliefs might still make a distinctive contribution to it.  (Grace in the Christian sense need not come only through Christians, but only Christians can be conscious instruments of grace.)



In a working society, atavistic and contractual ties collaborate.    Atavistic bonds change slowly, if at all, while the social contract can be renegotiated whenever persuasive reasons for doing so arise.  The constant renegotiation of the social contract is a source of danger to vulnerable persons:  a husband might divorce his wife for no better reason than her illness, or speed her demise in order to marry again.  On the other hand, atavistic feelings run amok, as in witch-hunts against persons accused, even falsely, of child abuse. 

In a historically conscious society there will be two broad parties – a party of memory and a party of hope.  The health of both of these parties is necessary to the health of the larger society.   (For more on the ‘dialectical’ character of a healthy politics see NL chap. 27).  In both cases I am talking about the self-image of the party in question:  there is no guarantee that the happy memories of the party of memory will be accurate or evaluatively right; they will in any case be selective.  Nor is there any guarantee that the hopes of the party of hope will be achievable or even desirable; the idea that they are destined to prevail is absurd.

The most important argument of the party of memory makes turns on the anarchic element in human nature, which is ready to take advantage of every loophole in conventional morality and of the uncertainties attendant on change. The party of memory ignores, however, the complex and bloody history that lies behind existing institutions:  the supposed Golden Age of the American family, the 1950s, included a great deal of incest and other abuse of children.   

The party of hope looks for humanity-wide (or wider) community of free and equal persons, even at the cost of disrupting present bonds. Hence, it emphasizes our need critically to examine existing practices, both in their own terms and in terms of the demands of an ever-changing world.  The contemporary party of hope defines its goal as “a more equal, inclusive society.”[2]  But, on many occasions, to include Smith is to exclude Jones – even apart from the possibility that either Smith or Jones ought to be excluded.  

Healthy public discourse requires both a healthy traditionalism and a healthy progressivism.  There is, however, no reason to believe that the relations between the party of memory and the party of hope will always be well mannered.  But the two groups must stay in communication with one another, avoiding slogans like America, love it or leave it!  and Hey, hey, ho, ho, Western culture’s gotta go! (Stanford, 1988) Otherwise decadence, barbarism, or both ensue,

Civilization, decadence, and barbarism are properly features of the life of a group, and individuals are civilized, barbarous, or decadent only in a secondary sense.    In a barbarous society, people pursue appetite, passion, and party advantage without regard to the interests of others or the demands of the common good.  A decadent society is one that despairs of its future, in other words one that is unable to summon enough belief in its way of life to transmit it to future generations.   At the extreme it is one that is dying out because its members no longer are willing and able to reproduce themselves physically and culturally. 

Distinguishing decadence from progress requires discernment:  one symptom of American decadence is what I call ‘the guttering of the American mind’:  the despair of both democracy and rational discussion, and the consequent shift of public interest from our shared problems to the gamy details of the lives of prominent people.  A complex society such as America is civilized in bits, barbarous in bits, and decadent in bits, and relies on immigrants as a remedy for decadence.  Our barbarous and decadent aspects are those most visible to outsiders.  (It is impossible to predict the future.)

One way in which a civilized society can collapse into barbarism is by way of decadence.   For every society rests on shared understandings of the good life and the good society – what sociologists with characteristic vagueness call ‘values.’  In America, these values include both political ideals such as liberal equality and personal ideals such as heterosexual monogamy.  They form an ‘inherited conglomerate’ that easily falls apart when subjected to critical scrutiny.  But merely negative criticism, constantly and stridently expressed, leaves us with a moral and spiritual void.   It is not necessary that critics of this sort have particularly powerful arguments; sneering, slogans, and sophistries can erode a society’s belief in itself better than good arguments.  And given the nature of such criticisms, those who advance them are incapable of constructing an alternative; any attempt to do so will always be undercut by their more radical allies.  This result is tolerable so long as political and economic life goes well otherwise  — something no society can guarantee.  When things do not go well, the door is open to leaders who invoke various forms of xenophobia to restore social unity.

In a civilized society, rational discussion between the party of memory and the party of hope leads to constraints appetite, passion, and animosity among groups.   In Collingwood’s language, dialogue among the various parties aims at ‘civility’ or ‘civilization’ (NL chaps. 24-27 and App. 2).  Civility includes respect for one another’s freedom, but if slaveholders, or Nazis who used the slogan Wir sind frei, were simple hypocrites, the political world would be both less interesting and more tractable than it is.  Collingwood’s own definition – “A decision that is really free is one that a man makes for himself. His resolution is his and nobody else’s” (NL ¶25.53) – neglects the question of social influences, which sometimes limit our freedom, so that we become slaves to appetite, to convention, or to fashion. In trying to be more specific, it is difficult to avoid embarrassing platitudes.  Principles of intellectual fairness – as if all parties were involved in an adversarial system of justice – can take us only so far, for such principles are contested along with everything else.

Reasonable public discussion, however vital, cannot overcome the fact that when people play politics they do so for keeps.  Not all political issues can be left open.  I would not want to live in a society that openly debated genocide, even if no group of which I was a member was a candidate, and no genocide actually took place.  

It is, to be sure, harder to win decisively than it may seem at the time.  Despite serious efforts to suppress them, American Indians, Mormons, and the white South remain active players in the American game.  But no one wants to be their position, or in the different but also abhorrent situation of black slaves.  Moreover, the oppressed, or those who deem themselves such, turn oppressors with minimal hesitation, and are as likely turn on their friends as on their enemies.  Americans, or at least those living in middle class environments, think of themselves as immune to the bloodier side of history, and lurch toward fascism when they discover they are not.[3]  



Tribal conflict is the default condition of human social life.  Even narrow differences of outlook or interest can lead to breakdown of communication and a turn to violence or withdrawal from social relations.  Cain and Abel, like Romulus and Remus, were brothers.  All traditions, including all religious traditions, are multi-sided, and therefore in some internal tension.   The odium theologicum (or theologico-politicum) persists, and with it the pertinence of Rousseau’s remark that “it is impossible to live in peace with people whom one believes to be damned.”[4]   The fascist solution to this problem had intellectual defenders in the English-speaking world.[5]  And variations on the same theme have since reappeared in many other national contexts, including contemporary America. 



A defining figure for intellectual fascism is Carl Schmitt.[6]  When the Weimar Republic was falling apart, he tried to save it by counseling authoritarian responses to the Nazi and Communist threat.  He capitulated to Hitler only after he won, and never accepted a fully totalitarian theory of the state.  Schmitt’s defense of a market economy implies a sphere of existence independent of the state – which is not to suggest that this is the only or best way of accomplishing this purpose. [7]   Yet Schmitt was evil as well as brilliant:  his support for Nazism went well beyond acceptance of the inevitable or political naiveté.  Schmitt should not be confused with Leo Strauss:  Schmitt was a fascist; Strauss was a Machiavellian, and as such committed to giving lip service to both liberal democracy and to traditional morality as capable providing a resolution for its predicaments without appeal to amoral (or otherwise normless) decisions. [8]  

 Schmitt does not write as a political theorist in the full sense:  his understanding of politics is, like law as he understands it, a response to particular situations. [9] Still, murky visions of blood and soil, and the mysterious taint that rests on the Jews, are extrinsic to Schmitt’s main line of thought.   His anti-Semitism, when not opportunistic, arises from his desire for a culturally homogenous state; he did not accept Nazi racial theories. [10]  His argument depends on the need for collective unity and clear decisions in times of crisis – a consideration familiar in all sorts of politics.   He is not, however, merely illiberal or anti-liberal; he gives a dialectically antithetical answer to that of liberals to the common question, how to proceed in politics in a world where there is no accepted orthodoxy.[11]  His most fundamental commitment was to the unity and stability of the state, a commitment held, in less extreme terms, by many political intellectuals.[12]  

Schmitt analogizes legal and political decision making to creation ex nihilo:  “looked at normatively, the decision issues from nothingness.”[13]   The sovereign (he hopes) is able to create an orderly social universe by distinguishing friend from foe  — or in other language, Us from Them.   Legal notions of sovereignty, according to which the American Constitution is our Grundnorm, he considers irrelevant, since a norm cannot act.  In his own pithy words, “no norm is valid in emptiness.”[14]   As even the rigorous positivist Kelsen conceded, “Anyone who lifts the veil [of positive law] and does not close his eyes is confronted with the Gorgon’s head of power.” [15]  Yet Schmitt appears to concede that sovereignty is a fiction:  “The juridic formulas of the omnipotence of the state, are in fact, only superficial secularizations of the omnipotence of God.”[16]   

At one time Schmitt was a fairly standard clericalist Conservative.[17]  I take Schmitt’s theological references in his later works as secularizations in the sense of translations of (selected) theological concepts into worldly terms (like the secularization of a church). [18]   For he makes clear that “concepts of transcendence [are] no longer credible to most educated people,”[19] among whom it is likely that he includes himself.  Moreover his fundamental commitment to the unity of the state implies hostility to the confessionally divided churches of his Germany.   Hence he endorses the exhortation of Albricius Gentilis,[20] Silete, theologi, in munere alieno.[21]  (In less elegant terms, “theologians sit down and shut up!”).   This analysis holds even of his use of the figure of the Antichrist, which some writers have seen as harmonizing with Nazi anti-Semitism.[22]

The most repellent of Schmitt’s views arise from his concern with legal indeterminacy and its impact on state unity.[23]  Since law is supposed to be the anchor of our society, disorder there is of far greater concern than in other parts of our culture.  Schmitt observed that ‘we have already reached the point the point in legal theory and practice, where we have seriously to ask the epistemological problem of to what extent a word or concept of the legislator can really bind those who have to apply the law at all.”[24]   He responded, “only those who are capable of seeing the facts [of the case] in the right way, understanding words correctly, if they are participates in a racially determined type of legal community to which they existentially belong.”[25]  Hence “there is only one path [to legal determinacy]; the National Socialist state has decisively followed this path. … Reform of the Jurists Instead of Reform of the Law.”[26]  Racism is not essential to this argument:  we might attempt to maintain legal determinacy by establishing a culturally homogeneous judiciary by means of a purge.  And if this purge fails to establish sufficient agreement among the judiciary, we will undertake another purge, and then another.

In his book On the Three Types of Juristic Thought, Schmitt supplements this line of argument with a defense of what he calls ‘concrete order thinking.’ [27]  His understanding of this sort of jurisprudence is not well developed, but his defense of concrete order thinking contains an insight that liberals find inconvenient, but which resonates with Anglo-American philosophy of language. 

Every order, including the “legal order,” is bound to concrete concepts of what is normal, which are not derived from legal norms, but rather such norms are generated by their specific order and for their specific order.  A legal regulation presupposes concepts of what is normal, which develop so little from the legal regulation that the norming itself becomes so incomprehensible without them that one can no longer speak of a “norm.”  A general rule …  elevates itself over the concrete situation only to a very limited extent, only in a completely defined sphere, and only to a certain modest level.  If it exceeds this level, … it becomes senseless and unconnected.

 General rules have real but limited role in this law; their application requires a shared background of customary practice and hence of relatively homogeneous society.  Hence even liberalism, and hence also liberal jurisprudence, rest on a background culture, and for that reason come in American, English, and French varieties. 

In America, we combine a legal system full of broad standards, a culturally heterogeneous society, and a modern regulatory state, whose intrusions into our lives we try to limit by dogmatic assertions of our rights.  Believers in “the laws of nature and nature’s God” wrote our Constitution; judges not prepared to examine human nature interpret it.  The concept of the normal is under constant assault, which law is frequently invoked to aid.  Judges also often assume the role of ultimate decider, or delegate the required freedom of arbitrary decision to private persons (though the ‘freedom of choice’ of the pregnant woman has little to do with the situation of women facing problem pregnancies).  Legal discourse invades even private discussions of moral issues.

We give extensive attention to the particular outlooks of Supreme Court Justices, and attempt to pack the judiciary with our political allies.  A female or African American judge is expected to represent a female or African American point of view – whatever that may be.  We thus acknowledge, whatever our rhetoric may say, that we live under a government of men and women, not of laws.  Unsurprisingly, our legal scholars have concluded from a wide variety of perspectives that our legal system is an incoherent jumble masking the arbitrariness of political and moral choice. [28] As William E. Scheuerman well asks, “A surprising number of theorists, start, for the most part unwittingly, from Schmittian assumptions.  Can they escape Schmitt’s shocking conclusions?”[29]

Sovereignty in Schmitt’s sense must vest in an individual or small group:  by the sovereignty of God, he means that of “the one who acts as his acknowledged representative on earth”; that of the people means that of “those who identify most closely with the people.” [30] These formulations, like the corresponding features of the philosophy of Hobbes, preclude any appeal either to Heaven or to the people, over the heads of those presently in power.

Views like Schmitt’s are now an unacknowledged presence throughout Western political culture.  George Weigel echoes Schmitt when he writes:

Dean Acheson once recalled that, at another moment when history’s tectonic planes were shifting, the task he and Harry Truman faced “only slowly revealed itself.  As it did so, it began to appear as just a little bit less formidable than that described in the first chapter of Genesis.  That was to create a world out of chaos.”  The Bush Administration, notwithstanding what it has gotten wrong, has gotten this precisely right.[31]

I am not sure what difference it makes that Weigel’s sovereign creates the world out of chaos rather than out of nothing.  Contemporary practice, in America and the West generally, embodies Schmitt-like understandings of the exception, to the extent that, as one jurist observes,  “at the very moment when it would like to give lessons in democracy to different conditions and cultures, the political culture of the West does not realize that it has entirely lost its canon.”[32] 

There are persistent attempts to turn Schmitt into a democrat.  Andreas Kalvyas appeals to the constituent power of the people, who retain ultimate sovereignty.[33]  Revolutionary democrats hold that a group of human beings mysteriously constitute themselves as a people, at the same time laying down rules for decision-making including rules for deciding in contested cases who is a member.[34]  

 But the people (or a large oligarchy) cannot be sovereign in the sense a monarch or dictator is sovereign.  For the people are both defined by, and act in accordance with, procedural rules, which for that reason must, to some degree, have some independence of their decisions.  The people can change the rules, but then there are rules for rule changing.     Procedural norms regulate entitlement to vote, the manner of deliberation, and who gets to frame the question for decision.  This observation holds as much for plebiscites, constitutional conventions, constituent assemblies, town meetings, and worker’s councils as it does for ordinary representative institutions.   Who shouts loudest is no criterion for judgment, and public opinion polls would lose their credibility if they could not be checked against elections.   If they result in massive and immediate political failure, attempts to articulate the popular will fail, whatever form they take.   If a politically successful leader embodies the popular will, then Napoleon, and after him Hitler and Mussolini, would seem to qualify. 

The paradox can be lessened if we recall that revolutions take place in already existing national units.  Even secessionist movements work from political divisions recognized, at least informally, within the former regime.  Such pre-existing units always include individuals, who may generically called ‘Tories,’ whom revolutionaries exclude from the demos by death or exile, or include by re-education.  Such units also help define the demos, which for this reason does not and cannot exist outside all legal and political categories.[35]   In any event, democratizing Schmitt does not make his thought more palatable.

Schmitt’s bad reputation among political theorists arises in important part from the fact that Germany lost the Second World War, so that we could safely dismiss him, in his own language, as a defeated enemy.   But, as memories of Hitler fade, we see increased interest in his work across the political spectrum.[36]   For the political distinction between Us and Them is not going away:  a full theoretical refutation of Schmitt’s extreme version is the task of a lifetime, and its practical refutation an ongoing challenge to liberal institutions.

Schmitt’ views on jurisprudence contain at least one feature that undermines any use of them to achieve social stability – his attempt to make jurisprudential space within even the supposedly conservative ‘concrete order thinking’ for the Nazi concept of the ‘Führer.’[37]  (This is not really an office:  had the German Reich survived Hitler, his successor as President and Chancellor might not have succeeded him as Führer.  Franco responded to the problem of succession by reviving the Spanish monarchy.)   We can hardly describe the Nazis as having stabilized German culture and institutions, however much Schmitt hoped that they would.    On the contrary the Nazis went to unrivalled lengths in overriding the wisdom of repugnance in pursuit of their ideological program.  (The number of victims, while of great import, is not the only thing that matters.)

In my view, we should shelve the notion of sovereignty and accept the fact that politics is inevitably a series of compromises.  Even Louis XIV was not, in practice as opposed to rhetoric, absolute; both the Church and the nobility limited his power (though he had no desire to violate these constraints by converting to Protestantism, for example).  If we lower our expectations concerning the unity of the state, the problem of maintaining legal consistency can be handled by attempting to create a legal culture sufficiently cohesive to meet our needs.  (For culture can be created, though not ex nihilo or all at once, though it is far easier to destroy it.)   The World Court addresses the problem of combining diverse legal cultures through heavy reliance on precedent. [38]

The deepest error in Schmitt’s jurisprudence is his replacement of Kelsen’s concept of a will-less norm with the contrary concept of a norm-less will.[39]  (I take it that his appeal to ‘concrete orders’ does not help matters.)  Such a will either does not exist or (like the youthful St. Augustine’ desire for inedible pears) is destructive only.  The national community Schmitt wants to preserve, and whose stability Schmitt wants to maintain is an example of friendship in the broadest sense.  In actual cases people who share his interest in the unity and stability of a community are also prepared to identify desirable features of their communities.  Both of these evaluations open avenues for rational justification and critique of authoritative decisions.

Nonetheless, a crucial part of the problem is persistent and disagreement about the normative bases of political judgment, extending all the way to the question, what interests even cross the threshold of political argument.  There seem to be deeply entrenched features of our culture that guarantee the dissolution of consensus.   Sometimes disagreement narrows, but seldom as a result of argument, and often as a result of war.  Moreover the institutions that supposedly allow for rational examination of political issues often fail to do so for structural reasons.   As Schmitt puts it, in parliaments “small and exclusive committees of parties or party coalitions make their decisions behind closed doors, and what representatives of the big capitalist interest groups agree to in the smallest committees is far more important, perhaps, than any political decision.”[40]  Likewise our colleges and universities are now subject to many external pressures, and portioned into baronies that, sometimes even avowedly, discourage dialogue across ideological lines. Programs such as Women’s and Catholic Studies, since they do not represent established disciplines within which a range of political views has flourished, are in explicit bondage to ideological perspectives.

It is imperative that we recognize, and learn to deal with, the fact of cultural diversity.  But the celebration of diversity as a good in itself ignores the fact that it makes communication and thus co-operation difficult and bloody conflict likely.  Hardly anyone talks of the contribution of pedophiles to the rich and colorful tapestry of American life.  But no principle underlies the drawing of this line, only the de facto balance of political and cultural forces. 


What is Fascism?

The word fascism is used very loosely, to refer to any authoritarian individual, movement, or system (and sometimes to mere lunatics).  This usage only muddies political argument.  We can do without definitions of liberal, conservative, feminist and other words used as self-descriptions; but we need to be able to recognize fascism among those who prefer to avoid the word. [41]   While I am skeptical about finding essences of historical things, I see such institutional features as corporatism, market economics, youth movements, state control of religion, and abridgment of civil liberties as strategies and tactics of fascism rather than its core.  

I use the word fascism to refer to an ideological syndrome characterized by twelve partly defining criteria.   In framing them, I draw upon Schmitt, the Italian fascist thinker Giovanni Gentile, who also served as Mussolini’s ghostwriter,[42] and upon the historical record..[43]  The usual remarks about borderline and atypical cases apply.

  1. Fascism is the philosophy of a group that at least aspires to control a state.  Academic writers like Stanley Fish and Richard Rorty, though they surrender the intellectual high ground to fascism, are not themselves fascists.
  2. Fascists hold that their group, or the state it aspires to control, has been wounded in ways that require enhanced solidarity among its members, and make it unable to afford justice to outsiders.  The weakness of Italy among European powers played this role in Fascist Italy, the Versailles Treaty played this role in Weimar Germany, the terrorist attacks of 11 September 2001 play this role in contemporary America, and (in one of the bitterest ironies of history) the Holocaust plays this role for some Jews.   (These remarks are not intended to condone either 9/11 or the Holocaust.  Nor do I beg the question against those historians who believe that the Versailles Treaty was unfairly and dangerously vindictive.)
  3. Fascism is an expression of resentment toward those social outsiders who have offended by their worldly success while the group as a whole has suffered humiliation. 
  4. Fascism relies on a charismatic leader to grasp the shared consciousness of the group and mobilize its unreflective responses.   The fascist theory of political legitimacy therefore circumvents constitutions and elections.    Rather, leader, state, and people are joined in an unreflective unity of purpose, and those who cannot or do not share in this unity are evil.
  5. Fascism regards adversaries, both external and internal, as enemies in an absolute sense.  Fascism regards moderates and would-be neutrals, not as people to be persuaded, but as a particularly contemptible form of enemy. 
  6. Though fascists did not invent it, torture is a hallmark of fascism.  For it is a dramatic way of denying – and acting upon the denial – of the humanity of outsiders and internal deviants.  Conversely, once policies involving torture are in place, fascistic rhetoric and institutions are necessary to sustain them. 
  7. Fascism responds, like liberalism, to the anxieties and conflicts of that arise from intensified interactions between diverse sorts of people.  For the fascist, social solidarity is all-important and individual freedoms strictly subordinate to it.  In Rawlsian language, the fascist addresses the questions of social solidarity and individual freedom in lexical order.   Once the first is satisfied, the second is allowed some place.  The fascist argument is: united we stand, divided we fall; we cannot afford either to tolerate the enemy at home or to exercise restraint in using force on the enemy abroad
  8. Fascism is among other things a moral and spiritual doctrine.. I take Mussolini at his word when he says, “The Fascist conception of life is a religious one.”[44]   More fully, “Fascism is not only a party, it is a regime, it is not only a regime, but a faith, it is not only a faith, but a religion that is conquering the labouring masses of the Italian people.”[45]  On the other hand, Mussolini was an atheist, and avoided overt attempts to create a new God.[46]  Fascism emphasizes the cultivation of all virtues, the arbiter of virtue, however, being a state that represents nothing more than collective self-assertion, at home and abroad. 
  9. Fascism brings God down to earth and embodies Him in the Party or the Leader.[47]  In this it contrasts is with religion of traditional sort, including Islam. [48]  For revealed religious regard the ‘heathen’ as potential converts rather than as permanent enemies of God.  The damned are not players in social and political life, and few Christians are prepared to say that any particular individual, even Judas, is damned.  (Adherents of revealed religions, like everyone else, can and do violate their own principles, however.)
  10. Fascism can and does use religion strategically:  it accepts and even supports a civil religion, so long as that religion is not understood as making possible criticisms of those in power.   But is a secular political philosophy:: we should not confuse it with cultural traditionalism, religious fundamentalism, religious nationalism, or theocracy.  America was for a long time a society whose governing ideology was religious nationalism; we have never been fascist.  People who identify Israeli doves as minions of the Antichrist are dangerously irrational, but not fascists.[49]  Identifying contemporary political conflicts with the ultimate struggle between good and evil, in the way characteristic of liberal religious leaders, tends in a fascist direction, but religious leaders avoid fascism so long as they acknowledge that the course of history is in God’s hands, not theirs. Nazism builds a demonic religion on a fascist base, building upon the need of groups for myths to help maintain their solidarity.[50]  It is this religious side to Nazism – latent in though not entailed by fascism as such, which is responsible for the worst horrors.
  11.  The epistemology of fascism is relativistic, at least de facto, and pragmatic.  (There are sometimes gestures toward universal laws of humanity, and the prospect of creating things of permanent human worth.)  Fascists claim for themselves and the state they control unconditional authority to interpret ‘traditional values’ as the present needs of the group dictate.      
  12. Fascism is tied to a social group defined in terms independent of religion or ideology (not necessarily a race).  Hence those Italian Jews who supported Mussolini were Italian, not Jewish, fascists.  Movements that arise outside the Augustinian categories that pervade the political thought of the Latin West present difficulties, though Japanese fascism is commonly acknowledged as such.  So long as Jewish is understood in ethnic rather than religious terms, Jewish fascism is both possible and actual (though imprudent).[51]  Islamic cases are difficult, but the even on the most militant reading the Qu’ran places limits on collective action that no fascist would tolerate. For the Qu’ran is inconsistent with an identification of right with collective might: it speaks decisively in defense of unwanted baby girls, the most powerless group in the society of Mohammed’s day. [52]   (Arab fascism is both possible and actual.) [53] 

Fascists use the rhetoric of liberty and freedom – for members of their own group.    Gentile could say, “Liberty is the necessary condition of the life of the spirit,” though he also says, “Liberty is found only in the State and the State is authority.” [54] Therefore, as Schmitt himself saw with horror, fascist liberalism is possible.[55]  Fascist liberalism has six quasi-defining features:

  1. It is tribalist rather than intellectual.  For liberal fascists, the development of liberal theory takes second place to the mores and institutions of societies customarily called ‘liberal.’
  2. It is political rather than metaphysical:  it rests, not on supposed truths about human nature, to which people everywhere have access, but upon a consensus among ‘reasonable’ people.   But reasonable refers to those people who agree, at least in the main, with oneself, largely by reason of a shared cultural background.
  3. It is hegemonic rather than accomodationist:  it does not tolerate non-liberal ways of life, however pacific, but recognizes principles of justice only among liberals.  As Tod Lindberg puts it, “There is no liberal standpoint outside liberalism.  To be liberal is to have liberal relations with other liberals – mutual relations of freedom and equality of each in relation to the other.” [56]
  4. It is nominally democratic.  It appeals to the people for authority, but contemptuously dismisses the views of ordinary folk when the fail to support the liberal fascist program.  In Umberto Eco’s words, “citizens do not act; they are called upon to play the role of the People.  Thus the People is only a theatrical fiction.”[57]
  5. It embodies a ‘thin’ theory of the good.  The very emptiness of the liberal understanding of society means that liberal societies under stress define themselves in terms of the sheer fact of collective solidarities.  Hence political opponents are ‘un-American.’ 
  6. It is cosmopolitan.  In a world where America is active everywhere (and thus attacks on America can happen anywhere), and in which American authority does not recognize neutrality as a legitimate option, the distinction between friend and foe is extraordinarily naked.  In a globalized world, fascism on behalf of a foreign power is possible – and not only under conditions of occupation.  If a faction aligned with a foreign power is intolerant of divided allegiance, and hence also of criticism of the object of its devotion, then we have the paradoxical situation in which fascism has its capital abroad.

  There is a fascism-shaped gap in American politics.   For we lack an account of what it means to be an American, richer than freedom to do whatever one pleases – provided one has the wherewithal to pay for it.  What keeps us from outright tribalism (and hence also from fascism) is our democratic, liberal, and Christian culture.  Military judges, for example, manifested an inbred respect for law that hinders the hostility toward ordinary legality that has arose after 11 September 2001.  But this culture is difficult to explain, to export, or to defend in times of stress. 

Hence we feel the need both of a leader and an external enemy to unify a diverse and otherwise hopelessly fractious society.   While politically serious Americans do not identify themselves as fascists these days, my argument connects to many contemporary political tendencies.   The left, in counterpoint with its anarchic tendencies, wages war against ‘racism, sexism, and homophobia,’ in a way that implies the creation of an absolute enemy.  But the more serious forms of fascism are associated with the right, which has a far better chance of access to the state and its powers of mass destruction. Thus David Frum writes, “War is a great clarifier.  It forces people to take sides,”[58] echoing the words of Benito Mussolini, “War alone keys up all human energies to their maximum tension and sets the seal of nobility on the peoples who have the courage to face it.” [59] 

In politics someone always wins and someone always loses, and someone is included and someone is excluded.  And someone has to make draw the needed boundaries.  Nor is there any way of guarantee that law will not stop working, and power arise from personal charisma and social position rather than legally defined office.[60]   The strategy of democratic dialogue encounters obstacles in the many cases where membership in the demos (either the right to vote or the right to have one’s interests represented in some other way) is in question. 

  Every group, however homogeneous, suffers from internal divisions.  While those who celebrate diversity for its own sake ignore important human realities, the attempt to suppress cultural diversity by state power generates endless war among smaller and smaller groups, approaching a war of each against all.  Conversely, a policy that implies endless war at home and abroad requires fascistic intellectual and institutional support.  In a world where many different sorts of people are in constant interaction, and in which weapons of mass destruction and ideologies of total war are in circulation, endless war loses whatever energizing quality it may have possessed, and becomes an unqualified danger both to our lives and to our ways of life.  

In short, the menace of fascism arises from the same source as its appeal.  None of us wants to tell King Demos, or ordinary kings and dictators, that they have a right to do whatever they please with minorities.   For each of us a part of a number of minorities, including a minority of one.



For Collingwood the Sermon on the Mount represents the highest level of civilization, because it points to a world of ‘politics’ without deceit or violence (NL 494).    Our understanding of this idea  — in particular whether it represents a Straussian exoteric teaching – depends on our reading of a difficult passage.  After discussing various forms of erotic religion, Collingwood writes:

There is a religion of unsatisfied desire, where the not-self on which the lover fixes his attention is not accessibly lodged within the world; but utterly and fatally ‘transcendent’ … so that he cries out into the dark and gets no echo because there is nothing there.  This religion has taken historical form.  It is called Christianity.  (NL ¶¶ 8.56, 8.57)

Two views on the relationship between religion and politics can be excluded on Collingwood’s premises.  One is that form of secularism that places unbelief at the portals of political argument.  The other is theological anti-modernism, whose response to the concerns of contemporary men and women is excommunication. Moreover, as we shall see below, there is every reason to contest his Anglican Erastianism (see NL 510-11).   

The issue I address here is what distinctive contribution Christians can make to the dialogue that sustains civilized society.  From this point on (and here alone), I presuppose Christian belief and address everyone who regards himself or herself as a Christian and takes his or her faith seriously when considering social and political issues.  My specific perspective is that of a moderate Roman Catholic, who hopes for a more participatory and dialogical atmosphere in his own church, but is aware of the dangerous fissiparous tendencies of theological liberalism.

Christianity stands for two propositions, both of which are defensible on non-Christian grounds, but which are important enough that even an atheist should find Christian support welcome.[61] First, our common humanity is more important than the many other characteristics that divide us.  Hence we ought to pay special heed to the interests of those human beings who cannot assert themselves in the ordinary course of political life – whether because of their social situation (the poor) or because of their inherent limitations (small children).  Second, our common humanity includes substantial elements of both selfishness and perversity; as has been frequently observed, the doctrine of original sin is the one Christian dogma that has received abundant empirical verification.  

Another point at which Christianity enters the argument is the following.  Many people have observed that European Social Democracy (and the same is true of the American New Deal) depends for its vitality on conditions that social democracy cannot provide.  Collective programs depend on the existence of a functioning community, in which people for the most part care for their own, and in which bureaucrats do not put personal or institutional interests above the needs of those people they are supposed to serve.  Publicly supported medicine needs ways of avoiding the killing of patients in order to control costs, and of getting taxpayers willing to support the system sufficiently to remove economic the pressure for such measures.   A society in which everything is for sale requires an unfettered market economy, which in turn sustains a society in which only money talks.  One traditional function of religion is to maintain the conditions that prevent such results.  In Western society this means Christianity (or Judaism or Islam). 


 Intra-Church Politics

Intra-Christian conflicts are not peculiar to the modern period.   Denominational barriers in America are now permeable, and it was acceptable for an aspirant to the Presidency to change his church membership because his former church opposed a bike trail he was championing.[62]   But there are, often bitter, disputes within denominations – which sometimes lead to formal or informal schism.   These keep pace with improved relations between churches and other religious communities, so that the movement toward Christian union needs a miracle to succeed.

The attempts of Anglicans and others to find alternatives to authoritarian church polity and factional church politics are encouraging. Anglican writer Ephraim Radner puts the result strikingly:

The “wound” [in the Anglican Communion]  … is displayed before the world in the manner of Israel’s fall in Lamentations:  “Is it nothing to you, all you pass by?  Look, and see if there is any sorrow like my sorrow which was brought upon me, which the Lord inflicted on the day of his fierce anger’”(1:12).  Stand, look, listen, and see.  Surely this is a divine vocation.[63]

The most obviously divisive issues are liturgical change, the ordination of women and openly practicing homosexuals, and the public celebration of same-sex unions, though less visible theological controversies lurk in the background.

One episode in the resulting ‘impaired communion’ illustrates the insufficiency of inclusiveness as a political slogan, in church matters as elsewhere.  The congregation of the Church of the Redeemer of Rochester, New Hampshire, unable or unwilling to work with an openly homosexual bishop, moved its services to a local Baptist church.  The diocese then reopened the church on a more ‘inclusive’ basis – having excluded the bulk of the congregation.  The parishioners at the reopened church then voted to close, citing overburdened leadership and a lack of worshippers.   

            I do not mean to say that the Catholic Church is in a better position on the historical plane:  our situation has been described as one of “silent schism” about pelvic and, to a lesser extent, liturgical issues.[64]   But perceptible schisms, and schisms in other people’s communities are easier to analyze.

The inability of Christians to manage theological disagreements supports the secularist politics that many religious spokesmen deplore.  In a postmodern cultural and political context, many professed Christians, both ‘progressive’ and ‘traditionalist,’ believe, or act as if they believed, that Church politics is a matter of seizing control of the apparatus of church power and driving out the ‘enemy.’[65]    Such campaigns make things worse, especially when they include defamation.  Yet it is not sufficient to distinguish between essentials and inessentials for the sake of mutual tolerance.   For, as Radner has pointed out,  “the definition of a church defining issue is one that divides churches” (FC 229).    The sources of theological hatred lie in the nature of the issues themselves, which go to the root of our understanding of our world and ourselves.   

Philip Turner has well described the resulting situation:

There are those on both the left and the right who … have made a choice to “walk apart.”   The prophets on the left claim the backing of divine providence that has placed them ahead of the pack.  They are content to go it alone and simply wait for others to catch up.  The prophets on the right claim to be champions of orthodoxy – charge with maintaining a faithful church in the midst of  “apostasy.” They are content to go it alone and await the vindication of God. (FC 199-200)

We cannot pass over the fact that the Henry VIII’s Reform left the English Church and its offspring without resources for dealing with theological disagreement beyond “denial, individualism, and feigned fellowship” (FC 295 [Radner]).  A crucial incident in the later history of the Anglican Church was the dismissal of the nonjuring clergy in a way that implied that all clergy were employees of the Crown (FC 260 [Radner]).  In Anglican affairs, the authority of the state, and by extension current tendencies in secular politics, are often more decisive than that of the Bible (see, e.g., FC  93 [Radner]). In some version, this pattern is likely to persist in the various forms of  ‘Continuing Anglican’ movement. 

To what extent the political influences on the Anglican Communion are religious, and to what extent secular, is a complicated question.  The English monarch was a quasi-religious figure in Henry VIII and Elizabeth’s day.  Though, and perhaps because, she is bereft of real power, the present Queen retains this character.  Many American Liberals accord such a position to the Supreme Court, or other secular authorities, when they agree with them. 

Our first task is therefore to regain a sense of a Truth larger than all of us, which we in our limited ways glimpse and to which we are all responsible.   We also require an understanding of authority that is not a matter of power, even power based on fear of supernatural sanctions.  Yet it is not enough to speak of “humiliated waiting and overcoming through divine resurrection” (FC 269 [Radner]).   In the church or elsewhere, our responsibility for the common good, including the transmission of faith to future generations, means that patience cannot be limitless. 


‘Secular’ Politics

Christian thought about ‘secular’ politics is a meditation on one of the most Delphic statements of Jesus, which I here cite in full. 

And they sent to him some of the Pharisees and some of the Herodians, to entrap them in his talk.  And they came and said to him, “Teacher, we know that you are true, and care for no m-an; for you do not regard the position of men, but truly teach the way of God.  Is it lawful to pay taxes to Caesar or not?  Should we pay them or should we not?” But, knowing their hypocrisy, he said to them, “Why put me to the test.  Bring me a coin, and let me look at it.” And he said to them, “Whose likeness and inscription is this?”  They said to him, “Caesar’s.”  Jesus said to them, “Render to Caesar the things that are Caesar’s, and to God the things that are God’s.”  And they were amazed at him.  (Mark 12:13-17)

Caesar can be taken to represent the patterns of social power and associated status hierarchies that exist in all societies, traditionally combined under the title of dominium.  Alongside wealth and political power, one important form of dominium is what is ‘done’ or ‘not done,’ honorable or shameful, or credible or absurd within a certain social environment.   Thus modernism in theology is an application of the maxim, The powers that be are ordained of God, which places the authority of spirit of the age over that of Scripture and Tradition.  Given the massive violence that has characterized the Twentieth, and now the Twenty-first, Century, the wisdom of this course is not evident.

In the Christian tradition, approaches to the issue of secular dominium vary widely.  The judgment of Tertullian (fl. ca. 200) on enlistment in the Roman armed forces is grim:  “The line is crossed in transferring one’s name from the camp of light to the camp of darkness.”[66]  But Stephen Gardiner (1497-1555) demanded obedience to kings, to be sure nominally Christian kings, even on matters internal to the Church.[67]  Throne and altar politics of the traditional sort is no longer tenable, but, given the powers of the contemporary state, Christians dare not surrender the public sphere to the Antichrist either.

The first question for Christians is whether to intervene in politics in any way.  A persistent tradition holds that religion is something internal to the believer, or that the task of the Church is to save people from the world, leaving the world itself on its predestined path toward perdition.  Accommodation with the ‘powers that be’ need not mean love or admiration for them, only the belief that the world is too evil for change to be possible.  

A ‘pre-millenarian’ theology suggests that all believers can do in a wicked world is practice patient endurance, until God decides to bring the comedy to an end.[68]  The doctrine of the rapture adds an element of political irresponsibility, i.e., that the redeemed will escape the consequences to which their actions or inactions may have inadvertently contributed.  In a currently influential version, only some of the saved are to enjoy the rapture, while those ‘left behind’ are required to fight the wars of the Lord during the last days — which is hardly politics in the usual sense.[69]    The question is, what reason we have to believe that things will happen as millenarians expect. 

If there is no role for the Christian in these times but endurance, there is every reason to expect eschatological doctrines to match.  Even if we can contribute, in a small way, to God’s work in the world, our efforts must proceed in the recognition that all human achievements, in politics as elsewhere, are transient; and that the social background against which we attempt them suffers from recurrent crisis and constant flux.  There are patterns in history such as hybris followed by nemesis, but these patterns do not support predictions, or even retrospective explanations such as why the Titanic rather than her sister ship the Olympic met an iceberg.[70]   A fortiori, they do not support 0a theory of history on either the Marxist or Spenglerian model, or the belief that some group privileged insight into the course of history.   Like C. S. Lewis, therefore, I counsel doing one’s duty as a citizen or official, within the limits of ordinary morality and prudence.[71]   Once a group engages politically, the demands of an ethics of responsibility cannot be kept at bay.  The history of Christian acquiescence in the decrees of the mighty, and of Christian political irresponsibility, is both real and disturbing. 

God may love us just as we are, but requires that we allow Him to transform us if we are to please him.  Hence Christ’s redeeming work, however we understand it, is more than mere moral example.  On this ground conservative Christians have effectively criticized the idea of therapeutic tolerance (see FC chap. 10 [Turner]).[72]    If, however, we require transformation, we need to be liberated, not only from unruly sexual desires, but also from the addictions of consumer capitalism, which supports wars designed to change the way of life of other peoples, since we are unwilling or unable to change our own.  No reader of the Hebrew prophets can see either Judaism or Christianity as defense of contemporary ‘life styles,’ whether consumerist or sexual. 

The next question is whether a Christian should be a pacifist, as Christians before Constantine largely were.  A politically active Christian pacifist is in a complex relationship to the state, whose business is legitimized force.  For even the most nonviolent Christian activist will expect protection against assassination.  On the other hand, ‘Realism,’ which places war (and foreign policy) outside the compass of moral judgment, is a hard position for a Christian to take:  why should we then worry about pornography or stem cell research? 

On any coherent just-war theory, at most one side of a war can be just (and both can be unjust).  Yet the Realists are right to counsel attention to the realties of power and the complexities of power relations.   Modern war pacifism – the view that just wars were once possible, but no longer – is attractive, but requires refinement.  It does not seem that the Falklands/Malvinas war was a modern war in the relevant sense, while the American Civil War may have been.  In any event, ideological developments which encourage the thought that in war there are no innocents, and technological developments that make it easy to act on that thought, together imply that justifications of war must now meet a higher standard than was once the case.

Theocracy is preferable to fascism because it opens a line of internal critique of those who act in God’s (or History’s) name. This fact does not mean that Christians should embrace it, however   As Lewis has pointed out, it makes possible an extraordinarily severe sort of tyranny, in view of the inevitable sinfulness of rulers.  In his own words,

Of all tyrannies a tyranny sincerely exercised for the good of its victims may be the most oppressive.  It may be better to live under robber barons than omnipotent moral busybodies.  The robber baron’s cruelty may sometimes sleep, his cupidity may be satiated; but those who torment us for our own good will torment us without end because they do so with the approval of their own conscience.[73]

Christian politics is opportunistic in the following sense.  Christians believe that God will always provide occasions for His people to do His work in the world, even in the least promising circumstances.  As the people of Israel said after the destruction of the Temple,

The steadfast love of the Lord never ceases,

His mercies never come to an end;

                                                                     They are new every morning;

Great is thy faithfulness.  (Lamentations 3:22-23)

Sometimes this principle will mean prayerful endurance, but sometimes it will mean determined action.  To look to God rather than to human beings, as Scripture constantly urges us to do, means taking advantage of the opportunities He gives us, rather than placing primary reliance on an articulate political philosophy or program.  Christians these days have many reasons to support liberal democracy:  for example, principles of freedom of religion and church-state separation that protect our communities from state interference.  But to the extent that liberal democratic institutions are used to wage systematic war against Christian religion and morality, we have every reason to resume the attitudes Christians took toward the regime of Nero.

A central principle of Christian politics gives voice to the Christian protest against the violence endemic even to civilized society:  “As you did it to one of the least of these my brethren, you did it to me” (Matthew 31:40).    A corollary is the need to maintain the network of supportive relationships required by children, the sick, the injured, and the elderly.   For example, heterosexual monogamy is part of the order of creation, whose goodness Christians affirm against the Manicheans (Genesis 1:27), and an important source of communities of care, but it is not the central point of the Christian faith to sustain family ties (see, e.g., Matthew 12:36ff.)   Likewise, Christian politics requires opposition to abortion, but we should avoid the sort of one-issue politics summed up the slogan, Life begins at conception and ends at birth.   

Yet we should not understand the Church as a lobby, even for a “seamless garment pro-life” approach to morality and politics.   There always must be a rhetorical and institutional barrier between the Church as a worshipping community and the political activities of Christians.  Christianity can inspire a benign form of politics, as it can sustain a moral code, prompt charitable endeavors, inspire great art, music, and literature; and provide a source of family solidarity in times of stress.  None of these fruits is bad, but all require that Christianity work first as help in our journey to God.







[1]Collingwood, The New Leviathan, rev. edition, ed. David Boucher (Oxford:  Clarendon Press, 1999) (= NL), chap. 41.  I am indebted to Michael O’Neill for many discussions of Collingwood.

[2]Peter Berkowitz, ed., Varieties of Progressivism in America (Stanford, Calif:  Hoover Institution:  2004), Introduction; quotation, p. ix. 

[3] I owe this observation to Celia Wolf-Devine.

[4] Rousseau, On the Social Contract, Bk. III, chap. 10, trans G.D.H. Cole, ed., J.H. Brumfit, John C Hall, and P. D. Jimack, in Steven M. Cahn, ed., Classics of Moral and Political Philosophy (Oxford:  Oxford University Press, 2002), allHH p 546.

[5] For example Wyndham Lewis; see his The Art of Being Ruled (London:  Harper Brothers, 1926), esp. Pt. V, where he distinguishes between an elite of ‘natures’ and a mass of ‘puppets.’ 

[6]See Schmitt, The Concept of the Political, trans. George Schawb, commentary by Leo Strauss trans.  J. Harvey Lomax, new forward by Tracy B. Strong  (Chicago:  University of Chicago Press, 1996); Political Theology: Four Chapters on the Theory of Sovereignty, George Schwab trans., new foreword by Tracy B. Strong (Chicago: University of Chicago Press, 2005).   For an account of Schmitt’s intellectual and political development, see Gopal Balakrishnan, The Enemy (London:  Verso, 2000). 

[7]For a study that emphasizes this aspect of Schmitt, see Renato Cristi, Carl Schmitt and Authoritarian Liberalism (Cardiff:  University of Wales Press, 1998).

[8] Mark Henrie of the Intercollegiate Studies Institute informs me that confusion between Schmitt and Strauss is common in political discourse.  On the complex relationship between the two men, see John P. McCormack, “Political Theory and Political Theology,” Political Theory 26 no. 6 (December, 1998):  830-854

[9] For an account of the constitutional crises and controversies that shaped Schmitt’s work, see Peter Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law (Durham, N.C.:  Duke University Press, 1997).

[10]For detailed discussion, see George Schwab, The Challenge of the Exception, 2nd edition (New York:  Greenwood, 1989), pp. 134-38.

 [11]A good statement of Schmitt’s argument from this point of view is Carlo Galli, “Carl Schmitt’s Antiliberalism:  Its Theoretical and Historical Aspects and its Philosophical and Political Meaning,” Cordozo Law Review 21 (May 2000): 1597-1471.   Heiner Beilefelt presents the core of Schmitt’s confrontation with liberalism in “Carl Schmitt’s Critique of Liberalism,” in David Dyzenhaus, ed., Law as Politics (Durham:  Duke University Press, 1998), pp.  23-36.

[12]See Schmitt, “Ethic of State and Pluralistic State,” in Chantal Mouffe, ed., The Challenge of Carl Schmitt (London:  Verso, 1999), chap. 11.

[13] Theology, pp.  31-32. 

[14] Schmitt, Positionen und Begriffen im Kampf mit Weimar-Genf-Versailles, 1923-39 (Berlin:  Dunker and Humbolt, 1988), p. 155, trans. William Rasch, “Conflict as Vocation,” Theory, Culture, and Society, 17, no. 6 (2000):  4.

[15] For a good short account of the relationship between Schmitt and Hans Kelsen, see Bernd Rűthers, “On the Brink of Dictatorship,” in Dan Diner and Michael Stolleis, eds., Hans Kelsen and Carl Schmitt (Gerlingen:  Bleicher Verlag, 1999), pp. 115-123 (quotation, p. 115).

[16]The Political, p.  42

[17]For his early clericalism, see Schmitt, Roman Catholicism and Political Form, trans. G. L. Ulmen (Westport, Conn.: Greenwood, 1996).

[18] Strauss never so far as I found even alludes to the encyclical Mit Brenneder Sorge, which he could hardly ignore were his intentions theological in the usual sense.  On the secularity of Schmitt’s thought, see further McCormack, “Political Theory.” 

[19]Theology, p. 50.

[20] Otherwise Albricio Genitili (1552-1608), Professor of Civil Law at Oxford, and leading secularizer of international law.  See Philip Bobbit, The Shield of Achilles (New York:  Knopf, 2002), pp. 496-500.

[21] Schmitt, The Nomos of the Earth in the Jus Publicum Europaeum (New York: Telos Publishing, 2006), p. 121.

[22] See Heinrich Meier, The Lesson of Carl Schmitt, trans. Marcus Brainard (Chicago:  University of Chicago Press, 1998), esp. chap. 3.

[23] Josef Velazquez has been helpful about Schmitt’s jurisprudential arguments.

[24] Schmitt, Staat, Bewegung, Volk (Hamburg:  Hanseatische Verlaganstat, 1933), p. 43, trans. in William E. Scheuerman, Carl Schmitt:  The End of Law (Lanham, Md.: Rowman and Littlefield, 1999), p.  120.

[25] Ibid., p. 45 (trans., p. 121).

[26] Ibid., p. 44 (trans, p. 126).

[27]Trans. Joseph W. Bendersky (Westport, Connecticut:  Praeger, 2004); quotation p. 56.   

[28] See Duncan Kennedy, A Critique of Adjudication (fin de siècle)  (Cambridge, Mass.:  Harvard University Press, 1997); Paul Campos, Pierre Schlag, and Steven D. Smith, Against the Law (Durham, N.C.: Duke University Press, 1996); and Louis Michael Seidman and Mark V. Tushnet, Remnants of Belief (New York:  Oxford University Press, 1996.

[29] Scheuerman, Schmitt, p. 84.

[30] Theology, p.  10.

[31]Weigel, “Just War and Iraq Wars,” First Things no.172 (April 2007): 20.  

[32] Giorgio Agamen, State of Exception, trans. Kevin Attell (Chicago:  University of Chicago Press, 2005), p. 18.   Note particularly the Executive Order of 13 November 2001, which stripped non-citizens suspected of terrorism of all legal status (pp. 3-4). 

[33] Kalyvas, “Carl Schmitt and the Three Moments of Democracy,” Cordozo Law Review 21 (May 2000):  1525-65.  Balakrishnan takes a similar position in Enemy, pp. 261-65, pointing out,  “The shrewdest insights into democracy are not always made by the friends of the people” (p 263).

[34] See the discussion of the slogan We are the People in Urlich K. Preuss, Constitutional Revolution, trans. Deborah Lucas Schneider (New Jersey:  Humanities Press, 1995), pp. 72ff. 

[35] This remark is directed at Kalyvas, “Moments,” p. 1564.

[36] Discussions in Telos have played a crucial role in spreading interest in Schmitt.  See Ellen Kennedy et al., “Special Section:  Carl Schmitt and the Frankfort School.” Telos no. 71 (spring 1987): 37-109; and Paul Picone, et al., Special Issue: Carl Schmitt: Enemy or Foe? Telos no. 72 (summer 1987).  The discussion continues in nos. 73 (fall 1987) and 74 (winter 1987-88).

[37] On the Führer, see Schmitt, Juristic Thought, pp. 55, 83, and 98

[38]See Mohamed Shahabudden, Precedent in the World Court (Cambridge:  Cambridge University Press, 1996), especially his discussion on the continuity of the jurisprudence of the World Court from the era of League of Nations to that of the United Nations (pp. 22-26). See also Anthony D’Amato, The Concept of Custom in International Law (Ithaca, N.Y.:  Cornell University Press, 1971).

[39] See Scheuerman. Schmitt, pp. 79-80. 

[40] Schmitt, The Crisis of Parliamentary Democracy, trans. Ellen Kennedy (Cambridge, Massachusetts:  MIT Press, 1985), pp. 49-50.  Schmitt’s argument does not depend on the premise that Nineteenth Century Parliaments in fact lived up to their aspirations.

[41]For a good statement for the need for intellectual clarity about fascism, see A. James Gregor, Mussolini’s Intellectuals (Princeton:  Princeton University Press, 2005), chap. 1.  

[42]See Gentile, Origins and Doctrine of Fascism, trans. A. James Gregor  (New Brunswick:  Transaction, 2002).  Mussolini, “The Doctrine of Fascism” with Giovanni Gentile (1932),, accessed 29 March 2007.  For a respectful treatment of Gentile, see Gregor, Giovanni GentilePhilosopher of Fascism (New Brunswick:  Transaction, 2001). 

[43] For history, see Michael Burleigh, Sacred Causes (New York:  HarperCollins, 2007), esp. pp. 50-71.

[44] “The Doctrine of Fascism.”

[45] “Discorso di Peasro,” in E. Susmel and D. Susmel, eds., Opera omnia di Benito Mussolini (Florence:  1956), vol. 22, p. 197.  Quoted in Burleigh, Causes, p. 57. 

[46] Burleigh, Causes, pp. 55, 62, and 64.

[47] For an historical study that makes the essential distinctions, see Alberto Spelktorowski, “Maistre, Donoso Cortés, and the Legacy of Catholic Authoritarianism,” Journal of the History of Ideas 63, no. 2 (2002):  283-302. 

[48]Romanian Orthodoxy turned pagan did, however, merge with fascism, with the support of the distinguished anthropologist Mircea Eliade, under the name of “The Legion of the Archangel Michael” (later the “Iron Guard”).  Burleigh, Causes, pp. 270ff.   There have also been approximations of this phenomenon in Ireland, and, in decentralized form, in the American Ku Klux Klan and the Christian Identity Movement.

[49] See William T. James, “Foreshock after Foreshock,” in James, ed., Foreshocks of the Antichrist (Eugene, Oregon:  Harvest House, 1997), p. 8.

[50] For an account, see Burleigh, Causes, pp. 94-122.  Hitler resisted the more extreme forms of mystical doctrine.

[51] The Wickipedia has deleted an article on Judeofascism; see BrandonYusufToropov/Judeofascism_dispute (4 December 2005) accessed 16 February 2007.  It does, however, contain an article on Islamofascism, though it acknowledges that the concept is controversial; see (14 February 2007), accessed 16 February 2007.

[52] See sura 81:1-9. 

[53] I am indebted to Michael O’Neill for many discussions of the relationship between fascism and religion.

[54] Gentile, Origins, pp. 92 and 30.   

[55] Rasch, “Conflict,” emphasizes this side of Schmitt.

[56] Lindberg, “Legacy,” p. 155.

[57]Eco, “Eternal Fascism:  Fourteen Ways of Looking at a Blackshirt,” reprinted as a Foreword (not paginated) to Chris Hedges, American Fascists (New York:  Free Press, 2006).

[58] David Frum, “Unpatriotic Conservatives:  The War against America,” National Review (7 April 2003).

[59] Mussolini, “The Doctrine of Fascism.”

[60] The ancient Romans called this situation a iusstitium; see Agamen, Exception, esp. chap. 4.

[61] I am here indebted to conversations with Patrick Walker.

[62] See David Brooks, “The National Creed,” New York Times (30 December 2003):  § A, p. 21.  I am indebted to Paul Bruno for this reference.

[63]With Philip Turner, The Fate of Communion (Grand Rapids, Mich.:  Eerdmans, 2006) (= FC), p. 55.

[64] See Fergus Kerr, Twentieth Century Catholic Theologians (Malden, Massachusetts:  Blackwell, 2007), chap. 12, esp. p. 219.

[65] The struggle among Southern Baptists presents an exemplary case; see Walter Shurden, ed., The Struggle for the Soul of the SBC  (Macon, Ga.:  Mercer University Press, 1993).

[66]Tertullian, The Military Chaplet, § 11.   Trans. in Oliver O’Donovan and Joan Lockwood O’Donovan, eds. From Irenaeus to Grotius:  A Sourcebook in Christian Political Thought (Grand Rapids, Mich.: William B. Eerdmans, 1999), p. 27.

[67]See Gardiner, On True Obedience, trans. attributed to John Bale, excerpted in ibid., pp. 648-49. 

[68] For an account of pre-millenarianism and its rivals, see Eugen Weber, Apocalypses (Cambridge, Mass.:  Harvard University Press, 1999), p. 172. 

[69] See Tim LaHaye and Jerry B. Jenkins, Left Behind (Wheaton, Ill.:  Tyndale, 1995), and its sequels.

[70] Richard Howells, The Myth of the Titanic (New York:  St. Martin’s Press, 1999), esp. chap. 7, prompted this sentence.

[71]Lewis, The World’s Last Night (New York:  Harcourt Brace Jovanovich, 1960), title essay.

[72] Also R. R. Reno, In the Ruins of the Church (Grand Rapids, Mich.:  Brazos, 2002), pp. 100-02 and 105-06.

[73] Lewis, God in the Dock, ed. Walter Hooper (Grand Rapids:  Eerdmans, 1970), p. 292.

WE (chap 12)

November 24, 2009



            Seamus Heaney writes of the ‘republic of conscience.’[i]   By this he means a larger community that undergirds the sorts of community considered so far, and grounds rights that limit the power of these communities over their members.  The emphasis here falls on rights rather than obligations.  For, on every account, there are creatures, e.g., the reversibly comatose, who have rights but no obligations.  Historian Felipe Fernández-Armesto points to a paradox latent in such ideas:

Over the last thirty or forty years, we have invested an enormous amount of emotion, treasure, and blood in what we call human values, human rights, the defence of human dignity and of human life.  Over the same period, science and philosophy have combined to undermine our traditional concept of humankind.  In consequence, of what it means to be human is now in question.[ii] 

Many contemporary writers deny, on evolutionary grounds, that the distinction between human and nonhuman, and the understanding of human nature that supports it, has any greater normative standing than the distinction between Aryans and Jews (which also means that this distinction has no less moral standing than that between humans and nonhumans).  Or at least the distinction between beasts and human beings is one of degree only.  Descent from a common ‘Eve’ does not help matters, unless one believes that something radical happened when she came into being.  If there is no normative human nature, the line between insiders and outsiders depends on the customs of the tribe or the self-assertion of the individual.  Relatively respectable forms of disagreement slide into the persistent human tendency to regard one’s adversaries, or even inconvenient specimens of humanity within one’s own group, as subhuman or nonhuman.  Yet appeals to common humanity are persistent features of the ‘facts on the ground.’     

The traditional response is that our common humanity rests on our all having been created in the image of God.  The natural-law doctrine of the inherent dignity of persons expresses this response in philosophical terms, as does Kant’s principle that we must always treat humanity as an end-in-itself.  But appeals to natural law, and to those readings of Kant that approximate natural-law doctrine,[iii] meet fierce resistance in many circles.



Jürgen Habermas invokes the autonomy of a group of citizens to oppose natural law doctrines.[iv]  As a commentator puts it, “Modern society can no longer externalize its own problems ‘metaphysically’ or ‘religiously.’  It must find the solution inside itself.” [v]   This project creates a pervasive tension within Habermas’ political thought:  between Habermas the democrat concerned with collective will-formation, and the Habermas philosopher who holds distinctive views as to the proper content of that will (or at least that which this will ought not to include).   As a political philosopher, Habermas has been concerned to defend the ‘moral’ standpoint, i.e., that of broadly Kantian ethics, as opposed both to tribal mores  (Sittlichkeit) and to the attention to the needs of the particular other pressed by ‘postmodern’ ethics.[vi]  But, as we shall see, morality in the Kantian sense rests on a thicker ethical consciousness, and at crucial places Habermas must appeal to such a consciousness to solve the problems Kantian morality raises.

Discourse is a social phenomenon.  This principle excludes the philosopher king/queen but not an oligarchy of philosophers.  But this proposal that falls afoul of the old objection that philosophers disagree, and more widely so than ordinary men and women.  Like other philosophers, Habermas nonetheless aspires to provide a super-discourse, according to which conflicts among law, morality, and other forms of practical reasoning can be adjudicated, and hence an alternative to the ad hoc accommodations favored in the law.[vii]  As he himself observes,

The expectation of tolerance itself requires a normative justification to an increasing degree.  And this justification must satisfy the claim that the legal protections governing the peaceful coexistence and mutual integrity of forms of forms of life are fair – i.e., rationally acceptable to all sides. (R 402)[viii]

Habermas further maintains: “the deliberations that are institutionalized in democracies … do not guarantee valid outcomes, but rather justify the presumption that outcomes are rational” (R 409).  He still, however, needs to give reasons for rejecting, or at least placing limits on, the argument that citizens, both individually and collectively, have a right not to be rational.[ix]  One commentator expresses the resulting problem very well.

What makes Habermas’s efforts distinctive is that they are anchored in, and hold fast to, a normative concept of rationality.  If one no longer understands this in terms of the world of ideas, but must relate it to actually realizable operations, the theory finds itself forced to become concrete. … If the theme of  “facticity and validity” is to retain its meaning, they must, at some point, take place in fact.[x]

In other words, moral rationality, since it cannot claim supra-social standing, needs to be embodied in social practice (and cannot depart too far from such practice). 

 The world of social practice is, however, a world of deep disagreement about questions of value and sharp disparities of resources.   We must especially face the problem of ‘strong’ evaluation, which is not satisfied by being treated as one preference among others:  Martin Luther King did not regard demands for equality as a bargaining token.[xi]   It is difficult to regard any institution in actually existing societies, at least in its actual performance, as the embodiment of public reason.  What one thinks of constitutional jurisprudence as a way of accomplishing this task depends on what one thinks of the performance of specific courts.[xii]  

            Habermas places his defense of universal reason in the context of an attempt to root out the seeds of Nazism in the German soul.[xiii]   German cultural conservatism does have a uniquely sinister flavor, but even in Germany, people need the resources of a cultural tradition, and to condemn Bach or Kant as tainted with Nazism is self-destructive.  Habermas, I think, agrees with this judgment (NC 44),[xiv] but a residue of economic materialism keeps him from appreciating its implications.

Habermas’s arguments are limited to one kind of society, which he calls ‘postmetaphysical.’ (BFN 408).[xv]  His discourse ethics requires a foundation in liberal political culture and constitutional patriotism, which meets it halfway. (R 384-85, BFN 302).  But this feature of Habermas’ thought undermines any attempt to argue that liberal democracy is preferable even to Islamic theocracy.  For strongly held metaphysical beliefs that manifest themselves in politics have not gone away, nor has systematic political irrationality.  We end up saying, like Richard Rorty, “This is how we do things here.”

                I here neglect Habermas’ defense of modernity as such, his belief that opponents are somehow neurotic (see NC, especially Richard Wolin’s Introduction, vi-xxi),[xvi] and his argument that cultural conservatives confuse cause and effect (NC 22-47).  The first argument presupposes the adequacy of broadly Kantian account of practical rationality; the second assumes that Habermas’s views are so self-evidently correct that only irrational people can reject them; the third overlooks the fact that social phenomena are over-determined, and that effects can reinforce their causes (as in some diseases the symptoms feed the disease).

Habermas argues that, in order to overcome the impasse that now faces the welfare state, we will need to draw more heavily on the resources of solidarity (NC 65).   He goes on:

To the extent to which it suggests a concrete form of life, even the expression “the ideal speech situation “ is misleading.  … [What is needed is] a procedure of discursive will-formation that would put the participants themselves in a position to realize concrete possibilities for a better and less threatened life, on their own initiative and in accordance with their own needs and insights. (NC 69)  

Habermas here has taken a decisive step beyond proceduralism, to talk about a real community subject to all the dynamics of social life.  What this development means in practice is left vague, but the required solidarities require a far richer normative consciousness than abstract ethics allows.   

Furthermore, discourse ethics is useless when the question is, who is entitled to participate in collective decision-making or which silent subjects are entitled to have their interests represented when collective decisions are made.  Hence, as Habermas puts it, “The possibility cannot be excluded that abortion is a problem that cannot be handled from a moral point of view at all.”[xvii]  Moreover, as Thomas McCarthy suggests, “what Habermas says about abortion [might] hold for a great number of issues that democratic legislatures typically have to deal with in multicultural societies.”[xviii]  Consider, for example, the question of what to do with historically important ruins such as those of the Titanic.[xix]

Habermas himself has acknowledged that such issues as cloning and pre-natal genetic therapy pose “questions whose moral weight greatly exceeds the substance of ordinary matters of political dispute” (FHN 17; cf. 92).[xx]  His contribution to the resulting debate boils down to the following propositions:

  1. The moral language of egalitarian universalism rests on a set of virtues and obligations, grounded in our shared character as human beings, richer than such universalism is able to supply.  Genetic interventions threaten to undermine this set of virtues (FHN 93).
  2. The issue does not concern only the rights of the parents to make reproductive decisions; there is also an objective legal order that governs our attribution of particular rights (FHN 76-77).
  3. We need not interfere with a full-fledged human being or person for moral questions to arise.  On the contrary, there can be “a graduated protection of human life … which keeps the basic right to protection of human life and bodily integrity open to specification by statute” (FHN 77; italics removed; cf. FHN 79).
  4. The ground of Habermas’ objection to eugenics lies in the fact that “the designer makes himself the co-author of the life of another [;] he intrudes – from the interior, one could say – into the other’s consciousness of her own autonomy” (FHN 81).  Habermas also suggests, but does not develop, a broadly religious version of this argument, according to which “the necessary beginning for a life history of one’s own is that it is removed from the arbitrary will of a peer” (FHN 125n. 64). 
  5. In other words, the product of genetic intervention would have a certain kind of life imposed upon him, not by the ordinary processes of nature, but by an alien will (usually that of his parents).
  6. The possible harms of genetic intervention are objective, in the sense that the resulting person’s ignorance of his origins does not negate them (FHN 87).

Habermas rejects the natural-law doctrine that might fill the gaps in Kantian morality, on the grounds that “the doubling of law into natural and positive law suggests that legal-historical orders are supposed to copy a pregiven suprasensible order”(FN 453).  But this objection does not apply if we remember that philosophers as well as ordinary folk are both social and rational creatures, take Socrates rather than Plato as our model, and thus discover our common nature and its normative requirements in dialogue with others.

The society in which we find ourselves includes not only resource conflicts, but also cultural conflicts arising from our ambivalent relationship to our shared Jewish and Christian past, and from the entry of Islam into our world of discourse.  A religiously plural society cannot rely on revelation or church authority, though some parties to the dialogue may.  The issue arises, whether the needed dialogue can reach a conclusion that we can all live with.  The threshold issue is who is admitted, in the first instance, as having rights that others are bound to respect, and therefore entitled to take part in the dialogue, directly or by proxy.




Sensitive practical issues here include the definition of death and the status of the cognitively disabled – and, in the background, the rights of the social outsider.  But abortion is the most extensively debated issue concerning the limits of the moral community.[xxi] It also engages differences of perception concerning sex, reproduction, and gender difference.  

Our understanding of the limits of the moral community responds to two different sorts of consideration.  First, candidates for membership in the moral community can benefit or harm us, either now or upon further development.  Hence an old argument against abortion on social ‘indications’:  You would have murdered Beethoven.  A fully Hobbesean approach would not protect even young children – though to the extent that it became popular, the age of threat would go down.[xxii]   Second, we experience an atavistic response to members of our own kind, including protective feelings toward infants.  Where the moral sentiments of the majority ran that way, this approach might require us to treat cattle as persons.

The visceral claims of common humanity persist in secular societies.  Babies provide us with a cultural paradigm of innocence, and of the possibility of new experience, that is a terrible thing to violate.  The decision in Gonalez v. Cathart (Apri1 2007), upholding a Federal ban on partial-birth abortion, shows an awakening of compunction on the Court, concerning the destruction of what it one point calls a “baby” – much to the alarm of Justice Ginsburg and her fellow dissenters.  Developments in embryology and perinatal medicine have also made it increasingly difficult to regard birth as a crucial dividing point.  Seeing the fetus in a sonogram tends to dissuade women from having abortions, a fact that leads some pro-choice people to resist, as ‘coercive,’ the use of such sonograms by crisis pregnancy centers.[xxiii]   

The Christian and Jewish repugnance to abortion does not rest on overt Biblical authority:  unlike other controversial practices, abortion is not expressly forbidden in Scripture, which was written at a time when the pertinent embryological facts were not known.  Pre-modern theories of delayed animation are premised on an obsolete embryology. [xxiv]  Rather, Christianity and Judaism enter the argument in four places:  first, in a demand for respect for each person; second, in a heightened demand to protect the vulnerable; third, in an affirmation of the goodness of the natural order, including sexual reproduction, against Manichean disgust; and fourth, in a recognition that civilization rests on violence,[xxv] and (in Christianity at least) the rejection of violence as a ‘solution’ to the problems of social and cultural conflict.  

No one has answered Paul Ramsey’s challenge adequately to distinguish abortion from infanticide.[xxvi]  The onset of simple consciousness does not distinguish fetuses from beasts.  If we require that the unborn entity reflectively desire its own continuance, or at least have done so at some point in its past, then full moral status will not occur until well after birth.[xxvii] 

Pro-choice advocate David Boonin fails to understand “non-rights-based” arguments (B chap. 5).  In discussing this point, I limit myself to pro-life feminism (B § 5.3), though much of what I say applies also to the argument from uncertainty (B §5.4).  I read pro-life feminists and their allies as entering the argument before the question of rights is posed, and arguing that subsequent arguments concerning persons and rights should be conducted, if at all, in a spirit, and under presumptions, governed by regard for the particular other, and a willingness to treat the characteristic feminine experiences of nurturing the young as paradigmatic of, rather than marginal to, our understanding of social relations.[xxviii]

 Some of the arguments of pro-choice people are especially destructive of our sense of common humanity, especially in a society that confuses race with poverty, and links both to crime.  Boonin responds to the ‘culture of death’ argument by suggesting that access to abortion has reduced the crime rate by destroying potential criminals in the womb (B 298). Rem B. Edwards points to the costs of childbirth and public education, and argues that black women in particular need public funds in order to have abortions.[xxix]  Laurence Tribe expresses special concern that we not deny abortion to those least able to bear the burdens of motherhood, “particularly the young, the uneducated, the rural and the nonwhite.”[xxx]  We have recently seen the effective assertion of the equal rights of previously marginal people, as well as the brutal suppression of minorities, and we should not forget these experiences, and accept arguments concerning abortion that imply the diminished humanity of the uneducated, or of the urban or rural poor.

Many pro-choice people regard pregnancy as an unnatural invasion of a woman’s body, or as an anomaly in social ontology that requires a diminished status for the fetus.  Mary Anne Warren has observed, “there is only room for one person with full and equal rights within a single skin.”[xxxi]  Judith Jarvis Thomson’s ‘violinist’ argument rests on a vision of pregnancy as an invasion of the autonomous self, and of the demands of society as a strangling vine that wraps itself upon the individual, a picture in which there is not much space for duties to care for the vulnerable.[xxxii]  Many people find it a cosmic injustice that women get pregnant, while a man can have a hot shower, go to confession if so minded, and forget an imprudent sexual encounter. People inclined to Kierkegaard’s ‘aesthetic’ mode of existence find parenthood frightening, since it requires a decision about the sort of life into which they should raise their children, and hence commitment on issues that they prefer to leave open.   



The question of membership in the moral community gets phrased in two ways – in terms of human beings and in terms of persons.  In its simplest use, person is synonymous with human being, or at least the reference range of the two terms is the same.  Person is sometimes used to mean (human) body; for example personal injury refers to bodily injury, including pain and suffering, as opposed to damage to reputation or financial loss.[xxxiii] Among an older generation of bioethicists, even advocates of a restrictive view of the moral community posed the issue of the status of fetuses or the mentally challenged in terms of ‘humanhood.’[xxxiv]  The word human is not a matter of biology alone; witness such words as humane, humanitarian, and humanistic.  Also independent of biological science is a cultural understanding of humanity that includes the principle that every offspring of a human being is a human being.      

Those writers who avoid distinguishing between persons and human beings, or who assert straightaway that all members of the human species are persons, adhere to what I have elsewhere called the ‘species principle.’[xxxv]  Fetuses are living members of the human species and thus both persons and human beings on this view.  Laurence Becker suggests a “metamorphic” account, according to which a fetus becomes a human being as a caterpillar becomes a butterfly, ignoring the fact that metamorphoses in this sense also take place after birth – for example, at puberty.[xxxvi]    

The ‘acorn’ objection holds that an embryo is no more a human being or person than an acorn is an oak.  But, as I have written elsewhere, “Whatever may be the case with dormant acorns, the germinating acorn, is, while not an oak tree, still is a member of the appropriate species of oak.  If oaks had a serious right to life in their own right, so would oak saplings and germinating acorns.”[xxxvii]  Boonin responds to me as follows: 

The answer depends entirely on what it is about oak trees that we think confers upon them this right in the first place. … We will be led to attribute a right to life to the acorn not because the claim follows from the conjunction of the claim that oak trees have a right to life and the claim that acorns develop gradually into oak trees, but we agree that acorns possess a property (a certain kind of life force, membership in an appropriate species) that itself sufficient to warrant such attribution. (B 41-42)

But if what we value about oak trees is their oakness, the facts of continuous development imply that there is no reason to suppose that the oakness of a full-grown oak tree is absent in an acorn, and the same holds for the humanity of fetuses and embryos. 



A strongly pro-life writer like Robert Joyce makes central use of the concept of personhood,[xxxviii] while Michael Tooley relies heavily on the person-human being distinction in his defense of abortion and infanticide.[xxxix]  On the other hand, pro-life writer Robert Bungs finds the notion of a human person, as distinct from a human life, not merely erroneous but productive of many evils outside the context of abortion,[xl] while Roger Wertheimer, who supports a pro-choice position in politics and law, refuses to draw any distinction between human beings and persons, at least after birth.[xli]  

We are not escaping into a prejudice-free realm if we prefer person to human being.  Our concept of a ‘person’ was unknown to the Greeks, and carries with it considerable theological baggage.[xlii]  Furthermore, the etherializing tendencies of the word person (as opposed to man, woman, or child) can seriously distort moral reasoning, and not only about issues of life and death.  There is a whole ideology here, one that also, for example, regards male-female difference as morally irrelevant at best and morally suspect at best. – and which pays attention to the claims of ‘transpeople’ in considerable disproportion to their numbers. But in bioethics and elsewhere we are not dealing with noumenal persons but with fleshy entities that are male or female, and can be killed, assaulted, or subjected to bodily injury. 

Still, even if human being and person have the same extension, the two words are not the same in sense.  We use the word person to extend in-group attitudes toward social outsiders (they are people, too).  Yet it also designates whatever entities some moral theory, or body of conventional attitudes, already holds to be morally central, while some other entities are morally peripheral.  Without some idea of personhood, it is hard to see why all human beings have rights superior to the demands of society.[xliii] 

Persons have an exalted metaphysical and moral position in our conceptual scheme.  Our metaphysics presses us toward regarding personhood as an all-or-nothing affair; in traditional language, either an entity has an immortal soul or it does not.  (The presence or absence of an immortal soul was never so crucial to moral discussion, however, as is sometimes thought. [xliv] Human in the biological sense is also an on-off concept, at least among organisms now extant, but without the moral and metaphysical backing provided by the concept of a person, we would not have the difficulty we have with the proposal that a biological human, at least after birth, lacks the essential attributes of humanity, or has them only a diminished degree.

No theory of personhood will exactly fit our intuitions, or our moral programs.  Persons are mysterious entities, and moribund people may have capacities not visible to the coldly medical eye.[xlv]  But we still have to conclude, at some point, that we have a corpse on our hands, and act accordingly.  Hence we cannot we escape the need to draw lines between persons and pre- (and post-) human organic matter.[xlvi]  Line drawing may not be as grave a problem as one might think – there are similar problems in the ethics of sentencing.  Yet introducing degrees of personhood outside the womb would require a moral and intellectual (counter) revolution, and confining them to the womb seems arbitrary.   And the moral tradition that refuses to recognize second-class persons is powerful; we tinker with it at our peril.

On one understanding person means bearer of rights, in which case any entity, even a fictitious one, might be a person.[xlvii]  Daniel Dennett suggests that the logic of person is like that of chic, i.e. dependent on the recognition of other persons.  This move implies that we have no way of settling doubts about who is a person, even in our own case.[xlviii]  A more hopeful answer to the question what makes us persons? is our possession of second-order desires and the consequent ability to reflect critically on our appetites and passions (and sometimes restrain them).  Applied at the individual level, this position implies that addicts and those men and women Harry Frankfurt calls ‘wantons’ (who lack the ability to regulate their first-order desires by their second-order desires) are less than fully persons.[xlix]   

On another understanding, person means a creature (now) capable of autonomous choice; on that ground someone in deep sleep is (temporarily) not a person.  A principle narrower than the species principle, which approaches the same results, is the potentiality principle:  that a person – not a ‘potential person’ – is an entity that either manifests distinctively human traits or can do so in due course.[l]  As Aristotle puts it, “So far as the regular, definite products of Nature’s hand are concerned, … the reason why each thing is of such and such a quality is not because it gets formed such while it develops; the truth is that things get formed such because they are such.”[li]  This is not true only of the general capacities of human beings, but also of the traits (such as musical talent) characteristic of particular lineages.

.  The pro-choice use of the concept of a ‘person’ treats what others call humanity as a sort of office, which can be attained (or lost) ways at least partly shaped by social convention.  Thus we need to consider the ‘Prince Charles objection’ to the potentiality principle.[lii]  As things stand, Charles will become King when his mother dies.  Still, Charles’ claim to the Throne does not derive from anything internal to himself, but is dependent on others’ not deciding to dissolve their society, abolish the monarchy, or change the rules of succession, all of which could be done without destroying or impairing Charles himself.[liii]  But spermatozoa, ova, and disconnected pairs of spermatozoon and ovum are not potential adult human beings, in the last case because there is no entity to support the relevant potentiality.

 The question of the ‘pre-embryo’ raises the difficult issue, what exactly it is that confers personal dignity, and whether such an embryo’s lack of unambiguous individuation means that it lacks full dignity.[liv]  On some views, it is a necessary and sufficient condition for human status, (i) that one have the potentiality for development into an adult human being and (ii) that this potentiality should be irreversibly embodied in such a way that a one-to-one correlation with some possible future adult be established.  Other conditions such as developed personality might substitute for condition ii in science fiction cases.  The same point can be made in terms of species membership.  But here the pro-life case might threaten to unravel.[lv] 

Even if pre-embryos do not clearly possess full personhood, because they are not fully individuated, the possibility that our proposed action is murderous should give us pause – I cannot put it any more strongly, for reasons to be discussed below. [lvi]   Our moral language and capacities, developed as they were at a time when cloning and the like were pure science fiction, are inadequate to the task of assessing the odder bioethical issues.  Sometimes it is more important to draw and hold a line than that the line be drawn in exactly the right place.   Regardless of the precise status of pre-embryos, we can condemn the practice of creating them with the intention or expectation of destroying them in medical research or discarding them as unwanted.  On the other hand, it is hard to oppose ‘emergency contraception’ in cases of rape.

If the concept of a ‘person’ is too open-textured to resist ideological manipulation, or too metaphysical to yield moral conclusions, we must brave charges of ‘speciesism’ and return to the criterion of species membership, to determine the boundaries of the prohibition against killing.[lvii]  Formulating the rules for dealing with intelligent extraterrestrials had better await actual acquaintance with them, including knowledge of how they think it right to treat one another.  And this point applies with special force to intelligent extraterrestrials whose biology is importantly different from our own, e.g., those that reproduce like amoebae.

Three points will conclude this section.  First, we need to say something about the science fiction examples that pervade discussion of abortion (though not, so far as I can see, any other moral issue).  Boonin, for example, suggests the example of a pleasurable activity that releases a gas that prolongs the life of a comatose violinist.[lviii]   But our moral intuitions are shaped by the world in which we live; we need not worry about worlds in which stepping on a crack in the sidewalk really broke your mother’s back.  Combining the intuitions with this world with the conditions of another leads only to confusion.[lix]  The effect of science fiction examples is merely to distance us from the reality of abortion – which is unpleasant on any premises.

            Second, there are people who rejoice in the manipulability of the concept of person, insofar as it permits the exclusion of the fetus in the interest of an ideological program (whether Feminist, population control,[lx] technocratic, or eugenic).  No strong ideology has ever shrunk from the shedding of blood.  Only benign illogic can confine this sort of argument to the womb, and the prospects for civil and international war, once this limit is removed, are appalling. 

Third, the argument against abortion might seem to exclude all possibility of political compromise.[lxi]  But, in the City of Man, we need sometimes to live with evils, even while doing what we can control them.  Since abortion damages women as well as killing unborn children, and dogmatic insistence on ‘a woman’s right to choose’ encourages a philosophy of selfish unconcern for the common good, it is imperative that we bring down the abortion rate as much as possible.  Incrementalist approaches are acceptable so far as they “plant premises” such as that abortion is of concern, not merely to the pregnant woman or even the prospective father alone, but to the commonwealth as a whole.[lxii]  Citizens of pro-life states should welcome the possibility that the power to restrict abortion might be returned to their legislatures, even if in other states pro-choice policies prevail.



Animal rights advocates and ecosophers undermine the arguments considered so far.  Pro-life people argue that the young embryo should be granted the benefit of the doubt, but animal rights advocates argue the same for chimpanzees.  Pro-life people argue that it makes no sense to make an unconditional right depend on a condition whose existence and relevance is open to dispute, and whose application is therefore a matter of prudence.[lxiii]  Animal rights advocates point out that it is possible to question the relevance of membership in the human species, and that there are at least some doubtful cases of humanity.  Even if we redrew the human-beast line to include some apes among ‘our kind,’ however, more radical animal rights advocates would not drop the charge of speciesism.

The most thoroughgoing defense of animal rights is that of the utilitarian Peter Singer.[lxiv]  That nonhuman animals experience pain, and that this fact has moral implications, few people will deny.  What is most questionable in this argument is the claim that animal pains and pleasures are qualitatively equivalent to human pains, and consequently of equal moral importance.  Lear’s lament over Cordelia’s corpse has no counterpart in the animal world (except perhaps among apes). 

Tom Regan proposes a quasi-Kantian foundation for animal rights that evades these particular problems.  “Inherent value is . . . a categorical concept.  One either has it or one does not . . ..  Moreover, all those who have it have it equally.  It does not come in degrees”(R 240-41).[lxv]  Hence “We can’t justify harming or killing a human being (my aunt Bea, for example), just for these sorts of reasons.  Neither can we do so even in the case of so lowly a creature as a laboratory rat.”[lxvi]  To answer the question, which entities possess inherent value, Regan proposes what he calls the ‘subject-of-a-life criterion.’  Individuals are subjects-of-a-life if they have beliefs and desires; perception, memory, and a sense of the future; an emotional life together with pleasure and pain; preference- and welfare-interests; the ability to initiate action in pursuit of their goals; a psychophysical identity over time; and an individual welfare in the sense that their experiential life fares ill or well for them (R 243).

The subject-of-a-life criterion faces the same issues as the rationality criterion:  what of those entities who at present do not have (for example) a sense of the future, but only because they are immature or temporarily incapacitated?  Regan limits “the word animal . . . to mentally normal mammals of a year or more,” and likewise “the word humans to all those Homo sapiens aged one year or more, who are not very profoundly mentally retarded or otherwise very markedly mentally impoverished” (R 78).  Read restrictively, these stipulations represent special pleading on behalf of infanticide, the killing of the mentally retarded, and the drowning of unwanted kittens.  For neither the age of one year nor the concept of mental normality has a constant significance across species.

Regan extends his argument to mammals less than a year old, as well as to birds and fish, on the grounds that “we do not know with anything approaching certainty that . . . young mammals are not subjects-of-a-life” and that “to allow [the] . . . recreational or economic exploitation [of birds and fish] is to encourage the formation of habits and practices that lead to the violation of the rights of animals who are subjects of a life” (R 416-17 n.30; for parallel arguments concerning infanticide and abortion, see R 319-20). As Warren points out, however, Regan’s dualism still requires a line somewhere:  giving the benefit of the doubt to all ambiguous cases, even sagebrush, imposes obligations we cannot fulfill.[lxvii]   The We-They distinction reappears even in those philosophies that try hardest to be inclusive.

Not all critiques of anthropocentric ethics, however, project egalitarianism beyond the human race.  What Arne Naess calls ‘ecosophy’’[lxviii] maintains that we should expand should our understanding of the We beyond the human race and even beyond the class of living beings.  Even the notion of an organism or other individual entity turns out to be questionable:  we should come to realize that “reality consists of wholes which we cut down rather than isolated items which we put together.”[lxix]  This position is metaphysical naturalism without the technocratic attitude – in stock philosophical categories it represents monism or pantheism. 

  It is hard to see what role there is for agency, and hence for morality, on a view that denies any distinctive value to humanity.  Setting aside this point, we might conclude that the Whole is all that matters, not the parts; this result is Bradley’s doctrine of the social organism extended to the whole natural order.  One possible lesson for practice is, as Aldo Leopold has written,  “A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community.  It is wrong when it tends otherwise.”[lxx]  But, insofar as ecosophers manage to draw moral and political conclusions from this premise, they are as technocratic as anyone else.  For they call for major changes in human patterns of life, requiring for their achievement an elite that coerces and manipulates the multitude:  for example, that the human population be reduced for the sake of nonhuman life forms.[lxxi]   

Both animal rights advocates and ecosophers require human beings to give up their distinctive modes of activity, as no nonhuman animal could do, while at the same time denying the distinctive human status that alone might make such a course possible.  They require us to transcend the morality of kin solidarity, reciprocity, and sexual taboo that unites us with the apes.  But they denounce as ‘speciesist’ any attempt to make moral capital of beast/human differences. 

 We cannot in practice treat all animals equally; even less so can we treat all living things (or even a quasi-organism like the ecosphere) in such a fashion.  If we accord more serious rights to apes than to toads, on the ground that apes experience more complex pleasures and pains, the same argument is available for according more serious rights to members of the sophisticated elite than to ‘coarse and vulgar’ peons.  But no politically active group will accept a lowered status for its members.  Hence endless war ensues.




Peter Geach warns us against confusing metaphysical and moral questions.[lxxii] 

The philosopher F.H. Bradley claimed for that organism the State the very ‘right to choose’ that is now claimed on behalf of a woman as regards the child she is carrying:  namely the right to cut off if the interests of the greater organism demand this.  A person who favours abortion need not fuddle his mind by denying the humanity of the unborn; he may be openly and clear-headedly nasty like Bradley.[lxxiii]

Defenders of slavery, let alone Jim Crow, did not deny that black people were human beings, even if they failed to acknowledge the full implications of this fact.  The notorious pro-slavery clauses in the American Constitution even referred to slaves as persons.   

We return therefore to the question, why we should accept the ideas of human dignity and equality, which lie behind many features of our public discourse.[lxxiv]  Offensive as it is to contemporary moral sentiment, there is nothing self-contradictory in holding that all human beings have certain rights by virtue of being human, but that these rights hold with differing degrees of stringency according to one’s age, sex, class, nationality, and so on.  In traditional Hindu thought, killing a Brahmin was the worst of offenses, but this did not mean that killing members of other castes was acceptable (abortion was a paradigm of evil behavior).[lxxv]  Up to a point, the question turns on natural fact:  in J.R.R. Tolkien’s Middle Earth, there is justice among dwarves, elves, hobbits, and Men but ‘equality’ does not seem to be a relevant concept.  This to be sure is a fantasy example, but I use it to argue that the moral situation of some creatures might be importantly different from ours, not to resolve questions arising for us.[lxxvi]  The troubling possibility arises, that each source of human dignity will pick out a different class of entities as ‘persons,’ and have different normative implications for those whom it picks out.[lxxvii]  

Every society works on what Michael J. Perry (following Primo Levi) calls us-ism, or selfishness extended to the person next to us.[lxxviii]  No one has plausibly proposed an alternative to the affirmation of universal human dignity except for claims of differential worth based on differing understandings of the good embodied in different social groups:  the question then is, how far from myself I am going to draw the line between Us and Them.   Yet no society can openly accept the maxim might makes right, either, even as a principle governing inter-group relations.  For power relations are always unstable. It is not easy to distinguish philosophical from theological arguments here, and in fact animal rights advocates and ecosophers invoke religious rhetoric as much as do popes or televangelists. [lxxix]  

It is not surprising that a society that does not enjoy a common metaphysics or a common religion, and hence also lacks a common understanding of human nature, has difficulty with issues such as abortion, the definition of death, and the status of animals and nonhuman nature.  It is also not surprising that a social philosophy that denies a common human nature has become popular in the context of failure to reach rational agreement on what entities have rights others are bound to respect.  If this condition is irremediable, then we can expect endless war – both cultural and military, both civil and international – and each individual and each group must make what alliances it can.


[i] Heaney, Selected Poems, 1966-1987 (New York:  Noonday Press, 1990), pp. 239-40.

[ii] Fernández-Armesto, So You Think You’re Human: A Brief History of Humankind (Oxford:  Oxford University Press, 2004), p. 1.

[iii] For example, Alan Donagan, The Theory of Morality (Chicago: University of Chicago Press, 1977).  The views of John Finnis approximate Donagan’s from the side of St. Thomas.  See his Natural Law and Natural Rights (Oxford:  Clarendon Press, 1982)

[iv]For an exposition of Habermas’ thought from this point of view, see Kenneth Baynes, “Democracy and the Rechtstaat,” in Stephen White, ed., The Cambridge Companion to Habermas (Cambridge, Mass.:  Cambridge University Press, 1995), pp. 206-218. 

[v]Nikalls Luhman, “Quod Omnes Tangint,” trans. Mike Robert Horenstein, ibid. p. 171.

[vi]For commentary on these distinctions, see McCarthy, The Critical Theory of Jürgen Habermas (Cambridge, Mass.:  M.I.T. Press, 1978), § 4.3; and Alex Henneth, “The Other of Justice,” White, ed., Companion, chap. 12.

[vii] For a discussion of this issue as it arises for Habermas, see Gunther Teubner, “De Collisione Discurssum,” in Michael Rosenfeld and Andrew Arato, eds., Habermas on Law and Democracy (Berkeley, Calif.:  University of California Press, 1998), chap. 7.

[viii]  R = Habermas, “Reply to Symposium Participants,” trans. William Rehg in Rosenfeld and Arato, eds, Habermas.

[ix]Albrecht Wellmer makes the suggestion that we as a society have a right to be irrational in “Models of Freedom in the Modern World,” in Michael Kelly, ed., Hermeneutics and Critical Theory in Ethics and Politics (Cambridge, M.I.T. Press, 1990), p. 245. 

[x]Luhman, “Quod,” p. 171.

[xi] For a useful account of Habermas’s attempts to deal with differences of strong evaluation, see Thomas McCarthy, “Legitimacy and Diversity,” ibid., chap. 5.

[xii]On the European experience see András Sajó, “Constitutional Adjudication in the Light of Discourse Theory,” and Bernhard Schlink, “The Dynamics of Constitutional Adjudication,” both in Rosenfeld and Arato, eds., Habermas, chaps.  17 and 18.

[xiii]For a detailed account see Mark Pensky, “Universalism and the Situated Critic,” in White, ed. Companion, chap 4.

[xiv]NC = Habermas, The New Conservatism, ed. and trans. Shierry Weber Nicholsen  (Cambridge, Mass.:  M.I.T. Press, 1989). 

[xv]BFN =Habermas, Between Facts and Norms, trans. William Rehg (Cambridge, Mass:  M. I. T. Press, 1996).

[xvi]The charge of neurosis arises from Habermas’ attempt to speak within “a tradition of thought that unites Marx and Freud.”  “Questions and Counter-Questions,” in Richard Bernstein, ed., Habermas and Modernity (Cambridge, Mass.:  MIT Press, 1985), p. 216.

[xvii]Habermas, “Citizenship and National Identity,” Praxis International 12 (1992):  11.  

[xviii] McCarthy, “Legitimacy,” p. 126.

[xix] See Robert D.  Ballard with Michael S. Sweeney, Return to Titanic (Washington, D.C.:  National Geographic, 2004), chap. 2.

[xx] FHN = Habermas, The Future of Human Nature, trans. William Rehg, Max Pensky, and Hella Beister (Cambridge:  Polity, 2003).

[xxi]For discussion of aspects of the abortion debate not considered here, see my book The Ethics of Homicide (Ithaca, N.Y.:  Cornell University Press, 1978) (Notre Dame:  University of Notre Dame Press, 1990), esp. chaps 2 and 3; also my Human Diversity and the Culture Wars (Westport, Conn.:  Praeger, 1996), chap. 10; my  “‘Conservative’ Views of Abortion,” Advances in Bioethics 2 (1997):  183-202; and my essay with Celia Wolf-Devine, “Abortion:  A Communitarian Pro-life Perspective,”  in Michael Tooley et. al., Abortion:  Three Perspectives (Oxford:  Oxford University Press, 2009),  chap. 2.

[xxii] Contemporary Hobbeseans include G. R. Grice, The Grounds of Moral Judgement (Cambridge: Cambridge University Press, 1967), esp. pp. 147-50, and Ronald Green, “Conferred Rights and the Fetus,” Journal of Religious Ethics (spring 1974).  I am indebted to J. S Ryshpan for the point about the age of threat.

[xxiii] Neela Banerjee, “Church Groups Turn to Sonogram to Turn Women from Abortions,” New York Times (2 February 2005):   § A, p. 1.

[xxiv]Karl von Baer discovered the ovum as late as 1827.  Source: Britannica, On-line edition, s.v. “Baer, Karl Ernst.”

[xxv]See René Girard, Things Hidden from the Beginning of the World with Jean-Michel Oughourlian and Guy Lefort, trans. Stephen Bann and Michael Metteer (Stanford, Calif.: Stanford University Press, 1978).

[xxvi]See Ramsey, “Reference Points in Deciding about Abortion,” in John T. Noonan, ed., The Morality of Abortion (Cambridge, Mass:  Harvard University Press, 1970), pp. 60, 79, and 86.  In  1985, a journalist consulted a number of men and women involved in the abortion debate, and found Ramsey’s challenge unanswered.  Fay Wattleton, then president of Planned Parenthood, and Nanette Falkenberg, then executive director of the National Abortion Rights Action League, refused to respond.  David Cannon, “Abortion and Infanticide:  Is There a Difference?” Policy Review no. 32 (spring 1985):  12-17. 

[xxvii]David Boonin accepts an “organized cortical brain activity” criterion of personhood, which put the cut-off point in the 25th week after conception, well after most abortions are performed  (Boonin, A Defense of Abortion [Cambridge:  Cambridge University Press, 2003], [= B] § 3.6), on the ground that the fetus then comes to value or desire a future like ours (B § 2.8).  But even if the fetus then has desires, it does not desire a future like ours, for it has no conception of it.  The same is true of infants.

[xxviii] See, for example, Wolf-Devine, “Abortion and the ‘Feminine Voice,’” Public Affairs Quarterly 3, no. 3 (July, 1989) reprinted in Louis Pojman and Frank Beckwith, eds., The Abortion Controversy: 25 Years after Roe v. Wade, 2nd edition (Belmont, Calif.:  Wadsworth, 1998), esp.  p. 141.

[xxix] Edwards, “Public Funding of Abortions and Abortion Counseling for Poor Women,” Advances in Bioethics 2 (1997):  308, 313, 314.

[xxx] Tribe, Abortion: The Class of Absolutes (New York:  WW. Norton & Co., 1990), p. 209.

[xxxi] Warren, ”The Moral Significance of Birth,” Hypatia 4, no. 3 (fall, 1989).

[xxxii] For a good discussion of Thomson’s social and cosmological assumptions, see John T. Wilcox, “Nature as Demonic in Thomson’s Defense of Abortion,” New Scholasticism 73 (autumn 1989):  463-484, reprinted in Robert M. Baird and Stuart E. Rosenbaum, eds., The Ethics of Abortion:  Pro-Life vs. Pro-Choice, rev. edition (Buffalo, N.Y.:  Prometheus Books, 1993), pp. 212-225.

[xxxiii] I owe this point to Craig Paterson.

[xxxiv] For example Joseph F. Fletcher. “Four Indicators of Humanhood – The Inquiry Matures,” Hastings Center Report  (December, 1974).

[xxxv] In Homicide, § 7 and “‘Conservative’ Views” pp. 185-86.

[xxxvi] Becker, “Human Being:  The Boundaries of the Concept,” in Michael Goodman, ed., What is a Person? (Clifton, N.J.:  Humana Press, 1988)  pp. 281-91.

[xxxvii] Devine, Homicide, p. 52.

[xxxviii]Joyce, “Personhood and the Conception Event,” New Scholasticism 53 (winter 1978), reprinted in Goodman, Person?  See esp. p. 204.

[xxxix] Most fully in Tooley, Abortion and Infanticide (Oxford:  Oxford University Press, 1988). 

[xl] Brungs, “Human Life vs. Human Personhood,” Human Life Review 8, no. 3 (summer 1988), reprinted in Goodman. Person?  pp. 281-291.  

[xli]Wertheimer, “Understanding the Abortion Argument,” Philosophy and Public Affairs, 1, no. 1 (fall, 1971), reprinted in Marshall Cohen, Thomas Nagel, and Thomas Scanlon, eds., The Rights and Wrongs of Abortion  (Princeton:  Princeton University Press, 1974), pp. 23-51 (see especially pp. 25, 44n.15, 50-51). 

[xlii] For a historical discussion see Joseph W. Koterski, S.J., “Boethius and the Theological Origins of the Concept of a Person,” American Catholic Philosophical Quarterly 78, no. 2 (spring 2004): 203-224.

[xliii] Thus Karol Wojtyla, later John Paul II, wrote:  “The assertion that the human being is a person has profound theoretical significance. … It marks out the position proper to the human being in the world; it speaks of the human being’s natural greatness.”  See his Person and Community, trans. Theresa Sandok, O.S.M. (New York:  Peter Lang, 1993), p.  178.

[xliv]In 1679 the Holy Office condemned the view that “it is licit to procure abortion before the animation of the foetus, in order to prevent a girl, caught pregnant, being killed or dishonored.”  See Denzinger and Schönmetzer, Enchiridion Symbolorum Definitionum et Declarationum de Rebus Fidei et Morum (Barcelona:  Herder, 1967), ¶ 2134, as cited by Finnis, “The Rights and Wrongs of Abortion,” Philosophy and Public Affairs 2, no. 2 (winter 1973), reprinted in Cohen, Nagel, and Scanlon, Rights and Wrongs, p. 99. Emphasis mine.  

[xlv] There have been some suggestive developments in the medical understanding of comas, whose implications bioethicists need to explore.

[xlvi]This sentence is directed against Robert P. George, who writes:  “We needn’t draw this line.  The reasonable standard – the one that follows from a proper rejection of person/body dualism is that living members of the species Homo sapiens are persons whose dignity whose incompatible with a license to kill them.”  In “A Clash of Orthodoxies:  An Exchange” (with Josh Dever), First Things no. 104 (June/July, 2000): 51.  Reprinted in George, The Clash of Orthodoxies:  Law, Religion, and Morality in Crisis (Wilmington, Delaware: ISI, 2001), p. 36.

[xlvii] Lynne Rudder Baker defends a “constitution view” of human personhood, according to which adult human beings but not fetuses constitute persons.  See her Persons and Their Bodies (Cambridge:  Cambridge University Press, 2000).  (I am also indebted to Baker’s presentation at a conference in honor of Roderick Chisholm, held at Brown University in November 2000.)  Without going into the intricacies of Baker’s metaphysics here, her account of the fetus is open to two powerful objections.  First, her treatment of the commonsense side of the issue ignores those aspects of our practice that treat the fetus as a person at least when a child is wanted (see pp. 93, 206). Second, her slogan “no intentionality, no persons” (p. 23) suggests a point of demarcation well after birth, when the child learns to use the word I in the philosophically significant way Baker designates by (pp. 65-9, 76-9).

[xlviii] Dennett, “Conditions of Personhood,” reprinted from A. O. Rorty, ed., Identities of Persons (Berkeley: University of California Press, 1976), in Goodman, Person?  See esp. pp.146, 164.

[xlix] See Harry J. Frankfurt, “Freedom of the Will and the Concept of the Person,” Journal of Philosophy, 68, no. 1 (January, 1971):  15-20, reprinted in Goodman, ed., Person? pp.127-146.  

[l]Pojman and Beckwith, eds., Controversy, chaps. 20-23; also Devine, Homicide, esp. § 14 and “‘Conservative’ Views.” pp.187-88.  

[li] Aristotle, On the Generation of Animals 778 b.  Trans.  A. L. Peck  (Cambridge, Mass.: Harvard University Press, 1953), p. 487.

[lii] Peter Singer formulated the Prince Charles objection in Practical Ethics (Cambridge:  Cambridge University Press, 1979).

[liii] I owe this argument to Miasmo Reichlin, “The Argument from Potential:  A Reappraisal,” Bioethics 11, no. 1 (1997):  7. 

[liv] See Norman Ford, The Prenatal Person:  Ethics from Conception to Birth (Oxford:  Blackwell Publishing, 2002), and Barry Smith and Berit Brogaard, “Sixteen Days,” Journal of Medicine and Philosophy, 28, no. 1 (2003):  45-78, defending a cut-off point shortly after conception; and Germain Grisez, “When Do People Begin,” in Stephen J. Heany, ed., Abortion:  A New Generation of Catholic Responses (Braintree, MA:  Pope John Center, 1992), chap, 1; and Robert George and Patrick Lee, “The Wrong of Abortion,” in Contemporary Debates in Applied Ethics (Oxford:  Blackwell, 2005), pp. 13-26, defending the humanity of the embryo from conception on.  I also have benefited from an unpublished paper by Gregor Damschen and Dieter Schönecker, “A Broadened Potentiality Argument for the Moral Status of Human Embryos”; I am indebted to Professor Schönecker for letting me see a copy of this paper.  (A German version paper appears as “In dubio pro embryone.  Neue Argumente zum moralischen Status menschlisher Embryonen,” in Damschen and Schönecker, eds., Der Moralische Status menschlisher Embryonen [New York:  de Gruyter, 2003], pp.187-267.) 

[lv]For the threat to the pro-life case, see Christian Munte, “Divisibility and the Moral Status of Embryos,” Bioethics 15, nos. 5/6 (2001):  382-397.  Munte’s argument turns, however, on science fiction examples of a sort whose relevance I would question (see pp. 387-88).

[lvi] For a vigorous statement of the strict view on the status of embryos however young, see George, Orthodoxies, Afterword, “We Should Not Kill Human Embryos – For Any Reason.”

[lvii]This sentence is a response to Jane English, “Abortion and the Concept of the Person,” Canadian Journal of Philosophy 5, no. 2 (October, 1975), reprinted in Joel Feinberg, ed., The Problem of

Abortion, 2nd edition  (Belmont, Calif.:  Wadsworth, 1984), pp. 151-60; and in Steven M. Cahn and Peter Markie, Ethics:  History, Theory, and Contemporary Issues, 2nd edition (Oxford:  Oxford University Press, 2002), pp. 766-71.  See her § I.

[lviii]Boonin, Defense, pp. 186-8.

[lix] I owe this formulation to Josef Velazquez.

[lx]Both President Nixon’s Commission on Population Growth and the American and the American Future (1972) and the United Nations International Conference on Population and Development (1994) made an explicit connection between population control and abortion (see Philip Longman, The Empty Cradle [New York:  New America Books, 2004], pp. 2-3.).

[lxi] For a statement of the case against incrementalism, see Colin Harte, Changing Unjust Laws Justly (Washington, D.C.:  Catholic University of America Press, 2005).

[lxii] On planting premises, see Hadley Arkes, Natural Rights and the Right to Choose (Cambridge:  Cambridge University Press, 2004), p. 247.

[lxiii] See Robert Spaemann, “Is Every Human Being a Person?” Thomist 60 (1996):  471-474.

[lxiv]Singer, Animal Liberation (New York:  New York Review, 1979). 

[lxv] R= Regan, The Case for Animal Rights  (Berkeley:  University of California Press, 1983).

[lxvi] Regan, “The Radical Egalitarian Case for Animal Rights,” reprinted from Peter Singer, ed., In Defense of Animals (Oxford:  Basil Blackwell, 1985) in Louis P. Pojman, ed., Environmental Ethics, 2nd edition (Belmont, Calif.:  Wadsworth, 1998), p. 51.

[lxvii] Warren, “A Critique of Regan’s Animal Rights Theory,” Between the Species 2, no. 4 (fall 1987):  53-54.

[lxviii] Naess, “The Shallow and the Deep,” Inquiry 16 (spring 1973) and “Identification as a Source of Deep Ecological Attitudes,” in Michael Tobias, ed., Deep Ecology (Santa Monica, Calif.:  IMT Publications, 1985), both reprinted in Pojman, ed., Ethics, §§ 20 and 21, the latter as “Ecosophy T.”  For commentary and critique, see Richard Watson, “A Critique of Anti-Anthropocentric Ethics,” Environmental Ethics 5 (fall, 1983), reprinted in Pojman, Ethics, § 23; and Murray Bookchin, “Social Ecology Versus Deep Ecology,” Socialist Review 88, no. 3 (1988):  11-29, reprinted in Pojman, Ethics,  § 24.

[lxix] “Ecosophy T,” p. 140.

[lxx]Leopold, “Ecocentrism: The Land Ethic,” excerpted from A Sand Country Almanac (Oxford:  Oxford University Press, 1981), in Pojman, Ethics, pp. 123-24.  For commentary, see J. Baird Callicott, “Animal Liberation:  A Triangular Affair,” reprinted from Environmental Ethics 2, no. 4 (winter 1980), in Pojman, Ethics,  §10 and Callicott, “The Conceptual Foundations of the Land Ethic,” excerpted from A Companion to the Sand Country Almanac (Madison, Wisc.:  University of Wisconsin Press, 1987), reprinted in Pojman, Ethics, § 19.

[lxxi]Deep Ecology Basic Principle 4, articulated by Arne Naess and George Sessions (Death Valley, California, 1984), cited in Bill Devall and George Sessions, Deep Ecology (Salt Lake City:  Peregrine Smith Books, 1985), excerpted in Pojman, Ethics, p. 147.

[lxxii] On the looseness of fit between metaphysics and morals, see also Kevin Cocoran, “Material Persons, Immaterial Souls, and an Ethic of Life,” Faith and Philosophy 20, no. 2 (April 2003):  218-28.  

[lxxiii] Geach, Truth and Hope (Notre Dame:  University of Notre Dame Press, 2001), p. 28.

[lxxiv] The best jurisprudential discussion of this question I know of is Richard Stith, “ Of Death and Dworkin,” Maryland Law Review 56, no. 2 (1997): 289-383. 

[lxxv]On the killing of Brahmins, see Mahābhārata, 1.149.7, trans. and ed. A.B van Buitenen, vol. 1 (Chicago:  Phoenix, 1988), p. 309; on abortion, see 1.56.17 (p. 129). 

[lxxvi]Those interested in this side of Tolkien should consult the book Lord of the Rings (Boston:  Houghton Mifflin, 1987) rather than the movie.

[lxxvii]See the suggestive article by John F. Crosby, “The Twofold Source of the Dignity of Persons,” Faith and Philosophy 18, no. 3 (July, 2001): 292-308.  Crosby recognizes more than two sources of this dignity.

[lxxviii] Perry, The Idea of Human Rights  (New York:  Oxford University Press, 1998), pp. 31, 60.

[lxxix] On animal rights, see, for example, Regan, “Egalitarian Case,” p. 51.  On the spiritual sources of ecological consciousness, see Duvall and Sessions, “Deep Ecology,” in Peter List, ed., Radical Environmentalism (Belmont, Calif.:  Wadsworth, 1993), p. 39; and Elizabeth Dodson Gray,  “We Must Re-Myth Genesis,” ibid., pp. 55-69.

WE (chap 11)

November 24, 2009



            In the view of some writers, all we need to do is find an ‘endpoint’ in our attempt to balance liberty and equality (and whatever other political ideals we find appealing); then there will be no rhetorical space for any transcendent consideration.[i]  Under such circumstances, a citizen of faith might preach to, but could hardly argue with, his secular fellow citizens.  For intellectual and cultural history would have come to an end.

            I here argue that the invocation of transcendent ideas in politics does not require prophecy in a radical sense that not even the Hebrew prophets attained.  It has long been a commonplace of political theory that political concepts are displaced versions of theological concepts (e.g., Hobbes’ mortal god or  Carl Schmitt’s political theology).[ii]  Some people take this displacement to imply that theologians should remain silent about matters that are not their business.  (“We have no king but Caesar.”)  But there are moments in politics when the rules of the game are in radical question, and we must face theological questions for political reasons.  A society can be both admirably libertarian and admirably egalitarian, and yet fail to sustain the spontaneous co-operation among its members needed especially in times of crisis, or to transmit its way of life to succeeding generations.            

‘Charisma’ is the mysterious element in political leadership; it manifests itself in the peculiar hatred as well as the peculiar love that political leaders attract.  The need for forgiveness if wounded political communities are to go on with their business, and the abuse of forgiveness to condone what ought not to be condoned, both raise theological issues.[iii]  The contemporary case against capital punishment turns on the assumption that we violate something sacred if we unwittingly kill an innocent person, even if he is in no way admirable and even if we did everything humanly possible to avoid error.[iv]  Sometimes people frame their political activity in religious terms, as bearing witness, a move that creates complexities when the time for practical politics comes. 

I here make four arguments:

  1. The way we understand the relationship between religion and politics, and hence also between church and state, reflects a theological perspective, one alien to Islam or even Eastern Christendom.
  2. It is no part of a properly religious approach to politics to attempt to ‘rid the world of evil.’
  3. The core humanist doctrine – that all people are equal in dignity and consequently in rights – makes sense only if we believe that human beings have a transcendent Source, and raises persistent questions concerning our relationship to that Source.
  4. Social bonds have a religious dimension, and religious communities both maintain and undermine their ‘secular’ counterparts.

Theologians distinguish between ‘general revelation,’ through the structure of humanity and the world, and ‘special revelation,’ through the prophets, Christ, or Muhammad.  General revelation concerning practical matters is materially equivalent to natural law.  Moreover, some of the content of special revelation (traditionally, the Ten Commandments) consists in ‘republications’ of the natural law.  Here and everywhere my theological references, where they go beyond what is defensible on strictly philosophical terms, are provisional only.



            St. Augustine’s distinction between the City of God and the City of Man has dominated thought about political issues in Western Christendom.  Augustinian themes of persistent political importance include:

  1. Cain, not Abel, founded a city (Bk. XV, chap. 2).[v]  The family and the household are not havens from the power struggles that define the City of Man (Bk. XIX, chap. 5).
  2. Take away justice and what are kingdoms but great robber bands? (Bk. IV, chap. 4; cf. Bk. XIX, chap. 21, 24).  There is a normative order – called the City of God – that judges, and to some degree de-legitimates, the City of Man.
  3. Yet those who wield earthly power, even for a short time, receive divine aid (Bk. IV, chap. 5).  The virtuous person must accept the imperfect justice available in a fallen world, and assume judicial office and other forms of political rule, as well as the responsibilities of property ownership (or status as a tenured professor), despite the injustice of the institutions he is asked to administer (Bk. XIX, chap. 6).
  4. Augustine anticipates consumer capitalism (Bk. IV, chap. 3) and life-style liberalism (Bk. II, chap. 20), and judges them to be expressions of the lust for pleasure, power, and prestige that crowds out both the love of God and the love of neighbor in the earthly city.
  5. But the church, considered as an institution, can also be a mask for the will to power, the expression of weak people’s resentment of the strong, or a way of buying off the oppressed with false coin.  Among writers in the Augustinian tradition, Wycliff posed this issue in the sharpest way:  he was simultaneously theocratic and anticlerical, using the doctrine of dominion of grace to challenge ecclesiastical power.[vi]  

Machiavelli inverts Augustine’s outlook, to the point of reversing his evaluation of Romulus and Remus (the classical counterparts of Cain and Abel), even in the supposedly virtuous Discourses.[vii]

            American-style freedom of religion is not consigning religion to the closet in the French manner.[viii]  Conservative critics of American church-state doctrine do not understand how the “chains of gold” can restrain religious freedom.[ix]  Our doctrine of church and state arises from the unique way in which we have embodied Augustine’s distinction between the two cities.  Even those Americans for whom religion is the sphere of illusion rely on Augustine when they attempt to articulate the political role of illusions that are psychologically and socially important. School vouchers, or increased parental control over local public schools, provides an American-style liberal solution to the educational problems of a society in which shared understandings are hard to discover.[x] 



            The most serious objection to theological politics is that it invites us to define our adversaries as enemies of God, and thus makes peace impossible.  Politics itself generates a need for absolute enemies, in part to simplify a threatening and bewildering reality, and in part to help political actors deal with psychological conflicts, and reinforcing this tendency by religion makes things worse.  That there is such a thing as moral evil is beyond question; the difficulty lies in the movement from evil as such to the adversary of the day.[xi]  Even movements such as Nazism, which seem evil all the way down, were responding, however horribly, to real conditions of social and political chaos.

            A Niebuhr-inspired invocation of the doctrine of the Two Cities to limit the tendency of politics to go metaphysical was once standard Neoconservative religious doctrine.  George Weigel for example complained of the “tendency in religious pacifist circles to minimize the abiding fact of sin and brokenness in this world.”[xii]  Richard John Neuhaus, in an early essay, also warned of excessively theologized politics and excessively politicized theology:  “Killing other people is at best always a very oblique form of loving service.”[xiii]

            But President George W. Bush, reflecting a major shift in Neoconservative mood, invoked American messianism in its most troubling form on the most solemn possible occasion.  In his remarks for the National Day of Prayer and Remembrance following the terrorist attacks of 11 September 2001, he claimed “a responsibility to history … to answer these attacks and rid the world of evil.”[xiv]  Wisely, he did not identity evil with Islam, as many of his most ardent followers would have had him do.[xv]  But he chose formulations that managed to keep the rhetoric of a holy war while blurring its target.[xvi]  As Peter Singer has pointed out, Bush usually used evil as a noun, and more commonly of persons than of acts.[xvii] 

In any case, it is clear how the most committed adherents of Bush’s rhetoric would have translated it into practice.  Daniel Frum and Richard Perle wrote of a “dream” of “a world at peace, a world governed by law; a world in which all peoples are free to find their own destinies,” and remark that “if it ever does come true it will be brought into being by American armed might and defended by American might, too.”  They repudiated the word empire on the meager ground that it “belittles the many small countries that have turned to the United States for protection.”[xviii]  In technical language, Frum and Perle were calling for a system of protectorates, whereby local elites retain some autonomy as agents of American indirect rule.   Bush himself believed the Iraqi people, and presumably everyone else as well, needs “the same freedom that you and I here enjoy in America,”[xix] though not the level of prosperity that makes the tensions freedom creates tolerable.  This is one of the things that excite the supposedly unmotivated hostility of our foes.

            We make can an effective case against military messianism in the language of secular politics.[xx]  Americans are as capable of evil, and even of perversity, as people of every other sort; we are also vulnerable to the corruptions inherent in our role as the world’s only ‘hyper-power.’  Talk of evil in the abstract makes it more difficult to oppose and control particular evils – some of which arise as the side effects of well-intentioned actions – and whose abolition would not mean the Kingdom of God on Earth.  The sorts of policies that such rhetoric is used to support are more likely to perpetuate evil than limit it.[xxi]  The grievances of the Islamic world, though they neither justify nor excuse terrorism, do not arise from Claggart-like hatred for the good. 

But the rhetoric of good and evil took hold at a time of crisis, when secular politics seemed woefully insufficient.  Hence those who represent the voice of religion in our political debates have a special obligation, as well as special opportunities, to insist on the transcendence of God, Who places all human institutions, including those of ‘democratic capitalism,’ under judgment. (In practice such arguments were the preserve of Jerry Falwell and Ward Churchill, neither of whom could called mainstream.)   It is unfortunate that Islamic, rather than Jewish and Christian, objections scuttled the slogan “Operation Infinite Justice.”[xxii]





            Who is Equal?


Most of us hold that there is a set of basic rights to which all human beings (and, at least among terrestrials, only human beings) are entitled.  Most of us also hold that, once a being has crossed a certain threshold, it does not matter, in terms of these basic rights, how much intelligence or other excellences it has; all people are in this sense equal.  At this stage of the argument I do not distinguish between persons and human beings.  I address this question in the next chapter. Thus murder is an equally grave wrong whether the person killed is young or old, rich or poor, male or female, Jewish or Arab, and so forth.  Sometimes this principle is an undefended postulate (or ‘basic belief’), sometimes it a residue of religious or metaphysical beliefs officially abandoned, and sometimes it is a matter of explicit religious teaching.  Sometimes it may be a Platonic noble lie, opposite in substance to Plato’s myth of the metals.[xxiii]

            A radical egalitarian like Kai Nielsen gives human equality enormous normative weight, but provides it with no normative basis for it except as the result he most deeply desires and the place where he stands pat.[xxiv]  If his commitment fails to persuade its intended beneficiaries (who sometimes harbor inegalitarian attitudes), it will require coercion well beyond the customary trade-off between liberty and equality.  This means inequalities between the powerful and those whose lives they control.   The ideological Darwinism now popular among secular intellectuals implies that the distinction between human being and ape is quantitative only.[xxv]  Hence, it seems, some human beings – be they Africans, residents of Oklahoma, or unpleasant relatives – are closer to the ape than the rest of us, and consequently of lesser worth.  Presumably they may be treated accordingly.  Moderate social Darwinists cash out their concept of fitness in economic terms; grimmer readings are also possible.

Even the narrower principle of legal equality poses serious issues.  As George P. Fletcher observes,

The claim that all people are entitled to equal treatment under the law … is beyond controversy in the sense that one could hardly imagine a modern constitution that did not commit itself to some version of equality under law. … At the same time, skeptical voices multiply about whether the concept of equality has any independent content.[xxvi]

            “Equality,” responds Stephen Picker, “is not the empirical claim that all groups of human beings are interchangeable; it is the moral principle that individuals are not to be judged by the average properties of the group.”[xxvii]  Counsels against judging people by group membership cannot be quite absolute, given our need for quick decisions on incomplete information.  In any case, they say nothing against elitist doctrines that focus on differences among individuals.  As disability theorists remind us, those who are poor in intellect can be rich in emotional and aesthetic capacities.  But the profoundly retarded are lacking in every respect.

            Nor does it matter that some inequality of ability is socially generated. 

The damage done to a child by fetal alcohol syndrome or AIDS infection is not remediable even though it was a result of parental behavior.  The lived experience of hierarchical societies reinforces the belief that some human beings are of a higher order than others.  Even in relatively egalitarian societies, if it is harder for Jews than gentiles to get into college, then Jews will have a reputation for intelligence in educated circles.  These phenomena affect the self-image, and hence also the behavior, of people at every level of society.  As Homer says without pseudo-scientific argumentation, “Zeus who views the whole world takes away the manhood of a man, the day he goes into captivity and slavery.”[xxviii]  And the same can be said of women. 

Peter Geach responds to the argument from unequal rationality as follows:

This is an error of category, in precisely the Aristotelian sense of the word: it confuses ‘rational’ as differentia of a species with ‘rational’ as expressing some actual capacity.  ‘Rational’ as a differentia of a species relates not to the capacities of the first level, but … rather to the capacity to acquire capacities.[xxix]

But it is not clear that the profoundly retarded have even the capacity to acquire the capacity for philosophical reflection.

Crucial to our response to atypical human individuals is a sense that their condition is tragic, in a way that the limited capacities of a goldfish are not.  I doubt that we can accommodate this perception within the nominalist framework of much modern political and social philosophy.  An explanation and defense of the ontology of natural kinds would take us too far afield.[xxx]

            I conclude, with Judge Richard A. Posner, “Belief in equality is … as much an article of faith as the Judeo-Christian antipathy to homosexuality.”[xxxi]  Faith here needs to be taken in a loose sense to include matters, such as the existence of God, that are matters of controversial philosophical argument.

The idea that personal status cannot be acquired or lost without radical change in the entity in question, and moreover does not admit of degree, mirrors the older idea that what gives us an inherent dignity is an immortal soul.  As Justice McLean said in Dred Scott v. Sandford, “A slave is not a mere chattel, he bears the impress of his maker, and is amenable to the laws God and man; and he is destined to an endless existence.”[xxxii]  The reasoning here is not consequentialist, as if we could kill a freshly baptized infant in the assurance that it would enjoy a blessed hereafter.[xxxiii]  Rather, being destined for an endless existence is a manifestation of the dignity of human beings.  If God treats human beings differently from other life forms, then so should we.  But we still need to ask the question, what observable traits of human beings testify to this dignity, and what traits in an extraterrestrial species (or even an ape) would lead to our according this dignity to them.  We must also face the claim that the profoundly retarded lack rational souls.

            For Locke, what matters is our ability to reason to the existence of God – to make this claim credible, we must suppose that he has in mind a rough intuitive rather than a developed philosophical argument.[xxxiv]  (His refusal to tolerate atheists is of a piece with the rest of his philosophy.)[xxxv]  Though children are not at present the equals of adults, God destines them to be such, and therefore they must be protected and educated.  An uncomplicated natural-law position on infanticide is therefore central to Locke’s political argument.[xxxvi]  Locke also held, however, that wicked behavior might imply the forfeiture of one’s human status – a position that threatens the principle of basic human equality that underlies most of his thought.[xxxvii]  Even if we reject this view, there are biological human beings who not only fail to reach the intellectual level required to understand a rough intuitive argument for the existence of God, but also never will reach it.  So we are left without our intuitive responses; as Fletcher puts it, “we recognize each other as human, and our equality as humans, because we grasp our non-analyzable resemblance.  We relate not by partaking of a single feature that distinguishes us from animals but by way of sharing a common human image.” [xxxviii]

John E. Coons and Patrick Brennan provide the most elaborate contemporary exploration of the theological roots of the idea of equality of which I am aware.  They identify “the unique and potentially valuable property shared by all rational humans to the same degree” as “the capacity of every rational person to advance in moral self-perfection though diligent intention of correct behaviors toward other persons,”[xxxix] even if the action taken is in fact wrong.  But there are persons, in some sense rational, who are immune to moral claims, and even more who are incapable of moral reflection of any difficulty.  There are even questions of what counts as trying:  if one is unwilling or unable to take other people’s interests, or those of the members of some group, into account, is he even trying to do the right thing in actions that affect them?

            Whatever our institutions may be, some people will find it easier to practice conventional (or ideal) virtue and avoid vice than will others.  The welfare state, as well as efforts at private charity, must deal with people whose self-destructive or self-defeating behavior makes them in permanent need of assistance.  It must also deal with our all-too-human unwillingness to contribute to the relief of other people, including those we dislike.  And the same issue arises for our treatment of people who adhere to one of the many secular heresies that have been made the subject of contemporary anathemas.  


Grace and Freedom

The antinomian and legalist wings of our Calvinist heritage, each of which offers a different understanding of the doctrine that God saves us regardless of our merits, shape our culture wars even when the combatants are atheists, Roman Catholics, or Jews.  The problem of the recalcitrant or morally challenged individual engages questions concerning grace and free choice that Catholic authority has wisely left undefined,[xl] and which have led Americans to abandon doctrinal for experiential religion.[xli] 

The most important issue raised by the Reformation and post-Reformation debates about grace and free will is whether divine and human agency occupy the same metaphysical territory, so that divine agency annuls human freedom.[xlii]  If divine and human agency are rivals, extreme Calvinism is the most logical position for the theist:  God is the author of sin, both our own and those of our last parents, and whoever is damned, is damned by the sovereign hatred of God.  If they are not rivals, then we can insist that we can do what is right only because we receive grace, while insisting that human beings retain full responsibility for their actions. 

If we set aside the tricky question of God’s relationship to necessary truths, the distinction between grace and nature disappears, since God owes us nothing, not even our own existence.  If so, we must reformulate the dispute between Augustine and Pelagius as Augustine understood him.  God writes the stories of our lives, including both our free and sinful actions and those of others.  There is no need to pursue either natural theology or Biblical interpretation in the spirit of the relentless lawyers who were busy expanding royal authority when Calvin wrote.  In technical language, I am suggesting a ‘compatibilist’ account of the relationship between divine sovereignty and human agency, combined with a libertarian account of the relationship between human agency and sociological and biological influences.[xliii]  The path of wisdom is that ascribed by Fr. Fergus Kerr to St. Thomas Aquinas:  “In the end, he excludes certain views and leaves us with the mystery of the relationship between divine causality and human activity.”[xliv]



Like the secular belief in the metaphysical equality of human beings, transcendent religious beliefs are asserted in the teeth of contrary experience.  Bringing religion into the argument concerning human equality is no panacea.  But without a non-empirical warrant for the basic human equality, egalitarianism even its most modest forms is untenable.

            Historically, belief in the metaphysical equality of human beings has been understood be consistent with great inequality in practice.  In the contemporary debate, Coons and Brennan are skeptical of egalitarianism as an ideology.[xlv]  Fletcher, on the other hand, moves from a theologically grounded belief in human equality to an imperious egalitarian program.  “No state interest can justify practices that both reflect and reinforce cultural assumptions about the intrinsic superiority of whites over blacks, men over women, ‘legitimate’ over ‘illegitimate’ children, or heterosexuals over homosexuals.”[xlvi]  Subsequent discussion makes it clear that we have here not only a legal program, but also a demand for the coercive reconstruction of all existing societies.[xlvii]

Appeals to the image of God do not, however, resolve the trade-off between equality and liberty.  Nor does it resolve the tension between equality and community (or any other principle).  Still, we do not require a developed egalitarian theory to explain why it was wrong to exhibit human beings as zoo animals.[xlviii]  Nor do we such a theory to be alarmed by the ability of billionaires to control the lives of the rest of us.  The intuitions of compassion also have their claim:  we can imagine ourselves in the position of the vulnerable, and accept the principle that they should be protected against abuse, and perhaps that all social and economic inequalities benefit, or at least not harm, them.  Benefits and injuries to the vulnerable, and to everyone else, are to be judged in terms of real goods like life, friendship, and meaningful work, not a list of ‘basic goods’ trimmed to fit a liberal political theory.

If, in view of its theological underpinnings (or at least entanglements), we reject the idea of human equality, the implications for practice are grave.  For no politically active group will accept a position of permanent inferiority, and each hopes for such a position for its most persistent opponents.  Militant homosexuals would consign religious conservatives to the closet, and vice versa.  Endless war ensues, until some group is able to seize power.



            Religious ideas contribute, not only to policy debates, but also to the formation of human bonds.  When a social bond is of extraordinary importance, people require more than a mere agreement – or even an agreement understood to be legally enforceable – and invoke solemnities (in their most primitive forms, blood oaths).  The concept of a covenant remedies some of the deficiencies of the social contract, since a covenant is the creation of a new thing, called a We, that non-reductively supervenes on individual wills.  

            In theology, a covenant is God’s decision to act reliably, both in the natural order and the order of salvation.[xlix]  More narrowly, a covenant is a contract with God as one of the parties, designed to mitigate the rigors of predestinarian theology, and leading to difficult questions about how God could be bound by a contract.[l]  Those who invoked the concept in politics did so in order to find a stable source of authority independent of the powers that be, often for revolutionary purposes.[li]   But it is also possible to develop the idea of a covenant ‘from below.’

            Though a covenant reflects and co-ordinates the wills of the covenanters, it also transforms the covenanters themselves.  To put the matter in the terms used in this book, a covenant enters into the identities of the covenanters, and mobilizes both the atavistic and the rational-contractual aspects of human bonds.  It thus provides a framework for ongoing co-operation outside its explicit terms.

Some covenants provide a framework only for persons now in being.  Others are intended to govern those conceived or recruited subsequent to the covenant and in pursuance of it (“Posterity”).  We can usefully distinguish the stronger and weaker senses by borrowing Johannes Althusius’ word symbiosis for the weaker sort, though this was not Althusius’ meaning.  The constitution of a religious order is a covenant in the strict sense, an intentionally childless marriage a symbiosis.

            In a covenant in the proper sense, the covenanters undertake to transform their literal or figurative offspring in such a way as to enable the resulting association to survive the contingencies of human existence and perhaps achieve some sort of betterment.  Hence the Jewish covenant includes the rite of circumcision, which places the male adherent’s sexual and reproductive powers under the authority of the community and ultimately of God.  Those who adhere to the covenant after its inception are not signing a contract with Moses or George Washington, but rather accepting an ongoing project they have started.  Different members understand the terms of the covenant differently.  In this the concept of a covenant resembles the notion of an overlapping consensus, but adds a dynamic element that, when things go well, allows its adherents, in the course of a common effort to ‘achieve their country,’ to learn from one another and change as a result. [lii]  Rawls’ excessive concern with stability makes it hard for him to take into account the fact that figures he admires, such as Martin Luther King and Abraham Lincoln, changed as well as preserved the overlapping consensus on which American society rests. 

            The covenanters agree to live together and engage in civil conversation for the indefinite future, which will pose issues no present covenanter could imagine.  They also agree to transmit their shared understanding to their literal and metaphorical children, and admit at least occasional outsiders to the covenant.  To do these things, the covenanters take a decisive step beyond power politics.  For securing adherence to these provisions lies outside the power of any individual or group, and covenanters must therefore rely on some power not themselves to sustain the covenant.  Some will say God, others History; those hostile to its terms will speak with the abolitionists of a “covenant with death and an agreement with Hell.”

            The requirement of upholding a covenant falls, in John Knox’s words, upon “the whole body of the people, yea, upon every member of the same according to their possibility.”[liii]  We can edit out Knox’s hostility toward Catholics and women rulers (except when they were doing God’s will as understood by Knox):  both Catholics and women can and do uphold the terms of the covenant of a pluralistic society according to their opportunities.  A covenant makes it possible to appeal beyond the government of the day, the majority of the people, the constitutional doctrine now in favor in the courts, or even the Constitution itself, without taking the risks of revolution in the most frightening sense.

            The concept of a covenant had its original home in communities of faith.  Even today, such communities are the most important We’s larger than the family but independent of the nation-state.  One appeal of a religious community is that, by entering it or maintaining one’s membership in it, one adheres to an enterprise that has gone on before one’s birth and will continue after one’s death.

            Most religious communities make regular provision for reproducing their membership:  the most visible mark of a religious community is its possession of common rituals for birth, marriage, and death.  Such communities have a large role in the education of children, and in preventing those forms of misbehavior (adultery, for example) that threaten the stability of the family.  Sometimes religious communities are, like the Elks or the Rotary Club, social organizations whose success is measured by their size and their ability to stimulate participation by their members.  That religious communities are in various ways segregated should surprise no one, since prejudice of all sorts affect what is acceptable in religious worship.  Visiting Houston, Texas, I saw a church billboard featuring a picture of the pastor (a woman, as it happened; these were liberal Baptists).  I hope that my response reflected more than Northeastern prejudice, but it at least included such an element.

 But even a version of religious community that includes a commitment to social justice leaves us wondering whether the Democratic or the Republican Party might not serve us better.  In the contemporary world, religious association has suffered from the civic disengagement that has afflicted other forms of association, as well as (and connectedly) from ideological polarization.[liv]  This development undermines one of the greatest political appeals of religion, that by appealing to transcendence it places worldly conflicts in a healthy perspective.

            For these reasons, we must look at the ways transcendence gets represented in society.  There is an experiential dimension to religion, which sometimes supports communal bonds, and sometimes leads prophets or mystics to challenge existing doctrines and practices.[lv]  The sublime is that experienced quality that represents what transcends our customary categories, and makes our customary concerns feel insignificant by comparison.[lvi]  For Kant, the sublime in nature represents the imperious requirements of the moral law.[lvii]  Rilke extends this idea to works of art:

Otherwise this stone

                                Would not from all the borders of itself,

                           Burst like a star, for there is no place

                                                   That does not see you. You must change your life.[lviii]

A religious community mediates the sublime to its members in terms of a shared narrative expressed in shared rites.  These rites may not be more important than private devotion, moral behavior, or social activism; but they are the face of the community as it presents itself to its ordinary members, interested visitors, and those being educated for membership.  A special language of worship is an important feature of such representations.  Under the pressure of the reformers of rites now everywhere active, religion ceases to convey the presence of a God Who places both our communities and ourselves as under judgment, and requires us to treat socially distant others as sons and daughters of God.

When tensions arise between religious and political communities, these have to be lived with.  In the words of Jon Gunnerman,

The liberal state … is illegitimate insofar as it insists on seeing my beliefs as my individual preferences rather than as public truth-claims about the world, truth-claims deeply embedded in a social tradition that gives those of us in it our primary identity and limits all other claims of authority.[lix]









[i] So, following Hegel, Tod Lindberg, “Neoconservatism’s Liberal Legacy,” in Peter Berkowitz, ed., Varieties of Conservatism in America (Stanford, Calif.:  Hoover Institution Press, 2004), chap. 6, esp. p. 136.  Lindberg seems to represent the views of Francis Fukuyama, minus the absurd suggestion that history has in fact ended.

[ii] See Schmitt, Political Theology, trans. George Schwab (Cambridge, Mass.:  M.I.T. Press, 1985), esp. chap. 3.

[iii] The problem of lustrace (purification) in the post-Communist world raises such issues; see Tina Rosenberg, The Haunted Land (New York:  Random House, 1995).

[iv] I make this point at length, but not sharply enough, in  “Capital Punishment and the Sanctity of Life,” Midwest Studies in Philosophy 24 (2000):  228-242.

[v] Citations to book and chapter are to Augustine’s City of God.  The portions of this book of greatest importance for political theory are excerpted in Political Writings, trans. Michael Tkacz and Douglas Kries, eds. Ernest L. Fortin and Douglas Kries (Indianapolis:  Hackett, 1993), pp. 3-201. I have also used the selection from Augustine’s political writings in Oliver O’Donovan and Joan Lockwood O’Donovan, eds., From Irenaeus to Grotius:  A Sourcebook in Christian Political Thought (Grand Rapids, Mich.:  William B. Eerdmans, 1999), pp. 104-16.

[vi] See the extracts from his writings in O’Donovan and O’Donovan, Irenaeus, pp. 467-481.  A good summary of his thought is Anthony Kenny, Wycliff (Oxford:  Oxford University Press, 1985).

[vii] Discourses, Bk. I, chap. 9.

[viii] In support of a proposed law banning religious symbols and clothing in state schools and hospitals, President Jacques Chirac of France observed, “Secularity is one of the republic’s great achievements.  It plays a crucial role in social harmony and national cohesion.  We must not allow it to be weakened.” accessed 30 December 2003.

[ix] See Joseph Charles Heim, “The Demise of the Confessional State and the Rise of the Idea of a Legitimate Minority,” Nomos 32 (1990):  11-23.

[x] For a forceful argument to this effect, see John E. Coons, “Populism and Parental Choice,” First Things no. 107 (November 2000).

[xi] Ronald Reagan introduced the slogans evil Empire and focus of evil in an address to the National Association of Evangelicals.  He moved from the unquestionable premise that there is sin and evil in the world to the conclusion that the Soviet Union was its sole locus or source, or at least the only one that mattered.  Cited in Patrick Lee, Against the Protestant Gnostics (New York:  Oxford University Press, 1987), pp. 207-08.

[xii] Weigel, “Five Theses for a Pacifist Reformation,” in Michael Cromatie, ed., Peace Betrayed?  Essays on Pacifism and Politics (Washington, D.C.:  Ethics and Public Philosophy Center, 1990), p. 74.

[xiii] Neuhaus, “Calling a Halt to Retreat,” in Peter L. Berger and Richard John Neuhaus, eds., Against the World For the World (New York:  Seabury Press, 1976), p. 154.  The whole book is invaluable.

[xiv] Speech at National Prayer and Remembrance Ceremony, National Cathedral, 14 September 2001.  In Bush, We Will Prevail, National Review ed. (New York:  Continuum, 2003), p. 6 – a selection of his speeches emphasizing the messianic side of his rhetoric.

[xv] See his speech at the Islamic Center, Washington, D.C., 17 September 2001 in ibid.; for a secular writer sympathetic to a Christian jihad against Islam, see Joshua Green, “God’s Foreign Policy,” Washington Monthly 22 no. 11 (November 2001): 26-33.

[xvi] See Bush, Speech Unveiling “Most Wanted” Terrorist List, FBI Headquarters, Washington, D.C., 10 October 2001, Prevail, p. 39; State of the Union Address, 29 January 2002, ibid., p.112.

[xvii] Singer, The President of Good and Evil (New York:  Dutton, 2002). 

[xviii] Frum and Perle, Ridding the World of Evil (New York:  Random House, 2003), p. 278 and 277. 

[xix] Bush, Speech at the Ford Community and Performing Arts Center, 28 April 2003, Prevail, p. 253.

[xx] My argument converges somewhat with Singer, President, esp. chap. 10. 

[xxi] Washington has contemplated ‘death squads’ as a ‘solution’ to insurgency in Iraq.  See Michael Hirsch and John Berry, “The Salvador Option,” Newsweek, Web Exclusive (14 January 2005), http://mnsbc.msn/com/id/6802629/site/newsweek/, accessed 27 January 2005.  In gauging the likely consequences of such policies, recall that the C.I. A. armed and trained Osama bin Laden., accessed 27 January 2005.

[xxii] For discussion of this episode, see “Infinite Justice, out — Enduring Freedom, in,” BBC News (25 September 2001); Matt Bivens, “Pentagon PR in Search of Perfect Name,” The Moscow Times.Com (24 September 2001); Arundhati Roy, “The Algebra of Infinite Justice,” Guardian Unlimited (29 September 2001).

[xxiii] See Louis Pojman, “On Equal Human Worth,” in Pojman and Robert Westmoreland, eds., Equality: Selected Readings (New York:  Oxford University Press, 1997), chap. 28.

[xxiv] Nielsen, “Radical Welfare Egalitarianism,” excerpted from his Equality and Liberty (Totowa, N.J.:  Rowman and Allenheld, 1985), in Pojman and Westmoreland, eds., Equality, chap. 21, esp. p. 216.

[xxv] See, for example, Frederic C. Crews, “Saving Us from Darwin,” New York Review of Books (4 October and 18 October 2001) – complaining of the “tactful sophistries” of those evolutionary biologists who try to avoid conflict with traditional religion and morality.

[xxvi] Fletcher, “In God’s Image:  The Religious Imperative of Equality Under Law,” Columbia Law Review 99 (1999): 1608-09.  Fletcher cites Joseph Raz and Peter Westen as maintaining the emptiness of the idea of human equality.

[xxvii]Pinker, The Blank Slate (New York:  Viking, 2002), p. 340.

[xxviii] Homer, Odyssey, Bk. XVII, lines 373-75, trans. Robert Fitzgerald.   In my Human Diversity and the Culture Wars (Westport, Conn.:  Praeger, 1996), p. 68, I used this quotation to make an egalitarian point; I now find this appeal self-undermining.

[xxix] Geach, Truth and Love (Notre Dame:  Notre Dame University Press, 2001), p. 18.  I am indebted to Craig Paterson for this reference.

[xxx] Joseph LaPorte, Natural Kinds and Conceptual Change (Cambridge:  Cambridge University Press, 2004), makes a good start, but his views are paradoxical on points bearing on the status of human beings.

[xxxi] Posner, “Against Constitutional Theory,” in Norman Dorsen, ed., The Unpredictable Constitution (New York:  New York University Press, 2002), p. 203.

[xxxii] 60 U.S. 393, 550 (1856) (dissenting).

[xxxiii] For reasons for this judgment, see Marc C. Murphy, “Pro-Choice and Presumption,” Faith and Philosophy 20, no. 2 (April 2003):  240-242.  Murphy is responding to Kenneth Einar Himma, “No Harm, No Foul,” Faith and Philosophy 19 (2002):  172-94.  Himma replies to Murphy in  “Harm, Sharm, and One Extremely Creepy Argument,” Faith and Philosophy 21, no. 2 (April 2004):  250-55.  This discussion is officially about abortion, but could equally well apply to infanticide.

[xxxiv]See Jeremy Waldron, God, Locke, and Equality (Cambridge: Cambridge University Press, 2002), esp. chaps. 3 and 4. 

[xxxv] Ibid., chap. 8.

[xxxvi] For Locke on children, see ibid., pp. 110-14.

[xxxvii] See ibid., pp. 142-50.

[xxxviii] Fletcher, “Image,” p. 1619. 

[xxxix]Coons and Brennan, By Nature Equal (Princeton:  Princeton University Press, 1999), p. 13; see further chaps. 2 and 3.

[xl] The reference is to the Congregatio de auxillis (1598-1697), establishing peace between Dominicans and Jesuits.  Alster McGrath, Iustitia Dei (Cambridge:  Cambridge University Press, 1986), vol. 2, p. 95.  For the debate in Europe, see Leszek Kolakowski, God Owes Us Nothing (Chicago:  University of Chicago Press, 1995), esp. the Preface and Pt. I. 

[xli] For the debate in America, see E. Brooks Holifield, Theology in America (New Haven:  Yale University Press, 2003), esp. Pts. 1 and 2.

[xlii] Lutherans and Catholics have arrived at a large measure of agreement on issues that once bitterly divided the Western Church.  See the statement, “Justification by Faith” (30 September 1983), reprinted in Joseph A. Burgess and Br.  Jeffrey Gros, F.S.C., eds., Building Unity (New York:  Paulist, 1989), pp. 217-90.  See especially ¶ 157:  “Our entire hope of justification and salvation rests upon Christ Jesus and on the gospel; we do not place our trust in anything but God’s promise and saving work in Christ” (in italics).

[xliii]For a compatibilist account, see Lynne Rudder Baker, “Why Christians Should Not be Libertarians,” Faith and Philosophy 20, no. 4 (October, 2003).

[xliv] Kerr, After Aquinas (Malden, Mass.:  Blackwell, 2002), p. 46; see generally chaps. 8 and 9.

[xlv] Coons and Brennan, Equal, esp. p. 3.

[xlvi] Fletcher, “Image,” p. 1624.

[xlvii] Ibid. pp. 1624-1627; note Fletcher’s use of the doctrine of impunidad to open social structures to scrutiny.

[xlviii]Caged Pygmies were exhibited at the 1904 World’s Fair in St. Louis.  Karl Evanzz, The Messenger:  The Rise and Fall of Elijah Muhammad (New York:  Pantheon, 1999), pp. 24-25.

[xlix]On the theological background, see McGrath, Iustitia, vol. 1, pp.126-27.  On the covenant in America, see Holifield, Theology, pp. 39-42.

[l] For Europe, see McGrath, Iustitia, vol. 2, pp. 40-44; for America, see Perry Miller, The New England Mind, vol. 1 (Boston:  Beacon Press, 1961), chap. 1 and Bk. IV.

[li] John Knox (1505-72), the anonymous Vindiciae, contra Tyrannos (1571), and in a more moderate vein Johannes Althusius (1557-1638), applied the concept of a covenant to the affairs of Christendom.  The doctrines of Francisco Suárez (1548-1641) also influenced my understanding of covenants, though he does not use such language.  On the Old Testament background, see Walther Eichrordt, Theology of the Old Testament, 6th edition, trans. John Baker (London:  SCM Press, 1961), vol. 1, esp. chap. 2.

[lii]I here find myself in limited agreement with Richard Rorty, Achieving our Country (Cambridge, Mass.:  Harvard University Press, 1998).

[liii]Knox, On Rebellion, Roger A. Mason ed. (Cambridge:  Cambridge University Press, 1994), p. 100; cf. p. 102.  On Knox’s political thought, see Michael Walzer, The Revolution of the Saints (New York: Anethaeum, 1992), pp. 92-110.

[liv]For an overview of the phenomena, see Robert D. Putnam, Bowling Alone (New York:  Simon and Schuster, 2004), chap. 4.

[lv] Visions of the Risen Christ did not cease with the Apostles, but the Christian Church has been reluctant to make much of such experiences, perhaps because they threaten to provide a source of authority independent of the Church itself.  See Philip E. Wiebe, Visions of Jesus (New York:  Oxford University Press, 1997).

[lvi] See Immanuel Kant, Critique of Judgment, trans. J. H. Bernard (New York:  Hafner, 1951), §§ 25 and 26.  For commentary see Henry E. Allison, Kant’s Theory of Taste (Cambridge:  Cambridge University Press, 2001), pp. 322ff.  Discussions with Paul Bruno have improved my understanding of the sublime.

[lvii] On the relationship between the sublime and the moral law, see Kant, Judgment, §§ 27 and 28.  Allison insists that Kant finds “a significant identity, not analogy, between the feeling of the sublime and the moral feeling as described in the second Critique” (Taste, p. 324).

[lviii] Rilke, “Archaic Torso of Apollo,” trans. Stephen Mitchell.  Found in Maynard Mack et al., eds., The Norton Anthology of World Masterpieces, 6th edition (New York:  Norton, 1992), vol. 2, p. 1615.

[lix] Gunnerman, “A Theological Defense of the Brute” (unpublished).  Quoted in William A. Galston, Liberal Purposes (Cambridge:  Cambridge University Press, 1991), and p. 117.

WE (chap 10)

November 22, 2009


Religion and the Human Community






 At least in the United States, the battle for the recognition of the political importance of religion has been won.  It is unrealistic to expect assertively Christian groups to stay in the closet, while every other group continues to push themselves out of it.  At least four different (though overlapping) arguments still go on.[i]

  1. Some parties to contemporary debates make religious arguments, and others dismiss them as attempts to ‘impose their values’ on the other members of society.
  2. Even if religious arguments are not excluded a priori, they may seem alien intrusions into a secular political debate. 
  3. Divisions within communities of faith reflect and reinforce other social and political divisions.
  4. People who take their religion seriously approach political issues differently because their faiths and traditions differ.            



Many people, including those secular philosophers find it hard to repudiate, have let their religious beliefs shape their public life.  Socrates firmly held views that, though they may have been tested by rational arguments, did not derive from them,[ii] and Martin Luther King and the abolitionists did the same.  I here assume that some forms of relatively traditional Jewish and Christian faith are rational in the sense that we cannot dismiss their advocates as delusional, even if we should disagree with them.  I shall likewise assume that atheists are sometimes rational (and the same is true of Buddhists, Muslims, and so on).  I leave open the possibility that some views of the world, e.g., voodoo, are irrational, to a degree that excludes them from dialogue from the outset.      

The public reason project is one member of a family of strategies of bringing order into contemporary discourse by ruling some positions off the table.  It is an attempt to find common ground among people who not only have clashing material interests, but also disagree about many normative issues, including ones that go all the way down.  It is an attempt to fashion a moral and intellectual We where one is evidently lacking, and to do so without appeals to the shared sentiments which are important to the cohesion of actually existing communities, and without requiring conversion of any party.  The project is also bound to a particular society:  public reason for America is not public reason for Japan, and the project of founding a worldwide public reason is daunting.

The principles of public reason are premises rather than conclusions.  Prima facie, they are those principles that meet the following criteria:

  1. Virtually all members of the society accept them.
  2. Neither the person invoking the principle, nor those people who to whom they are addressed, know them to be false.
  3. Some members of the society hold them after rational reflection, though their acceptance need not be rationally compelled.






The first place to look for such principles is the law.  In American political culture, questions of constitutional jurisprudence have a more than legal role, since questioning the Constitution itself, as opposed to its current interpretation, is widely regarded as not just as unpatriotic, but also as sacrilegious.[iii]  Here are some candidates for common principles:[iv] 

  1. The Constitution is an authoritative written document, drafted in 1787 and ratified in 1789, amended by the Bill of Rights and the Reconstruction Amendments.
  2. The Supreme Court is in charge of enforcing the Constitution.  Its job is to follow the law, not to bow to public opinion or to implement the personal beliefs of the judges. 
  3. Under the Constitution, the federal government has the power to legislate on a broad range of subjects, including the health and the environment, workplace conditions and discrimination, drugs, and organized crime.
  4. It is unconstitutional for either the federal or state governments to engage in racial segregation or deliberately to discriminate against women or racial or ethnic minorities.[v]
  5. It would violate the Constitution for the government to assign spouses to people or to regulate their family size, to require them to get abortions, to deprive them of custody of their children arbitrarily, or to force them to submit to sterilization.
  6. The United States is or attempts to be a democracy – a government “of the people, by the people, and for the people.”
  7.  Central to the working of such a democracy is our right to defend beliefs out of favor in Washington, and to be free of arbitrary governmental interference (including snooping).

There are tensions between the Originalism of propositions 1 and 2, and the willingness, expressed in propositions 3 and 4, to go beyond the historically ascertainable intentions of the Framers.[vi]  Moreover, all these propositions represent only the secular and procedural side of the American mind.  I now turn to theories intended to resolve cases that engender persistent controversy among people who accept these axioms.

We may distinguish between Originalist constitutional doctrines, which look backward to the Founding, and Aspirationalist doctrines, which look to an ideal future. The Originalism of Robert Bork is no longer on the table.[vii]  For we are constantly moving away from the sort of world in which the Framers lived, and to which they expected the laws they wrote to be applied.  Moreover, Madison’s Republic collapsed in a bloody civil war.  If, however, we are bound, not to the intentions, but to the principles, of the Founding Fathers, and if these principles are not just appropriate for a particular society, but also timelessly true, then we have transformed Originalism into a species of natural-law jurisprudence.

An Aspirational approach to constitutional jurisprudence requires shared aspirations rooted in the common understanding of Americans.  Though a degree of partisanship in constitutional adjudication is inevitable, this partisanship now reaches all the way down, and affects every attempt at rational reconstruction of legal reasoning.  For liberty and equality, when pressed as Aspirational doctrines invite us to do, conflict more and more deeply.  If we articulate supra-conventional principles to defend our judgment on such conflicts, then we are back in the domain of natural law.

Believers in a form of natural law wrote the American Constitution, at least through the Fifteenth Amendment, and the constituencies for which they wrote it believed in this sort of natural law as well.  Yet the natural-law tradition is unacceptable to most defenders of secular public reason, even when it does not take an explicitly theological form.  And it is people for whom natural law is a dirty word who administer our constitution, even when they are professing Jews or Christians.  On the other hand, the ‘soft’ relativism sometimes adopted by the Supreme Court– that controversial moral premises may not serve as bases for political action – collapses.[viii]  This principle bars controversial moral judgments by legislatures and electorates, especially when such judgments bear the impress of religion.  But, since this principle is itself morally controversial, it self-destructs.   

I here consider the conflict between two writers who, though they hardly discuss one another, can be taken as antipodes[ix] — Hadley Arkes and John Rawls.[x]  In between I will look at the openly natural law views of Robert George.





Arkes is the leading advocate of principles of natural right inherited from early America, reaffirmed by Abraham Lincoln (NR 3), and applied in Brown v. Board of Education (NR 80-81).  The Founders, he points out, believed in moral principles transcending convention.  Hence fidelity to the Framers’ outlook in legal interpretation requires appeal to principles outside their intentions.  For this reason, “The judges … exercise a franchise to appeal beyond the text of the Constitution, to those canons of moral reasoning that guided the Founders themselves when they set out to frame a new government.”[xi]  His strongest argument for these conclusions is that “to speak of the American regime [constitutional order] in any coherent way, one must be led back to the notion of natural rights” (NR 288).  In Arkes’ understanding, Kant’s view of moral requirements as categorical precludes any clear limits on their enforcement by the criminal law, as well as placing limits on the amount of law we may have (FT 27-29).  (He does not quite say that all or only the requirements of morality must be legally enforced [see FT 28n.23].) So far Arkes’ argument is consistent with holding that there are no natural rights, or that the real natural rights are different from what the American Founders supposed.  

 In any event, there is no place in his theory for recognizing conscientious objection to wars the majority believes just (FT chap. 9), nor for a principle of nonintervention in the domestic affairs of other nations (FT chap. 12), nor for serious political decentralization,[xii] nor for constraints on intervention in foreign countries (FT 273).  But Arkes is no New Dealer:  he has proposed “the return of George Sutherland” — one of the leaders of judicial resistance to the New Deal.[xiii]  

 Arkes is acutely conscious of the fact that law is often used to enforce other people’s morality.[xiv]   He thus faces the two-sided problem:  on the one hand, he needs to avoid feeding unwelcome forms of judicial activism; on the other hand, he needs to make sure that natural-law judgments favor his political friends.  He has joined protests against judicial ‘tyranny,’ but his protest rests on a belief that contemporary judicial activism is based on false moral premises rather than to the judicial imposition of moral premises as such. [xv] 

Arkes’ arguments are those of an agile lawyer.  For example, he points out anomalies, as when he cites Justice Scalia’s observation that, under laws protecting gay rights, an interviewer may refuse to offer a job on any ground other than sexual orientation, however trivial (NR 256 n.21).[xvi]   But these arguments require some principle telling us how to resolve the tensions they disclose.  “The canons of propositional logic” (NR 36) and the trans-cultural standing of the Pythagorean theorem (NR 46) do not settle any question of substantive morals or normative politics:  slavery and sodomy are legitimate is not self-contradictory in the way 1+1=3 is. 

Hence we face the question, whether we should follow the Framers’ views on natural law because they are true, or because they were the Framers’ views?  For Madison and his colleagues cannot be taken as final authorities on questions of natural law.  Natural-law theories developed without reliance on the authority of the Founders, or an attempt replicate their outlook, might not conform either to the Democratic or the Republican agenda.  Arkes hints at a Conservative Relativist resolution when he writes, with a citation to Leo Strauss, “the notion of a ‘political regime’ extends beyond the formal institutions of the country to the ethic that pervades the life of the community.  What we are seeing, in the movement for gay rights, is a movement that is promising to alter the political regime itself” (NR 157).  Yet unlike stock Conservative Relativists, Arkes has an imperious sense of justice.[xvii] 

I understand Arkes to be advocating pure jurisprudential moralism, i.e., the view that the aim of our law should be to enforce (correct) moral judgments so far as politically possible.[xviii]  If so, Arkes’ political philosophy is one of the oldest in the world.  My friends and I are the elect of God (or History); those who stand in our way are criminals. If we do not assert ourselves to the maximum extent possible, our enemies will.  His moral and political premises, and consequently also his jurisprudential views, rest, so far as I can see, on his own intuitions and those of people whom he regards, in Cicero’s phrase, as “the good guys” (boni).  As he interprets and applies the philosophy of Cicero, for example, the right to foreclose a mortgage (which may not yield to conditions of emergency) is superior to the right to personal liberty protected by habeas corpus (which may).[xix] 

In the contemporary context, Arkes’ views are unabashedly partisan (see, e.g., NR 182-83, 155).  We and They are the central categories of his political philosophy.  The issue is whether it is possible for anyone else to do better than a social philosophy that entails endless war;[xx] for everyone begins with his own moral intuitions and those of people whose judgments he has reason to take seriously.




Robert George’s views on the relationship between natural law and human law are ambivalent and unstable, even within the same book.   Sometimes he takes a strong natural-law line.  In an essay written in 1996 (CO chap. 7)[xxi] when he believed the judicial legalization of assisted suicide to be imminent, he invoked against Scalia’s democratic Legal Positivism the revolutionary claim that “laws which authorize and promote abortion and euthanasia . . . are completely lacking in juridical validity” (CO 131, from John Paul II, Evangelium Vitae ).  In a subsequent essay, however, George indicated that he “would have applauded a decision by the Supreme Court invalidating an act of Congress or  . . . acts of state legislatures to deprive the unborn of legal protection against abortion” (in technical terms that the fetus was a person under the Fourteenth Amendment), but stopped short of maintaining that the Constitution mandates such a result (CO chap 8; quotation 144, but see CO 146).

Strikingly, George rejects the generally uncontroversial case of Griswold v. Connecticut,[xxii] defending the right of married couples to use contraception, not on the ground it embodies the wrong sort of natural law, but for democratic-positivistic reasons derived from Justice Hugo Black(CO chap.10, esp.183-209).[xxiii]  James Fleming concludes that George’s jurisprudential arguments are political “not  … in a crude or pejorative sense, but in the sense that his position reflects political judgments about what institutions are most likely to realize his particular conservative conception of natural law” (in CO 344-45 n.57) – and I am not sure whether George agrees or disagrees with this assessment (contrast CO 179 with CO 201).  George, in any case, realizes that there is no prospect of getting his Conservative Roman Catholicism sufficiently accepted within American society to form a foundation for constitutional law.  For the prospect of universal or near-universal conversion to this or any other rich comprehensive view is utopian.  





Rawls is looking for a doctrine of public reason independent of philosophical, religious, and customary understandings of human nature and flourishing.  He excludes even the ‘civil religion’ of America, which he accepts it in some form.[xxiv]  Though not a moral skeptic, he believes that liberal principles of political justice will (or can come to) receive wider and firmer assent than, say, religious doctrines or principles of sexual morality.  As he himself puts it, “the conditions embodied in the description of the original position are ones we do in fact accept.  Or, if we do so, then perhaps we can be persuaded to do so by philosophical reflection.”[xxv] 

Heidi M. Hurd brings out the strangeness of Rawls’s project:

The philosophical magic required is obvious:  to obtain a basis of agreement among persons who ex hypothesi cannot agree, and to persuade persons to cooperate with one another by endorsing a political doctrine that does not affirm the religious, philosophical, or moral conceptions that make them who they are and give their life meaning.  In short, Rawls must levitate his liberalism to a purely political plane.  And to do this is seemingly to do the impossible, for it is to obtain long-term stability by divorcing the right from any particular conception of the good when it is their conceptions of the good that motivate citizens to do the right.[xxvi]

As Hurd points out, there is no possible audience to which the arguments of Political Liberalism are both relevant and necessary.[xxvii]  Those who disagree with Rawls on fundamental issues will not be convinced; those who agree will not require convincing.

Rawls maintains that it is reasonable for someone to endorse a comprehensive doctrine only if the doctrine is justified on the basis of principles he or she accepts (PL 49, 60).[xxviii]  But his theory requires him to make an exception for his own doctrines, since he asks his readers to forget their most important beliefs when discussing issues of justice.  Self-privileging of this sort is implicit in the very idea of a freestanding doctrine of public reason, even in a form other than Rawls’, since such a doctrine rejects theories held by philosophers and theologians who assert the unity of practical rationality.[xxix]    Such persons will never accept Rawls’s doctrine or any other doctrine that requires them to compartmentalize their minds. 

Defenders of secular public reason respond in six ways.  First, they insist that it is to be limited to constitutional essentials or, what is not the same thing, to basic justice.  Second, they point out that many forms of political discussion fall outside the constraints of public reason.  Third, they widen the forms of acceptable public discourse to lessen the strains of commitment on the part of citizens of faith and other adherents of comprehensive doctrines.  Fourth, they invoke public reason to govern only arguments concerning the use of governmental coercion.  Fifth, they forsake any effort to give the doctrine teeth.  And, finally, they retreat to the public reason project itself, without committing themselves to any of Rawls’s formulations.



Rawls Mitigated


a. Limitation to Constitutional Essentials (see PL Preface to the paperback edition [1996])[xxx]  

Rawls is not helpful on the question of what issues engage the strictures of public reason, observing:  “These things are a complex story; I merely hint at what is meant” (PL Lect. IV § 5; quotation 228).  Moreover, basic justice and constitutional essentials are not the same:  during the American Civil War the preservation of the Union was in Lincoln’s view a constitutional essential, and the abolition of slavery a matter of basic justice.  In practice, whether something is a constitutional essential or a matter of basic justice is a political issue in its own right, in the first case roughly corresponding to whether it poses a case of sufficient importance to require adjudication by the Supreme Court.  When such things as the hiring policies of the Boy Scouts get defined as a matter of constitutional essentials, then religious and moral convictions get screened out at every stage of public debate.[xxxi]

 The issue of what counts as basic justice becomes most acute when we deal with family issues.[xxxii]  Rawls himself would defend neither taking children away from Hasidic parents to make sure they grow up as good Liberals, nor allowing parents to treat their children as domestic animals.  But he has no place in his thought for standards of justice tied to the family as a unique form of community rather than a voluntary association within the state.  He thus leaves the question of familial justice irresolvable.[xxxiii]


b. Widening the Scope of Public Reason

Rawls writes:

Reasonable comprehensive doctrines, religious or nonreligious, may be introduced in public political discourse at any time, provided that in due course proper political reasons – and not reasons given solely by comprehensive doctrine – are presented that are sufficient to support whatever the comprehensive doctrines are said to support.[xxxiv]

Adherents of some comprehensive doctrines may thus issue a promissory note, to be cashed in terms of secular reasons at some unspecified date.  If such a stipulation is to be workable, it requires a screening mechanism that allows indulgences for some political actors and denies them to others.  Paul Weithman provides a possible rationale for special privileges when he notices that “the status of participant is unequally enjoyed,” and suggests that citizens should be allowed to “participate in public deliberation . . . in ways that will secure them a hearing in the face of entrenched power [and to that end] . . . appeal to comprehensive doctrines.”[xxxv]  But people who take religion seriously in their lives as citizens now see themselves as excluded from full civic participation as much as any other aggrieved group.  Many of them are also disadvantaged by other criteria.




c. Only Coercion

Stephen Macedo emphasizes that public reason is intended only to limit justifications for the use of governmental coercion.[xxxvi]  But, whatever side we take on political issues, we end up coercing someone.  Macedo, for example, invokes public reason to support laws requiring unwilling employers and landlords to associate with open homosexuals.[xxxvii]  And the use of Rawlsian doctrines to veto traditional legislation on homicide coerces those who do not want to live in a world in which assisted suicide is widely and openly practiced.[xxxviii]


d.  Defining the Forum

Rawls has never said that all discussion of political issues must observe the constraints of public reason.  At one point he defines the ‘public political forum’ as follows:

[It] may be divided into three parts:  the discourse of judges and their decisions, and especially the judges of the supreme court; the discourse of government officials, especially of chief executives and legislators; and finally, the discourse of candidates for public office and their campaign managers, especially in their public oratory, party platforms, and political statements.[xxxix]

 Basic justice extends also to voting where the issue is constitutionally important (PL 215). 

Rawls contrasts with public forums the background culture, which includes churches and universities among other things (PL 14; see also 215).  In these institutions we can discuss issues taken off the political agenda (PL 151-52n.16), and invoke ‘nonpublic reasons’ (which are, though not political, still public in the sense of social) (PL 220).  In these institutions we can also insist on tighter standards of reasonableness than are acceptable in politics (PL 60n.13).  But the line between public and private cannot be made so sharply.  In actual social life it is defined by a complex set of conventions):  for example, I am expected to ignore what I hear in a neighbor’s apartment, short of overt violence, however disturbing and even degrading I may find it.   Moreover, as Peter C. Meilaender has pointed out, Rawls’ own paradigm of public reason – the United States Supreme Court (PL Lect. VI § 6 and p. 254) – has shown no interest in limiting public debate in any context.[xl] 

            Public culture also affects the background culture in ways Rawls’ theory fails adequately to take into account.  Rawls concedes that educating children in the doctrines of Political Liberalism might erode some elements of the background culture (PL 194n.28; Lect. V, § 6, ¶¶3-4).  In the absence of an adequate specification of the forum to which they apply, the demands of public reason will tend to expand, even to the point of requiring self-censorship in moral discussions within religious communities.[xli]  Adherents of the outlooks at risk, if they wish to be good citizens of a liberal state, may not respond by publicly affirming and arguing for the truth or reasonableness of their doctrines, or even for the value of their way of life (as groups like the Amish and the Shakers have done).  Rawls’s understanding of public reason also eschews any attempt to prove liberal principles right by arguments non-liberals might find convincing.[xlii]

Moreover, dividing discourse between a public forum subject to the constraints of public reason, and private forums where citizens are entitled to reason by whatever principles they may think true, has a destabilizing implication.  For people whose views are excluded by the canons of public reason will seek like-minded people and form cognitive enclaves.  And discourse among people who do not talk outside their own enclaves tends to more and more extreme positions, since they are exposed to arguments tending only in one direction.  Rawls’s understanding of public reason eschews any attempt to prove liberal principles right by arguments non-liberals might find convincing.[xliii] 


e. No Teeth

In Rawls’ understanding, “certain matters are taken off the political agenda once and for all” (PL 152n.16):  what then should Rawlsian Liberals do about people who persistently attempt to put them back on? [xliv]   In his own words, “a society may … contain unreasonable and irrational, and even mad, comprehensive doctrines.  In their case the problem is to contain them so that they do not undermine the unity and justice of society” (PL xvi-xvii).  (In another place he speaks of containing discordant doctrines “like war and disease” [PL 64n.19].)  The possibilities for coercion are accentuated, when, as is often the case, ‘illiberal’ moral views are damaging to the self-respect of those members of society unwilling or unable to live according to them (on the continued importance of self-respect in the later Rawls, see PL 106).  Rawls cannot argue with, but only endeavor to contain, people whose political principles, even if true and rationally held, “run afoul of the canons of public reason [because they] cannot support a reasonable balance of political values” (PL 243; see also 253). 

There is, to be sure, a distinction between unreasonably insisting on a comprehensive doctrine, and the unreasonableness of the comprehensive doctrine itself (though I am not sure that Rawls sees this point; PL 62n.17).  But Rawls’s own definition of a (fully) comprehensive doctrine undercuts any limitation of such doctrines to the background culture.  “A conception is fully comprehensive if it covers all recognized values and virtues within one rather precisely articulated system” (PL 13).  If Political Liberalism is the measure of reasonableness, then all fully comprehensive doctrines are unreasonable, since all will have political implications beyond what Political Liberalism allows.   

Professors, however much they might wish to do so, do not have the power to back up a demand that opponents “sit down and shut up” (as officials of the Johnson administration vainly told dissenters from its Vietnam War policy).  Rawls himself does not propose to suppress the expression of illiberal opinions (see PL Lect. VIII § 10, esp. 342ff.), but his argument leaves him with a range of views that he can neither suppress nor refute. 

In practice, teeth have to take the form of systematic judicial invalidation of statutes and policies the courts find to be prompted by constitutionally improper comprehensive doctrines.[xlv]   Philip Quinn, however, limits himself to moral suasion.[xlvi]  But, as Quinn acknowledges, acceptance of the constraints of public reason implies the dying out of some religious persuasions, [xlvii] and we can hardly expect believers to feel compunction about rejecting cultural and spiritual suicide. And, where moral survival is the issue, one of Macedo’s observations takes on a sinister cast:  “If some people feel ‘silenced’ or ‘marginalized’ by the fact that some of us believe that it is wrong to shape basic liberties on the basis of religious or metaphysical claims, I can only say, ‘grow up!’”[xlviii]


f. Public Reason as Such

We now must ask whether principles of public reason can exist in all background cultures, and if not which, and how their advocates might secure a rooting for them in those cultures in which they can exist.  If this not possible, then the whole notion is hopelessly parochial – or at best a new way of distinguishing friends and enemies. 

 In his reply to Habermas (PL Lect. IX, § 2), Rawls says three things that bear on the relationship between the public reason and the background culture — “the culture of the social, not the political” (PL 14; cf. 220).  First, “a political conception … [can] be embedded in various ways – or mapped, or inserted as a module – into the different doctrines citizens affirm” (PL 387; cf. Lect. I. §2 ¶2; Lect. IV, §3 ¶1).  But the same abstract doctrine will have different implications when inserted into a different background context.  In any case, Rawls requires a ‘reasonable’ background culture, i.e., one that contains only comprehensive doctrines into which Political Liberalism can be inserted.

Second, “the conception of political justice can no more be voted on than the axioms, principles, and rules of inference of mathematics or logic” (PL 388 n.22).  Though they are supposed to represent the will of the people, there is no institutional way of falsifying the claim that some elite has imposed them on the rest of us. 

Third, Rawls is no philosopher-king.  “Political liberalism does not use the concept of moral truth applied to its own political (always moral) judgments” (PL 394).   Not only does public reason not rest on a vote, it also does not rest on a claim of truth.    In practice, this means that the claims of public reason are sheltered against philosophical critique.

In short, Political Liberalism is an imposed ideology, limited only by the constraint that the people must somehow be brought to go along.  Rawls argues like the intellectual representative of an occupying power, trying to establish ‘modern’ institutions in a nation unused to it, or as the representative of an irresponsible elite, whose power is protected by professorial and judicial tenure against the disapproval of their fellow citizens.  It is, in short, the philosophy of a certain We, to be imposed by fair means or foul on those ‘rednecks’ who are unable or unwilling to accept it.

These observations are subject to Rawls’s constant ambivalence about who is among the We and who is among the They: he excludes Conservative Protestants from his conversation, includes Liberal Protestants and secularists, and waffles about Catholics.  When he discusses international affairs which sharply raise the questions of Muslims, Buddhists, and so forth, he envisages rich countries imposing their understanding of justice on poor ones, graciously allowing them to accept poverty as the price of maintaining a traditional way of life; in short his philosophy is an intellectual correlate of the World Trade Organization and the International Monetary Fund. [xlix]   

A doctrine of public reason that does not exclude some arguments, and in that sense marginalize their adherents, is trivial.  There are always divides across which no dialogue is possible.  Views that are ludicrous or worse sometimes win large numbers of adherents even among intellectuals – and when this happens the pressure to take such views seriously corrupts the consciousness even of those who resist.  If Political Liberalism were the only alternative to barbarism, we might have to accept it.  Rawls’ explanation of the fall of Weimar Germany is that German elites did not believe that just and well-ordered democratic society was possible, and thus did not support Weimar’s constitution or co-operate to make it work (PL lxi).  But I cannot imagine any faction in Weimar that would have been impressed by Rawls’ arguments.  The response of the Logical Positivists, who consigned Nazi views along with Social Democratic and Christian Democratic doctrines to the garbage can of cognitive meaninglessness, did not help matters.


Application to Contemporary Politics

 What views can be shrugged off, and what people are so fanatical or eccentric that we must marginalize them for the common good, and so weak that we can safely do so, is a matter not of philosophy, but of the politics of the Earthly City.[l]  (An example would be the exclusion of anti-democratic parties from the politics of the German Federal Republic, in light of the fate of Weimar.)  And the issue remains, how the various groups that compose a society can be kept sufficiently engaged with one another to make democratic politics (or even that of an aristocratic republic) possible. 

Massachusetts Liberals now exhibits a Bourbon-like confusion between their memories and their rights, and have concocted a self-congratulatory ideology to explain their defeats.  “Moral issues” such as abortion and same-sex marriage, on this view, result only from the cynical machinations of right wing ideologues, as if there could be propaganda without sentiments already present for the propagandist to manipulate.  The difficulty is getting people to take seriously the moral sentiments of those whom they regard as their social inferiors, at least for the purpose of political bargaining, at best in order to examine the possibility that these people might be right.  Similar obstacles exist across the spectrum to empathy with Islam, though some Conservatives have achieved it to an admirable degree.

 Though Rawls shows little interest in abortion as such,[li] the abortion issue turns out to be a crucial divide in the attempt to distinguish insiders from outsiders (Us from Them) in public discourse.  I here discuss, not the merits of the abortion issue itself (for this see chapter 12), but the attempt to take the abortion issue off the table. [lii]  I assume only that the fetus is a recognizable entity, concerning whose moral status it is possible to argue.

 Though Rawls at the end of his life found it “unclear” whether abortion law is a constitutional essential, both pro-life and pro-choice people so consider it.[liii]  And a common rhetorical employment of Rawlsian doctrines of public reason is to veto religiously motivated opposition to abortion.[liv]  Peter Steinfels, a Liberal Catholic, points out that “Catholic moral reasoning about abortion is no different, no more or less religious, no more or less secular, than Catholic moral reasoning about racial discrimination, the justice of warfare, capital punishment, or obligations to the poor.” [lv]  To dismiss Catholic or other religiously motivated arguments on one of these issues requires doing the same for all of them.  

What is special about abortion is the way it engages atavistic feelings about sex, reproduction, gender difference, and family life.  But the picture also includes the feelings of pro-choice feminists determined to protect the boundaries of their bodies against invasion.[lvi]  All sorts of political questions, however, summon up archetypes from the collective unconscious.  The United States has to have some sort of policy concerning the Middle East, however deep the atavistic feelings associated with Babylon and Jerusalem.  There should be no greater constraints on discussions of abortion than of any other public issue.



The questions of public reason considered here apply to ‘comprehensive doctrines,’ which may not be religious in the conventional sense (PL xvii-xix; see also 13).  The most resolutely secular comprehensive doctrine widely held among philosophers is utilitarianism, backed by a naturalistic worldview.  But utilitarianism invokes the authority of Jesus to defend universal altruism as a principle of conduct (on naturalistic premises it would be easier to limit altruism to kith and kin); and needs Christian influences in society to motivate adherence to this principle when it requires more than nominal sacrifices.[lvii]  And there are ample reasons to be nervous about the ideological Darwinism now prevalent in some secular intellectual circles.[lviii]

Slogans such as America is a free country are open to interpretation, and are most effective when expressed in pictorial rather than argumentative terms. Understandings of liberty and freedom now regarded as politically unacceptable are too frequent to be dismissed as hypocritical. [lix]  The same is true of All people are created equal: an equals sign begs a whole host of questions.  The slogan One nation under God, with the limitations on individual and collective liberty it implies, is no more (or less) viciously abstract or otherwise problematic than its rivals. 

Liberal democracy permits citizens to vote on all sorts of grounds, some of which (such as that a candidate is cute) are silly, and others self-interested:  the founding document of Liberal Secularism, the Religion Clauses of the First Amendment, were promoted by religious groups and supported by religious arguments.[lx]  Likewise, the core liberal commitment, that all persons are entitled to equal concern and respect, is often phrased in religious terms.  A communal prayer for peace, or for or the safety of our armed forces – or even a request that the congregation take the trouble to vote – has, potentially controversial, political implications.  Freedom of religion is not only the freedom to advocate religious (or irreligious) ideas; it is the freedom to form, sustain, participate in, and transmit, forms of community life.   

Believers and unbelievers still need to live together under common laws.  It does seem wrong for a pluralistic state directly to translate a specially revealed norm into a criminal law; e.g., to punish bestiality with death on the strength of Exodus 22:19 alone.  Nor should our politics rely on private visions such as those of Joan of Arc.  That a civil law corresponds to a biblical command is, however, nothing against it, else laws against bribery would be suspect (see Deuteronomy 16:19).[lxi]  There is no standpoint independent of competing religious and ideological claims; tolerance does not stand outside and above all of our other political and moral commitments.  For believers must – this must is logical – take their beliefs as decisive in political contexts as in all others.[lxii]  On the other hand, militancy does not stand outside and above our other commitments, either.

A prudent political advocate will make religious appeals sparingly, direct them as widely as possible, and accompany them with secular arguments wherever possible.  If I am arguing with a Southern Baptist about theological anti-Semitism, I should not appeal to the decrees of the Second Vatican Council.  Yet the consensual basis of American politics is brittle, especially if we set aside the ill-defined religious background that filled its formulas with taken-for-granted applications.  Even the question, Who has the right to have rights? now receives a multitude of incompatible answers.  

None of us accept the proposition that the proposition that the majority of the day (or more accurately the victorious faction) has the authority to do whatever it pleases to minorities and outsiders.   For each of us is member of a number of minorities, including a minority of one.  Even if we are prepared to sacrifice ourselves for our communities, a hostile government might attempt to destroy them, as the Federal Government once attempted to destroy the Mormons. 

The American Constitution is our most important bulwark against this proposition.  Yet if judges lack the intellectual and moral resources to make the needed judgments, however, they will inevitably bow to dominant opinion.  And American constitutional thought is now tending toward a might-makes-right philosophy.  Jeffrey Rosen is an advocate “bipartisan judicial restraint” (MDB xiii, 202).[lxiii]  He opposes “judicial unilaterialism,” i.e. “a court’s decision to strike down federal or state laws in the name of a constitutional principle that is being actively and intensely contested by a majority of the American people” (MDB 8).  And the best evidence that a principle is contested is the passage of laws that violate it.  Elected officials are surely better at interpreting the election returns, and the deliverances of George Gallup, than judges appointed for life, whose political survival does not so plainly depend on their getting the right answer.  (Consider the fact that no more than a significant minority accepts the death penalty for juveniles, but this minority becomes a majority when there is a specific murderer attached to the question [MDP 204].)  As Rosen makes clear, “avoiding judicial unilaterialism … the Court should defer to the national majority’s constitutional views, not its political views” (MDB 198).  Constitutional and policy issues are, however, seldom if ever separated in political debate, and the majority might be stampeded into accepting measures that do not cohere with its deeper constitutional convictions. 

Jurists of all schools formerly reprobated the Dred Scott decision (Conservative jurists are, after all, Republicans).  But Mark A. Graber defends it on the grounds that entrenchment of slavery might have prevented civil war.[lxiv]  So far as I can see, his argument implies that whatever the courts do is right by definition.  Mark Tushnet, formerly a theorist of judicial activism, proposes to place constitutional interpretation in the hands of the very authorities the constitutionality of whose actions is in question.[lxv]  Likewise, Sanford Levinson, also a former activist, now denounces the American Constitution on which his activist jurisprudence rested as un-democratic.[lxvi]  Levinson makes clear that his objections extend to the structure of the Constitution, not only to prevailing styles of interpretation that could be cured by appointing the right people to the Court.

One reason for the collapse of constitutional jurisprudence is the extraordinary measures taken against persons taken captive in the course of the “war against terrorism.”[lxvii]  Another is the need for Liberal jurists to defend Roe v. Wade and the licensed destruction of a powerless group – even one the status of whose members as persons is in question.[lxviii]  Meanwhile, we are protected from civil war by institutions that defer conflict into endless talk, by cynicism about political rhetoric, by a vaguely Christian and democratic background culture, by an acceptable level of prosperity, and by the hope that the next generation will do better.  An economy in which downward mobility is common undercuts many of our protections against tribal warfare. 




[i]I am indebted to Craig Patterson and Paul J. Weithman for discussion of issues concerning the public role of religion.

[ii] For detailed discussion, see Mark L. McPherran, The Religion of Socrates (University Park, Pennsylvania:  Pennsylvania State University Press, 1996), esp. chap. 4.  A more secular account is given in C.D.C. Reeve, Socrates in the Apology (Indianapolis:  Hackett, 1989), esp. sec. 1.10.  I do not need to decide between the two interpretations.

[iii] I owe this point to William Hudson.  The cult of the Constitution, including the Bill of Rights, dates only from the 1930s, having been prompted by fear of totalitarianism.  See David Hackett Fischer, Liberty and Freedom (Oxford:  Oxford University Press, 2005), pp. 502-510.

[iv]See Daniel A. Farber and Suzanna Sherry, Desperately Seeking Certainty (Chicago:  University of Chicago Press, 2002), pp. 2-3.  The last two principles, whose addition importantly affects the resulting argument, are mine.

[v] Robert Bork, for example, accepts the result though not the reasoning in Brown v. Board of Education. See The Tempting of America (New York:  Free Press, 1990), pp. 74-84.

[vi]An Originalist cannot comfortably either defend or reject Bolling v. Sharpe, 347 U.S. 497 (1954), manadating school desegregation in the District of Columbia.  The Court’s judgment required retrospective incorporation of the Fourteenth into the Fifth Amendment, which was written at a time when not only segregation also but slavery was unchallenged.  But to allow the District to discriminate, at a time when the Court could have foreseen massive resistance to its decrees by Southern states, would have been criminally imprudent.

[vii]Bork now evaluates Supreme Court decisions “not in terms of constitutional reasoning, but in terms of ideology and politics” – shifting responsibility to Liberal jurists for what a critic would regard as the insufficiencies of his theory.  “The Supreme Court 2000:  A Symposium,” First Things no. 106 (October 2000):  25.

[viii] Roe v. Wade, 410 U.S. 113, 160 (1973); Planned Parenthood v. Casey, 112 S. Ct. 2791, 2807 (1992) (plurality opinion) (the ‘mystery’ passage).  The Court seems to be moving away from relativism, soft or other; see its observations in United States v. Playboy Entertainment Group, 529 U.S. 803, 818; and the commentary in John Fee, “Speech Discrimination,” Boston University Law Review 85 (October 2005), esp. pp. 1116-1121.

[ix] Arkes questionably attributes soft relativism to Rawls.  Arkes, Natural Rights and the Right to Choose (Cambridge:  Cambridge University Press, 2004) (= NR), p. 48  & n. 23.  But Rawls’ rejection of skepticism extends to relativism as well; see Rawls, Political Liberalism (New York:  Columbia University Press, 1993; paperback edition, 1996) (=PL), pp. 62-63.  Views like Arkes’ seem to be the target of Rawls’ insistence that “politics in a democracy can never be guided by what we see as the whole truth” (PL 243).

[x] Rawls does not represent the far left of the jurisprudential profession.  But Laurence Tribe is overtly relativistic, relying on convictions “powerfully held,” I gather among himself and his friends.  See his Constitutional Choices (Cambridge, Mass.:  Harvard University Press, 1985), pp. 5-8.  The rest of the jurisprudential left can give only opportunistic reasons for making its arguments to the judges rather than the public at large. 

[xi]See Arkes, Beyond the Constitution (Princeton: Princeton University Press, 1990), chap. 3 (quotation, p. 23).

[xii] Ibid., p. 214.

[xiii] See his book of that title (Princeton:  Princeton University Press, 1994).

[xiv] See Arkes “Homosexuality and the Law,” in Christopher Wolfe, ed., Homosexuality and American Public Life (Dallas:  Spence Publishing, 1999), p. 159.

[xv] See his contribution to the First Things symposium, “The End of Democracy?”  (November 1996), revisited in NR chap. 6.

[xvi] Citing Romer v. Evans, 517 U.S. 620, 652-52  (1996) (dissent).

[xvii] For a vigorous statement see Arkes, “Homosexuality,” p. 176.

[xviii] Sanford Levinson has taken a view very similar to Arkes’, though ‘from the left.’  See Levinson, “What Do Lawyers Know (and What Do They Do with Their Knowledge)?” Southern California Law Review 58, no. 2 (January 1985); and more fully his Constitutional Faith (Princeton:  Princeton University Press, 1988).  He has since changed his views.

[xix] See Arkes, “That ‘Nature has Placed in Our Ears a Power of Judging’:  Some Reflections on the ‘Naturalism’ of Cicero,” in Robert George, ed., Natural Law Theory (Oxford:  Clarendon Press, 1994), chap. 9.

[xx]For an argument that ideological war is inescapable, see Stanley Fish, “Mission Impossible: Settling the Just Bounds Between Church and State,” Columbia Law Review 97, no. 8 (December 1997):  2255-2333.  Note also his controversy with Richard John Neuhaus, “Why We Can/Can’t Get Along,” First Things no. 60 (February 1996), 18ff.   On the argument that as a relativist, Fish cannot condemn terrorism (or have moral and political convictions of any sort), see his “Don’t Blame Relativism,” The Responsive Community 12, no. 3 (summer 2002), and discussion following.

[xxi]CO =Robert P. George, The Clash of Orthodoxies:  Law, Religion, and Morality in Crisis  (Wilmington, Delaware: ISI, 2001).

[xxii] 381 U.S. 479 (1965).

[xxiii] Arkes treats Griswold as the beginning of the slippery slope to Roe and beyond (NR 26, 74, 147).  What he would say if the Court had stopped there I do not know.

[xxiv] Rawls, A Theory of Justice (Cambridge, Mass.:  Harvard University Press, 1971), pp. 3, 587, framing the argument with professions of faith that do not enter explicitly into it.

[xxv] Ibid., p. 21.  

[xxvi] Hurd, “The Levitation of Liberalism,” Yale Law Journal 105 (December 1995):  799. 

[xxvii]Ibid., pp. 805ff.

[xxviii] As paraphrased in Thomas Christiano, “Is There any Basis for Rawls’s Duty of Civility?” Modern Schoolman 78, nos. 2 & 3 (January-March 2001).  PL  = Rawls, Political Liberalism, paperback edition (New York:  Columbia University Press, 1996).

[xxix] I owe this point to John Haldane, “The Individual, the State, and the Common Good,” Social Philosophy & Policy 13, no. 1 (1996):  65.

[xxx]Also Rawls, “The Idea of Public Reason Revisited,” University of Chicago Law Review, 64, no. 3 (summer 1997):  785-802.

[xxxi] See Justice Stevens’ dissent in Boy Scouts v. Dale, 530 U.S. 640 (2000).

[xxxii] Susan Moller Okin presses this issue in Justice, Gender, and the Family (New York:  Basic Books, 1989).   For a detailed critique of Okin, and of Rawls’ response to her, see Celia Wolf-Devine, “The Hegemonic Liberalism of Susan Moller Okin,” in Christopher Wolfe, ed., Liberalism at the Crossroads, 2nd edition (Lanham, Maryland:  Rowman and Littlefield, 2003), chap. 3.    

[xxxiii] For detailed argument, see Wolf-Devine, “Rawlsian and Feminist Critiques of the Traditional Family,” in Wolfe, ed., The Family, Civil Society, and the State (Lanham, Maryland:  Rowman and Littlefield, 1998), chap. 6, esp. pp. 55-57, 52-64.

[xxxiv]Rawls, “Idea,” pp. 783-784.  Emphasis supplied.

[xxxv]Weithman, “Citizenship, Reflective Endorsement, and Political Autonomy,” Modern Schoolman 78, nos. 2 & 3 (January-March 2001):  144. 

[xxxvi]Macedo, “Liberal Public Reason,” in Robert P. George and Christopher Wolfe, eds., Natural Law and Public Reason (Washington, D.C.: Georgetown University Press, 2000), esp. pp. 17-18.  For a detailed critique of Macedo’s version of public reason, see George and Wolfe, “Natural Law and Public Reason,” ibid, pp. 51-74.   

[xxxvii]Macedo, “Public Reason,” p. 45.

[xxxviii] Rawls has supported a veto on laws against assisted suicide; see “Assisted Suicide:  The Philosopher’s Brief,” New York Review of Books (27 March 1997), discussed by Michael Sandel, “The Hard Questions:  Last Rights,” New Republic (14 April 1997):  27.  Rawls subsequently conceded that his understanding of public reason allows for a number of possible arguments against legalizing assisted suicide.  See the interview with Bernard G. Prusak, “Politics, Religion, and the Common Good,” Commonweal 125, no. 6  (25 September 1998):  14.

[xxxix] Rawls, The Law of Peoples (Cambridge, Mass.:  Harvard University Press, 1999), pp. 133-34.  I am indebted to Weithman, Religion and the Obligations of Citizenship (Cambridge:  Cambridge University Press, 2002), pp. 182-87, both for this reference and for pointing out importance of this issue.

[xl] Meilaender, “The Problem of Having Only One City,” Faith and Philosophy 20, no. 2 (April 2003), esp. p. 181.  Meilaender cites New York Times v. Sullivan, 376 U.S. 254 (1964), a favorite case of Rawls’ (PL 343, 345); and Cantwell v. Connecticut, 310 U.S. 296 (1940), which involves a group – the Jehovah’s Witnesses – whose views fall well outside the mainstream. 

[xli] On self-censorship, see Weithman, Obligations, pp. 141-42.

[xlii] I am here indebted to Robert B. Talisse, “Public Reason and Group Polarization,” American Philosophical Association (Eastern Division), 30 December 2004.  I wish to thank Professor Talisse for sending me a copy of this paper.  I have also consulted a longer version, entitled  “Dilemmas of Public Reason,” in Thom Brooks, ed., The Legacy of Rawls (New York:  Continuum, 2005).

[xliii] I am here indebted to Robert B. Talisse, “Public Reason and Group Polarization,” American Philosophical Association (Eastern Division), 30 December 2004.  I wish to thank Professor Talisse for sending me a copy of this paper.  I have also consulted a longer version, entitled  “Dilemmas of Public Reason,” in Thom Brooks, ed., The Legacy of Rawls (New York:  Continuum, 2005).  For empirical discussion focused on the Internet, see Cass Sunstein, (Princeton:  Princeton University Press, 2001), pp. 65-84.

[xliv]For Rawlsian Liberalism with teeth, see Bruce Ackerman, Social Justice in the Liberal State (New Haven:  Yale, 1980).      

[xlv] Thus, in Romer v. Evans, Justice Kennedy found for the Court that Colorado’s invalidation by referendum of local gay rights ordinances “seems inexplicable by anything but an animus toward the class it affects.” 

[xlvi]Philip L. Quinn, “Religious Citizens within the Limits of Public Reason,” Modern Schoolman 78, nos. 2 & 3 (January-March 2001), esp. p. 124.

[xlvii] Ibid., p. 121.

[xlviii] Macedo, “Public Reason,” p. 35. 

[xlix] See Rawls, Peoples.

[l] I am here indebted to Meilaender, “Only One City.” 

[li] Rawls’ notorious abortion footnote shows no familiarity with the immense literature on this subject, see PL  243-44 n.32; Leslie Griffin compiles responses to this footnote in “Good Catholics Should Be Rawlsian Liberals,” Southern California Interdisciplinary Law Review 5 (summer 1997 p. 323 n.109.  In the paperback edition (PL liv n.31), Rawls concedes that his footnote was opinion rather than argument, and goes on to give an example of a pro-life argument “cast in the form of public reason” (PL lvi n.33).

[lii] Pro-choice people devote a great deal of ideologically motivated intolerance and mystification to keeping their adversaries out of the discussion.  For details see Joseph W. Dellapena, Dispelling the Myths of Abortion History (Durham, N.C.:  Carolina University Press, 2006), esp. pp.791-808, 840-44, and1012-14.  Dellapena describes himself as a “lapsed Unitarian” and a moderate on the abortion issue (pp. ix-x).

[liii]Rawls, Justice as Fairness:  A Restatement, ed. Erin Kelly (Cambridge, Mass.:  Harvard University Press, 2001), p. 117. 

[liv]Richard Rorty tells us in a footnote that reasoned argument is irrelevant to the abortion issue, as to moral and normative political questions generally.  Rorty, Contingency, Irony, Solidarity (New York:  Cambridge University Press, 1989), p. 194n.6.  For detailed discussion see Gerard V. Bradley, “Inescapably a Liberal,” in Christopher Wolfe, ed., Liberalism, chap. 8, esp. pp.  146-48.  For a more sophisticated version of the same argument, see Macedo, “Public Reason,” esp. pp. 28-44; and Jeffrey Riemann, “Abortion, Natural Law, and Liberal Discourse,” in George and Wolfe, eds., Public Reason, pp. 107-124.

[lv] Steinfels, A People Adrift (New York:  Simon and Schuster, 2003), p. 93.

[lvi] See, for example, Debran Rowland, The Boundaries of Her Body (Naperville, Ill.:  Sphinx Publishing, 2004).

[lvii] Sir James Fitzjames Stephen makes this point well, though he tends to limit religious motives to fear of damnation.  See his Liberty, Equality, Fraternity, ed. R. J. White (Cambridge:  University Press, 1967), pp. 227-238 and 272-285, especially his discussion of ‘common utilitarianism’ at pp. 233-237.

[lviii] See Richard Weikart, From Darwin to Hitler (New York:  Palgrave Macmillan, 2004).

[lix] For an historical account of American ideas of freedom, see Fischer, Freedom. Examples of the complexity of American ideas of liberty follow:  cartoonist Thomas Nast was intolerant of Catholics and Mormons (ibid., pp. 396-98), free-love advocate Victoria Woodhull’s vision of liberty included opposition to both prostitution and abortion, and allowed the exposure of hypocritical clergy (p. 399), Woodrow Wilson’s ‘New Freedom’ included suppression of dissent in the name of liberty (pp. 437-41), and ACLU Founder Arthur Garfield Hays’ “Ten Commandments of Civil Rights” included “the right to personal prejudice, and the right not to like or employ Protestants, Catholics, Jews, Communists, or Nazis” (p. 467).

[lx]As Michael McConnell points out; “Five Reasons to Reject the Claim that Religious Arguments Should Be Excluded from Democratic Deliberation,” Utah Law Review  (1999): 645-47.  For a similar argument from a different religious and political perspective, see Michael J. Perry, “Why Political Reliance on Religiously Grounded Morality is not Illegitimate in a Liberal Democracy,” Wake Forest Law Review 36 (summer 2000).  On Christian supports for liberal democracy, see Nicholas Wolterstorff, “Do Christians Have Good Reasons for Supporting Liberal Democracy?” Modern Schoolman 73, nos. 1 & 2 (January-March 2001):  229-48.

[lxi] On the religious background of rules against bribery, see John T. Noonan, Jr., Bribes (Berkeley:  University of California Press, 1984).

[lxii]For detailed argument, see Patrick Neal, “Political Liberalism, Public Reason, and the Citizen of Faith,” in George and Wolfe, eds., Public Reason, pp. 171-201.

[lxiii] MDB = Rosen, The Most Democratic Branch (Oxford:  Oxford University Press, 2006).

[lxiv] Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge:  Cambridge University Press, 2006); see the roster of critics at pp. 14-16.   

[lxv] Tushnet, Taking the Constitution Away from the Courts (Princeton:  Princeton University Press, 1999). 

[lxvi] See Levinson, Our Undemocratic Constitution (Oxford:  Oxford University Press, 2006), especially the Introduction.

[lxvii] Among the jurists I have cited, Tushnet wrote before 11 September 2001.  But his argument lies in the background of American responses to terrorism.

[lxviii]Graber makes clear that the occasion of his defense of Dred Scott is its invocation as a negative precedent by opponents of legalized abortion.  See his Rethinking Abortion (Princeton:  Princeton University Press, 1966).

WE (chapter 8)

November 21, 2009





As Gary Wills puts it, “the authority of government can no longer be assumed.”[i]   Existing political institutions do not receive the explicit consent of all men and women subject to them, and it is difficult to defend the claim that they would do so if people were rational in some uncontroversial sense.  The government makes many of its decisions under the influence of the money power, and competition by candidates for campaign contributions is at least as important as competition for votes.  Emotional factors such as charisma, fear, or group animosity are more important than calculation of consequences or application of principles.  The attempt to bracket differences of moral or religious outlook in political argument implies that people whose views are neglected find themselves subject to taxation without moral representation. 

Thus large numbers of people see the social and political order as imposed and for that reason unjust. [ii]  Prosperity mitigates the resulting tensions, but it cannot be guaranteed, and is never sufficient to resolve legitimacy issues.  This is true even domestically, but globalization multiplies the number of people who find themselves subject to powers whose legitimacy they have no reason to acknowledge.

Efforts to overcome the resulting ‘legitimacy deficit’ take two forms, sometimes combined:  reforms that increase the participation of marginal people in the political process, and appeals to a transgenerational enterprise in which present people can believe themselves participants.  Shared memories and shared hopes are important to making a group of people a We.[iii]  Hence the argument of this chapter will look both forwards and backwards.






Perhaps we could remedy the legitimacy deficit if more people voted, and if their electoral decisions were more meaningful.  In an attempt to attain this result, some radical democrats have advocated a ‘politics of difference.’  As Iris Marion Young puts it, they support “claims of justice and political inclusion made on the basis of the specific group experiences of women, gay men and lesbians, racial minorities, or people with disabilities” (Y 83).[iv]  She rightly distinguishes political exclusion from other forms of social conflict and injustice (Y 13).  But we are properly concerned only with unjust exclusion:  if I am traveling in Scotland to attend a philosophical conference, no injustice occurs if I cannot vote in Scottish elections.  Hence the question of the pertinent criteria of justice is urgent.

Though Young has much in common with identity politics, she rejects it in favor of relational concept of group differentiation (Y 87ff.).  In her own words, “any group consists in a collective of individuals who stand in determinate relations with one another because of the actions and interactions of both those associated with the group and those on the outside or at the margins of the group” (Y 89).  But, like identity politics, this doctrine can easily lead to chaos or quietism.  Everything here depends on what groups we recognize – whether, for example, we include cohesive, internally undemocratic, groups such as Hasidic Jews.  In practice, her list of disadvantaged groups is with one exception an artifact of neo-Marxist politics:  she breaks in a limited but significant way with the usual neglect of religious perspectives in leftist politics, and several times mentions Muslims (Y 80, 106, 110, and 122).

In order to give shape to her understanding of difference, Young reaches back to Marx and appeals to the concept of a structural group, i.e., “a collection of persons who are similarly positioned in interactive and institutional relations that condition their opportunities and life prospects” (Y 97).  In her view, “while they are often built upon and intersect with cultural differences, the social relations constituting gender, race, and class, and sexuality, and ability are best understood as structural” (Y 92).  In sum, all group differences are socially constructed, but some differences, since they influence opportunities in special ways, are therefore less socially constructed than others.  This conclusion seems right, but it raises the issue, in what other ways nature and history constrain our attempt to re-describe and refashion social existence.  These ways include both sexual difference and the propensity of human beings to form We’s (and hence also They’s) in ways liberal and leftist theorists find inconvenient. 

Politics, however, includes not only decision-making procedures, but also deliberation about common problems, and the attempt to reach results all parties can live with.  According to the principle of ‘deliberative’ democracy, we should encourage people of every sort to bring their distinctive experiences and modes of discourse to the bargaining table (see Y 20-26; for bibliography see Y 22 n.13).  Yet the more seriously we take a strong conception of democracy, however, the wider the variety of perspectives that will appear in public debate, the richer the framework of shared understandings necessary to make it work, and the greater the strains of inclusion.

Fundamentalists and homosexuals are in many ways similar in their social and political role.  The former group seems better at getting out the vote, the second at manipulating bureaucratic, media, and legal structures.  In any event, diversity often means gridlock, and the making of inescapable decisions without public accountability by ‘unpolitical’ authorities such as insurance companies, the Supreme Court, or the Federal Reserve Board. 

Political debate is often raucous and disorderly.  On stealing one’s adversaries’ newspapers, disrupting religious services, or other controversial cases for freedom of expression, Young’s arguments point in two different ways.  In one place, she writes, “I prefer to call the normal condition of democratic debate a process of struggle” (Y 50; emphasis hers) – which would seem to imply few if any limits on political tactics.  But she also writes, “struggle is a process of communicative engagement of citizens with one another” (Y 50; emphasis hers) – which would seem to require tactical self-restraint.   

Speaking in a rationalistic vein, Young holds that reasonableness in public debate means that people “cannot come to the discussion of a collective problem with commitments that bind them to the authority of prior norms or unquestionable beliefs” (Y 24).  In a less rationalistic mood, she rejects

Norms of deliberative democracy [that] oppose disorderly, demonstrative, and disruptive political behavior and label a certain range of positions extreme in order to dismiss them. Disorderliness is an important tool of critical communication aimed at calling attention to the unreasonableness of others. (Y 48-49) 

Arguments for treating one’s political positions as immutable dogmas, and for widening the acceptable forms of political struggle, are equally available to all parties.

One-sidedly to impose civility and open-mindedness on some party is to disable it politically and to threaten its continued existence as a group or even as individuals. 

People ought to feel deeply about political issues, which are directly or indirectly questions of life and death.  No group can be expected calmly to envisage becoming the target of genocide or ethnic cleansing, nor should the disabled people who protested Peter Singer’s appointment at Princeton be soothed by telling them that, as adults, they are no longer at risk from his program of infanticide.  Proposals to destroy an entire culture are only slightly less obnoxious.  Yet all of us, however tolerant we may be, know of people whose speech, even if we may not want to suppress it, we would prefer not to support through either tax dollars or private philanthropy.  

This issue arises, not in some a priori philosophical construction, but in a society that includes constantly shifting and therefore contested boundaries on public discourse.  The required judgment calls are inevitably opaque, and will moreover reflect our communal affiliation.  There are circles where it is anathema to hold that there are normatively significant supra-cultural distinctions between men and women, and circles where it is anathema to hold that the distinction between the sexes is conventional only.  Here, as so often in social and political philosophy, we are caught between the devil of tribalism and the deep blue sea of cosmopolitanism deluded about the social nature of human beings.

As a general proposition, no one starts a culture war any more than a civil war:  we have rather groups whose members’ understanding of shared beliefs move gradually apart.  But there are cases where a group has formally declared culture war.  The French Revolutionaries decided, not only to nationalize the Church, but also to de-Christianize society to the point of abolishing the Christian calendar.  Likewise to demand legal abortion at public expense, or same-sex marriage as a matter of constitutional right, is to declare culture war if anything is.

Political theories are best thought of, not as attempts to replace existing political institutions with a philosophically superior set, but as embodying attempts to push literate discourse about politics in one direction rather than another.  In American practice, our institutions support and are reflected in a ‘prejudice’ (in Burke’s sense) in favor of tolerance, summed up in such phrases as this is a free country.  This prejudice stands in the way of ‘solving’ social and political problems by interning minorities, as happened to the Japanese Americans during the Second World War.  In a society in which this outlook prevails, complex institutions enable groups defeated in one forum to seek redress in another.  No one has the last word, since the Supreme Court can be brought to overrule earlier decisions, the Constitution can be amended, and a constitutional amendment can be repealed.  The cause of tolerance is not guaranteed success:  our ‘inherited conglomerate’ also includes the belief that ‘We’ are visible saints, and for that reason entitled to suppress the reprobate (or ‘Them’). 

But the argument cannot be limited to domestic contexts.  Decisions made in one nation-state have effects in others – economic, cultural, ecological, ideological, and military.  Events in Afghanistan cause literal explosions in New York, and events in New Hampshire cause metaphorical explosions in Nigeria and Uganda.  At the gut level, the same considerations that make me want to have a say in the workings of the Federal Government make me want one in the workings of major oil companies and of the government of Saudi Arabia.  And the people of Saudi Arabia have the same reasons for wanting a say in American politics.  No nation can claim a natural right to rule the others, and hence the legitimacy of decisions affecting non-nationals will always be in question.  International bodies of every sort, from multinational corporations to organizations like Amnesty International, also require accountability. 

In a world that has seen the break-up of Czechoslovakia, the Soviet Union, and Yugoslavia, and in which the unity of Canada and the United Kingdom has been put at risk, the prospects of a worldwide political community, democratic or otherwise, seem dim.  Crony capitalism, ethnically targeted programs of confiscation, and ethnic cleansing are at least as likely outcomes of globalization as the worldwide triumph of forms of democracy acceptable in the West.[v]  Overt imperial rule from Washington is unlikely to be humane or democratic even in the most limited sense.  Cosmopolitan democrats take these facts as a spur to the creation of transnational democracy.[vi]  But they still have to show how we can do this without a transnational democratic ethos — or even a transnational demos — already in place.   

            A belief in progress, which enables us to accommodate unpleasant historical realities while hoping that we will eventually be able to overcome them, helps overcome the legitimacy deficit.  So does tradition, which unites us with our ancestors, spiritual as well as physical, in a common enterprise.  Belief in progress is traditional in America at least, so that the two approaches to the legitimacy deficit fuse.  But the meta-narrative which unites us with our ancestors, supports our belief in the centrality of our common humanity, and persuades us of our ability to fashion institutions in accordance with intelligible and intellectually defensible principles, has been thrown into question in the contemporary world.   The slogan Hey, hey, ho ho, Western culture’s gotta go! (Stanford, 1988) exploited the self-doubts pervasive among Liberal intellectuals.



One vehicle for our shared tradition, and for the aspirations that form part of it, is high culture.  Matthew Arnold attempted to use literature and other forms of high culture to overcome the legitimacy deficit, replacing the religion he found to be no longer effective.  Some of his critics reverse the proposition and argue that, by debunking high culture and/or its ideological role, they are promoting a revolution that will end in truly legitimate regime.  Thus Terry Eagleton writes: “We know that the lion is stronger than the lion tamer, and so does the lion tamer.  The problem is that the lion does not know it.  It is not out of the question that the death of literature will help the lion to awaken.” [vii]  (How?)  Short of such extreme claims, cultural issues have a real though lesser political importance; an element of collective imagination is at work in such contemporary problems as war and the displacement of peoples.[viii]   

Many people these days believe that the high culture is in irreversible decline.  Secular popular culture is now all-pervasive, and it is hard to find shared criteria according to which we are entitled to call all or most of it ‘trash.’  Moreover, the academic Left has argued that the project of Western reason is repressive at its core. We thus enter a complex set of arguments linking politics with literature and the, itself controversial, project of literary theory.  I make my argument for literature, but much of it would also apply to music, the visual arts, and to mixed genres such as dance, opera, and film. 

In dealing with the resulting issues, we must bear two points in mind.  First, claims that our opponents’ judgments are distorted by racism, or some other malign prejudice, now fill the cultural atmosphere.  But, in the sage words of Alasdair MacIntyre,

Claims about hallucinations, illusion, distortion of thought, and the like can be made only from the standpoint of claims that the contrast cab be clearly drawn between hallucinatory, illusory and distorted modes of perception or thought, on the one hand, and genuine perceptions of realty or rigorous or undistorted reflection and deliberation, on the other.  Hence, to identify ideological distortion one must not be a victim of it oneself.  The claim to a privileged exemption from such distortion seems to be presupposed when such distortion is identified in others.[ix]

Second, the presupposition of much literary theory, that it is possible to drive a wedge between and text and the author’s intention in producing it, is false.  It is possible neither to fix the interpretation of a text by going behind it to the author’s intention, nor to undermine our efforts at interpretation (or license whatever interpretation might suit our fancy) by arguing that the author’s intention is unknowable.  For to see an inscription as a text is already to see it as the product of a person’s intentional activity.  As Stephen Knapp and Walter Benn Michaels put it, “The mistake made by theorists has been to imagine the possibility or desirability of moving from one term (the author’s intended meaning) to a second term (the text’s meaning), when actually the two terms are the same.” [x]  Once we acknowledge the reality of the author, some limitations on interpretation follow:  the Sherlock Holmes stories are not pornography, even if some eccentric finds them sexually stimulating.

Nonetheless, the mind of the author is not transparent, especially when we deal with texts whose origin is distant from us.  And some people argue that a text like the Bible or the Constitution gathers meaning as history proceeds.  Moreover, some texts, on their face, require us to go beyond their face:  whatever Nietzsche meant by God is dead, it was not that someone had thrown Him out of a window.  And some apparently meaningless statements, like Heidegger’s The nothing noths, might yield an intelligible meaning under careful interpretation.  Hence the question of interpretation pervades contemporary culture – from literary criticism through law to theology.  

It is impossible to articulate general hermeneutical principles.  Legal interpretation has real-world consequences of a sort that literary interpretation does not:  people are killed, imprisoned, and deprived of large amounts of money because courts read the law in one way rather than another.  As Robert Cover puts it,  “legal interpretation takes place in a field of pain and death.”[xi]  And the consequences of judicial decisions for persons other than the parties are sometimes large.  On the other hand, not everything goes even in literary interpretation:  readers of Jane Austen’s Pride and Prejudice divide in their evaluation of Mr. and Mrs. Bennett, but no one admires Mr. Collins.

In short, different methods of interpretation are proper in law and literature, and a still different set of methods is appropriate in theology.  Discussion of the tacit assumptions that lead us to prefer one understanding of even a literary text to another will implicate, among other things, social and political controversies.  We should not pretend that conservative politics is not politics. 


Conservative Perspectives  

 ‘Traditionalism’ is the outlook of people who believe that they have been unjustly displaced by history, or that valuable elements of our shared past to which their forebears contributed have been neglected by their contemporaries.  Such people argue that our public philosophy is designed to keep them out of collective decision-making and to deprive them of control even of their own children.  In this way, they argue, current practice prevents the transmission of those beliefs and practices that they most value.  

Traditions are those elements of our shared past that we now find valuable – Shakespeare but not public executions – and for that reason our understanding of tradition is both contested and under constant revision.   Many traditionalists look back to an earlier state of society in which conflicts among the members were less intense than they are now.  Yet there was no period of history free of systematic conflict:  many American traditionalists look back to early America minus slavery and the oppression of Indians – in words, to an entirely hypothetical society.  Likewise, the Middle Ages experienced conflicts ranging from peasant rebellions to disputes about the reception of Aristotle.  Even the early Church was full of conflicts about the mission to the Gentiles, and the possible earthly role of the Messiah.  Some traditions claim a divine source, but this doctrine requires a way of sorting out optional inherited practices (Christmas trees, for example) from those that we dare not abandon.  Between the earthly paradise and us there stands an angel with a fiery sword.    

The most important argument for rejecting change is a fear of chaos.  The view that a document like the American Constitution has an ascertainable original meaning is, on some premises, like the existence of God, a necessary myth (though a few philosophers are permitted to hint at its falsity with the help of a ‘concealed blasphemy’).[xii]  A person who thinks in this way might abandon the task of managing the decline of our civilization to the politicians, and content himself with teaching the classics in a spirit of perpetual lament.  But, even in Conservative circles, there is a better understanding of the role of tradition available, according to which we draw upon the past in order to move into the future.[xiii]


Marxism and Culture

Marxists maintain that literature is necessarily and pervasively political, at least under capitalism, and that the same is therefore true of both literary criticism and literary theory.  In the words of the Kenyan writer Ngugi Wā Thiong’o: “Every writer is a writer in politics. The only question is what and whose politics.”[xiv]  But many people who think this way prefer nationalism (sometimes religious nationalism) or some other ideology to Marxism.

According to Marxists and their allies, attempts by ‘humanists’ to defend a supra-political role for culture are dishonest evasions of political choice.  Even a novel that seems politically innocent, by giving experience a structure defined by a stock narrative pattern, provides an illusory source of comfort for the alienated soul.  Marxists and their allies are right to protest the confusion of high culture with religion, and its use as a badge of social status or as a substitute for politics.  Though Matthew Arnold may have believed that teaching the working class Jane Austen would prevent a proletarian revolution, that anything of that sort happened in historical fact is unlikely.  Though responses to Brecht, Shelley, and Yeats reflect our political sympathies, we must avoid the ‘pseudo-politics of interpretation,’ whereby disputes about literary interpretation serve as substitutes for real-world political argument.[xv]   

Neoconservatives invert the value judgments made by Marxists and their allies.  For Neoconservatives, both writers and those who discuss their productions have a duty to support the existing social order and can be denounced as ‘unpatriotic’ or ‘truants’ if they fail to do so.  If an emphasis on complexity stands in the way of leftish political activity, that is all to the good from the Neoconservative point of view.  But if it stands in the way of the ‘war on terror,’ that is another matter.



Modernism is a useful word for the outlook of people for whom modern is not a chronological word but a word of praise, and hence old-fashioned a word of blame. [xvi]    Modernists typically hold that the religious and other tribal outlooks of the past are being replaced by the claims of universal scientific reason.  They place their criticism of literature within a meta-narrative in which the history of the West can be seen as leading to a happy resolution, and in which it is therefore possible to speak of residual, dominant, and emergent forms of culture (to use Raymond Williams’ distinction).  Those who regard modernity as more than a chronological expression, but invert its normative claims, can be called ‘Anti-modernists.’

There are, however, no laws of history guaranteeing that the right sort of politics will resolve our cultural conflicts in a desirable direction, nor are there laws of inexorable decline.  Instead of progress toward the emancipation of humanity through universal principles of reason, or unstoppable descent into barbarism, we have a sequence of ad hoc adaptations symbolized by a bricolage of disparate cultural elements.  Still, a global return to pre-modern ways of living is impossible.  The outlook of those who despair both of the possibilities of modern culture and of return to pre-modern culture is thus appropriately considered ‘Postmodern,’ despite the word’s paradoxical air.[xvii]  Postmodernists oppose the imperialism of modern secular reason, not in the name of inherited religion[xviii] or culture, but in that of the diversity secularity represses.

Paul Feyerabend has argued, most explicitly in a posthumous book aptly titled Conquest of Abundance,[xix] that imperialistic worldviews such as ‘the scientific outlook’ have repressed their alternatives, not by rational arguments, but by inducing changes in collective mentality by political means broadly understood (F 210-11).  (For summary of his conclusions, see F 78-79.)  The outcome of this argument, however, is not relativism in the usual sense. 

First, existing cultures contain enough ambiguity to make change possible, including change brought about their problems, their successes, and their interaction with other cultures (for Feyerabend’s rejection of closed cultures, see F 78; on the importance of cultural ambiguity, see F 39 n.39, 59, 123, and 241).  Second, “not all approaches to ‘reality’ are successful” (F 215).  Third, Feyerabend himself holds at least one transcendent moral principle, by which he judges science itself – namely respect for diverse ways of life (F Pt. II, chap. 9).  Fourth, as he writes, “cultural differences [are] special and changeable manifestations of a common human nature” (F 24 n.25). 

It follows from Feyerabend’s principles that some ways of life and their associated outlooks – such as (his example) Ceausescu’s Romania (F 250-51) – ought to be repressed.  In less extreme cases, he sensibly concludes we ought to reason with those who do things to which we object, and also listen to the reasons they give for so doing (F 34 n.25).  In any event, Feyerabend abandons the Postmodern claim that appeals to a common human nature are repressive, and proposes instead the continuation of the Western rational tradition in a revised form, sidelining deductive argument.[xx]   


The Western Tradition and Liberal Education

The West is not a geographical expression:  every part of the planet, except the two poles, is both to the west and to the east of every other.  It refers rather to that stream of culture, formed by the union of Greek and Hebrew themes in the period 500 BC/BCE – 500 AD/CE, to which Christian, Germanic, Asian, African, and other traditions have contributed.  On this view Islam is one current of the Western tradition, and one that includes works of permanent value.

Not everything the West has done is worthy of honor, and much is complex and controversial.  But the Western high culture includes criticisms of Western societies, sometimes severe; hopes of a world in which each of us recognizes the others’ humanity, in theory and practice; and attempts to appreciate both popular and non-Western culture.  That the more ambitious hopes of the Enlightenment have proved vain does not discredit traditional Christianity, Judaism, or Islam.  The claim that the Western tradition is exhausted is therefore a bit of insufferable arrogance.

Yet many people believe that the extreme circumstances of Twentieth (and now Twenty-first) century life imply that we must reject the irony and complexity of high culture for the simplicity of outlook needed for political action.  Sometimes people make this argument on behalf of groups that are economically and militarily weak;[xxi] sometimes on behalf of the war against terrorism.  But whether the distinction between aesthetics and politics is eroded from the side of aesthetics or from the side of art, the sort of politics that might prevent disaster gets shortchanged.  There are, we may agree, moments of crisis where politics dominates all other concerns, but such moments are rare (and must be rare, if human beings are to remain sane).  Politics is at work in literature (and consequently also in literary criticism and literary theory), but so are sexual passion, religious conviction, and all the other motives that move the human animal. 

The works that get recognized as contributions to high culture have four features:

  1. They represent the societies of their origin.  They portray not only the practice of their societies, but also their reflections on themselves.  The connections between high and popular culture, including the contributions by lowly groups like African American slaves, deserve careful examination.
  2. They do so in a richly and finely crafted manner.  The plots of Greek tragedy are in themselves soap opera, but the art of the tragedian brings out their deeper import.  In fiction, what distinguishes serious writing from pornography and other forms of trash is the portrayal of believable people doing believable things rather than various forms of stereotype and cartoon.
  3. They are in some degree critical of the practice of their society in the name of its highest aspirations.  I here include not merely the moral critique associated with the Hebrew prophets, but also invitations to see our world in new ways even when these do not have immediate moral or political implications.
  4. They cross the barriers of time, place, class, and so forth.  Shakespeare’s Macbeth, though in every way a product of Elizabethan England, inspired the Japanese director Akira Kurosawa’s “Throne of Blood” (1957), a film many Americans have enjoyed.  

Literary critics argue for adding or retaining some element in the canon – as Tolkien did for Beowulf – or pruning the canon of a surplus member – as Chinua Achebe did in his polemic against Conrad.  People who believe that their group’s productions have been unjustly neglected, or that some traditional works are over-rated, need to make the argument case by case.  Thus American cultural nationalists have every right to argue for the importance of the philosophy of Edwards and Peirce, the poetry of Dickinson and Whitman,[xxii] and the political thought of Madison and Rawls.  But neither American nationalists, nor any one else, should denigrate the contribution of other nations, including the colonial power that has importantly shaped many national cultures.

High culture and hence also liberal education can play a benign political role.  For, however elusive the aesthetic dimension of experience, it includes one feature of importance to our present inquiry:  human beings are capable of responding to expressions that are morally, sexually, politically, or religiously alien.  A heterosexual man or woman can enjoy Proust, a political radical Eliot, a Conservative Brecht, an atheist Dante, a vegetarian Hemmingway’s rendition of a bullfight, a Cambridge Liberal the aesthetics of hellfire preaching.  Even our aesthetic predispositions take a beating:  by every aesthetic principle I know Mary Shelley’s Frankenstein is terrible novel, but it remains strangely compelling.  The response that makes these reactions possible is a bit of a mystery, but (like moral judgment) it includes both a cognitive and emotional dimension.  It is also important even in the choice of scientific theories. 

Many of the groups who engage our sympathy in literature – young men around Socrates, the British who administered the Raj and their wives and daughters, Confederate soldiers during the American Civil War – are no longer able to make political demands on us, however.   Nor are those who use literature for political purposes interested in coming to understand poor Southern white people – say by a reading of the works of Flannery O’Connor.[xxiii]  

In dealing with issues in which culture and politics mix, we need to steer a course around five errors:

  1. Naïve progressivism believes that there are laws of history guaranteeing the triumph of the good, and consequently the obsolescence of older contributions to the Western tradition.  Scientific and technical advances, together with the decline of religion, are supposed to supply the motor of progressive change.  But there are no such laws of history.  Whether there has been any progress in terms of morality or human happiness is an unanswerable question:  there has been improvement on some issues and retrogression on others, and all of us spontaneously  prefer the attitudes of our own time to those of others. 
  2. Multiculturalism ignores the severe problems – both theoretical and practical – that arise when we encounter the culturally alien.  Celebrators of diversity present the culturally alien in an expurgated form that excludes both Islamic terrorism and the aesthetics of ritual suicide of Yukio Mishima.
  3. Postmodernists attempt to discredit the Western tradition, by tracing its roots to a shameful origin.  The result is a philosophy that can neither deny nor affirm, but puts everything into irresoluble question.  Charles E. Scott, for example, compares our situation as heirs to the Western tradition to that of an abused child, still bound to the parents or other adults who have mistreated him.[xxiv]    
  4. Nostalgia at once oversimplifies the past and denies new generations the capacity to contribute to an ongoing enterprise.  Such is the posture of Tolkien’s Galadriel, “through ages of the world [fighting] the long defeat.”[xxv]  The better part is that of her granddaughter Arwen Evenstar, and of Frodo’s sidekick Sam, who help found a new civilization.  Gandalf formulates the necessary principle:  “It is not our part to master all the tides of the world, but to do what is in us for the succour of those years wherein we are set, uprooting the evil in the fields that we know, so that those who live after us may have clean earth to till.”[xxvi]
  5. Neoconservativism in its more extreme forms sets the West against the world and endeavors to “rid the world of evil.”[xxvii]  This view implies that any attempt to transcend cultural barriers is either self-deluded or disloyal and our relations with the culturally alien are determined only by power.  High culture inculcates a sense of moral complexity valuable in domestic contexts, but Neoconservatives damn the attempt to extend this sense outward as belief in ‘moral equivalence.’  Since a vision of a united humanity lies near the core of the Western tradition, and since contributors to the Western tradition have often come from countries or milieus out of favor in Washington, this approach to high culture destroys the Western tradition in order to save it.  




The progressive strand in social and political philosophy attempts to embody, in an ever wider and deeper way, the realization that human institutions are human creations, and for that reason open to rationally directed change.  To avoid endless conflict and make it possible for all of us to co-operate for common purposes, we should be able to reshape our various identities in into a harmonious whole without anyone having to sacrifice anything essential.  In this way, social and political institutions should come to reflect – and to be seen to reflect – the rationally accepted convictions of all members of society.[xxviii]

This formulation supposes, however, that when we have completed collective deliberation, everyone, or nearly everyone, will agree, at least broadly, what changes are desirable and what not.  Otherwise our divergence of views will widen, as the range of social choice widens, into a war of each against all or at least of tribe against tribe.  For, the wider the extent of change thought possible, the deeper and more bitter conflict will be among those who disagree about normative issues.  If belief in our common humanity is only a useful fiction, of no greater rational standing than the atavistic national myths that motivate human beings at least as effectively, we cannot expect it to stand up in a skeptical age.  

In the contemporary world, our interpretation of one another’s behavior has become uncertain, and we can no longer be sure that even the least admirable of our associates will observe certain limits.  Our problems are reinforced by the staggering variety of perspectives human beings take on their social and natural environment, and the pervasive suspicion that our claims to know are out of accord with Things as They Are.   Hence despite our best efforts, social reality appears as an alien, and often hostile, reality.  It is always possible to ‘unmask’ supposedly consensual authorities or programs as products of chance and necessity at best, or of coercion and deceit at worst.  Hence the prospect of getting rid of atavistic feelings about territory and political rule are negligible.  Paranoia also becomes a hallmark of modern consciousness, and the task of avoiding a fascist outcome challenging.


[i] Wills, “The New Revolutionaries,” New York Review of Books 42, no. 13 (18 April 1995):  54.

[ii] I am here influenced by Jürgen Habermas, Legitimation Crisis, trans. Thomas McCarthy (Boston:  Beacon Press, 1975), as read by Thomas McCarthy, The Critical Theory of Jürgen Habermas (Cambridge, Mass.:  MIT Press, 1978), chap. 5; and J. Donald Moon,” Political Discourse and Communicative Ethics,” in Stephen K. White, ed., The Cambridge Companion to Habermas (Cambridge:  Cambridge University Press, 1995), esp. pp. 157-60.

[iii] Thus Todd Gitlin is right to be alarmed by The Twilight of Common Dreams (New York:  Metropolitan, 1993).

[iv] Y = Young, Inclusion and Democracy (Oxford:  Oxford University Press, 2000).

[v]For reasons set forth in Amy Chua, World on Fire (New York:  Anchor, 2004).

[vi] For a critical discussion of cosmopolitan democracy, see Jocelyne Coutre, “Cosmopolitan Democracy and Liberal Democracy,” Monist 82 (1999):  491-515.

[vii] Eagleton, Literary Theory:  An Introduction (Oxford: Basil Blackwell, 1983), p. 217. 

[viii]  Despite Eagleton, The Idea of Culture (Malden, Mass.:  Blackwell, 2000), p. 230.

[ix] MacIntyre, “Ideology, Social Science, and Revolution,” Comparative Politics 5 (1975): 22.

[x] Knapp and Michaels, “Against Theory,” in Vincent B. Leitch, ed., The Norton Anthology of Theory and Criticism (New York:  Norton, 2001), pp. 2460-75; quotation, p. 2461.

[xi] Cover, Narrative, Violence, and the Law, Martha Minow, Michael Ryan and Austin Sarat, eds. (Ann Arbor:  University of Michigan Press, 1992). p. 203.

 [xii] This appears to be the view of Leo Strauss; see his Persecution and the Art of Writing (Glencoe, Ill.:  Free Press, 1952) and Studies in the Platonic Political Philosophy (Chicago:  University of Chicago Press, 1983).  For commentary see Shaida Drury, The Political Thought of Leo Strauss (New York:  St. Martin’s Press, 1988), and, more stridently, Leo Strauss and the American Right (New York:  St. Martin’s Press, 1999).

[xiii]See T.S. Eliot’s critical writings, especially “Tradition and the Individual Talent” and  “The Metaphysical Poets,” both reprinted in Leitch, ed., Anthology, pp. 1092-1105.  For a more extensive discussion of tradition and traditionalism, see my Human Diversity and the Culture Wars (Westport, Conn.:  Praeger, 1996), pp. 6-10.

[xiv] Quoted in the head-note to his “On the Abolition of the English Department,” with Taban Lo Liyong, and Henry Owuor-Anyumba, in Leitch, ed. Anthology, p. 2091.

[xv] For an internal critique of this sort of approach to literature, see Gerald Graff, Literature Against Itself  (Chicago:  University of Chicago Press, 1979)

[xvi] See, for example, Habermas, “Modernity – An Incomplete Project,” in Leitch, ed., Anthology, pp. 1748ff.

[xvii] See Jean François Lyotard, “Defining the Postmodern,” Leitch, ed., Anthology, pp. 1612-15.

[xviii] Some Postmodernists are moving in a Christian direction, however; see Paul J. Griffiths, “Christ and Critical Theory,” First Things, no. 145 (August-September 2004): 46-55.

[xix]F = Feyerabend, Conquest of Abundance, Bert Terpstra, ed. (Chicago:  University of Chicago Press, 1999).   

[xx] For more discussion of Postmodernism, see my Human Diversity, pp. 30-34.

[xxi] See the celebrated statement by Walter Benjamin,  “The Work of Art in An Age of Mechanical Reproduction,” trans. Henry Zahn in Leitch, ed., Anthology, p.  1186.

[xxii] Americans are entitled to be dissatisfied with a collection of  “English verse” that ends its American component with Philip Freneau (1752-1832) and Phillis Wheately (1753-1784), before America had found its poetic voice, while including poems in Scots dialect and from an independent Republic of Ireland.  For the editor’s justification of his practice, see Christopher Ricks, ed., Oxford Book of English Verse (Oxford:  Oxford University Press, 1999), pp. xxxvi-xxxviii.

[xxiii] These sentences are directed against Richard Rorty, “Two Cheers for the Cultural Left,” in Darryl J. Gless and Barbara Herrnstein Smith, eds., The Politics of Liberal Education (Durham:  Duke University Press, 1992), p. 239. 

[xxiv]See Scott, On the Advantages and Disadvantages of Ethics and Politics for Life (Bloomington, Ind.:  Indiana University Press, 1996), esp. chap. 9.

[xxv] Tolkien, Lord of the Rings (Boston:  Houghton Mifflin, 1987), vol. 1, bk. 2, chap. 7, p. 372.

[xxvi] Ibid., vol. 3, bk. 5, chap. 9, p. 155.  For a different reading of Tolkien, see Claire Valente, “Translating Tolkien’s Epic,” Intercollegiate Review 40, no. 1 (fall-winter 2004): 35-43

[xxvii] For a frank statement of this sort Neoconservatism, see David Frum and Richard Perle, Ridding the World of Evil (New York:  Random House, 2003).

[xxviii]See, for example, Robert Paul Wolff, “Beyond the Legitimate State,” excerpted from In Defense of Anarchism (New York:  Harper and Row, 1970), in Stephen Eric Bonner, ed., Twentieth Century Political Theory (New York:  Routledge, 1997), p. 131.

WE (chapter 7)

November 21, 2009





 The state claims coercive authority over dissidents within its territory, who are not natural subordinates in the way children and the incompetent are, however much inherited patterns of deference have obscured the fact.  Threatened exclusion from a church, college, family, business enterprise, or friendship is in some sense coercive, though both parties might conclude without rancor that they had come to the parting of the ways. 

If money or property is an issue in a dispute within a family or voluntary association, we have engaged the institutions supported by the state.   The consequences threatened by the state – imprisonment, financial loss, and death – are largely independent of the beliefs and attitudes of those on whom they are imposed.  The violence of the state – sometimes called ‘force’ – stands in need of legitimation, however.   Law (criminal trials, for example) is the method of first resort in the rulers’ search for legitimacy, but unless civil laws have presumptive authority over those subject to them, beyond the bare fact of their existence and enforcement, there is no prospect of sustaining legitimate state coercion.  A trial not supported by just authority is a sinister ritual.

Private associations are ‘in’ the state, at least in the sense that the state must keep their internal disputes, especially as they affect property, from leading to violence.  Political authority precedes property rights, since all such rights go back to a conquest originally.  Questions of political authority are also prior to questions of distributive justice:  without the supervision of a legitimate authority, redistribution is another name for a free-for-all.  






Normative politics raises four questions:

  1. 1.      Is there any place for morality in politics, and if so, what? 
  2. 2.      How demanding is the morality we are entitled to apply to political questions?
  3. 3.      What is the relationship between political morality and what we take to be the true morality?
  4. 4.      What is the relationship between political morality and the morality acknowledged by the majority, or the most powerful and influential sections, of the community? 



            Leo Strauss expounds Machiavelli’s central argument as follows:

Machiavelli consciously lowers the standards of social action . . .. [For] the context within which morality is possible is created by immorality.  Morality rests on immorality, justice rests on injustice, just as all legitimacy ultimately rests on revolutionary foundations.[i]

 In Wittgensteinian jargon, might is right is a grammatical remark – whether we are speaking of the institutionalized might of large organizations or the episodic violence of terrorists.

Machiavelli nonetheless holds that shared morality is an essential element in the formation of any community, and in fact counsels the prince to give lip service to prevailing religious and moral standards. [ii]  When Machiavelli speaks of Hannibal’s “inhuman cruelty, . . . without [which], his other virtues would not have sufficed,”[iii] the traditional language of cruelty remains.  Moreover, there are limits to how bad a prince should get on Machiavelli’s principles:  “One cannot call it virtue to kill one’s fellow citizens, betray one’s friends, to be without faith, without mercy, without religion; these modes can enable one to acquire empire, but not glory.”[iv]  I take him to be saying that his prince is desirous not only of ruling securely as long as he lives (as Stalin for example did), but also of guaranteeing his post-mortem reputation (as Stalin and even Lenin did not).

 Whatever means a politician uses to acquire power, and whatever policies he pursues when he has it, he needs recognition as a legitimate ruler.  Moreover, the supremely immoral though rational statesman one finds depicted in Machiavelli is at least as rare as a perfected saint.  In real cases we can exact, and sometimes exploit, the tribute that vice pays to virtue and ask rulers to take their moral professions seriously.  The morality relevant to politics is not, however, some ideal morality, but the working morality of society, however crude or limited it might be.  And real politicians on both sides of the aisle often fall below the Machiavellian standard.



Anti-perfectionists do not exclude moral considerations from politics, but they sharply limit, in the name of some conception of ‘public reason,’ the moral claims they are prepared to consider.  Many people have suspected, as Thomas Nagel puts it, “that all the pleas for toleration and restraint [this strategy includes] really disguise a campaign to put the state behind a secular, individualistic, and libertine morality – against religion and in favor of sex, roughly.”[v]  If this suspicion cannot be overcome, anti-perfectionists fail in the endeavor, which alone makes their project appealing, to find principles sustained by reasoned discussion rather than coercion or deceit.  Since nearly everyone’s morality contains a perfectionist dimension (for example, a belief that certain sorts of behavior are degrading), it is hard to see how perfectionist appeals can be kept out of political argument.

Some liberals have argued, in support of what looks like an anti-perfectionist position, namely that autonomy is a good that ought to be fostered by public policy.  Thus Joseph Raz’s conception of autonomy[vi] does not “extend to the morally bad and repugnant”[vii] – which we can understand as referring either to the objectively bad or to what the agent believes to be such.  Other liberals value even a conscious choice to do evil.  For present purposes, I shall assume that autonomy is of value even if what is chosen is not good, so long as the agent reasonably understands it to be good, though in sufficiently grave cases the agent’s own evaluation might still be overridden, even on paternalistic grounds.  If the inherent value of autonomy is admissible in political reasoning, however, other perfectionist principles will be admissible as well.  For some people find a life of thoughtless conformity more attractive than a life of autonomous choice.

Along with many other liberal writers, Raz invokes “value pluralism,” i.e., “the view that there are various forms and styles of life which exemplify different virtues and which are incompatible . . . in the same life.”[viii]  Yet practitioners of different ways of life cannot always succeed in leaving one another alone; they may for example ask for public money to support things ranging from high culture to abortion.  And the laws of marriage will, obliquely at least, favor some understanding of the human good over others.   Principles of justice are therefore still required for dealings among those who hold different conceptions of the good.

We here encounter a remarkable feature of contemporary Liberal thought:  that God, and a conception of human nature underwritten by Him, which might ground an unfavorable judgment on existing social practice, are systematically present in absence.  America is unlikely to elect an avowedly atheistic president, but serious religion in politicians is an occasion of suspicion.

On the one hand, liberals are not prepared to accept that society is the ultimate arbiter of justice, lest they end up defending slavery and Jim Crow.  On the other hand, they are unable to explain why the preferences of slaveholders, and of slaves that have been socialized to prefer slavery, have to be discounted in discussions of social justice.    

If I know that I am not a slave, for example, it is hard to see why, on liberal premises, I need to don a veil of ignorance concerning my social status.  A fortiori, there is no reason to require people who hold religious or other ideals, that tend to support illiberal institutions (but might require self-sacrifice in the interests of the poor), to forget them when addressing issues of justice.  Among conventional Liberals, liberal guilt, which extends to events before my birth and therefore beyond my control, fills the gap. But, since all of our practices have morally questionable antecedents, and the same is true of anything that might replace them, Liberal guilt is an instrument for rending the social fabric and leaving us with nothing else to take its place.  Despite the many arguments against this phenomenon, however, Liberals cling to it as their only way of rejecting a Libertarian or Neoconservative rejection of social justice.  (It is, we may say, the Liberal alternative to the common good.)

 The extrapolations from two-person to social cases used to give this guilt intellectual substance, especially in debates over affirmative action, run into much difficulty.  Creating a just society, by whatever standard, is a daunting enough endeavor without adding a demand to undo the effects of past injustice.   One of the difficulties are the large numbers of third parties, often entirely innocent, involved:  Why for example should people whose ancestors came to America in the 1920s be asked to pay for slavery, or those who came to America in the 1990s for legally established Jim Crow?   An even deeper problem arises from the fact that many of the parties would not have existed but for the injustice complained of. 

Liberal guilt is closely connected with a tort law model of politics, which looks, for any social problem, for someone, preferably someone with deep pockets, to blame.[ix]  That the complaining parties often would not have existed but for the offense changed, means that the tort in question is wrongful life.  Liberals need a tort law model to apply their sense of guilt in practice; and once we adopt such a model, a presumption of blame is difficult to avoid however strenuously we attempt to avoid it.  From the point of view of the plaintiff, the tort law model is a doctrine of ‘victimology’:  enrollment within the roster of oppressed minorities carries with it many privileges, and is hence eagerly sought.

A tort law model is not, however, propitious for peace and co-operation among the members of society.  The coherence of our law of torts is open to serious question in its own right [x] The examples usually cited in response are not decisive:  German reparations to Israel at least attempted to match perpetrators with victims, and compensation to Indian tribes for illegally taken land rests on a lesser sovereignty persisting from the date of the seizure to the present. 


Maximum vs. Minimum

Michael Walzer argues that people of a wide variety of outlooks are able to recognize the justice of protests against oppression carried on in places like Prague and Beijing, though, if such protests win, subsequent political argument will have to be carried on in terms of the richer shared understandings characteristic of the Czech and Chinese communities.[xi]  For Walzer, that a variety of cultural traditions converge to condemn incest, torture, or systematic governmental lying, reveals nothing deeper about human nature, though it makes cross-cultural communication possible.  Walzer’s hopes for accommodation of diverse outlooks on such scant premises rests on our success in establishing religious toleration.  But contemporary tribalism arises from one of the impulses that fueled older forms of intolerance:  a desire to deal only with those with whom one shares one’s most important sentiments.  Some bad things such as the elimination of minorities are valued across boundaries. 


Justice as Legacy

The most fundamental sense of legitimacy is that in which Edgar is legitimate and Edmund is not:  legitimate results are those that have the right kind of history.  (Even in a democracy, a public opinion poll is not an election.)  Speaking for the all-pervasive liberalism of our political culture, John Dunn finds accident of birth, as a source of title to rule, “bewildering.”[xii]  Yet social position including political power is efficiently transmitted across generations in liberal societies as well as in aristocratic ones.  And American citizenship rests on an accident of birth within the territory of the United States.

In arguments from legacy, the laws of property serve as a model for all other claims; and upwardly mobile people, though hardly unknown, are viewed with suspicion.  Hence Sir Robert Filmer could argue that political rule belonged to the senior heir of Adam, whoever he might have been.  Robert Nozick’s system of justice as entitlement, defined by justly acquired advantages justly transferred, and leaving no room for global claims even to equality of opportunity, is a contemporary example of this sort of view.[xiii]  Nietzsche’s ‘genealogy,’ which traces ideas and institutions back to their shameful origin, parallels the discrediting of royal titles by the discovery of queenly adultery, or the debunking of political and legal systems by tracing them back to conquest.  The attack on the memory of Columbus launched in 1992 was an attack on the legitimacy of the civilization of both Americas.

All systems of justice as legacy recognized that after a certain amount of time the common good required that illegitimately obtained advantages be taken as legitimate.  The question How long was long enough? was decided by the sovereign, and the question Who is sovereign? could only be settled by violence.  For there is no generally acceptable criterion whereby we can decide when a claim of ancient right, say the Zionist claim to the Land of Israel, has been extinguished.

 The importance of tradition in social life derives in part from inertia.  It is a lot harder to change society, for good or ill, than overheated intellectuals suppose.  That an institution has worked in the past is a reason for using it now; precedents provide models for effective action in common.  But this consideration hardly accounts for the richness of human traditions, or the fact that such traditions are often valued for themselves.  But all tradition goes back to rupture.


Status Quo and Revolution

No one is perfectly comfortable in any society and everyone has some reason to collaborate in the collective enterprise.  Dissent among a substantial number of articulate persons is evidence that an existing institution or practice (hereafter I do not draw the distinction) cannot be taken as an immutable given, but must be criticized or supported by a supra-conventional standard.  If nature is whatever happens, then any social and political structure, and any form of human behavior, including those expressing deep alienation from existing structures, counts as natural.  An Aristotelian conception of nature, which allows for the possibility of warped development, creates space for normative judgment of both individual and collective behavior, but even here appeals to human nature place limits on how much can be demanded of human beings. 

Some political theorists defend existing structures, on the grounds that they proceed from human nature; others criticize such structures on the grounds that they are anti-human.  Another sort of natural-law theorist trims his philosophical principles to fit obdurate social reality.[xiv]  The ambiguity, and hence also the malleability, of all philosophical traditions is a boon to this sort of theorist.  A radical natural-law theorist holds out an ideal in terms of which existing institutions fall short and demands reform or revolution.  The indeterminacy of philosophical principles is the chief foe of such essays in philosophical radicalism. 

In order to live with imperfect institutions, we are forced back to the, inevitably vague, sense of belonging that enables people to accept features of social reality that injure or offend them, and when lost makes even the slightest offense intolerable.  Sustaining such a sense of belonging is a matter of practical politics; when it is reasonable to feel it or stop feeling it is a question about which it is difficult to say much.  If we rely on such an inarticulate sense of belonging alone, and neglect rational discussion of the grounds of political obligation, we move in the direction of fascism.  If, however, we forget it, we leave firefighters (of whom even pacifists approve) without motivation to risk life and limb, and subject themselves to excruciating experiences such as the sight of children burned to death, to save the lives even of marginal members of our society.

Our aim in political argument should not be to produce unanimity, only enough of a consensus to allow social life to proceed without unacceptable levels of conflict and coercion.  There is thus a powerful case for a minimal natural law, which can be invoked in discussions among adherents of diverse ways of life.  I will not make my arguments depend on a complete metaphysical or theological system (or a particular cultural tradition), which would only receive the assent of a relative few.  Neither will I, however, accept a ‘veil of ignorance,’ or a conception of public reason, that screens out important truths from political argument however widely or rationally held.  My approach will be to proceed from as rich a set of normative principles as necessary, but no more.




The Enlightenment held that consent is the sole legitimate basis for governmental power.   We trace legitimate power either to a primordial contract (the American Constitution, for example), to a hypothetical contract, or to the daily plebiscite that constitutes the inhabitants of a certain territory as a people.  Such contracts are open to periodic renegotiation.

Yet, as a contemporary jurist observes, “Recent work in political philosophy has made it apparent that, notwithstanding the standard lore of American government, all citizens do not consent to be governed by the laws of the United States.”[xv]  Like many ideas previously adopted among liberals, the notion of rule by consent survives in circles professedly Conservative.[xvi]  But we are not here dealing with apostasy from ‘orthodox’ liberalism.  For many people, including believers in liberal democracy, systematically object to the policies pursued in actual liberal democratic societies.  If the need for universal consent determines what forms of government are legitimate, even the best representative democracy falls short.  If we reserve the right to change our minds once we have consented, the result is anarchy even on the most favorable assumptions.  On the other hand, some people consent to non-democratic constitutions, even heartily.

Hobbes thought that consent out of fear was sufficient; for Locke, walking on a road is enough to constitute acceptance of governmental legitimacy (L § 119).[xvii]  A more adequate view distinguishes two levels of consent:  consent to the constitution or regime, and consent to the particular laws and policies enacted under it.  We must also distinguish two forms of consent:  consent to what one recognizes, or can come to recognize, as good; and acquiescence in an option that is least undesirable under the circumstances.  Even victory in a civil war is not merely a matter of superior arms:  it is also a matter of winning the acquiescence of the surviving members of the defeated party who have not left the territory.  If accepting governmental authority is a matter of making the best of one’s circumstances, then the liberal democratic state does not differ in fundamental ways from the now-defunct Soviet state.  On other premises, consent may be undermined by duress; and, in a more radical way by fraud, since if I am defrauded I do not know what I am consenting to.  In any case, sociological legitimacy, though not sufficient, is a necessary condition of legitimate rule.  

I here use Locke to explicate the common sense of Anglo-American political thought, for the moment playing down – it will not be possible to ignore entirely – the religious context that gives his views coherence.[xviii]  The punishment of criminals, unlike the shooting of mad dogs, supposes that lawbreaking is, at least prima facie, a moral fault.  And we punish criminals without investigating whether they have given their consent at any level or to any degree.  Locke’s doctrine, that each of us has a right to punish in a state of nature, a right we transfer to the rulers of civil society when we form it (L §§ 8-9, 130), can be applied to crimes such as murder and rape.  But punishing the non-payment of taxes requires that the state have legitimate authority over the defaulter. 

In Lockean theory, the issues come to a head when those who wield public power attempt unilaterally to change the political constitution (L chap. 19) – an argument that can be extended to official attempts unilaterally to change other key institutions.  Systematic illegitimacy turns the government’s use of public force to sustain its authority into a war against the other members of society.[xix]  In such a case, the government, though perhaps not the larger society, is dissolved, and the people are free to change the form of government they have previously established. 

The resulting issues are as follows. 

  1. When have things have reached the point that a revolution is justified?
  2. What confers legitimacy upon the government that takes power after a revolution? 
  3. By what standards do we sustain a society when its government has been dissolved? 

Locke gives three answers to these questions.  First, “the People [presumably the majority] shall Judge” (L § 240), since the government is their trustee.  But in revolutionary situations there is often no clear majority.  Second, “every Man is Judge for himself” (L § 241), since when government is dissolved we are back in a state of nature.  But this means anarchy, and gives a powerful argument to opponents of any revolution.  Third, “the Appeal lies only to Heaven” (L § 242).  On one reading, this last answer boils down to the maxim that sufficiently successful might makes right, and the hope that sometimes right will make might. On a more sympathetic reading, the appeal to Heaven “is  … a kind of acknowledgement that a person embarking on a course of active resistance makes to show … that he is prepared to take the consequences at God’s hands if it turns out that he is disturbing the peace and order of the realm for no good reason.”[xx]  On either reading, T.H. Green’s observation, that “revolutionists do and must to a great extent ‘go it blind’”[xxi] sums up the result.

A stable political society must rest on something stronger than majority support (or the inability of any faction to overthrow the regime).  Super-majorities are required for some political purposes, though what these are and how large the majority need be is historically contingent.  In America, a shared belief (assent rather than consent) in the ideological underpinnings of the Constitution and the Declaration of Independence in part replaces the sense of being French or English that sustains political community in other countries.  Such assent is brought about, in part, by a Constitution so porous that those opposed to present policies, including judicial decisions, can maintain that they arise from misinterpretations and misapplications of our fundamental principles.  But it also rests on the political socialization of children before they are able to make their own judgments.   The downside is a tendency, found in all parts of the political spectrum, to dismiss ideological opponents as un-American.[xxii]

Nagel has well formulated the governing conception underlying liberal consent theory.

The pure ideal of political legitimacy is that the use of state power should be capable of being authorized by each citizen – not in direct detail but through acceptance of the principles, institutions, and procedures that determine how that power will be used.  This requires the possibility of unanimous agreement at a sufficiently high level, for if there are citizens who can legitimately object to the way state power is used against them or in their name, the state is not legitimate.[xxiii]

Our deep differences about moral issues, and the persistent conflict of interest between rich and poor, however, however, both call into question the claim that there are political principles no one could reasonably reject.[xxiv] 




The definition, enforcement, and on some views the revision, of property rights is one of the central tasks of the state.  As traditionally understood, Locke held that property rights were independent of rights to political rule (and hence also of positive law), thus replacing the divine right of kings with the divine right of property.  Our analysis of the underlying arguments begins with the question, what sorts of rights are property rights, and what sorts of ‘things’ can be the object of such rights.  James O. Grunebaum puts it well, “Ownership is a relation between persons with respect to things.  Ownership is a set of relations constituted by rights and duties among persons.  There is nothing in the object owned which marks it off as mine, or yours, or ours.”[xxv]  (While I sympathize with Grunebaum’s motives for replacing property by ownership, I follow traditional usage.)   

No human being creates resources ex nihilo, and if a mere act of private will is enough to confer ownership, a number of different people will exert their private wills on the same object,[xxvi] exercising what Hastings Rashdall called “the divine right of grab.”[xxvii]  Nonetheless, James Tully argues on behalf of Lockean property rights:  “a person could not give his consent unless he understood that the speech act was his own.  ‘Contract,’ Green concludes, ‘presupposes property.’”[xxviii] Yet, though agreement presupposes agency, a natural right not to be forced to work for another person suffices to get the needed contractual relations going without a property right in one’s own person. 

The notion, central to a secularized Locke, that I own myself (and consequently my labor and its products), is in tension with an idea also central to Locke’s thought, and to the liberal tradition generally – that of the inviolability of the human person.[xxix]  For there is nothing about property rights that prevents their being overridden to protect other people’s rights or surrendered when the owner finds it to his advantage.  Philosophical liberals whose central principle is self-ownership will have a hard time rejecting proposals that indigent old people be offered comfortable accommodations, on the condition that they irrevocably authorize those in charge of their residence to kill them without further consent when they judge that they are no longer able to live with dignity.  In contrast with the principle of self-ownership, the principle of inviolability restricts my ability to dispose of my existence to public or private persons; both Locke and Kant linked the notion of rights against the state to a prohibition of suicide.[xxx]   And Russell Hittinger has argued, without reliance on Locke’s general opposition to suicide, that the legalization of assisted suicide undermines the authority of the state by compromising its monopoly on the legitimate use of lethal force.[xxxi]

 Locke’s political argument also turns on a prohibition on infanticide:[xxxii] for him parental power does not arise from ownership, but from the need to prepare children for adulthood, and hence excludes the power to prevent these children from becoming adults (L § 63).  Otherwise, a patriarchal theory of the state, as advocated by Locke’s adversary Sir Robert Filmer, would have great plausibility, for we would all owe a debt of gratitude to our parents, not only for conceiving and caring for us, but also for refraining from killing us.   And since our parents created us, the claim that they own us would be highly plausible  

It is implausible that we have here two isolated moral requirements, as opposed to a general prohibition on taking innocent human life.  Some contemporary followers of Locke reject even the taking of guilty human life:  they believe that executing an innocent person is so horrible an act that even good faith efforts to avoid doing so are not enough.  This position is in serious tension with common Liberal attitudes toward abortion and euthanasia. [xxxiii]   In any event, we still need to ask about the grounds of the prohibition against taking innocent human life.  Locke solved this problem by supposing that God owns us.  A better response is that no one owns a person, not even the person himself.   And this claim makes best sense within a background morality, not fully articulated by Locke himself, which takes as central a picture of human beings as created in the image of God.

Where legitimate ownables are concerned, property is a political relationship.  Morris Cohen makes the pertinent historical argument,[xxxiv] C. B. MacPherson the analytical one.[xxxv]  The judicial and legislative power of the state is required to define property rights, and its coercive power to enforce them.  There can be customary property relations – allocation of the waters of a harbor among lobstermen for example – but such relations are dependent on a rich set of shared understandings, tolerated by the state.  In short, as Bentham well put it, “property and law are born together, and die together.  Before laws were made there was no property; take away laws, and property ceases.”[xxxvi]   

Hence property is a conventional institution, subject to a social easement, and for that reason open to regulation or even abolition by just law.[xxxvii]  That all titles go back to conquest eventually gives the radical critic a rhetorical victory, but is of little help in deciding how we are to go on.  For it applies equally to our legal system and to our collective ideals such as that of human equality.  Evacuating America and returning the land to the Indians (after figuring which of them has the best title) is not a workable policy.  

It does not follow, from the fact that property is a creature of the law, that the government of the day, or even the national community itself, owns everything within its jurisdiction.  For we entrench some elements of our political system against transitory majorities, whether by ‘parchment barriers’ or by established social institutions.  And the members of a political community are also members of other societies, including such things as transnational churches.  And some of the property within the nation state is devoted to non-state communal purposes.

In any case, without an understanding of the common good, and the limits it places on political power, acknowledging the social character of property means a war of each against all – in practice of tribe against tribe – conducted through the agency of the state, in which the most ruthless and deceitful will prevail.[xxxviii]  Every individual or politically active group will claim to own everything, and issues such as the development of land or the structure of the university will turn into endless conflicts about the control of territory.   

 The contours of the property rights we recognize depend on our conception of the good society and the nature of political reality.  All of our evaluations are here relevant:  when a capital levy was proposed in England, its opponents pointed out that it would lead to British art treasures being sold abroad.  Demands for secure tenure are perpetual in human history.  We inherit three ideals capable of overriding these demands from the revolutions of the eighteenth century:  liberty, equality, and fraternity; or as the last is now more often called, community or solidarity.  Grunebaum’s “autonomous ownership,” emphasizes freedom,[xxxix] John Christman’s neo-Prudhonian scheme of property institutions emphasizes equality,[xl] and both neglect the claims of both community and security of tenure.

Responsibility for future generations, and for the social and natural environment in which they will live, needs to be set against both freedom and equality in the shaping of property rights.  Hence a just system of ownership will include a large place for charitable trusts, thus making provision for institutions insulated from the politics of the day for the preservation of wilderness, educational and religious communities, and historically important buildings. 

Libertarian arguments for property rights are not demolished by pointing out that enforcement of such rights abridges the liberty of the ‘have-nots.’  But not all forms of freedom are equally valuable – freedom to do what one believes to be right and good is more valuable than freedom to engage in what is at best a harmless indulgence.  And, unless property is widely distributed, property rights will secure the liberty of only a few.  Moreover, wide gaps between rich and poor make more difficult the sense of belonging, and the commonality of experience, that are necessary to a community of reasonable discourse about political affairs.   Hence, assuming that it can be made to work as an economic system, the distributivist proposal for widespread, though not necessarily strictly equal, ownership is more attractive than either a command economy or capitalism defended on libertarian principles. 

Paul Elmore More argued, in a context of labor agitation violently suppressed:  “looking to the larger good of society, we may say that the dollar is more than the man” and that “to the civilized man the rights of property are more important than the right to life.[xli]  At the other extreme, C. B. MacPherson proposes that property be re-defined, at least in part, as “an individual right not to be excluded by others from the use or benefit of some thing,”[xlii] even if that thing is the place where I live.  Both formulations imply endless war between rich and poor.   Security of tenure is in any case not an exclusive concern of the elite:  where everything else is contested, even a shack with junked cars in the yard can provide refuge from a hostile society. 

The principal limitation on collective efforts to improve society by abridging the rights of property holders is suspicion of the government.  Hence a primary task of those who favor a social conception of property is to strengthen our conception of the common good, and with it the moral restraints that hinder the abuse of both public and private power. 



Fortune or Providence has placed groups of people in a situation where co-operation is necessary to their survival (and even more so to their flourishing).  Such groups must deliberate concerning the terms and ends of their association, as well as concerning the course they are pursuing together.  Moral and political judgments require a ranking and weighing of a variety of conceptions of justice, ranging from justice as fairness and justice as desert.[xliii]  It also requires the dismissal of some understandings of justice, such as justice as purgation (the removal of ‘undesirables’ from society).  The answer to the resulting difficulties must come from an understanding of the community in which questions of justice arise. Even the most ardent advocates of a rights-based approach to social philosophy appeal to the American tradition.

People who contribute to a society’s understanding of its shared endeavors are doing something different from those who express their preferences or grapple with moral issues in their private lives.  Following Colin Bird, we may call such people ‘public agents.’ [xliv]  (Though voters are public agents, our political order relies on their voting their own interests and moral convictions in order to make sure that these interests are taken into account in public decisions.)  And the source of the criteria to which public agents appeal we may call the ‘common good.’

However hard it may be to develop an adequate theory of kindness, we know that it is cruel to torture helpless creatures for one’s pleasure.  However difficult it may be to develop an adequate theory of economic justice, we know that chattel slavery is unjust.  However difficult to develop an adequate theory of liberty, we can all recognize a society (say East Germany before 1989) in which liberty is not respected.  In the same way, while it is hard to specify the concept of the common good, it is easy to see when a society lacks an adequate sense of it.   The use of the market to evade the question of the common good rests on a Platonic noble lie (to put the matter at its most sympathetic), concealing the fact of human responsibility for resource outcomes.  For no society does, can, or should rely on a completely unstructured market to allocate benefits and burdens.    And decisions about the structure of the market require appeal to the common good.

If I do not think of myself as united with the other members of my society in a common enterprise, it is hard to see how I can accept the power of those in authority to command or forbid for the sake of that enterprise.  If I do not share with the authorities a rough sense of what is good and bad, it is hard to see how I can take seriously their judgments, e.g., about what drugs should be available on the open market.  Hence, absent appeals to the common good, it is hard to see how civil law could have any sort of authority – including the laws which define items as the property of other people.  It is even harder to see why I should be prepared to make sacrifices for my fellow members of society beyond the requirements of the law.    

Consequentialism does not provide a sufficient solution to the problem of political obligation.  For there are circumstances in which punishing an act, and thus treating it as wrong, may negate its bad consequences while preserving its good ones.  If a woman kills her husband to protect both herself and their children from violence, and is then punished as a criminal to prevent copycat killings, this conjunction might have better consequences than either her sparing her husband or her acquittal.[xlv]  From a deontological point of view, the simplest course is to suppose a principle requiring us to follow those existing laws and customs that further the common good (just laws for short).[xlvi]  Within both consequentialist and deontological theories, the maxim, An unjust law is no law at all, remains available– e.g., for laws requiring physicians to give lethal injections without consent to patients they have diagnosed with HIV.[xlvii]

The common good is neither the good of the majority, nor the aggregate of goods of individuals, nor the result of bargaining among the members of society, nor the judgments of those who in fact rule the society.  Scapegoating and secret victimization are unjust; this proposition implies that, in formulating our understanding the common good, we must take seriously the difference among persons.  Even public goods in the usual sense, such as clean air and national defense, fall short of constituting an adequate version of the common good, since they do not include the right sort of relationship among the members of society.  

John Haldane provides a useful listing of the various sorts of good that are at stake in politics and social life.  Goods can be possessed or enjoyed

  1. As individual goods: attaching to individuals independently of the states of well-being of others, for example, physical comfort.
  2. As collective goods:  as sets of individual goods, for example, aggregate wealth.
  3. As common goods:  as ones attaching to collectivities and thus only available to individuals as members of groups – for example, the happy mood of a social gathering.
  4. As private goods:  the possession of which by one party prevents their possession by another – for example, food.
  5. As public goods:  the possession or enjoyment of which by one party does not preclude [and may require] similar benefit to others, for example fresh air.[xlviii]

In short, the common good is a good in which all members of the society somehow participate, including those members whose characteristics place them at a disadvantage in bargaining.     Central to the common good is a form of civic friendship that excludes the use of some of members of society as mere instruments for the satisfaction of others (in Aristotle’s world slaves were not in the relevant sense members of society), and includes the practice of acting together for the common good.

The common good is best understood, in the first instance, as a shared search for the common good.  The common bad is then the civil war – of tribe against tribe, if not of individual against individual  – that happens when such a search breaks down.   A less extreme form of the common bad is the exclusion of some groups from the network of interdependence by which our society defines itself.  Nor does it much matter, from this point of view, whether what keeps the black urban poor or the white rural poor out of the larger society is structural features of our political economy, entrenched cultural patterns within the excluded group, or majority animosity.[xlix]    Dealing with such situations is not a matter of looking for someone to blame.

A more difficult problem concerns those whose behavior places them to some degree outside society – not only criminals but also those in some non-criminal respect ‘deviant.’  Each of us will have his own views on the question, what the law should be and what the mores should require.  But no society can do without legal and moral standards.  During the author’s lifetime, the mores have become laxer in many respects, but harsher on the use of tobacco, on racial and other discrimination, and on sex between adults and children.  And whatever the rules may be, some people will find them harder to keep than do others, and even suffer from impaired freedom.  Some conflicts cannot be resolved this side of Jordan.  Still, only the death penalty represents a total exclusion from society, and that (in my view) is justified only when the rest of us can be protected in no other way.  (Even here forms of ritual reconciliation are possible.)   Prisoners should be given useful (paid) work in order to enable them to contribute to the common good.  The need to affirm moral standards is irrelevant, in any case, to the poor:  even if some adults are partly responsible for their poverty, those born poor are not.

Richer understandings emerge from a dialogue that is itself a collective enterprise.  Understandings of the common good range from the modest and relatively individualistic to the strongly corporatist.  At the individualist end of the spectrum, John Finnis maintains (and dubiously attributes to St. Thomas Aquinas) the view that “the specifically political good is limited and in a sense instrumental[l] – a position “not readily distinguishable from the ‘grand simple principle’ (itself open to diverse interpretations) of John Stuart Mill’s On Liberty.”[li] As an interpretation of St. Thomas, this account is hard to square with his approach to issues like heresy and suicide.[lii]  As a contribution to the contemporary debate, it suffers from the limitation, as Finnis himself acknowledges, that there is no way of defining precisely what virtues are necessary, and what vices dangerous, to the workings of contemporary political societies. 

Finnis in practice assigns a large role to the state in the promotion of virtue:

The political community’s rationale requires that the state should deliberately and publicly identify, encourage, and facilitate, and support the truly worthwhile (including moral virtue) and publicly identify, discourage, and hinder the harmful and evil, and should by its criminal laws and sanctions (as well as by its other laws and policies) assist people with parental responsibilities to educate children in virtue and discourage their vices.[liii]            

At the corporatist end of the spectrum, Michael Pakuluk maintains, “very often a belief is a common good.”  For shared beliefs contribute to, or even enter essentially into, the efforts of a group to promote common ends.  (His example is the belief that sex is only legitimate within lifelong heterosexual marriage.)[liv]  This view would support heresy laws in some form.  In an ironic variation on the same theme, after the Civil War many prominent American intellectuals, including Oliver Wendell Holmes, concluded that strongly held beliefs were a danger to the common good.[lv]  Yet, as Holmes himself recognized, we all have dogmas, and to be completely open-minded is to be at the mercy of zealous believers. 

Mutual tolerance, including tolerance for moral, political and religious convictions seriously held, may not be an adequate specification of the common good, but it is surely an important part of it.  A laissez-faire approach to religion need be no more hostile to religion, or alienating to people of faith, than laissez-faire economics is hostile to commerce.  The notion that religious beliefs are beyond the understanding of secular courts plays a large a role in the protection of religious freedom (for example the right of religious groups to choose leaders by their own processes). 

The Liberal-Communitarian debate of the 1980s and 1990s did not reach a satisfactory conclusion.  Liberal worries about abuse of communal power are overstated, since every power, including that of private persons, is sometimes abused.  On the other hand, we should not indulge in nostalgia for ancient forms of political community, which relied heavily both on external enemies and the exclusion of the majority of the population from public life.[lvi]  What Michael Walzer has called the Four Mobilities (geographical, social, marital, and political),[lvii] to which we can add a fifth, occupational, and a sixth, religious, are reflected in our habitual patterns of thought and action.  

One weapon in the Communitarian armory is the principle of subsidiarity.[lviii]  Every social form has its distinct role or munus, founded in its distinctive contribution to the common good, which other authorities may help but not destroy.  Such a plurality of functions or spheres of sovereignty is itself an integral element of the common good.  Subsidiarity is different in both its presuppositions and implications from liberal doctrines of social pluralism – for example, there is no suggestion that the relationship among social units should be understood in market terms.  Still, this doctrine fulfills similar purposes, that of providing a buffer between the individual and the smaller community and the overweening power of the state, as well a haven for those who find social mobility draining, and in particular for parents who desire a stable environment for raising their children.  In fact, the most important communities in contemporary America are local (private or public) schools and congregations (or parishes), both supported by an alliance of families.

This doctrine, however, at least as developed so far, lacks sufficient specificity to be of much use in defining the common good in a non-totalitarian way.  To what extent is federal intervention in local elections, even for federal officials, a legitimate application of subsidiarity?   At what point is the state or some other external authority entitled to intervene in the family to prevent the abuse of vulnerable members?  And who is to decide, and by what criteria, what constitutes abuse?  (There are people who regard a religious education as abusive.)  The challenge to defenders of subsidiarity is to articulate principles for assigning tasks to social forms, which do not amount to transparent jurisdiction shopping, even in a good cause.

The (American, not the French) liberal tradition is best understood as a tradition embodying an ongoing argument about the principles on which the members of a religiously and culturally diverse society can co-exist and co-operate.[lix]  (The French tradition had to bear the burden of creating cultural diversity by attacking the Church in a way American liberalism, formed in a Protestant country, had no need to do.)  In its most attractive form, this means developing a ‘thin’ set or principles that accommodates the ‘thick’ principles of religious and other communities.  Minorities should be able to live their own distinctive ways of life, within limits that include abstention from various forms of aggression against the majority (and some limits on what they may do to their own internal deviants). 

All groups should be permitted, and indeed encouraged, to propose innovations, but none should be allowed to impose them.  This principle is difficult to apply, however, in view of the existence of sharply divergent views as to the extent to which the structure of marriage and family is of concern to the whole of society and to what extent only to the parties.  Those who regard marriage as a private matter are inconsistent, however, insofar as they demand legal recognition for nonstandard relationships and are not content to celebrate them privately.  And, as I argued in chapter 6, since the marriage and family are among other things institutions for the socialization of children, they are of concern to all of us.

There is space here for a ‘states rights’ approach to this and other cultural issues.  For it is possible that a country like the United States is not cohesive enough to sustain a shared understanding of marriage and family, even of a minimal sort.  But conceding this proposition has grave consequences for collective efforts such as support for health care; for health care policy raises a host of cultural issues.  Health care rationing for the elderly engages such ideas as the succession of generations, the transmission of social position from parents to children, and a normal span of life beyond which strenuous efforts at prolongation are no longer warranted.   Abortion raises especially difficult issues, since both pro-choice and pro-life people compare their opponents’ positions to that of slaveholders.  Whether a states’ rights approach will prove workable on the ground I do not know; the precedent of divisions over slavery is not encouraging.

Contemporary pluralistic societies fail to be communities in a rich enough sense to sustain their aims.  The causes include structural features of representative democracy, a widening gap between the poor and the rich, the disgusted withdrawal of many people from the political process, a culture of victimization that encourages every group to define itself as an oppressed minority and oppress others; and cultural wars arising, among other things, from the contemptuous dismissal by some citizens of others’ deeply felt moral and religious convictions.  Liberalism, at least in the newspaper (capital L) and possibly even in the philosophical (small l) sense, encourages the development of disparate ways of life and thus undercuts the social consensus required to support programs, in another sense Liberal, of social welfare.  These sources of discord interact complexly, sometimes reinforcing, sometimes limiting, one another.  External threats limit the resulting divisions, but in a way that suggests fascistic rather than liberal solutions.  

Yet there has never been, outside the gates of Eden, a society free of pervasive and potentially bloody conflict.  Cultural and political divisions in early nineteenth century America were by contemporary standards narrow, but they were wide enough to produce a bloody civil war.  Nor did the fact that America then was an intensely Bible-reading society prevent its political breakdown.[lx] 



 I now turn to the question, who is to be the arbiter of disputes concerning the common good.  Human beings need a common authority to live together and work for common goals without mutual interference, and (given what people are in fact like) a coercive power to back up this authority.  We can articulate three principles with which the structure of the resulting government ought to comply.  These are:

  1. The principle of authority.   In order that we can have sufficiently clear answers to the questions that need to be settled for social life to proceed, someone has to make decisions.  In its pure form, the principle of authority means a strong and charismatic man (or woman), who rules until displaced by a new ruler, often by force.  
  2. The principle of competence.  We should make decisions in such a way as to guarantee that, so far as possible, we do the right thing.  The principle of competence might mean the establishment of Plato’s philosopher-king (or -queen), or the placing of political power in a celibate order or in a group of families.  The authority of the elite derives from its ability to reason soundly from common understandings, and to make sound prudential decisions when necessary.
  3. The principle of participation.   Each competent member of society should have an opportunity to voice his or her concerns and have them taken into account when collective decisions are made. 

A single ruler does not guarantee firm leadership, however; and the social position of elites does not guarantee their wisdom.  Likewise, opportunities for participation do not prevent political alienation. 

No one has provided a better way of making collective decisions than majority rule, since there is no way of defending a privileged status for any minority. (I do not exclude super-majority requirements, to prevent a transitory majority from making irrevocable decisions.)   All forms of authority can be abused, and the claims of all known elites to know both the Good and how it should be embodied in the workings of human societies are questionable.  Religious authority raises special problems, but I am assuming that our society will be religiously diverse and therefore not theocratic.   Nor is there any way of deciding among the claims of rival elites, except for warfare or the judgment of the majority.  But if the people should rule, the most urgent and most difficult task is specifying who ‘the people’ are.  We can tell permanent minorities that they have no greater claim to veto power than a host of other groups, but this argument questionably supposes that they continue to regard themselves as part of We the People. 

Robert A. Dahl defines and defends democracy in terms of a principle of equal consideration (or universal inclusion):  “No distribution of socially allocated entities, whether actions, forbearances, or objects, is acceptable if it violates the principle that the good or interest of each human being is entitled to equal consideration.”[lxi]  This principle requires, however, that a government weigh the interests of nonresident aliens equally with its own citizens – a principle in terms of which democracy is no better than any other form of government.  Hence Dahl scales the principle down to one of equal consideration of all ‘members’ – a formulation that evades all the important questions.[lxii]  A coherent though counterintuitive solution to the resulting perplexity is that of Joseph Schumpeter, for whom the scope of a political community was an arbitrary matter, so that rule by a tiny, but internally egalitarian, elite, could count as democratic.[lxiii]   

Dahl’s discussion of democracy is, moreover, tied to liberal theories of political obligation in which members are defined as those expected to obey the laws.  But American policies affect people everywhere.  To the extent that a person’s claims to membership, and hence to participation, rests on the premise that his interests require consideration, claims to consideration must be independent of the claims of membership.  Likewise, the rights and duties of membership are independent of a claim to consideration in the most direct sense.  Citizens who oppose capital punishment are entitled to voice and vote their opposition, even if they are unlikely to be convicted of capital crimes, and even if the expense of each execution per taxpayer is negligible.  

William Connolly attempts to unsettle the identities in terms of which conceptions of citizenship rest and thus to widen democracy as much as possible.

When democratic politics is robust, when it operates to disturb the naturalization of settled convictions, when it exposes settled identities to some of the contested contingencies that constitute them, then one is in a favorable position to reconsider some of the demands built into these conventions and these identities.[lxiv] 

But such enhanced inclusion, and the narrowed economic inequality it requires,[lxv] in the absence of a shared framework governing the way we address common problems, is a recipe for chaos.   For the number of people who can veto common decisions becomes endless. In any society, there will be saints, scoundrels, and eccentrics who reject the entire set-up. 

Between Schumpeter’s elitism and Connolly’s anarchism lies a wide range of positions limiting democracy by historical contingency.  A possible answer is that all those who do not merely suffer the state’s power as a fact of their lives, but are expected to contribute actively to its support (by paying taxes, for example) are entitled to participate in its deliberations.  But it would not be acceptable to disenfranchise some minority while at the same time excluding it from taxes, and temporarily resident aliens pay taxes as much as citizens.

The common belief, that democracy is uniquely capable of supporting a political community, cannot be sustained.  People consent to non-democratic forms of government; and, even in the most scrupulously conducted democratic polity, the distinction between ruler and ruled remains.  Yet no elite these days can do without appeals to the popular will; and, once they make such appeals, we have every reason to demand procedures by which such claims can be tested.  Even at the global level, we can work for a more equitable sort of polyarchy, which will gradually democratize, as elites draw upon the masses for political support.  Compromises are tolerable so long as we are convinced that our history is moving in broadly the right direction.  In a world where this conviction has become hard to sustain, the sense of community needed to sustain democracy is consequently weak.







The element of historical contingency in democratic government becomes clearest when we consider issues of citizenship and immigration.  Rawls’s Theory of Justice circumvents the question of the commonalities that contribute to the unity of the national community.  Aristotle in contrast declares:

Every state is a community of some kind, and every community is established with a view to some good; for mankind always act to obtain that which they think good.  But, if all communities aim at some good, the state, which is the highest of all, which embraces all the rest, aims at good in a higher degree than any other, and at the highest good.[lxvi]

But Aristotle (and even more so Plato) places the requirements of political community so high as to imply that few if any political communities now exist or ever existed.                         

Every human community is a product of both necessity and imagination:  national communities are in this respect no worse or better off than other and supposedly more ‘real’ communities.[lxvii]  The sense that the government is an alien, even if sometimes beneficent, force, which its subjects do not understand and over which they have no control, must be the exception rather than the rule if the government is to meet liberal standards of political legitimacy.   Otherwise, the moral pathologies of colonial rule are reproduced in nominal democracies.

According to Aristotle, a citizen is minor but important official – someone entitled to take part in the government of his community.[lxviii]  By this standard, women before the Nineteenth Amendment were, and the mentally retarded even now are, citizens only by courtesy, and children are citizens only by anticipation.  A Puerto Rican, who can vote in national elections but must move north first, is, like an infant, a quasi-citizen.  The civic republican tradition tells us that we need citizens who are both capable of independent thought and action and devoted to the political principles of their communities.  Many citizens these days feel no obligation even to vote, however, and only naturalized citizens are required to demonstrate either knowledge of, or attachment to, American constitutional principles.   

The question therefore arises, how many people and what sorts of people we can admit into our society without dangerously depleting its moral and material resources.  Internal cultural conflicts also contribute to disputes about immigration.  Richard Rodriguez invokes immigrants as cultural allies, writing with his characteristic punch:  “I think that the immigrants will also change California – their gift to us – reminding us of what our German and Italian ancestors knew when they came, hopeful, to the brick tenement blocks of the East Coast.  Life is work.”[lxix]   Other Californians, I suspect, strenuously disagree. 

In any case, immigration has been good for both American society and for the immigrants themselves. Immigration, we may even say, is our traditional remedy for decadence.  Hence, while open boundaries are not mandated, policies whose adoption requires stoking up xenophobia should not be adopted, either.    Even in America, however, immigration has created social tension, and we should hesitate to require societies that have not experienced our waves of immigration to follow our example.

Issues of immigration and citizenship also raise the question of the relative roles of ascription and consent in defining political relationships, and among ascriptive considerations the relative roles of ancestry and place of birth.  Mark Tushnet argues that the limitation of eligibility for the Presidency to natural-born citizens is inconsistent with an understanding of our society as based on voluntary commitment rather than accident of birth.[lxx]  Yet consensual arguments have been also used to deny citizenship to black Americans, on the grounds that the white majority never consented to their inclusion (SI 176).[lxxi]  Moreover, as Bernard Yack points out, fixing citizenship on an accident of birth rather than on deliberate choice has the advantage, from a liberal point of view, of making it more difficult to dismiss one’s opponents as ‘un-American.’[lxxii]    In any case, birth within the territory of the United States is as much an accident as being the child of a duke.  

 The fusion of liberalism and nationalism in the principle of self-determination of peoples has had unhappy consequences, both conceptually and practically.  Walzer has attempted to resolve this problem by proposing tolerance of “the nation that comes next” as a moral test for nationalism.[lxxiii]  On any view of social life, however, the fissiparous tendencies of nationalism must stop somewhere.  As Ronald Beiner puts it, “it seems a strange kind of normative principle that relies for its coherence on the willingness of most national groups not to cash in the voucher the principle gives them.”[lxxiv]

Many writers find comfort in the distinction between civic and ethnic nationalism.[lxxv]  Working from the stability of party allegiance in America, Rogers Smith argues for “allegiance to the party of America” as the basis for contemporary civic unity (SI 493-504; for a sketch of the resulting program see SI 504-06).  Although Smith can find support for a liberal democratic “fighting faith” (SI 502) in the American tradition, he acknowledges that it is not the only force at work there:  “the first task is to debunk both ascriptive and liberal myths about America’s past and present” (SI 504; emphasis supplied).

Strategies of legitimation that work for political parties and communities of belief do not, however, work for states, which claim coercive authority over dissidents.  If we view American history as a series of “struggles in which the actors a particular citizen decides to regard as the ‘good guys’ may not always, perhaps not even often, win” (SI 499; emphasis supplied) we will have as many understandings of citizenship as there are cut-and-paste renderings of our shared history.  A narrative that tracks the requirements of a particular political program is not much use in developing the consensus needed to support a working conception of political allegiance.[lxxvi]  

            Involuntary members of our society in the usual sense include Native Americans, black people who emphasize their African rather than their European heritage, ultra-religious groups like the Amish, and the defeated parties in struggles going back to the American Revolution or even the French and Indian Wars.  We should also add white Southerners who regard their part of America as a conquered province.  Yet no one else chose to be born in the United States, and even voluntary immigrants often were fleeing conditions that left them with little choice.

‘Ascriptive status’ is little more than a collection of social markers whose invocation the liberal tradition finds questionable (for an attempt at a definition, see SI 508 n.5; for a detailed historical discussion, see SI chap. 11).  A special problems arises for sexual orientation, taken as fixed, since bisexuality and changes of sexual pattern are more common than some sexual ideologies allow.  (For Smith’s attempt to handle this issue, see SI esp., 22-23.)  In truth, there is no sharp distinction between ascribed and consensual social identities.  Most of our identities, including those we affirm, are ascribed to us at or near birth.  And some persons assent to identities that seem as if they could only be imposed (the process is called ‘internalizing a negative stereotype’).

However unsatisfactory the concept of ‘ascription,’ we need some form of inherent status to provide social bonds tighter than liberalism allows, which liberal societies need at least in times of crisis (see SI 9). This fact was evident even before the terrorist attacks of 11 September 2001 and is doubly obvious today. Moreover, the idea of civic nationalism is the product of one set of cultural heritages rather than others.  As Yack well puts it, “the idea of the civic nation, with its portrayal of community as a shared and rational choice of universally valid principles, is itself a cultural inheritance in nations like France and the United States.”[lxxvii]  Tom Paine, though a Deist, found it necessary to go beyond the rationalistic religion of the Enlightenment and consensual theories of political obligation, and appeal to an analogy between America and the Israel of the Old Testament, both of whom, he argued, had become apostates by accepting monarchy (SI 75).  Yet the ideal underling consent theories remains compelling:  that we should be able to understand our institutions, or at least those engaged in legitimizing coercion, in such a way that we can choose to accept, abolish, or modify them as, after rational deliberation, seems best to us. 

 * * *

One theme in the liberal tradition is the attempt to do without the idea of the common good, which liberals regard as representing a repressive orthodoxy, without lapsing into a vision of society as a war of each against all or group against group.  Libertarians accomplish this by massively limiting the authority of the state, to (what they think of as) morally neutral peacekeeping.  Neoconservatives give up on social justice altogether, and accept the institutions of society just as they are (though presumably they do not regret the end of slavery and Jim Crow).  Welfare Liberals rely on a free-floating sense of guilt, given practical expression in a tort law model of society, which in the end creates nothing but resentment.  In contrast, the idea of the common good enables us to make possible to do the best we can with whatever situation we may find ourselves, even when its antecedents are horrible (consider Europe after the Second World War).

 The issue is therefore how we can discern the common good.  What, we may ask, is the moral basis of our institutions?   In part, our institutions reflect ‘gut’ responses, for example the territorial instincts involved in property and the parental instincts involved in family; if they are unable to elicit such responses they will fail.  In part, however, they are open to rational critique, inviting us to ask whether we would consent to a social arrangement had we a choice.  If we renounce such critique, we risk a society run by force and propaganda alone.








[i] Strauss, An Introduction to Political Philosophy (Detroit:  Wayne State University Press, 1989), pp. 40-41; see also pp. 86-87.

[ii] Machiavelli, The Prince, trans. and ed. Harvey Mansfield (Chicago:  University of Chicago Press, 1985), chap. 18.  For Machiavelli on religion, see his Discourses, Bk. I, chaps. 11-15; Bk. II, chap.2

[iii] Machiavelli, Prince, chap. 7, p. 67.

[iv] Ibid., chap. 8, p. 35.

[v] Nagel, Equality and Partiality (New York:  Oxford University Press, 1991), p. 156. 

[vi] Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), esp. Pt. II and chap. 14.  For a summary of Raz’s philosophy by an author less favorable than he is to the honestly misguided conscience, see Robert P. George, “The Unorthodox Liberalism of Joseph Raz,” in Christopher Wolfe and John Hittinger, eds., Liberalism at the Crossroads, 2nd edition  (Lanham, Md.:  Rowman and Littlefield, 2003), chap. 9.

[vii] Raz, Morality, p.  411.

[viii] Ibid., p. 395; see further chap. 14, § 4; and chap. 15, § 1.

[ix] See Celia Wolf-Devine, Diversity and Community in the Academy (Lanham, Md.:  Rowman and Littlefield, 1997), pp. 49-51, 71-2; and 169-70; on possible displaced religious motivations at work in this approach, see pp. 162-66.

[x] For a compendium of complaints about domestic tort law, see Richard Abel, “A Critique of American Tort Law,” British Journal of Law and Society 8 (1981), excerpted in Allan C. Hutchinson, ed., Critical Legal Studies (Totowa, N.J.:  Rowman and Littlefield, 1989), chap. 16.  

[xi]Walzer, Thick and Thin (Notre Dame: University of Notre Dame Press, 1994).

[xii] John Dunn, The Cunning of Unreason (New York:  Basic Books [Perseus], 2000), p. 118.

[xiii] See Nozick, Anarchy, State, and Utopia (New York:  Basic Books, 1974).

[xiv] Pufendorf is a paradigm of the use of natural law ideas to support the status quo; see Leonard Krieger, The Politics of Discretion (Chicago:  University of Chicago Press, 1965), esp. pp. 266-69.  Many writers understand Hegel as in the same tradition. 

[xv]Steven J. Burton, Judging in Good Faith (Cambridge:  Cambridge University Press, 1992), pp. 217-18.  He cites an impressive list of authorities for this proposition (p. 215 n.24).

[xvi] Alexander Bickel took consent seriously, though in a cloudy Whig form.  See The Morality of Consent (New Haven:  Yale University Press, 1975), esp. chap. 1.  Hadley Arkes, First Things (Princeton:  Princeton University Press, 1986), chap. 3, is closer to Enlightenment formulations.

[xvii]L = Locke, Two Treatises on Government, Second Treatise.  I use the existing editions eclectically, and remove his confusing italics.

[xviii]Locke places his political philosophy in a framework of natural law that he regards as tenable only in a theistic universe, and for that reason refuses to tolerate atheism.  “The taking away of God,” he writes, “even in thought, dissolves all.”  Letter Concerning Toleration, trans. William Popple in Robert Maynard Hutchins, ed. Locke, Berkeley, Hume [Great Books of the Western World, vol. 35]  (Chicago:  Encyclopaedia Britannica, 1952), p. 18.  For detailed discussion of the role of God in Locke’s philosophy, see Jeremy Waldron, God, Locke, and Equality (Cambridge:  Cambridge University Press, 2002).

[xix]For a detailed statement of Locke’s argument at this point, see Dunn, The Political Thought of John Locke (Cambridge:  Cambridge University Press, 1969), chap. 13.

[xx] Waldron, God, pp. 225-27

[xxi] Green, Lectures on the Principles of Political Obligation, Paul Harris and John Morrow, Eds. (Cambridge:  Cambridge University Press, 1986), § 110, p. 87.

[xxii] Consider Dinesh D’Souza’s attempt to deflect Islamic rage from red states to blue states in his The Enemy at Home (New York:  Doubleday, 2007).

[xxiii]Nagel, Equality, p. 8. 

[xxiv]The argument is spelled out in ibid., chap. 15. 

[xxv]James O. Grunebaum, Private Ownership (London:  Routledge and Kegan Paul, 1987), pp. 3-4.

[xxvi] As Grunebaum points out against Kant (ibid., pp. 71-75). 

[xxvii] Rashdall, Property (London:  Macmillan, 1915), p. 52.  

[xxviii]Tully, A Discourse of Property (Cambridge: Cambridge University Press, 1980) p. 121; the quotation is from Green’s Lectures on the Principals of Political Obligation.

[xxix] See Colin Bird. The Myth of Liberal Individualism (Cambridge: Cambridge University Press, 1999), chap. 5

[xxx] Locke, to be sure, says of a slave, “whenever he finds the hardships of slavery outweigh the value of his life, it is in his power, by resisting the will of his master, to draw upon himself the death he desires” (L §23).  But this means only that the slave can put the master in a situation where he must either alleviate the slave’s condition, or resume the war that made the slave a slave until it ends in the slave’s death.  For slave and master are in a state of war, although hostilities have been suspended (L § 24).  Locke emphatically denies that his argument implies that “a man … hath in himself a power over his own life” (L § 24).  On Locke’s view of slavery, see Waldron, God, pp. 197-206; on Locke’s view of suicide, see ibid., pp. 142 (& n.46) and 200.

[xxxi] Hittinger, The First Grace (Wilmington, DE:  ISI, 2003), chap. 6; see also chap. 8.  I am indebted to Andrew Peach for calling my attention to these chapters.

[xxxii] In medical cases, the decision that an infant’s life is not worth living rests with the parents, the state as parens patriae, or health care professionals acting on behalf or one or both of these.  Hence the distinction between euthanasia of infants and generalized infanticide is not sharp.

[xxxiii] See my “Capital Punishment and the Sanctity of Human Life,” Midwest Studies in Philosophy, 24 (2000).

[xxxiv]Cohen, “Property and Sovereignty,” reprinted from Law and the Social Order (New York:  Harcourt Brace, 1933) in C. B. MacPherson, ed., Property:  Mainstream and Critical Positions  (Toronto:  University of Toronto Press, 1978), chap. 10.

[xxxv] MacPherson, “The Meaning of Property,” in his Property, § 2.

[xxxvi]Bentham, “Security and Equality of Property,” reprinted from The Theory of Legislation, ed. C. K. Ogden (London:  Kegan Paul, 1931), in MacPherson, ed., Property, p. 52.  

[xxxvii]For classical statements of his position, see Aristotle, Politics, 1263a 88-9, Thomas Aquinas, Summa Theologiae IIa IIae, q. 32, a. 5 ad 2; and q. 66, a. 2; and R. H. Tawney, “Property and Creative Work,” reprinted from The Sickness of Acquisitive Society (London:  Fabian Society/George Allen & Unwin, 1920), chap. 5, in MacPherson, ed., Property, chap. 9.  For a contemporary statement, see John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980),  § VII.3.

[xxxviii]Compare John Gray’s analysis of our condition in his Post-liberalism (New York:  Routledge, 1993), p. 4.

[xxxix]Grunebaum, Ownership, chap. 7.

[xl]Christman, The Myth of Property (New York:  Oxford University Press, 1994), esp. Pt. III.

[xli]More, “Property and Law,” in Russell Kirk, ed., The Portable Conservative Reader (Harmondsworth, Middlesex:  Penguin, 1982), pp. 445 and 442.  

[xlii] MacPherson, “Liberal-Democracy and Property,” in his Property, p. 201. 

[xliii]On the conflict between these understandings of justice, see Wallace Matson, “Justice:  A Funeral Oration,” Social Philosophy and Policy 1 (1983), reprinted in Louis P. Pojman, ed., Classics of Philosophy, vol. 3, The Twentieth Century (New York:  Oxford University Press, 2001), chap. 31.

[xliv]Bird. Myth, chap. 3.

[xlv] This case is taken from Heidi M. Hurd, Moral Combat (Cambridge:  Cambridge University Press, 1999), pp. 304-07.

[xlvi]On deontological supports for legal obligation, see ibid. pp.  307-316.

[xlvii]Example from Robert P. George, The Clash of Orthodoxies:  Law, Religion, and Morality in Crisis (Wilmington, Delaware:  ISI, 2001), p. 140.

[xlviii] Haldane, Faithful Reason (London:  Routledge, 2004), pp.  141-42.  The essay from which this passage is taken also appeared in R. Madsen and T. Strong, eds., The One and the Many (Princeton:  Princeton University Press, 2003), pp.  89-114.   David Hollenbach, S.J., The Common Good and Christian Ethics (Cambridge:  Cambridge University Press, 2002) also usefully distinguishes the common good from weaker notions such as the national interest, the general welfare, and the provision of public goods (pp. 7-9 and 79-86).

[xlix]See Hollenbach, Common Good, chap. 7, esp. pp. 174-81. On the rural poor see Wendell Berry, “The Prejudice Against Country People,” The Progressive 66, no. 4 (April 2002):  21-24.

[l]Finnis, “The Specifically Political Common Good in Aquinas,” in Robert P. George, ed., Natural Law and Moral Inquiry (Washington, D.C.:  Georgetown University Press, 1998), p. 187.   For a sketch of Finnis’ social and political philosophy, with attention to the instrumental character of the common good, see Joseph R. Resiert, “The New Natural Law Theory of John Finnis,” in Wolfe, ed., Liberalism, chap. 11.

[li]Finnis, Aquinas (Oxford:  Oxford University Press, 1998), p. 228. 

[lii]For Finnis’ attempt to deal with heresy see ibid., pp. 292-93 n.b; for his attempt to deal with suicide, see pp. 241 n.100 and 252 n.167.

[liii]Finnis, “Is Natural Law Compatible with Limited Government?” in Robert George, ed., Natural Law, Liberalism, and Morality (Oxford:  Oxford University Press, 1996), p. 8.

[liv]Pakuluk, “Homosexuality and the Common Good,” in Christopher Wolfe, ed., Homosexuality in American Public Life (Dallas:  Spence, 1999), p. 185.  

[lv] See Louis Menand, The Metaphysical Club (New York:  Farrar, Straus and Giroux, 2001); for Holmes on the inescapability of dogma, see pp. 62-63. 

[lvi] See, from a Communitarian perspective, Jean Bethke Elshtain, Women and War (New York:  Basic Books, 1987) and, from a Feminist perspective, Susan Moller Okin, Justice, Gender, and the Family (New York:  Basic Books, 1989).  

[lvii] See Walzer, “The Communitarian Critique of Liberalism,” Political Theory 18, no. 1 (February, 1990).

[lviii] Compare Russell Hittinger, “Social Pluralism and Subsidiarity in Catholic Social Doctrine,” Providence:  Studies in Western Civilization 7, no. 1 (spring-summer 2002):  52-69.

[lix] See Ronald Thiemann, Religion in Public Life (Washington, D.C.: Twentieth Century Fund/Georgetown University Press, 1996), esp. chap. 5 (echoing MacInytre). 

[lx] On the political failure of Biblical religion, see E. Brooks Holifield, Theology in America (New Haven:  Yale University Press, 2003), esp. p. 504.   

[lxi]Dahl, “Procedural Democracy” Philosophy, Politics, and Society, 5th series, eds. P. Laslett and J. S. Fishkin (Oxford:  Blackwell, 1979), pp. 87-133; reprinted in Robert E. Goodin and Phillip Pettit, eds. Contemporary Political Philosophy:  An Anthology (Oxford:  Blackwell, 1997), p. 121.

[lxii] Ibid., p. 123.

[lxiii]See Schumpeter, Capitalism, Socialism, and Democracy (New York:  Harper, 1947), pp. 243-5, discussed in ibid., p. 116.

[lxiv] Connolly, Identity/Difference (Ithaca:  Cornell University Press, 1991), p. 192.

[lxv] Ibid, p. 19.

[lxvi]Aristotle, Politics 1252a 1-6.  Trans. Benjamin Jowett in Basic Works, Richard McKeon ed. (New York:  Random House, 1941), p. 1127. 

[lxvii] Walzer makes this point against Eric Hobsbawm in Thin, p. 68 & n.49. 

[lxviii] Aristotle, Politics, Bk. III, chaps. 1-5.

[lxix]Rodriguez, “Closed Doors,” in Nicholas Mills, ed., Arguing Immigration (New York:  Simon and Schuster, 1994), p. 147.  

[lxx]Tushnet, Taking the Constitution Away from the Courts (Princeton:  Princeton University Press, 1999), p. 224 n.28.

[lxxi]SI = Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven: Yale University Press, 1997).

[lxxii]Yack, “The Myth of the Civic Nation,” Critical Review 10, no. 2 (spring 1996):  193-211, reprinted in Ronald Beiner, ed., Theorizing Nationalism (Albany, N.Y.: SUNY Press, 1999), chap. 5, esp. pp. 116 and 118.

[lxxiii]Walzer, “The New Tribalism,” Dissent (spring 1992):  164-71, reprinted in Beiner, ed., Nationalism, p. 214.  Walzer makes this argument at greater length in “Nation and Universe,” The Tanner Lectures on Human Values 11 (1992):  549-52.

[lxxiv]Beiner, “Introduction:  Nationalism’s Challenge to Political Philosophy,” in Beiner, ed., Nationalism, p. 5.

[lxxv] For example, Michael Ignatieff, Blood and Belonging (New York:  Farrar, Straus, and Giroux, 1993), esp. pp. 5-9. 

[lxxvi]Such is Tushnet’s “narrative of the thin Constitution”; for its twists and turns see his Courts, pp. 8-9, 11-14, 23, 26, 84, 181-182, 184, and 192.  Among other things he edits out the reference to the Creator in the Declaration of Independence; see Hadley Arkes, Natural Rights and the Right to Choose (Cambridge:  Cambridge University Press, 2002), p. 177.

[lxxvii]Yack, “Myth,” p. 117, n.9 for a contrary view, see Kai Nielsen, “Cultural Nationalism, Neither Ethnic nor Civic,” The Philosophical Forum 28, nos. 1-2 (fall-winter 1996-97):  42-52, reprinted in Beiner, ed. Nationalism, chap. 6.

WE (chap 6)

November 21, 2009



            In this chapter, I will set aside the nation-state’s claim to our predominant allegiance, and the challenges that non-national groups have made to this claim, in order to consider the ways in which human beings form We’s (and consequently also They’s) from the ground up.  These are more fundamental, but the way we understand them is affected by the way we understand larger associations such as the state.  In considering the resulting controversies in social philosophy, my strategy will be to argue from as thin a reading of human nature, and of its associated normative requirements, as possible; but also as rich as necessary to provide guidance in controversial cases.  (I postpone a theoretical discussion of normative human nature until chapter 9).  



When people knew their neighbors, they spoke of neighborhoods; now they no longer do so, they speak of communities.[i]  Groups called communities range from religious groups through residential community associations to secret societies and private armies.  Business corporations, labor unions, PACs, political parties, and state and local governments are also important forms of human association, though not so conspicuous in the Liberal-Communitarian debate.  People also sometimes describe the nation-state as a community, or complain of its failure to qualify as such.  In any event, something richer than a mere association for pre-defined purposes is generally intended.

The concept of community is near allied to that of friendship.[ii]  Friendship, however, is a two-termed relation:  “Any friend of Joe’s is a friend of mine” is generous sentiment rather than literal truth, for a person’s friends may be rivals for his affection or allegiance.  We may thus define a community as a group of three or more persons united by some bond, such that if that Albert is joined to Bertha, and Bertha joined to Charles, then, at least all other things being equal, Albert will be joined to Charles.  Since the bond that defines a community may, even if not destroyed by some source of hostility, become attenuated through reiteration, a focal figure (who may or may not wield actual power) is important to the working of communities.  The We’s important for social and political philosophy have more than two members, and are thus communities in my sense.    

            In contemporary liberal societies, where the purposes of the state are shifting and frequently inchoate, the relationships of smaller groups to the state are complex.  Nancy L. Rosenblum observes:  “there is no ‘law of groups’” (R 22).[iii]  “Under circumstances of constitutionally protected liberties,” she writes, “pluralism has an exuberant life, which eludes the grasp of systematic political theory” (R 362).  John H. Garvey, however, attempts to base a law of groups in the shared purposes of some larger We whose common good a smaller group may further or inhibit.[iv]  Thus Rosenblum defends (R chaps 5-6), while Garvey rejects, the legitimacy of all-male (as they once were) business clubs like the Rotaries and Jaycees.[v]   



Even in a globalized world, we do not interact with all our fellow human beings with the same intensity.  We are not made equally aware of their needs and desires, we are not equally in need of their approval, we are not equally able to respond to their demands, and we are not under the same necessity of co-operation with them.  Even with the help of such things as the Internet, our capacity for attention is limited.  By geographical community I thus mean that nearness of time and place that makes the situation of others hard to ignore and creates special opportunities for responding to their situation. 

The first level of geographical community is that of the household.  Some economic production still goes on in the household:  there are backyard gardens, and editors and computer people often work at home.  People sharing living quarters are unable to ignore one another, however much they might wish to do so.  A friend may sicken and die, or otherwise disappear from my world, and it may some time before the news reaches me.  Or I can decide to sever relations with someone, not returning his calls and letters, and making excuses when he proposes to meet.  If friends are sharing living quarters, ending a friendship will at least be greater trouble.

A second level of geographical community is that of the neighborhood.  What is true of those who share the same living quarters is true, although to a lesser degree, of those who share the same street.  It is at least harder for relationships to dwindle away when the parties, in the natural course of events, see each other, if not every day, then at least every week.  And those who live near one another tend to share at least some interests, such as the prevention of violent crime in the neighborhood.  Even in these days of malls, neighborhood convenience stores are important.

A third level of geographical community is that of the region.  Even without political recognition, areas like the American South and New England have a sense of common identity and shared interest.  Economic life is also to some degree regionally configured.  But without some political support, this sort of community is fragile, since the movement of capital (and migration in and out) can change its character in fundamental ways.

The fourth level of geographical community is the nation-state.  Whatever the claims of language, history, and sentiment may be in the determination of national boundaries, the nation-state is in the first instance a bit of (usually contiguous) territory in which a given political organization is dominant.  Even a stretch of salt water is often sufficient to make people think that we have two natural countries, each entitled to national self-determination. 



‘Affective’ community arises when people regard dealing with some other people as good in itself.  People enjoy associating with those like themselves in certain respects, and feel more comfortable with them in times of stress.  This phenomenon can develop into nasty forms of prejudice, but also takes more benign forms.  Affective community is, however, vulnerable to all the problems of associations based on possibly transient feeling.  Some commitments “for richer, for poorer, in sickness and in health” are necessary if our society is not to be always a collection of strangers.



Unless human beings are able to communicate their beliefs and desires to one another, even Hobbesean relationships among them will be impossible.  It is a source of embarrassment to contemporary America that so few of us know Arabic at a time when the ‘Arab street’ is of crucial political importance.  Particular languages carry with them cultural baggage:  people who share expressions such as batting average, life bird, mortal sin, and tenure track find it easier to deal with one another, even when baseball, bird-watching, moral theology, or academic positions are not the subject of conversation.  Scientists, historians, and even philosophers are part of communities of inquiry whose rules and working concepts are collectively defined and enforced.  If no one upholds these standards, dialogue will wither.

Xenophobia, unlike racism, is an inescapable feature of human life:  people who speak my language, literally and metaphorically, may be bad in a number of ways, but at least I have some hope of understanding what they are up to.   The linguistically alien – ‘barbarians’ in the root meaning of the world – are opaque and therefore threatening.  The profusion of literal and figurative idiolects, and of active attempts to create linguistic sub-communities, threaten something important to our collective life.  Thus statesmen prefer a political community whose members have at least one language in common, though this requirement need not mean that minorities must abandon their own distinctive languages.  In short, a common language is a public good, one that (like clean air) needs to be publicly defended.  



Old friends treasure incidents from a shared past; Americans of all sorts, including some people whose ancestors came here in the 1920s, look back to the Civil War as a defining moment in our shared history.  Human beings value national and religious communities in part because they provide them with a link with people who existed before they were born, and with people who will exist after they are dead.  Those who separate themselves from all forms of historical community abandon both physical and spiritual ancestry, as well as both physical and spiritual posterity.  Even radicals used to refuse to make such a break with their cultural past. 





We want to live our lives as we think best, even when our neighbors are of a different opinion.  But we also want help and counsel when we are in difficulty.  If we are parents, we want the freedom to raise our children as we please, but also want help in raising our children to be carriers of those elements in our way of life that are most important to us.  On a bridge near Providence there is a sign inviting the desperate to call the Samaritans before jumping off (at least to prevent a hasty decision to die).  In a society in which the public sphere was neutral among understandings of life and death, this sign would have to be matched by one from the Hemlock Society, urging the weak-kneed to call them to reinforce their suicidal resolutions.  What would be lacking in such a case is the support for a conflicted person that arises from ‘community of value.’  A group enjoys community of value to the extent that its members share a conception of what is good and right, and hence also which traits are virtues and which vices, and to what rights people are entitled. 

Communities of value can be assessed in three ways.  The first is direct evaluation of the goods the members of the community pursue (and the moral convictions associated with its pursuit).  It is always possible to say, for example, that even if casino gambling is or has become part of the way of life of a certain tribe, it creates dangers of addiction and corruption that require the rest of us to discourage it.  On the other hand, there are issues internal to a community in such a way that the judgments of outsiders are impertinent.  Those who not believe that there is such a thing as a sacramental priest have no business insisting that women should be eligible to be ordained as such.  (And, though the case is not easy, the same point holds for the former exclusion of African Americans from the Mormon priesthood.)

A second approach to evaluating communities of value is their integrity.  When they act as a community, do the principles and ends they profess when asking for noninterference govern their actions?  Someone who is a hawk until faced with conscription, and then turns pacifist, is not entitled to much sympathy.  Likewise, it is one thing for churches and religious schools to assert their autonomy in order to hire people who support the community’s teachings; and another thing to claim exemption from labor or anti-discrimination laws that communal authorities support when applied to other institutions.

A third principle of evaluation for communities of value is self-criticism.  In the highest sort of community, some members will give considerable attention, and as many members as possible some attention, to questions of what is in fact good and right – taking the community’s own standards as a starting point but not precluding revisions a priori.  At least sometimes the community’s distinctive way of life itself provides the criterion:  we might invite those Indian tribes who have embraced casino gambling to ask whether it is in fact in accordance with the requirements of their inherited way of life, or is merely an unpleasant way of acquiring needed cash.   The issue always arises, how much revision a community’s self-understanding can undergo without disintegration.

The academic community is devoted to critical examination of established ideas, yet we also must be prepared to stand together against external and internal threats to our mission.  As the civil libertarian Alexander Meiklejohn put it in response to the McCarthy era,

The battle for individual freedom cannot be won merely by the martyrdom of individual scholars.  Each university must stand fast as a unit, and all the universities must stand together in defense of the principle which makes a university what it is, which defines its deepest obligation to the nation which it serves.[vi]

Many academics have also wished for greater faculty solidarity against riotous students or nihilistic librarians.[vii] 



            Communities of every sort require provision both for the procreation of new members of larger communities and for their formation as persons.  The prolonged helplessness of the human infant requires constant labor-intensive care.  Few people these days, and perhaps few people ever, are so sure of their personal immortality that they can do without a form of community that extends their existence into future generations.  We are the products of our families, both biologically and culturally; if we were raised in orphanages, we are the products of that orphanage.  

Reproductive community arises when a man and a woman have a child together and co-operate in his or her rearing – whatever the state of their relations otherwise and whatever the status of their relationship with respect to any other community.  We may say that the resulting relationship between the parents is a ‘marriage’ and the association of a couple with its children is a ‘family.’  Such associations are marriages and families whatever else is.  (I do not use the expression traditional marriage (family), since it suggests bride prices and the like.) 

Refugees flee oppressive regimes in family groups (usually extended families) when they can, and the breakup of families is one of the tragedies of what we euphemistically call the ‘transfer of populations.’  Even defenders of slavery were troubled by its undermining of slave families, in particular by their being broken up for sale.[viii]  Stalinism put families under much stress, but it strengthened family bonds in some ways, as people huddled together for survival.[ix]  The way women are employed in Central America raises issues closely akin to those raised by slavery.[x] Policies such as sex-based affirmative action and restrictions on the receipt of welfare benefits affect family structure, while dynastic politics (including the contemporary American form) and nepotism mean that family life also affects the structure of the state. 

If family life has a natural root, we can define a stricter sense of the word community than developed so far, which includes a provision for the procreation of new members (and not merely their recruitment from some other community).  There is an important difference between communities formed around churches or synagogues and retirement communities that exclude the young.  Groups such as celibate religious orders working in education are non-reproductive parts of reproductive communities.  Unintentionally childless marriages are imperfect specimens of reproductive-type community.

Whatever the value a relationship may have for the persons composing it, the rest of society is concerned with families as agencies for providing for the procreation and education of children.   It is thus natural for marriage to be a socially recognized institution – with all honor to those who prefer not to live in an institution.  Family life is not a mere natural fact, immune to moral evaluation, nor is it the just part of the political/economic system either.   

The state does not marry people; it licenses marriage, and then they marry each other.[xi]  Marriage and family were social and religious institutions before they were matters of state law.  Political power was vested in husbands and fathers (patriarchs in the strict sense), before it passed to metaphorical patriarchs called ‘kings.’  Before the Council of Trent, private marriages, often consummated without further ado, gained subsequent public recognition.  Most of us would regard the relationships entered into by black men and women under slavery as marriages, even though they were a nullity in law.  Even now, communities of faith remain free to recognize (or to refuse to recognize) relationships as marriages, in ways that differ from the standards adopted by the state for such purposes as taxation and the law of property.

Barbara Ehrenreich spells out implications of the ‘statist’ view of marriage and family when she writes that “many families could use a lot more outside interference in the form of counseling and policing, and some are so dangerously dysfunctional that they ought to be encouraged to disband right away.”[xii]  But marriage as a state-recognized institution might go the way of the established church without ceasing to exist as a social institution recognized by some non-state community of which one or both spouses are members, without the state taking any direct interest in their relations so long as any resulting children were adequately cared for.[xiii]  Such is the implication of the separation of church and state, taken in its most thoroughly secularist sense.

Yet a family is not a mere arrangement among its members, like a friendship, love affair, or social club.  Even the private marriages recognized before the Council of Trent were a matter for the larger community, by way of the doctrine that marriage is a sacrament.  

Advocates of ‘families of choice’ ignore the fact that small children, who most need familial support, are incapable of the required sort of choice.  The slogan love makes a family also ignores the many forms of love that not only are extra-familial, but also understood and valued by the parties as such, even when the resulting relationships are modeled on brotherhood or sisterhood.[xiv]  Nor all forms of love are sexual:  parents and children are expected to love one another non-sexually, and though the prevalence of sexual openness has made Platonic relationships more difficult, they are a human possibility it would be a shame to lose.  Human love is always to some degree erotic, i.e., rooted in the lover’s need for the beloved, even when genital expression is out of the question.[xv]  Whether genital sex is even possible in such cases depends on whether one counts fantasy; in any case, though infants are in a broad sense erotic objects, physical intercourse with them is, I hope, very rare.  I have so far neglected philia or the affection involved in shared activities – the friendship of fellow chess players, intellectual disputants, or political allies.  But these forms of friendship also involve deeper connections:  witness the bitterness that attends the breakdown of political alliances.

Love is not necessary to the familial relations:  it is reasonable to hold both men and women responsible for the reproductive consequences of their sexual acts, whatever the state of their affections, and parents and children are parents and children even when they detest one another.   The emotions that fuel family life are both complex and tangled, and flow over into other social relations.  Parents exercise power over children; they are superior in bodily strength and control the child’s food supply.  Yet parents want their children to love them, and to care for them in their old age.  The love that informs family relationships is thus of the sort that prompted T.S. Eliot to write,

                                      Love is the unfamiliar name

                                                   Behind the hands that wove         

                                                   The intolerable shirt of flame

                                    Which human power cannot remove.[xvi]

Conservative views on familial issues do not necessarily arise from the supposedly perfect families of an earlier age; on the contrary the felt need to maintain boundaries in this area can result from the experience of familial disorder.[xvii]  For people who come from chaotic families realize that sentiment is not a sufficient basis for family relations.  The case for the heterosexual family is not that all such families are happy or even decent, but that we have no way of doing without them or something similar.  However abusive parents may turn out to be, children still need to be socialized by adults, whose power always creates risks.  Public hatcheries as in Huxley’s Brave New World are no guarantee against abuse, and would create a population entirely subject to state manipulation.

Some Traditionalists at least half-believe that the patriarchies of ancient Europe or Israel, which accorded fathers the power of life and death over their children, provide the only alternative to limitless state interventions in family life.  Similar claims are also heard for mothers, whose authority Hobbes regarded as primary.  To defend family life against political invasions, by invoking a public/private distinction recognized neither by Aristotle nor by the Old Testament, is a tricky rhetorical task.  

            Marriage is not only a reproductive, but also a sexual relationship.  Other family relationships are defined by a prohibition on incest:  tell me whether you think of sex with one’s daughter-in-law as incestuous, and I will tell you how you understand the extended family.  There are permanently sexless marriages, though – despite the traditional teaching concerning the marriage of the Virgin Mary and St. Joseph – it is difficult for many of us to regard them as full-fledged marriages.  I leave to the theologian the investigation of the paradox involved in this situation .

Many people these days hold that sex in all its forms is natural and healthy, and that forms of sex no one defends (such as rape) are not sex at all, but forms of violence, as if they could not be both.  (I do not see how this view could be applied to sex with children, who on the surface might be entirely affectionate.)   But I do not know what to say to someone who finds the habits of a Michel Foucault healthy (they were always consensual).[xviii] 

Sex is at once a near sacrament (in Roman Catholic theology a not-quite-essential element of a sacrament) and a physically and emotionally powerful urge.  Aphrodite is notoriously anarchic, a fact that some people celebrate and others fear – the latter group speaking of ‘loose bolt’ sexuality.[xix]  Many people find in sexual excitement and release a restructuring of their consciousness that is at once attractive and frightening.  A medley of frustrations – political, intellectual, and even spiritual – is now vented in the pursuit of sexual variety. 

In view of the existence of a wide variety of ‘paraphilia,’ some of them not involving the sexual organs, it is not plausible to look for necessary or sufficient conditions for the existence of sexual activity.  (In the female case ejaculation is not available as a criterion.)  The experience of, or even the attempt to experience, sexual pleasure, is not a necessary condition for sexual activity (consider the bored prostitute or married couple).  All we are left with on this approach is a mysterious thing called the ‘sexual impulse,’ severed from its various objects and aims.[xx] 

Rather, understanding the concept of ‘sex’ begins with a paradigm (the penetration of a vagina by a penis), and then extends to those phenomena that, in the view of the language-user, sufficiently resemble it to be regarded as sexual for whatever purposes guide the discussion.  Male homosex in its most complete form is sex, for example, because it looks like standard forms of heterosex, although the mouth or anus of necessity replaces the vagina. 

Viewed without romance of some sort, sex is a beastly business.  Alan Soble cites William Butler Yeats to remind us of a fact left out in genteel discussions of sexual issues.  “Love has pitched his mansion in the place of excrement.’”[xxi]  It is not surprising that the receptive partner in sexual penetration is often thought of as stained, and that sexual relationships often exhibit an undercurrent of guilt and resentment.  Passion, appetite, and pleasure make sex attractive, but they are unreliable allies to those subsequently assailed by disgust.  Thus human beings employ a variety of strategies, from self-conscious celebration of animality through the cult of the beautiful boy to Christian marriage, in order to render sexual relations less (as we say) ‘raw.’  The attempt to endow sexual and reproductive relations with human meaning, like the attempt to provide the cultural support necessary for the education of the rising generation, is a communal affair, though not necessarily a matter of legislation.

Families, though rooted in evident facts of common human nature, have been adapted to a multitude of political and economic settings.  Nor does anyone believe that the biological family is the only legitimate form:  consider a family in which all the children are adopted.  Yet the ‘constructivism’ suggested by these points leaves us without guidance in dealing with personal and social issues.  The flexibility of families is not unlimited:  the attempt to abolish the mother-child bond (at least without a degree of coercion destructive of other social goods) is out of the question.  The permanent interests at work in shaping our family life imply that the form of family composed of man, woman, and the children they have produced together is both conceptually and normatively central.  Hence from now on I shall use the expression the family rather than the politically correct families.

Marriage and family are too complex and various to fit Feminist, Liberal, or Traditionalist paradigms.  In this, they partake in the complexity of all personal relationships.  Nonetheless, there may be principles of justice peculiar to the family, which differ from those that obtain in economic and political life – necessarily so, given that young children are incapable of entering into contracts.  (The subsequent consent a child might give is shaped by his parent’s efforts to mould him in their image.)  The attempt to apply extraneous standards of justice to this (or any other) institution undermines it.  But this does not mean that familial institutions or practices are not sometimes unjust – consider denying parents any authority over children, or requiring the youngest child to work as a slave for his or her parents.  Moreover, the law, in contested cases of paternity, has placed the need of the child for support and education above the claims of the injured husband or the biological father.[xxii]  Polygamy satisfies the requirements of the argument so far, but (to adapt an argument from St. Thomas Aquinas) it requires servility on the part of women if men are to find it tolerable. 

One popular contemporary approach treats marriage as a ‘partnership,’ like a business firm.  If we adopt this model, there is no reason why people desiring to raise children should produce their own, rather than obtain them through the marketplace, any more than each of us needs to manufacture our own widgets.  Nor is there any reason a partnership should not be dissolved, when it ceases to be profitable to one of the parties, nor why it should be confined to couples of opposite sexes (or to couples at all).

The word marriage is capable of very great flexibility.  A biography of Joseph Smith speaks of his ‘wives,’ where even a believer in polygamy might speak of his ‘mistresses.’[xxiii]  And the same

 is true of other familial terms: statements like Charles discovered that he was not his father’s son sounds like a contradiction, but we all understand what they mean.  At some point, however, we will say that we no longer have marriage or family in the proper sense, only in the sense a decoy duck is a duck; otherwise the concept would be useless.  However much a childless woman loves her cat – even if she is brought to the brink of suicide when the cat dies – the cat is not her spouse. 


 Same-Sex Marriage [xxiv][xxv]

There is no requirement of human dignity that requires us to accept homosexual relationships as marriages.  The demand to be accepted at one’s own evaluation is one of the most serious provocations to cultural conflict in the contemporary world.  It is not a violation of anyone’s human dignity to refuse to call Joyce Kilmer’s “Trees” poetry rather than verse.  On a theological understanding of marriage as reflecting God’s plan for creation (see Genesis 2:24), we can reach richer conclusions, but on even on secular premises a generic methodological conservatism is in order.

The customary use of language concerning marriage and the intuitions that underlie it have a presumptive claim, which to my knowledge has not so far been defeated for same-sex marriage.   While such responses are not dispositive, they do imply that certain stock formulations of the issue are mistaken.  While sexual differences are irrelevant to voting and most forms of employment, in the context of sex and reproduction – and hence also of marriage – distinctions between same-sex and opposite sex couples make good sense. 

It is not possible to prove decisively that heterosexuality is morally normative, unless we are prepared to give a moral weight to the created order that many philosophers will strenuously resist.[xxvi]  On the other hand, there is no way of showing that homosexual practices are innocuous or on the whole beneficial, except on crassly hedonistic principles.  The avoidance of homosexual practices between (or among) consenting adults is a ‘perfectionist’ requirement, and the relationship between such requirements and those of duty in a narrower sense is a complicated issue even in less sensitive contexts. 

In any case, this is a work of social and political philosophy, and we must remember that our institutions need to be shaped to the ordinary case even if unusual individuals present difficult moral issues.  If (as is likely) philosophical argument leaves detailed questions of sexual morality open, there is nothing disreputable about appealing to revelation, if one holds a metaphysics that makes such appeals possible.[xxvii]  Nor are moral conventions against homosexuality illegitimate:  a society’s conventions about maleness and femaleness may be important to its welfare.

There is no ground for demonizing practicing homosexuals any more than adulterers, or holding them solely or principally responsible for the fraying of family relationships in the contemporary world.  It is not my purpose to judge or blame anyone, and it is preferable (from every point of view) that gay men and lesbians live in stable relationships than that they be sexual predators.[xxviii]  Nor should even the severest moralist deny that homosexuals sometimes love their partners deeply. 

Nonetheless, to use Paul Ziff’s expression,[xxix] many of us ‘balk’ at the claim that two men or two women might be married – our shared intuition being as much linguistic as evaluative, and in any case independent of any unfavorable moral judgment on homosexual persons, practices, or relationships.  For many of us find same-sex marriage not so much morally scandalous (or otherwise socially dangerous) as absurd.  On this view, to ask whether homosexual marriages should be legal is like asking whether round squares should be legal; to ask whether we should discriminate against homosexuals in the matter of marriage is to ask whether homosexual dispositions should be an impediment to heterosexual marriage – an issue mainly of interest to Catholic canon lawyers, who cannot resolve the resulting problems by sanctioning divorce.  Alternatively, marriage understood in a way that includes same-sex as well as opposite-sex relationships is a different institution from marriage in the usual sense, related to it only by a sort of analogy.  In other words, there might be (at least two) different institutions in contemporary America, sheltering under the name of marriage.  A fuller examination of the way opponents and defenders of same-sex marriage view heterosexual marriage and divorce would, I believe, support this conclusion.[xxx]   (If so, the state’s principal interest is in maintaining a stable framework for educating the children that arise from sexual relations;[xxxi] other forms of ‘marriage’ can be left private.)

So far as I can see, the vast majority of competent speakers of English (and other languages containing a similar word) share the intuitions that marriage means the union of a man a woman; the exceptions are an ideologically motivated elite.  The force of commonsense intuitions remains, whatever legal fiction to the contrary some jurisdiction might adopt.  An analogy is the pretext that all corporations are centered in Delaware, which if we took it seriously would mean that there would be no room in the state for anyone but corporate officials.  If these intuitions are rejected, someone might raise equally powerful skeptical questions about any other place we might draw the line between marriages and other forms of relationship.  At one time many people’s intuitions opposed mixed-race marriages, especially when the husband was a racial inferior.  I doubt that this reflected their understanding of marriage, however:  prohibitions on black-white marriages were an incident of slavery, and subsequently of Jim Crow. 

No understanding of a humanly important word is value-neutral, but the background evaluation involved here is merely a preference for the continuation of the human species and those communities within the species to which I belong (and hence a favorable disposition toward institutions having this as one of their purposes).  The men of ancient Greece and Rome pursued boys, and sometimes associated pederasty with a noble ideal of friendship, but only Nero regarded his relationships to other men as marriages.  At the risk of being considered insensitive, once we stop limiting marriage to heterosexual relationships, there is no clear reason why it should not include cross-species relations, where the human partner is devoted to the welfare of his animal companion.  In view of the history of marriage, it cannot be taken as essential – however desirable – that spouses regard one another as moral equals.  The claims of heterosexual polygamous relations, or even marriages entered into for a fixed term, to count as marriages seem to me far stronger than that of same-sex unions. 

There is no reason to suppose that proposals for legalizing polygamous, let alone cross-species, marriages are in the offing; my argument concerns the logic of the word marriage.  Yet the possibility remains that recognition of same-sex marriages will contribute to sexual and familial chaos on a broader front.  In fact, many gay and lesbian advocates reject the idea of same-sex marriage, or view it as oblique way of launching a general assault on procreative conceptions of marriage and family.[xxxii]

We can give our intuitions on same-sex marriage theoretical support of three different sorts, all of which are combined in the concept of ‘one-flesh communion.[xxxiii]  An older view of marriage treats the procreation and education of the rising generation as its primary and controlling purpose.  This function of marriage is primary in the sense that the others depend upon it (at the level of institutional structure, not at that of the particular marriage), but not in the sense that it is the most important for the couple concerned.  One purpose of the institution of marriage is to certify, without litigation, a given man as the father of a child, with the responsibilities and resulting rights that go with paternity.  In crude and blunt terms, men are offered a deal.  Accept this woman’s children as your own, and contribute in every way to their upbringing, and will we recognize you as the father and make sure, so far as humanly possible, that you are so in biological fact.  Thus you will get both a convenient and socially legitimate way of satisfying your need to have offspring in which you can take pride.  The father gets important benefits from this deal, but the most important beneficiary of this deal is the child.  In a strict interpretation of this understanding of marriage, only sexual acts open to procreation are properly marital (and hence morally legitimate).  I do not beg the question against such ideas, but there are also independent reasons for rejecting the idea of same-sex marriage. 

Adoption is a response to the fact that procreative marriage sometime fails to work properly – a feature it shares with every other institution.  People who have children, but cannot rear them, are matched with childless (or otherwise) people who are willing and able to do so.  As for artificial insemination by donor, and other forms of collaborative reproduction employing the semen of strangers, the child has a physical father, though one who has made it impossible for himself to fulfill the duties of fatherhood.  Cloning, and other methods of reproduction that circumvent ordinary biological processes, are anomalous by any standard and not to be encouraged.   (I am not here concerned with moral issues, but it is silly to shape our institutions of marriage and family to fit odd cases.)

The second argument assumes that the distinction between male and female is humanly important, even aside from its procreative function, although particular cultural understandings of this difference are not written in stone.  Nor are cultural understandings of man-woman differences bad for that reason alone.  In short, marriage is not only an institution for regular procreation, but also an institution for managing sexual difference, or in positive terms providing both men and women with a stable counterpart of the opposite sex.[xxxiv]  How seriously we should take male-female differences in our collective life is a complicated question, but in marriage and other personal relations their importance is beyond doubt:  even where sexual relations are not at issue, a friend of the same sex is different from a friend of the other.  In Aristophanes’ contribution to Plato’s ‘Symposium,’ the search for one’s other half can take a homosexual as well as a heterosexual form.  But if we take the body seriously in a way Plato did not, only a woman can complete a man and only a man can complete a woman in the relevant sense. For male and female persons complement one another, both anatomically and otherwise.  I conclude that the ‘unitive good’ in marriage is the good of union between a man and a woman – what St. Thomas calls the ‘joining of male and female’ (coniunctio maris et feminae) – a phrase inaccurately translated as sexual intercourse.[xxxv] (Gay theologian Mark D. Jordan rightly insists that gay and lesbian couples present different phenomena, but still urges us “to resist doing marriage theology on the basis of an assumed gendered duality.” [xxxvi]  If, however, male-female differences are real and important, it is surprising that no one has proposed that same-sex marriage should be limited to lesbian couples.)  In short, heterosex is and should be socially valued in a way homosex is not, though further argument would be needed to show that homosex is morally wrong. 

A third purpose of heterosexual marriage is less central, but nonetheless important.  Socially dislocated young men are dangerous creatures:  marriage gives them a chance simultaneously to obtain sexual gratification and to assume responsibility for the next generation. 

On the theological front, Jordan proposes to give up the word marriage:  “Christians should give over the word marriage to the state, the advertisers, and their churchly allies.  They should use the word union for all erotic relationships [including both opposite-sex and same-sex relationships] blessed by Christian communities.”[xxxvii]   There is, we may grant, a great deal corrupt about consumerist marriage, but for Christians (or anyone) to surrender the word marriage to the advertisers for that reason seems perverse. 

As a prudential matter in some jurisdictions, non-marital households, whether or not sexual, might be given legal recognition, as domestic partnerships or civil unions, or the persons involved might be designated ‘reciprocal beneficiaries’ for such purposes as health insurance.  But they do not serve marriage’s social functions.  There are reasons for putting sand in the wheels of divorce, but none at all for making the dissolution of a same-sex marriage or civil union more difficult.

Consider two sisters living with their niece, as in James’s Joyce’s The Dead.  Vermont, as well as insisting that civil unions have two parties only, excludes near kindred from this status.[xxxviii]    But, though sodomy between brothers or lesbian relations between sisters may be more repulsive to the stock heterosexual sensibility than other forms of homosexual behavior, the biological reasons for objecting to incest do not apply to such relationships, and the social reasons do not apply with full force.  And sexual relations are not a necessary feature of civil unions.  Moreover, among non-marital households, there is no reason to prefer two-party to multi-party, or sexual to nonsexual, cases.   In any case such associations are not marriages and need not be treated as such.  To defend homosex is, on my view, to defend one of the many varieties of non-marital sexuality. 

* * *

Liberals tend treat all children as adopted, as in Judith Jarvis Thomson’s defense of abortion.[xxxix]  In other words, they see family relations as contractual – in this case on a promise on the part of the parents to care for a child.   But, in order for the family to work as an institution, we must also rely on atavistic responses – the much-maligned maternal instinct in the case of women, and a weak protective impulse in the case of men.  Adoption is a special case, in which adoptive parents agree to care for others’ children rather than their own.

Shared ‘gut’ responses to sexual and reproductive matters are important bonds among human beings, and divergent responses are important sources of discord.  Nor do these divergences go away however much we theorize.  Hence issues concerning sex and gender are particularly resistant to philosophical reasoning.  The same is true of bioethical issues (most difficult of all is abortion, which combines both sexual and bioethical elements.)   Atavistic feelings pervade human social life, but are particularly prominent when ‘birth, copulation, and death’ are at issue.  I do not want to despair of reasoning about such matters, but the power of atavistic responses precludes optimism about its results.  The issue therefore arises how, if not by force, it is possible to establish and maintain a shared framework of institutions wherewith men and women might conduct their lives.



[i] I owe this observation to J. S. Ryshpan.

[ii] See John Finnis, Natural Law and Natural Rights (Oxford:  Clarendon Press, 1982), chap. 6.

[iii]R = Rosenblum, Membership & Morals:  The Personal Uses of Pluralism in America (Princeton:  Princeton University Press, 1998).

[iv] See Garvey, What are Freedoms For? (Cambridge, Mass.:  Harvard University Press, 1996), esp. chaps. 2-3, and 8-9.

[v] Ibid., chap. 1.  Garvey’s position was adopted in Roberts v. United States Jaycees, 468 U.S. 609 (1984) and Board of Directors of Rotary International v. Rotary Club, 481 U.S. 537 (1987).

[vi]Meiklejohn, Political Freedom (New York:  Oxford University Press, 1965), p. 147.

[vii]On nihilistic librarians, see Nicholson Baker, Double Fold (New York:  Random House, 2001).

[viii] Eugene Genovese, A Consuming Fire:  The Fall of the Confederacy in the Mind of the White South (Athens, Ga.:  University of Georgia Press, 1998), pp. 17-23. 

[ix] Sheila Fitzgerald, Everyday Stalinism (New York:  Oxford University Press, 1999), chap. 6, esp. p. 140.

[x]See the Houston Catholic Worker 23, no. 6 (November-December 2003):  7. 

[xi] This sentence is directed against Martha Nussbaum, “Love, Care and Women’s Dignity,” in Philip Alperson, ed., Diversity and Community (Malden, Mass.:  Blackwell, 2002), pp. 216 and 217.

[xii] Ehrenreich, “Oh, Those Family Values,” Time (18 July 1994):  62, quoted in David Wagner, “Delegitmating the Family – the Classical Liberal Roots,” in Christopher Wolfe, ed., The Family, the Civil Society, and the State (Lanham, Md.: Rowman and Littlefield, 1998), p. 28; see the whole of chap. 4 for discussion.

[xiii]Governor Ben Cayeteno of Hawaii made this proposal in the course of a debate on same-sex unions.  Honolulu Star-Bulletin, 9 January 1996, cited in Bruce C. Hafen, “The Legal Definition and Status of Marriage,” in Wolfe, ed., Family, p. 107.

[xiv] Non-Western traditions also extend the concept of ‘brotherhood’ to humankind generally; see Joseph Chan, “Territorial Boundaries and Confucianism,” in David Miller and Sohail Hasmi, eds., Boundaries and Justice (Princeton:  Princeton University Press, 2001), chap. 5, esp. pp. 92-94, though they do not abolish root of such extensions in literal brotherhood.  For a less universalistic account, including such things as the use of women and children to forge political bonds, see L. H. M. Ling, ”Borders in Our Minds:  Territories, Boundaries, and Power in the Confucian Tradition,” in Allen Buchanan and Margaret Moore, eds., States, Nations, and Boundaries (Cambridge: Cambridge University Press, 2003), pp. 87-90.

[xv]  As Roman Catholic authority now acknowledges, “Eros and agape … can never be completely separated.”  Benedict XVI, God is Love (Deus Caritas Est) (San Francisco:  Ignatius, 2006), § 7.  In consequence, God’s love us for us includes both sorts of love (§§ 9-10), however dizzying the theological consequences of admitting divine Eros might be.

[xvi]Eliot, “Little Gidding,” canto IV.  In Collected Poems, 1909-1962 (New York:  Harcourt, Brace, and World, 1963), p. 207.

[xvii] See, for example, William J. Murray (son of the outspoken atheist Madelyn Murray O’Hair), My Life Without God (Nashville:  Thomas Nelson, 1982).

[xviii]See James Miller, The Passion of Michel Foucault (New York:  Simon and Schuster, 1993).  For a defense of Foucault, see Wendy Brown’s Review, differences 5 (summer 1993):  140-49.  I am indebted to Matt Carlos for this reference.

[xix] I take this phrase from Juli Loesch Wiley, “Reweaving Society,” reprinted from Social Justice

Review (July-August 1987):  122-24, in Philip E. Devine and Celia Wolf-Devine, eds., Sex and Gender:  A Spectrum of Views (Australia:  Wadsworth/Thomson, 2003); quotation, p. 288.

[xx] For detailed discussion of the analytic issues, which I follow in part, see Alan Soble, Philosophy of Sex and Love (St. Paul:  Paragon House, 1998), chap. 1.

[xxi]Ibid., p. xxi.  Quoting Yeats, “Crazy Jane Talks with the Bishop, Collected Poems, ed. R. Finneran (New York:  Macmillan, 1989), pp. 259-60.

[xxii]As a general rule, the presumption of legitimacy can now be rebutted if clear and convincing evidence shows that the husband’s paternity is naturally impossible.  SSA Policy Site: POMS Section GN 00306.021 (23 November 1998), http:/, accessed 5 November 2004.  The Supreme Court of Michigan ruled that an alleged biological father other than the woman’s husband is not a proper party to a child protective proceeding, unless and until the presumption of legitimacy is rebutted in a prior proceeding.  In re KH (14 April 2004).

[xxiii] Fawn M. Brodie, No Man Knows My History, 2nd edition (New York:  Vintage, 1995), esp. chap. 24 and Appendix C.  I assume the accuracy of Brodie’s account for the sake of argument.

[xxiv] I omit the scare quotes around marriage commonly used in Conservative circles.  Those who regard same-sex marriages as spurious can read the phrase same-sex marriage as they would read counterfeit coin and decoy duck.

[xxv] For the popular debate on same-sex marriage, see Andrew Sullivan, ed., Same-Sex Marriage:  Pro and Con:  A Reader (New York:  Vintage [Random House], 1997).  For the scholarly debate, see Stephen Macedo, “Homosexuality and the Conservative Mind,” and articles following, Georgetown Law Review 84 (1995):  261ff.  There is also extensive discussion of same-sex marriage in Devine and Wolf-Devine, Sex, esp. pp. 316-64; and in Christopher Wolfe, ed., Homosexuality and American Public Life (Dallas:  Spence, 1999), esp. Pts. II and III.

[xxvi]I defend the view that heterosexuality is normative in my Natural Law Ethics (Westport, Conn.: Greenwood, 2000), esp. pp. 99-102.   But the argument of the present book does not build upon, but runs parallel to, that one.

[xxvii] For an example of an appeal to revelation, see Marc C. Murphy, An Essay on Divine Authority (Ithaca, N.Y.:  Cornell University Press, 2002), esp. pp. 180-83; and see my review in The Thomist 67, no 2 (April, 2003):  314-18.  Murphy, however, concedes too much to androgyny even on the philosophical plane.

[xxviii] We should not exaggerate the ability of legal bonds to stabilize such relationships.  Julie and Hilary Goodridge, lead plaintiffs in the push for same-sex marriage in Massachusetts, began living apart two years after their Unitarian wedding.  Defenders of same-sex marriage blandly responded, “Unfortunately, lesbian and gay couples break up just as heterosexual couples.” Boston Globe (21 July 2006).  But the Goodridges had put themselves forward both to the gay/lesbian world and to the larger society, as models of what such a relationship might be.

[xxix]See Paul Ziff,  “About Ungrammaticalness,” Mind 73, no. 209 (April, 1964):  204-15; and A. C. Baier, “Nonsense,” Encyclopedia of Philosophy, ed. Paul Edwards (New York: Macmillan, 1967), vol. 5, pp. 520-22.

[xxx]The question requires more research; a good starting point is Hafen, “Legal Definition”; and, for more recent discussions, see Gerard Bradley, “‘Marriage’ Hawaiian Style,” in Wolfe., ed. Homosexuality, chap. 10; and David Orgon Coolidge, “The Question of Marriage,” ibid., chap. 11, esp. pp. 211-220.

[xxxi] Lesbians can become pregnant through artificial insemination and the like, but progeny do not arise from their relationships; the child of two lesbians is Heidi’s or Wendy’s, but not both (except by adoption).

[xxxii] See Paula Ettelebrick, “Since When Is Marriage a Path to Liberation?” and E. J. Graff, “Retying the Knot,” both in Devine and Wolf-Devine, Sex, pp. 331-34.  The second of these articles originally appeared in The Nation (14 June 1996).   

[xxxiii]See Robert George, “‘Same-Sex Marriage’ and ‘Moral Neutrality,’” in Wolfe ed., Homosexuality, chap. 7, esp. pp.144-47, reprinted in Devine and Wolf-Devine, eds., Sex, esp. pp. 325-28.  

[xxxiv]On the importance of managing sexual difference, see Michael Novak, “Men Without Women,” reprinted from Human Life Review in Devine and Wolf-Devine, Sex, pp.312-316.

[xxxv]Summa Theologiae, Ia IIae, q. 94, a. 2. 

[xxxvi] Jordan, Telling Truths in the Church (Boston:  Beacon Press, 2003), pp. 42 and 52.

[xxxvii] Ibid. p. 113n.6. 

[xxxviii] (2004, accessed 26 February 2007).

[xxxix] I am here indebted to my colleague Andrew Peach.

We (chap. 5)

November 20, 2009



            The normative sovereignty of nation states is challenged, not only by globalization and empire, but also by internal fragmentation.  A variety of groups assert themselves against the institutions of their states and resist assimilation to their practices.  There is an entire industry devoted to the discovery and creation of identities – including that of Garrison Keillor’s ‘shy persons’ or more pretentiously that of ‘highly sensitive persons’ (HSP),[i] though these groups are unlikely to make serious political trouble.  The aim of such creative discoveries is not merely to advise the bearers of such identities, or even to defend them against the suspicion that there is ‘something wrong’ with them, but also to enable them to assert themselves in a variety of contexts. 

The resulting groups do not control territory, nor do they aspire to do so; rather they represent the many non-geographical divisions that afflict human society.  The shift from rival nation-states to minority movements reflects a mistrust of majorities.  But this distrust is futile, because there are majorities and minorities in any group, including the movements identity politics generates.

In dealing with the differences among human beings to be discussed in this chapter, we must confront an argument made by John Stuart Mill: 

If men had been ever been found in society without women, or women without men, or if there had been a society of men and women in which the women were not under the control of men, something might have been learned about the mental and moral differences which might be inherent in the nature of each.[ii]

What is demanded here is impossible – that we look at the nature of men and women (and by implication of other groups) apart, not only from their present social situation, but also from every known social situation.  But we are social beings all the way down:  even the state of our hormones (like our height) is to some degree affected by our conditions of existence.  And what genotypes end up embodied depends in part on the mores.  The identities to be examined here are for that reason social identities, not extra-historical posits, but not for that reason unreal.



Everything that can be said on behalf of nationalism can be said on behalf of identity politics; the two outlooks also share common liabilities, including an ambiguous relationship to tolerance.  Non-nationalist forms of identity politics begin with demands for recognition of modes of life hitherto socially marginal, often based on the pretense that competition for resources and consequently class differences no longer matter.[iii]

Identity politicians claim that only members of a group can represent it.  Anne Phillips, for example, argues that only a woman can represent women.  She points out that there is no tight connection between issues of different sorts, and that people need for representatives who respond appropriately to questions and positions not presently on the agenda.  Women as representatives will better serve other women, she concludes, than will men who endorse their views.[iv] 

          Phillips herself makes a powerful argument against her own position.

Once men were dislodged from their role of speaking for women, it seemed obvious enough that white women must also be dislodged from their role in speaking for black women, heterosexual women for lesbians, and middle class women for those of the working class.  The search for authenticity . . . then makes it difficult for anyone to represent an experience not identical to her own, and, taken to the extreme, renders dialogue virtually [why only virtually?] impossible.[v]

Nor is there any reason to suppose that all women will think the same way.  The name of Margaret Thatcher should convince the most skeptical that there is no ‘women’s position’ on social and political issues generally even outside totalitarian movements.  Women who call themselves feminists disagree about the ‘pelvic’ issues (including pornography[vi] and abortion),[vii] on which we might expect there to be a women’s position.  On the racial/ethnic front there are long-standing tensions between darker-skinned and lighter-skinned black people, as well as between different sorts of Latinos, and the “presumed alliance” between people of color of every sort quickly encounters discordant facts.[viii] 

Part of the reason for the popularity of identity politics is cynical.  As a colleague of mine has put it,

Diversity, diversity, what can that be?

A lot less of you and a lot more of me.

 What underlies diversitarian ideology, where it is not a mere stratagem in a turf war, is the fear of imposed identities, including, but not limited to, imposed moral and religious views.  Hence traditionalists,[ix] authoritarians,[x] Libertarians,[xi] and Conservatives[xii] all use the language of diversity or pluralism.   And rightly so:  human beings are in fact a diverse lot and recognition of this fact is important.  When we have a practical purpose that requires a decision among rival visions, however, aesthetic appreciation is no longer a sufficient response.

The scheme of pictorial representation represents an alternative to democracy in the ordinary sense, whereby those in power keep the ruled happy by providing such things as “a Cabinet that looks like America.”  Whatever is of value in the standard forms of identity politics we could better achieve by a scheme of proportional representation allowing advocates of every identity to field candidates and see who wins.  Each citizen would then have a far better chance of finding someone in government who represented his or her views than in either our present system or a in a system of pictorial representation.

Identity politics also includes demands for the rectification of historical injustice – ranging from territorial irredentism to preferential affirmative action.[xiii]  Historical claims to dominance are treated with disdain in intellectual circles, but historical claims to victimhood receive a much friendlier hearing. 

Demands for reparation suffer from six pervasive difficulties.  

  1. Such demands make novel claims of social justice more difficult.  For once we acknowledge that a group has a legitimate grievance, we commit ourselves not merely to remedying present grievances but to rectifying the past as well.
  2. People disadvantaged by such policies of reparation are quick to conclude that the measure of compensation has been exceeded and demand reparations in return.
  3. Victims and perpetrators of ancient wrongs are both all dead, and their present representatives would not exist as either biological or cultural entities, but for these wrongs.  A wrongful-birth action is not a good model for social justice.  (While a man may be required to pay for the support of his irregularly begotten children, this is not reparation for the injury of existence but the enforcement of the duties of fatherhood.) 
  4. The argument that America’s African American population inherited their ancestors’ claims to compensation for unpaid work as slaves questionably assumes that the inheritance of property (or alternatively the constructive trust) somehow exists outside the institutional context that sustains property rights. 
  5. There are special perplexities associated with demands for cultural damage – say that the descendants of slaves have acquired, either from their parents or the prevailing expectations of their society, a personality structure that makes them less able to compete in a market economy.  To make this sort of argument is to demand compensation for being the sort of person one is, and perhaps even for being the sort of person one wants to be.
  6. Demands for rectification are insatiable:  when could we say that the evils of the slave trade had been compensated for?

More fundamentally, the argument for compensating ancient wrongs rests on a picture of human society lacking in historical consciousness. We all are what we are in part because of the injustices done and suffered by our ancestors, both spiritual and physical, as well as their gifts and achievements.  We must begin our efforts at social betterment from where we are.  We cannot re-run history, conferring upon our ancestors our present understandings of justice and making sure that they lived up to them in practice.  Nor do we have any idea what the world would have been like had racially based slavery or other notorious injustices never existed; for all we know it might have had as many and as profound evils as our own (only different ones).   

            If we reject victimhood as our criterion for giving privilege to some cultural identities, including protection against the vicissitudes of history, the only plausible remaining criterion is inherent worth.  But the question, who is to decide the relative worth of cultural traditions, and by what standards? then becomes urgent.  One answer is that the state, directly through public education and indirectly by making private education possible, facilitates the transmission of some traditions but not others.  School vouchers would make easier the transmission of traditions whose adherents are poor, but even then the state has to exercise some oversight to inhibit the transmission of traditions of ignorance, abuse, or crime.  But Multicultural educational philosophy calls into question the legitimacy of the nation-state and its decision-making apparatus, including the system of property relations established and enforced by the law, and thus deprives us of the possibility of public and private solutions alike.  And the same feature of Multiculturalism blocks another answer, namely that we must make amends for American injustice and not for English (or even Irish or Italian).

It is the responsibility of adherents of a cultural tradition to defend and develop it in a hostile environment, where necessary accepting marginal status as the price of integrity.  Though the willingness of members of a group to make sacrifices for its traditions does not demonstrate that they are worthwhile, it does provide a reason for the rest of us to take the claims made for them seriously.  What Stanley Fish has called “boutique multiculturalism”[xiv] encourages the marketing of cultural identities in a way that ignores the fact that they are often a source of conflict.  Like nationalism before it, identity politics calls out for capture by those who attempt to stabilize existing practice, attending as little as possible to supra-conventional claims of justice.  In practice such politics is barely distinguishable from Burkean Conservatism.[xv]    




Everyone is different in some way from everyone else, and all human beings are in some respects the same.  Every difference is different, and the differences among our differences are multiple.  Race, sex (and consequently sexual orientation), and class are only the most sensitive ways in which people within the same nation now identify themselves as different from one other.  They are also frequently confused, resulting in both intellectual confusion and muddled policy.



‘Racialism’ holds that the human species divides naturally in to racial groups; these are often analogized to breeds of dogs.  ‘Racism’ holds that some such groups, usually including one’s own, are in some sense inherently superior to others.  It is possible to be a racialist without being a racist, though since the popular concept of ‘race’ encodes racist ideas such as the purity of the white race, such a person would have to invent a whole new set of racial classifications. [xvi]

 There is something exceptionally irrational about judging people by their complexion, and in particular about the one-drop-of-blood rule, by which a person with one sixty-fourth African ancestry (called a sang-mêlé in Creole society) counts as black.  A race is too large and diverse to provide the moral support we expect from families and family-like associations.  Reactive racism binds victims to their oppression in a demoralizing way.  The stigma sometimes attached to skin color is linked to the irrationality of racial distinctions:  in contrast with other social distinctions, racial discrimination lacks a limiting rationale and is for that reason unbounded in its implications.  That Kant and other representatives of Enlightenment Liberalism succumbed to racism is no argument for our following their example, though it is a reason for questioning the more extreme claims made for the Enlightenment.

Racial categories are now melting, at least in some segments of American society.  Moreover, overtly racist beliefs are now badges of youthful rebellion displayed by disappointed believers in the promises of consumer capitalism, for that reason not to be taken entirely seriously.[xvii]  Nonetheless, “race is an area in which,” as Shelby Steele has observed,

Americans have been conditioned by a history of painful conflict into a rigid and unforgiving propriety.  …  Because of this we become a bit afraid of what we really think about race.  And since we don’t easily tolerate in others what we won’t tolerate in ourselves, we tend to censor, name-call, and even purge those who let slip their real thoughts.[xviii]

Racist has undergone both conceptual inflation and moral overload, to the point where it is easy to dismiss charges of racism, and its many analogues, as a smear tactic.[xix]  The notion (itself racist) that only white people can be racist adds to the confusion – though of course the more powerful a racist is, the more damage he or she can do.  Pressure to use expressions such as black and African American conceals one important fact about American race relations – that our black population is racially and culturally mixed.

According to the ideal of a color-blind society (which no one expects to be achieved very soon) race should not be an issue in social life.  ‘Miscegenation’ would not be an issue, and whatever standards of sexual morality prevailed in relations between members of the same race would also apply to interracial relationships.  Hence there would be much crossbreeding of the ‘races’ – which occurs even when the mores discourage it.  There would be people of all shades in all occupations and residential areas, and among adherents of every creed – though proportional distribution in these respects is not neither necessary nor possible.[xx]  There would still be both black and white criminals, however; and the gap between rich and poor, and the social isolation of both the urban and the rural poor, would be a matter for disquiet even if white and black people were poor in equal proportions.  Moreover, racially mixed Latin American countries have practiced a racial hierarchy, with pureblooded Spanish at the top and pureblooded Indians at the bottom.

The obstacles to a color-blind society are not limited to, and at this stage may not even arise primarily from, the ‘white racism’ of standard polemic.  Advocates of color-blind policies even find themselves accused of racism;[xxi] and proposals such as Ward Connerly’s unsuccessful Racial Privacy Initiative, forbidding the government to collect racial statistics, attract determined opposition from professed anti-racists.[xxii]  The increasing number of people who call for the recognition that we are mutts these days, say allowing the use of multiracial on official documents, have even been denounced as “pawns for racists.”[xxiii]  

(I would not draw too much comfort from the fact that all mutts.  Even if racism goes away, xenophobia is vital to the human animal.  And Liberals are quite capable of proving they are not racists by supporting black or mixed-race candidates for high office, while supporting abortion as a way of keeping down the number of the poor – whom they, in traditional American fashion, confuse with the African American population.). 

Believers in a color-blind society sometimes advocate color-conscious remedies, some of which – like support for historically black colleges and universities and preferential admissions to ‘mainstream’ educational institutions – undercut one another.[xxiv]  Each racially conscious remedy entrenches racial categories; and their cumulative effect is enormous.[xxv]  Both preferential affirmative action programs, and the conflicts to which they give rise, reinforce racial hostility by encouraging competition for resources on racial lines, especially in view of the existence of articulate people writing in defense of the methods by which they attained their social positions.  The further suggestion, that some racial groups are in need of permanent advantages in competition, makes things even worse.[xxvi]   

The ‘corrective’ argument for racial preferences provides a bridge between color-blindness in theory and enhanced color-consciousness in practice.[xxvii]  The key premise is that racism is so deeply engrained in the habits and practices of employers and admissions committees that artificial methods are needed to cancel out majority prejudice.  Either black people are thought immune to racism, or (more plausibly) their possible racism does not count. 

That a distinction is  ‘socially constructed’ does not have an unambiguous meaning, nor does it imply we can or should ignore it in practice.[xxviii]  Nor does it follow, from the fact that a distinction is socially constructed, that we can get rid of it by an act of collective will (or even at all).  If everything, or everything but the entities postulated in physics, is a social construction, then that race is a social construction is not an important fact.  In these considerations lies the most serious challenge to Racial Liberalism.[xxix]  Some people defend racial categories one the grounds that they foster “a positive sense of self-identity and self-pride among those ordinarily identified as black.” [xxx]  They might also do the same thing for those ordinarily identified as white people. 

James Baldwin, widely accepted in Liberal circles as a representative of black opinion, hated racism, but also believed that race was so deeply entrenched in our social structure and conceptual scheme that it could not be removed without a metaphysical revolution ending in chaos.  In his own dramatic language, he believed that God was white.[xxxi]  He expressed this outlook in sexual terms, describing the consummation of a relationship between a black man and a white woman in terms gratifying to an old-fashioned racist,[xxxii] and the sexual penetration of a white boy by a black boy in language derived from Baptist conversion narratives.[xxxiii] 

Critical race theory provides the most sophisticated version of the resulting outlook.  On this view race so pervades our world as to be ineradicable; in Lucius Outlaw’s words, it is “constitutive of the personal and social beings of persons” and thus determines “the historically mediated structural features of human life-worlds and informed lived experience.”[xxxiv] Racial Liberalism is therefore the philosophy of the naïve and well meaning.[xxxv]  A belief that racism is normal, not aberrant, in American society and skepticism about the ‘ahistoricism’ of appeals to the Fourteenth Amendment reinforce one another.  Appeals to the experiential knowledge of people of color also fix racial categories and the patterns of discrimination they reflect, since such knowledge is structured according to existing racial categories. 

Critical race theorists continue to protest the persistence of racism in American life, rather than accepting it as a fact of nature.  But discrediting without replacing such ideas as legal neutrality, color-blindness, and equal opportunity undercuts every possible argument against racial inequality.  Unreconstructed white Southerners, neo-Nazis, and survivalists also experience themselves as oppressed, and tell stories to which critical legal theorists have no answer but suppression.[xxxvi]  In short, uncritical pluralism leads to endless war.

We might get along without the concept of race, but we would still have to recognize the social groups previously marked as racial.  The group most accurately described as ‘Negroes’ is historically and culturally important, but properly understood includes neither Africans, nor African Americans in the strict sense (recent African immigrants and their children and grandchildren), nor black people from the West Indies.   

People who are free to make their own decisions may re-enact their cultural heritage and preserve racial barriers.  As they grow up, many African Americans are taught to protect themselves against racially motivated attacks by dismissing the opinions of people outside ‘the race.’[xxxvii]  African American children raised in a white adoptive home may feel pressure to conform to racial stereotypes.  Black studies programs and programs of racial preference, which create de facto segregated career tracks for young people of African American heritage, may reinforce the resulting patterns.  These phenomena, and others like them, are called ‘race holding.’  The American creed, defenders of race holding will respond, is inadequate, in that it values individualism over the solidarities important to minorities.  Not everyone should live for the rat race. 

Racial Liberals must therefore defend themselves against the argument that genteel apartheid, modified by concessions to black people’s desire for more comfortable turf at the expense of whatever other group is most vulnerable, is the only mature racial policy.  To adopt such a position is to make a decision, cloaked in the rhetoric of necessity, to abandon key elements in the American creed, in favor of a philosophy that admits our servitude to what some people call our ‘baggage’ and a Hindu would call our karma.   For racism and race holding do not only inhibit participation in a competitive market economy; they also hinder contributions to the common good the market fails to support.  


Sex and Gender

By sex is meant the physiological and anatomical differences between men and women; these are important in all societies being since they are connected to the continuation of the human species, and have greater or lesser psychological and social ramifications outside reproductive contexts.   By gender is meant what a society or cultural tradition makes of these differences; the relationship between these two phenomena is both culturally variable and a matter of intense controversy within contemporary cultures.   The assimilation of sex or gender to race has helped a tacit capitulation to racism.  If gender blending is (as many people suspect) nothing more than a titillating fantasy, then the ideal of the color-blind society will also seem remote from social reality. 

Sex or gender is different from the other forms of identity considered here in the following way.  People characteristically prefer to associate with people like themselves, and therefore form informal networks composed of people of one race, class, or sexual orientation.  There are also all-male and all-female associations, but the fact that most people are heterosexual, and are raised by parents (or at least stepparents) of both sexes, guarantees the importance of networks containing persons of both sexes.  Women and men also share experiences with their own sex, that make some difference on how they think, but on no account is sex or gender the only thing that affects a person’s point of view. 

Some writers have argued that sexual difference is, or should be treated as, no more important than skin or even eye color;[xxxviii] others that there are not two sexes, but as many sexes as individuals.  Others have treated the sexes as so different that no dialogue, but only war, is possible between them. Hence “sex wars, not the fun kind” are everywhere in our culture. [xxxix] Even feminists who do not regard gender as a malign social construction frequently greet the most conspicuous way in which men and women differ – the fact that women bear children and men do not – with considerable hostility, arguing that pregnancy and the capacity for pregnancy are burdens from which women at all costs must be liberated.[xl]

But the biological difference between the sexes is undeniable, as is the need of men and women somehow to live together.  There is no way of drawing a clear line between nature and culture, since each deeply affects the other.  Nature and culture are both inside us, and our nature shapes our cultural expressions in all sorts of ways.  What men mate with what women, and produce offspring, who survive to reproduce, is importantly a function of the mores.  And the shape of our institutions, as of our bodies and clothing, reflects our physical structure.   Yet some features of our anatomy – height for example – are conditioned by the diet available in one’s social environment.

At this point in the argument we encounter the ideology of ‘natural foods and unnatural acts.’  The same sorts of people exalt nature and protest its invasion by human beings, while denigrating the asserted natural basis for normative heterosexuality and socially established gender roles.[xli]  Outside such an ideology, how thick the resulting normative and practical constraints on human conduct will be depends in part on experience and detailed argument, and in part on whether we regard the natural world as the mere random arrangement of matter (or even as malign) or as somehow purposive.  

It is impossible for to say with precision to what extent culturally entrenched distinctions are based on extra-conventional reality, but the human body has its claims.   Even if we reject racial distinctions, there are still physical differences among individuals:  being very tall or very short affects the kind of person one is, as do more socially sensitive traits such as breast or penis size (or body odor). 

The differences of sexual and reproductive function between the two sexes are more important still.  Homosexuals and bisexuals are as much interested as the majority is in the sexual characteristics of their partners.  And even when sex or reproduction is not in prospect, interactions with members of one’s own sex are in many ways different from interactions with the other – though the details are plainly matters of convention.   There are anomalous cases – eunuchs, hermaphrodites, and the like – but there is no good reason to take atypical cases as central to our understanding of sex differences or of more ordinary individuals.  Here as everywhere, there are anomalies, but the existence of atypical organisms does not mean that there are no norms for the species.  Congenital blindness, though it ‘occurs in nature,’ is nonetheless an abnormality. 

A tendency in contemporary culture at work in debate about sex and gender issues especially invites us to think of one another as persons rather than as men, women, and children.  “Person’ in this context (in Latin persona or mask) is a legal concept, implying the possession of rights and duties and hence also the capacity to be a plaintiff or defendant in litigation.  Ships, books, and corporations are persons in this sense, alongside ‘natural persons’ as human beings are called.   A further complexity is that the word person is sometimes used to designate a holder, not only of legal, but also of moral rights, even against society as a whole.  But such persons need to be located within the social world as human beings, not as free-floating claim-bearers.

Moreover, we need to attend to the image of the person implicit in our use of the word.  As Mary Ann Glendon has observed, “the predominant image of the human person in American law is of a creature who bears little resemblance to any human being that has ever lived:  a free, self-determining, and self-sufficient individual”[xlii] – sometimes even of an Übermensch entitled to create for himself  (or herself) whatever meaning there may be in sexuality, sex differences, and reproduction.  There is no place in this picture for children as entities with many rights including a right to life, but no right to vote.  Perhaps this image of personhood is tolerable so long as it does not seep out from the law into social life generally, but in a legalistic culture like that of America this line is always hard to maintain.

While abstraction from ordinary human experience may be necessary for some purposes, it carries with it a danger of our forgetting the realities of human life evident in sexual, reproductive, and familial contexts, all of which continue to be important in the contemporary world.  A powerful Gnostic strain of contemporary sensibility – without the asceticism of some classical Gnostics — builds hostility toward sexual reproduction into the deep structure of political and moral thought.    Those who find the limitations of human fleshiness oppressive are especially hostile to sex differences and their practical implications.   Pregnancy reminds women who may have forgotten the fact that their distinctive biology is an important fact of their lives – a fact that for many feminists is a reason for regarding abortion on demand as a non-negotiable requirement of women’s liberation.  In theory the doctrine of androgyny is as coercive towards women as towards men  — forcing members of each sex, sometimes against their inclination, to be like the other.  In practice, however, it bears with particular destructiveness on young males, who have not learned the tactics of self-protection their older counterparts have developed.

Other feminists (and some anti-feminists), however, take sex differences so seriously as to regard men and women as “two different species, doomed to a perpetual battle.”[xliii]  This vision is as destructive of human communities as is its androgynist counterpart.  Others argue that men should be free to be as manly or unmanly as they like, and likewise women should be free to be either womanly or unwomanly.  But at some point we will have to make collective decisions about marriage and family life – since the upbringing of children is at stake [xliv]– and here freedom to do as one pleases is not an adequate answer. 

The fate of Larry Summers at Harvard makes us aware of the dangers of even hypotheses in this area, and the powerful taboos that support an androgynous understanding of human nature.[xlv]   But it seems to me that empirical research along these lines is preferable to dogmas about the implications of sex difference.  Without attempting a complete psychology of sexual difference, a plausible though controversial hypothesis is that most of the phenomena boil down to the fact that men are more aggressive than women, and that male aggression is closely tied to male sexuality.  According to this hypothesis, the resulting differences include ways in which men might be, statistically speaking, better than women, such as a greater capacity for genius as opposed to mere talent, and such less pleasant phenomena as a greater predisposition to violent crime. Should it turn out to be the case that male-female differences affect mathematical ability, men and women would retain the right to be treated as individuals, rather as specimens of a group. 

Stereotypes are caricatures, though even caricatures reveal important facts about their subjects.  Nor should we be too impatient with the clichés that abound in discussions of sexual issues; everyone transcends them, but everyone also exhibits them, especially in times of stress.  There is considerable truth in the maxim that a normal person one does not know, but some sense of what is normal is nonetheless vital for human social life.


Sexual Orientation

Among the emotions distinguishing men from women, those connected with procreation and the rearing of the young have a special place.  For the desire for sex with a woman is characteristically masculine and the desire to nurture an infant is feminine, if any desire is.  Yet our world includes, for example, women without maternal feeling – a group that is useful for economic purposes.  

 Homosexuality has historically been taboo – which means something more and deeper than morally prohibited.  Taboos include an inhibition on talking or even thinking about the tabooed subject, which I am here breaking by addressing the issue of sexual orientation.  Yet the discomfort many people feel with the very thought of homosexuality is part of the data.  For, on a plausible anthropological view, gut feelings of this sort mark the boundaries between socially important categories.  A self-defined gay Roman Catholic insists on this point, from his own point of view. 

Catholic teaching on same-sex desire is connected to fundamental questions about clerical culture, about the Church as a community under the spirit, about the church as an instrument of redemption. … There can be no reform just of the teaching on homosexuality.[xlvi]  

The relationship between social identities of all sorts, including those claimed by gay men and lesbians, and their natural basis and limits is complicated.  An element of self-deception (or imaginative self-construction) in the definition of identities is always possible, and can extend from those claiming or imposing an identity to a society as a whole.[xlvii]  We cannot assume that any social order – past, present, or foreseeable future – exactly mirrors a normative natural order.  But there is no reason to believe that our institutions float free of nature, either.  In the course of history, outsiders become insiders and insiders become outsiders, and former outsiders often become oppressive of their former oppressors or those they identify with them.  Outsiders may be prophets of a new and better state of things, though in the majority of cases they are not, and we do not have a sufficient sense of when they are such to ground and delimit a charter of outsiders’ rights.  A better source of support is the fact that any of us may end up an outsider.

Not all persons experiencing homosexual desires embrace a gay identity:  the situation of those who refuse to do so can be difficult. [xlviii]  Claims to gay and lesbian identity usually carry with them a demand, not just for tolerance of the homosexual life, but also for its recognition, in educational contexts especially, as one legitimate possibility among others.  Yoked to an imperious egalitarian ideology, such claims preclude the least respect for the conscience or sensibility of those who think otherwise.  Read in a spirit that has not left our world, however, the concept of gay identity marks homosexuals as an alien and disturbing presence, exposed to every form of persecution, not for what they do but what they are.  For regarding people as not wrong but different is entirely compatible with loathing.  And there are circles in which loathing of homosexuals is an essential feature of straight male identity.  Once again, uncritical pluralism leads to endless war.

There is something absurd about the project of making sexual desire indifferent to the sex of the person desired, since in sex we are most intensely aware of our own and the other person’s (or persons’) body.  Even nonsexual affection involves a consciousness of our friend’s physical presence – in one form of male friendship, his ugliness.  And the male and female bodies are, in pertinent respects, complements.  Moreover, to whatever extent our understandings of maleness and femaleness are socially constructed, these understandings and the practices built on them might still be vital to the welfare of human beings in society.  For these reasons, many people find the belief that heterosexuality is normative self-evident.[xlix] 

Like axioms generally, this belief, though it can be made plausible, cannot be established directly.  Any supporting considerations drawn from experience can be explained as the result of social hostility to the homosexual way of life.  Timothy Murphy maintains that homosex and heterosex are both rich and fertile languages (like French and German), each capable of expressing a wide variety of meanings, desirable and undesirable. He further argues that the supposed superiority of heterosex in bridging the gender divide is spurious; on the contrary, “homosex can represent opportunities for growth that are otherwise unavailable…. [For homosexuals] do not commonly have the benefits of parental and social expectation to guide them.”[l]

Treating sex of any sort as a language is a useful metaphor, so long as it does not cause us to forget that the body parts and processes by means of which it is ‘spoken’ play an indispensable part.  There is nothing in sex corresponding to the translation of speech into writing.  Moreover, these parts and processes are not just any parts and processes, but include at least those that distinguish the male from the female.  Hence the special role of heterosex is inscribed in the facts of the body on which any understanding of sex must rest.  To what extent our sexual practice is biological, and to what extent cultural, is largely unknown and probably unknowable.  (Oddly, appeal to our animal nature in sexual matters is considered reactionary, while it is supposedly progressive to trance our institutions to our, equally animal, need for food and desire for acquisition.)  We should not reduce our erotic lives as persons to our sexual lives as animals, but we cannot disregard the animal dimension of our sexuality either. [li] 

Hence the difference between the sexes is important for understanding sexuality in the way racial, class, or age differences are not.  Heterosex, of course, can fail to unite the parties in any significant way; we are speaking here of a possibility inherent in heterosex but not homosex.  The special challenges faced by homosexuals arise from the facts that most people are raised in heterosexual households; and that most parents desire to continue their way of life and believe that heterosexuality is normative, even apart from any other beliefs about homosexuals and homosexual practices that they may also entertain.  If Murphy were to persuade parents to welcome homosexual development in their children, he would at the same time undermine his own argument.



Bisexual behavior is observed in many nonhuman species, including primates, and many psychologists hold that we are all at least latently bisexual.  We are concerned, here, however, not with biological possibilities, or with psychological tendencies that show no sign of bearing fruit in action, but with human behaviors and their cultural meanings.[lii]  These exhibit a dizzying variety: consider the following contemporary episode:  “at the party after the SM pride march a gay man and a lesbian had sex on the dance floor, but it wasn’t heterosexuality. You can tell.”[liii]  [How?]  Bisexuals are not indifferent to the sex of their partners:  they are usually preferentially homosexual or heterosexual, and have recourse to the less favored sex by reason of circumstance.  Moreover, their preferences change:  though maturation or (in the case of women at least) for political reasons.  In a bisexual, the two forms of desire carry with them a different emotional charge:  an adolescent may seek protection from an older man, while asserting his own power with women.  On the social level, ancient poets such as Horace and Catullus wrote to boys as if to women, but the surrounding society was patriarchal for all that.   

Both homosexuals and heterosexuals tend to efface the bisexual possibility, since this makes it easier for them to deny internal conflict.  Bisexuals, however, protest their marginalization within the gay and lesbian movement, and on a broader front the ideological grid that divides the human species into homosexual and heterosexual,[liv] turning to the psychiatric community to ratify their existence as a psychosocial though not a pathological category.[lv]  The language popularly used for bisexuality, such as AC-DC, switch hitter, and swings both ways, suggests versatility and adaptability – whether these are virtues or vices in a sexual context depends on larger issues concerning the nature of human sexuality.[lvi]  Many writers compare bisexuals to traitors and spies.[lvii] 

Bisexuals refute one premise of much contemporary discussion – that the human race is divided into gay and straight halves, which need only define their relationship to one another.  They also refute the view that gay men are not men, and that lesbians are not women.[lviii]  If we desire the breakdown of gender roles, bisexuals are the most plausible candidates for the role of pioneers in transcending sexual difference.[lix]  Bisexuality underlies the political promotion of lesbianism, which both hides behind and undermines appeals to compassion on behalf of those ‘born that way.’[lx]

A bisexual disposition, if persistently acted upon, is inconsistent with anything like marital fidelity.  The traditionally inclined see bisexuality as evidence of the ever-present danger of sexual chaos, while those who celebrate the anarchic potentiality of sex welcome the bisexual option.  In a more positive vein, the bisexual is a paradigm for all of us who have to negotiate multiple identities.

In the case of sexual orientation as well as every other form of human difference, the relative role of genetics and social environment is intensely controversial.  Steven Pinker does not overstate the regnant environmentalism of the intellectual community when he writes, “Any claim that the mind has an innate organization strikes people not as a hypothesis that might be incorrect but as a thought that it is immoral to hold.”[lxi]  But it is common to make an exception to this axiom for sexual orientation.  Judge Richard A. Posner makes plain the ideological motivations at work in the debate when he writes:  “My own view is that there is compelling scientific evidence that homosexual preference is genetic, or at least acquired, so that the fear of homosexual ‘contagion’ from the flaunting or public endorsement of the homosexual way of life is groundless.” [lxii]  

Arlene Stein argues that the lesbian/gay movement “rather than simply seek integration, or stand outside the wretched system, … should challenge the assumptions by which that system defines family, intimacy, and equality.”[lxiii]  In other words, Stein accepts the argument, in her own language “conservative,” that our sexual dispositions are, to some degree at least, under our control.  Yet she urges men and women who have departed from the cultural norm to demand, not just tolerance or even fairness, but a radical change in that norm, opportunistically using arguments for equal citizenship as required.  In practice, this means trying to make a homosexual or bisexual life an attractive option for the young and sexually unformed.  The culture wars here become intense.

The current semi-official roster of sexual minorities includes lesbians, gays, bisexuals, transgendered people, and questioning – but not bestialists, pedophiles, necrophiliacs, fetishists, or sadomasochists.  The inclusion of the questioning means the abandonment of any claim that such identities are either fixed or all-or-nothing in character – in other words, the abandonment of the analogy with race that drives the sexual diversitarians’ claim of justice.  Anyway, treating the confused as a political constituency is a move of desperation, and politics as a way of resolving emotional conflicts is dangerous.

 Two questions are central to discussion of the empirical issues:  an agreed-upon definition of homosexuality, and a realistic assessment of the percentage of various populations that are homosexual by this definition.  I see no reason, as things now stand, why we should stop recognizing the notorious plasticity of human instinct when it comes to sexual orientation.   Even if sexual orientation has some degree of genetic basis, the cultural environment in which a person’s sexuality develops surely has some influence as well, even apart from the question of choice.  Nor is there any reason to suppose that there is a single route to a homosexual (or to a heterosexual or bisexual) way of life. 

The following hypothesis, so far as I can see, fits all the known facts. (It is a likely story, proposed for empirical investigation with some trepidation.)  Most human beings are pre-programmed for heterosexuality, but in some individuals this program is weak or non-existent, though the libido is not.  Cultural and social influences, and even choice, determine which such persons will be homosexual, which heterosexual, and which bisexual.  And in extreme cases, say of abuse in childhood, even biological programming toward heterosexuality can be overridden.  One can speak of an inherited disposition toward homosexuality, so long as one remembers that environment, including social environment, may effect the actualization of this disposition. 

On the other hand, that a homosexual orientation is not genetic in origin does not imply that it can be changed once established, any more than blindness resulting from trauma can always be cured.  Nor does my discussion settle the mysterious question, how much choice we have in becoming the sorts of persons we turn out to be.



Class is centrally important to the workings of our society.  While no one chooses his class of origin, there is an element of choice in both upward and downward mobility.  For some people flee, and other people enthusiastically enlist in, the meritocratic ‘rat race.’ 

The phenomena include not only the widening gap between rich and poor, but also the common belief that only ‘middle class’ occupations such as the law are worthy of a human being.  Wealth, income, education, occupation, and access to health care together define class position, though in different ways. ‘Sophisticated’ and ‘enlightened’ opinion ignores the existence of plebian white people, where it does not overtly stigmatize them.  Middle-class parents buy an education for their children, in order to transmit their social position – an attitude that persists so long as parents have a social position, however lowly, to transmit.  Every occupation has more and less successful members, and people who do not work outside the home sometimes live in luxury and sometimes in squalor. 

Though class differences are not genetic, for many purposes they might as well be.  There are traits of character associated with being a member of a family that has been wealthy and powerful for centuries, and traits of character associated with belonging to a family of the working poor.  Prenatal influences – raging from drug or alcohol use to the mother’s moods when pregnant – also affect the sort person a child grows up to become. 

Class differences are a product of the division of labor, and could be abolished only by social change far more radical than the abolition of racial barriers.  Marx and Engels’ description of the life of human beings free of class divisions is tiring even to read, and they neglect the committee meetings necessary to the democratic administration of the economy. 

One’s social position and that of one’s parents affect the way one sees things. Giving a dishwasher money, or taking it from an aristocrat, will not change their cultural attitudes.   Working-class people are more communitarian in their outlook than middle-class people, and approach middle-class institutions such as the university in anticipation of rejection.  A college degree is among other things, a badge of status, and degrees from some schools confer more status than others.  It is one of the chief benefits of an elite education that one is less likely to feel oneself an ignorant peasant for disagreeing with the positions commonly held among one’s supposed betters. 

Those who gain a position of eminence by honest toil in a good cause are admired.  Phenomena such as vicarious consumption, by which those whose lives are drab enjoy the luxury and promiscuity of celebrities, in some ways soften the impact of class differences.  The first of these does not require, and second perversely supports, a social system that encourages the notion that the rich and the poor are radically different kinds of creatures.  A further source of complexity is the diversity of communities, which – or so Conservatives fear – may be forced into a uniform mold by egalitarian policies.  Insofar as this diversity is fueled by a diversity of conviction concerning the good life for human beings, there is no reason to expect it go away under any social conditions.  Insofar as it is an artifact of social inequality, we would be better off without it. 

In any event, the practical issue is not a classless society, but one in which class differentials are narrower or wider. Narrower class differentials are needed to preserve a sense of community among the members of society, and avoid arbitrary rule by one group over another.  Class-based affirmative action in college admissions could do everything racial preferences do while avoiding some of the bad effects of the latter policy, and without generating questions such as whether Cambodians are people of color.  In operational terms, this means a preference for first-generation college students, and abundant scholarships combined with need-blind admissions, if the college or university in question can afford such policies.  Such preferences are consistent with older legacy preferences (at private institutions) and financial preferences for state residents (at public institutions).  For particular allegiances and universal aspirations can sometimes be reconciled in practice.  A conscientious doctor will prefer the children of his patients when choosing new patients, but will also put in volunteer work in a clinic for those less fortunate.  

Status conflicts are troublesome because they are zero-sum by definition (and not merely by reason of the fact of scarcity) – a fact that is not changed if one gains status as a member of a group in competition with other groups.  Many societies have attempted to distribute esteem through such institutions as medals, titles of nobility, earned and honorary degrees, and Nobel Prizes.  Yet esteem resists redistributive measures; even the recipient of high honors may lose his sense of self-worth to the point of suicide.[lxiv] 

Class raises some deep issues concerning the nature of justice. We should not attempt to create a perfectly egalitarian society.  For, even apart from the usual trade-offs with efficiency, community, and liberty, at some point, egalitarian measures become self-defeating.  For they imply a radical disparity of power between the ‘Equality Authority’ (to use the Irish expression) and the rest of us.   Nonetheless, we should not acquiesce in the entrenchment and intensification of class differences that is the most conspicuous product of an unrestrained market economy and the inheritance of wealth unrestrained by taxation.  For people who share little of their lives – either in work or in pleasure – become alien to one another, and greet one another with fear and condescension on the one side and envy and resentment on the other.  Arrogant (or decadent) behavior by people at the top makes its way down the social scale.  Thus slaves often feared the mistress more than the master, who punished his wife for her excesses and thus increased her resentment. [lxv]  Although all communities have their internal hierarchies, these are different from, and sometimes undermined by, a wide gap between rich and poor (consider the gap between the parish and upper clergy in pre-Revolutionary France, for example). 

 The family of concepts arrayed under the flag of justice includes such expressions as a just appraisal and a just comment.  And many people have feared that attacks on social hierarchy will mean assaults on standards of every sort.  For Nietzsche, a table of ranks provides the necessary social and conceptual support for the distinction between high and low culture – even if most of the aristocrats themselves turn out to be dolts.[lxvi]   In the absence of firmer aesthetic judgments than are humanly possible, and a society more egalitarian than the world has ever known, we cannot directly evaluate the hypothesis that cultural excellence is dependent on social ranks.  The attempt to judge questions of social justice in aesthetic terms is questionable in any case:  assuming our aesthetic judgments go that way, we would end up defending Stalinism on the ground that it produced Solzhenitsyn, and Jim Crow on the grounds that it produced Faulkner.[lxvii] 


Concluding Remarks

The importance of the nature-nurture controversy has been exaggerated.  If a person is impaired in some way, the most important issue is not whether he or she is genetically deficient, has been subjected to trauma or lack of nutrition in the womb or after birth, or grew up in a social environment that did not allow for the development of his or her capacities.  It is whether the deficiency can now be remedied.

Both our biological and our cultural heritage are unchosen facts about ourselves, with which we must somehow come to terms.  Biological parents usually bring up their children, communal childrearing involves adults whose way of life is similar, childcare professionals are chosen for their compatibility with the parents’ preferences, and even assisted reproduction and the irregular begetting of children is conditioned by the customs of society.  In a society in which all children were nurtured in artificial wombs and raised together (or as in Aldous Huxley’s Brave New World, where sexual reproduction were abolished) the biological family would be less important as would the difference between the sexes.  But this sort of imposed uniformity would require severe infractions on liberty.  It is impracticable as well; Huxley’s reproductive engineers are obliged to recreate class distinctions by reason of the division of labor.  In any event, since the mores affect what children come into the world and survive to reproduce, biological and cultural influences merge after a few generations. 

Neither nature nor nurture, nor both together, constitute a ‘real self’ that we must discover. When an adolescent girl (say) is looking for her identity, there is nothing within her or outside her that can answer the question; she has to make up his mind what sort of life she is going live.  If she asks what will make her rich, or what morality requires, or what society desires, or what God ordains, there may be answers, but human beings are capable of rejecting each of them.  In any event, identities are merely rough approximations of the infinite diversity of human reality and the enormous variety of traits, chosen, unchosen, and ambiguous, that makes each of us the person he or she is.

However unchosen a trait may be, the decision to make it central to one’s understanding of oneself is a decision if anything is.  There is no reason to believe that desires in conformity with custom are ‘socially induced’ and for that reason ‘inauthentic’:  we are social beings all the way down, and even the most rebellious people constantly reflect the culture in which they were educated.  When Malcolm X converted to normative Islam, very nearly his first observation was that “most Arabs are poor at understanding the psychology of non-Arabs and the importance of public relations.” [lxviii] 

The cultural transmission of human differences, including forms of social damage, might lead us to question our capacity to transcend our backgrounds.  The revenge of Conservatism on Marxist materialism is the argument that we are all products of our social and economic position, in a way that precludes coherently thinking or living outside existing structures.  The addition of race, sex, sexual orientation, and nationality to class in the set of formative conditions only strengthens this argument.  On such grounds it is easy to dismiss all forms of radicalism, or even proposals for significant reform, as dangerous delusions.  We may doubt whether the resulting historicist Conservatism is feasible in the contemporary world.  If it failed, we would then be constrained to acknowledge the inevitability not only of irresoluble issues as matter of theory, but also of endless tribal conflict as a matter of practice.

Its advocates promote the concept of identity in order to challenge the categories established by the state, the church, or both acting in concert.  They claim to be telling the truth covered up by ‘orthodox’ spokesmen,[lxix] and demand not only the right to act as they please, but also recognition by the larger society and the power to stigmatize dissidents within their own group as Uncle Toms or the equivalent.  But the resulting categories are as at least as contested, as porous, and as open to deconstruction as their ‘orthodox’ rivals.  Even the same individuals can change identities, or make one or another identity rather than another salient, according to time, social context, and mood.  And anything the representatives of marginal[lxx] (or central) group might say about themselves (or us) will be at best part of the truth.  We should, I agree, be prepared to listen to all voices – even those we are disposed to find repulsive.[lxxi]  But, since such voices include Nazis and the abusers of children, a willingness to listen cannot be translated into social approval.

The apologetic uses to which the word identity is put conceal the fact that, though an identity may be good and innocent, it can also be sick or evil.  If Adams defines himself as belonging to one of the canonical sexual minorities, then Bob can define himself as a pedophile, Charles as a bestialist or necrophiliac, David as heroically promiscuous,[lxxii] Edward as a sadomasochist or pornography user, Frank as the sexual lover of a member of his immediate family, George as a mall rat (or the adult equivalent), and Henry as a gay-basher.  Even the most liberally inclined will have to draw a line somewhere,[lxxiii] and the Harm Principle to which they are likely to appeal is porous.[lxxiv]  At the end of the day, even the most determined Liberals end up distinguishing between what Cicero called the boni  (or good guys), whose judgments they are prepared to trust, and others whom they regard as outsiders to the moral enterprise.

The American belief, that we can, by our own power, escape our baggage and approach each other just as persons, is a dangerous myth.  We should therefore temper our egalitarian and individualistic ideals (which are also part of our baggage) with a realization that entrenched cultural patterns are not easy to change, and that at least one human difference – that between the sexes – has a strong biological basis, even though we cannot draw a precise line between culture and biology in this case or any other.  To the extent that they survive this critique, egalitarian ideals require, as the Declaration of Independence recognized, a sustaining belief in a creator God.

[i] See Elaine N. Aron, The Highly Sensitive Person (New York:  Broadway, 1996).

[ii] Mill, The Subjection of Women, chap. 1, reprinted in David Wooton, ed., Modern Political Thought (Indianapolis:  Hackett, 1986), p. 685.

[iii] Kevin Hetherington, Expressions of Identity (London:  Sage, 1998), p. 13, records how British identity politicians experienced a recovery of memory as a result of 1984-85 miners’ strike, promptly to abandon it when the strikers lost.

[iv]  Phillips, The Politics of Presence (Oxford:  Clarendon Press, 1998), pp. 41-45 and 9.

[v]Ibid., p. 9.

[vi] The leading anti-pornography feminist is Catharine McKinnon, Only Words (Cambridge, Mass:  Harvard University Press, 1993).  The leading pro-pornography feminist is Nadine Strossen, Defending Pornography:  Free Speech, Sex and the Fight for Women’s Rights (New York:  Scribner’s, 1995).

[vii] The stock feminist defense of abortion is Judith Jarvis Thomson, “A Defense of Abortion,” Philosophy and Public Affairs 1 (1971), frequently reprinted.  For feminist arguments against abortion see Celia Wolf-Devine, “Abortion and the Feminine Voice,” Public Affairs Quarterly 3 (July, 1984):  81-97; and Juli Loesch Wiley, “Why Feminists and Prolifers Need Each Other,” New Oxford Review 60 (November 1993): 9-14.

[viii] For one set of conflicts among different sorts of people of color, see Nicolás C. Vaca, The Presumed Alliance:  The Unspoken Conflict between Latinos and Blacks and What it Means for America (New York:  Rayo, 2004).

[ix] George M. Marsden, The Soul of the American University (Oxford:  Oxford University Press, 1994), pp. 436-40.

[x] The authoritarian demand for diversity takes the paradoxical form of demanding the appointment of faculty uncritical of those in power in Washington.

[xi] H. Tristram Engelhardt, Jr., Foundations of Christian Bioethics (Lisse, The Netherlands:  Swets and Zeitlinger, 2000), esp. pp.  92-96; Robert Nozick, Anarchy, State, and Utopia (Oxford:  Basil Blackwell, 1974), esp. pp. 310-11.

[xii] Pierre Manent, “The Return of Political Philosophy,” First Things no. 103 (May, 2000): 15-22

[xiii]This theme arises throughout Will Kymlicka and Magda Opalski, eds., Can Liberal Pluralism be Exported?  Western Political Theory and Ethnic Relations in Eastern Europe (Oxford:  Oxford University Press, 2001); see for example Kymlicka, “Reply and Conclusion,” p. 359.  Critical discussions include the extreme argument of Stephen Kershnar, “The Inheritance-Based Claim to Reparations,” Legal Theory 8 (2002):  243-267; and the more moderate argument of Celia Wolf-Devine, Diversity and Community in the Academy:  Affirmative Action in Faculty Appointments (Lanham:  Rowman and Littlefield, 1997), chap. 2. 

[xiv]See Stanley Fish et al., “Can Postmodernists Condemn Terrorism?” The Responsive Community 12, no. 3 (summer 2003): 27ff.

[xv]As John Haldane points out against Stanley Fish, “The Vulgar Philosophy of Capitalism,” The Responsive Community 12, no. 3 (summer 2003): 51.  Anglo-American pluralists also tend toward Burkeanism; see Michael Walzer, Arguing About War (New Haven:  Yale University Press, 2004), pp. 42-43.

[xvi] The best philosophical discussion of race and racism I know of is Kwame Anthony Appiah, “Racisms,” reprinted from David Theo Goldberg, ed., The Anatomy of Racism (Minneapolis:  University Of Minnesota Press, 1990), pp. 3-7, in James Rachels, ed., The Right Thing to Do, 3rd edition (Boston:  McGraw Hill, 2003), chap. 28.  I have also benefited from Michael Dummett, “Medallist’s Address,” Proceedings and Addresses of the American Catholic Philosophical Association 77 (2003):  15-20.  On the state of the scientific question, see Michael J. Bamshad and Steve J. Olson, “Does Race Exist?” Scientific American 289, no. 6 (December, 2003):  79-85; and note the “Editorial:  Racing to Conclusions” (ibid., p. 14); and for a detailed critique of contemporary ‘scientific’ racism, see Alexander Alland, Jr., Race in Mind (New York:  Palgrave Macmillan, 2002).

[xvii] See William Finnegan, Cold New World (New York:  Random House, 1998), pp. xviii-xix, 275-78, 281-85, and 288-95.  Consider Mindy Turner, discussed at pp. 280-82, 297-301, 325-36, 330-31, and 338-40; and her boyfriend Jaxon Stines (pp. 296-302, and 336-39).

[xviii]Steele, The Content of our Character (New York:  St. Martin’s Press, 1990), p. x.

[xix] Lawrence Blum, I’m Not a Racist, But …(Ithaca, N.Y.:  Cornell University Press 2002), chap. 1, makes a serious attempt to avoid these problems, though he makes too many concessions to racial oversensitivity (see especially p. 19).  The term conceptual inflation is due to Robert Miles, Racism (London:  Routledge, 1989), pp. 41-68.

[xx]Wolf-Devine defends this conclusion for the university in “Proportional Representation for Women and Minorities,” in Steven M. Cahn, ed., Affirmative Action and the University: A Philosophical Inquiry (Philadelphia:  Temple University Press, 1993), chap. 17, reprinted in Cahn, ed., The Affirmative Action Debate (New York:  Routledge, 1995), chap. 18.

[xxi] Leslie G. Carr, “Color-Blind” Racism (Thousand Oaks:  Sage, 1997), esp. p. xi.

[xxii]See Paula Burdman, “Connerly Initiative Would Ban Collection of Racial Data,”  For illuminating discussion, see Stephan Thernstrom and Abagail Thernstrom, America in Black and White (New York:  Touchstone, 1997), chaps. 6 and 17 

[xxiii]Ibid., p. 528.

[xxiv]For a compendium of such measures, see Will Kymlicka, “Western Political Theory and Ethnic Relations in Eastern Europe,” in Kymlicka and Opalski, eds. Liberal Pluralism, p. 47.

[xxv]Carl Cohen shows this in detail in his book with James P. Sterba, Affirmative Action:  A Debate (Oxford:  Oxford University Press, 2003), § I, Pt. iii.  He neglects, however, causes of the tribalization of America other than affirmative action policies.

[xxvi]William G. Bowen and Derek Bok, in their influential book The Shape of the River (Princeton:  Princeton:  University Press, 1998), pp. 36-37, tellingly compare preferences in college admissions to handicapped parking spaces.  

[xxvii]See Rachels, “Are Quotas Sometimes Justified?” reprinted from Cahn, ed., University, in Wolf-Devine, Diversity and Community, pp. 205-09; and Wolf-Devine’s critique of this and other versions of the corrective argument in ibid., chap. 4. 

[xxviii]For detailed discussion, see Margaret Moore, The Ethics of Nationalism (Oxford:  Oxford University Press, 2001), pp. 10-14.

[xxix] Racial Liberalism proposes that racial differences should be ignored, at least in public contexts, though some believe in racially sensitive measures as temporary remedies.  Many Conservatives hold this view.

[xxx] Albert G. Mosely, “ Are Racial Categories Racist?” Research in African Literature 28, no. 4 (winter 1997):  101-111 (quotation, p. 108).  In “Negritude, Nationalism, and Nativism,” in his collection African Philosophy (Englewood Cliffs, N.J.:  Prentice-Hall, 1995), pp. 216-235, Mosely supports racialism arguing that “concepts of race have biological legitimacy” (p. 228).

[xxxi] Baldwin, The Fire Next Time (New York:  Dial, 1963), pp. 44-45.

[xxxii] “Nothing could have stopped him, not the white God himself nor a lynch mob arriving on the wings . . .. A moan and a curse tore through him while he beat her with all the strength he had and felt the venom shoot out of him, enough for a hundred black-white babies.”  Baldwin, Another Country (New York: Dial Press, 1962), p. 22.

[xxxiii]“He [the white boy, Eric] was frightened and in pain and the boy who held him so relentlessly was suddenly a stranger; and yet this stranger worked on Eric an eternal, a healing transformation. … What had always been hidden was to him, that day revealed and . . . [he was] still struggling to find the grace which would allow him to bear that revelation.  For the meaning of revelation is that what is revealed is true, and must be borne” (ibid, p. 206).

[xxxiv]Outlaw, Of Race and Philosophy (New York:  Routledge, 1996), p. 174.  For a fuller statement, see Richard Delgado, ed., Critical Race Theory:  The Cutting Edge (Philadelphia:  Temple University Press, 1995), esp. Introduction, p. xiv; and Charles L. Lawrence, III, et al. “Introduction,” in Mari J. Matsuda et al., Words That Wound (Boulder, Colo.:  Westview Press, 1993), esp.  p. 6.

[xxxv] A. Todd Franklin, “The New Enlightenment:  Critical Reflections on the Political Significance of Race,” in Robert L. Simon, ed., The Blackwell Guide to Social and Political Philosophy (Malden, Mass.:  Blackwell, 2002), pp. 283 and 284, speaks of a “well-meaning commitment to social justice” that is “dangerously unrealistic and insensitive to the constitutive importance of race.” 

[xxxvi] For a real case see Revilo T. Oliver, America’s Decline (London:  Londinium, 1982). For the critical race theorists’ defense of speech codes, see Matsuda et al., Words.  For a critique see Henry Louis Gates, Jr., “War of Words:  Critical Race Theory and the First Amendment,” in Gates et al., Speaking of Race, Speaking of Sex (New York:  New York University Press, 1994), pp. 17-58.

[xxxvii]I offer this suggestion – for which I am indebted to an unpublished manuscript by Patricia Leavy of Stonehill College – as a hypothesis for empirical investigation.

[xxxviii]See Richard Wasserstrom, “Racism, Sexism, and Preferential Treatment,” reprinted from UCLA Law Review 24 (1977):  581-62, in Robert E. Goodin and Phillip Pettit, eds., Contemporary Political Philosophy: An Anthology (Oxford:  Blackwell, 1997), chap. 36.

[xxxix] See Sandra Gilbert and Susan Gubar, “Sex Wars:  Not the Fun Kind,” in Philip E. Devine and Celia Wolf-Devine, eds., Sex and Gender:  A Spectrum of Views (Australia:  Wadsworth/Thomson, 2003), pp. 276-80.

[xl] For a good short account, see Elizabeth Fox-Genovese, “Wrong Turn:  How the Campaign to Liberate Women Betrayed the Culture of Life,” Life and Learning 12 (2002):  11-22.

[xli] For an attempt to grapple with this problem, see Kate Soper, What is Nature? (Oxford:  Blackwell, 1995), esp. chap. 4.

[xlii] Glendon, “Looking for ‘Persons’ in the Law,” First Things no. 168 (December 2006):  19.

[xliii]  Gilbert and Gubar, “Wars,” p.  276.

[xliv] On the importance of a healthy understanding of masculinity for the rearing of children, see David Blankenhorn, “The Indispensable Role of the Father in the Family,” in Christopher Wolfe, ed., The Family, Civil Society, and the State (Lanham, Md.:  Rowman and Littlefield 1998), chap. 8.  

[xlv]On the concept of a taboo, see my Natural Law Ethics (Westport, Conn.:  Greenwood, 2000), pp. 50-53.

[xlvi] Mark D. Jordan, Telling Truths in Church (Boston:  Beacon Press, 2003), p. 26 for Jordan’s self-description, see p. 11.

[xlvii] For an argument by a psychiatrist of the older school that gay identity is deceptive in this sort of way, see Joseph Nicolosi, “The Gay Deception,” Wolfe, ed., Homosexuality and American Public Life (Dallas:  Spence, 1999), chap. 4.  His argument is limited to gay men. 

[xlviii]See Ryan T. Anderson, “Struggling Alone,” First Things, no.170 (February 2007):  11-13.

[xlix]For detailed arguments for the normative status of heterosexuality, see Roger Scruton, “Sex and Gender,” excerpted from his Sexual Desire (New York:  Free Press, 1980), in Devine and Wolf-Devine, eds., Sex, pp. 66-78; and Michael Novak, “Men Without Women,” reprinted from Human Life Review in Devine and Wolf-Devine eds., Sex, pp. 312-16

[l]  Murphy, “Homosex/Ethics,” Journal of Homosexuality 27, nos. 2-4 (1994), reprinted in Devine and Wolf-Devine eds., Sex, pp. 316-324; quotation, p. 319.

[li] For a good statement of this point, see Scruton, “Sex,” p. 67.

[lii] An informative account of the contemporary phenomena is Marjorie Garber, Vice Versa (New York:  Simon and Schuster, 1995). 

[liii]Graham McKerrow, Gay Times (January 1993), p. 29, quoted in Garber, Vice Versa, p. 33.

[liv] For this protest, see Michael du Plessis, “Blatantly Bisexual, or Unthinking Queer Theory,” in Donald E. Hall and Maria Pramaggiore, eds., RePresenting Bisexualities (New York:  New York University Press, 1996), chap. 1.

[lv]Fred Klein, M.D, The Bisexual Option (New York:  Arbor House, 1978) chap. 1.

[lvi] For discussion see Garber, Vice Versa, chap. 1.

[lvii]Klein, Bisexual, pp. 5-6.  Nicola Field, “Trade Secrets,” in Sharon Rose et al., eds., Bisexual Horizons (London:  Lawrence and Wishart, 1996), p. 133.

[lviii]Monique Witting, The Straight Mind (Boston:  Beacon Press, 1992), defends this view.

[lix] So Wasserstrom, “Sex Roles and the Ideal Society,” reprinted from his Philosophy and Social Issues (Notre Dame:  University of Notre Dame Press, 1980), in Devine and Wolf-Devine, eds., Sex, pp.53- 57 (see esp. p. 54). 

[lx] See Arlene Stein, “From Old Gay to New,” reprinted in Devine and Wolf-Devine, eds., Sex, pp. 128-135.

[lxi]Pinker, The Blank Slate (New York:  Viking, 2001), p. viii.  This book cites abundant examples of this phenomenon.

[lxii]Posner, “Against Constitutional Theory,” in Norman Dorsen, ed., The Unpredictable Constitution (New York:  New York University Press, 2002), p. 234. 

[lxiii]Stein, “Citizenship or Transgression?  Dilemmas of the US Movement for Lesbian/Gay Rights,” in Philip Alperson, ed., Diversity and Community:  An Interdisciplinary Reader (Malden, Mass.:  Blackwell, 2002), chap. 7, quotation, p. 139.  Stein also extends her argument to transgendered people, i.e., transvestites and transsexuals (p.137).  

[lxiv] William Styron’s account of his severe depression in Darkness Visible (New York:  Vintage, 1992) begins with the author’s receiving a coveted literary prize.  

[lxv] See David Hackett Fischer, Albion’s Seed (New York:  Oxford University Press), p.  290 and n.5.

[lxvi]Nietzsche, Beyond Good and Evil, § 257.  For an educational philosophy based on this premise, see Leo Strauss, “What Is Liberal Education?” in Stephen Eric Bonner, ed., Twentieth Century Political Theory (New York:  Routledge, 1992), pp. 100-05.

[lxvii]For an example of fallacious reasoning along these lines by a professional philosopher, see William Barrett, The Truants (Garden City, N.Y.:  Anchor Press/Doubleday, 1982), pp. 171, 172.

[lxviii]The Autobiography of Malcolm X, with Alex Haley (New York:  Ballantine, 1965), p. 345.

[lxix] See Jordan, Church, p.  77:  “I am even willing to carry the stigma of being the hypereroticized being who is your author, this sex-obsessed dissident, who causes scandal to the faithful, for the sake of reminding how important it is to tell the truth about our erotic attraction to God.”

[lxx] Jordan preserves the marginal position of gay men and lesbians even as he calls for church blessing their unions.  “A gay union ceremony ought rather to be an epiphany of the outcast at the center of an all too established church.”  Ibid. p. 46.

[lxxi] Jordan observes, “Other gay writers tell truths about different relationships, including those that would be much more challenging to Christian thought [than ‘what amounts to a marriage’].  We need to hear those truths, too. ”  Ibid., p. 57.  Exactly so.

[lxxii] Andrew Sullivan, an advocate of same sex marriage, now defends “the beauty and mystery and spirituality of sex, including anonymous sex.”   Letter to the Editor,, http://www/, accessed 21 September 2005.  He is summarizing the argument of his Love Undetectable (New York:  Knopf, 1998).

[lxxiii] A text favored by liberationist theologians is Acts 10:1, “What God has cleansed you must not call common.”  No one applies it universally.

[lxxiv] For detailed argument, see Steven D. Smith, “The Hollowness of the Harm Principle,” Legal Studies Research Paper Series, No. 05-07 (September 2004), available at

We (chapter 4)

November 20, 2009






  There is not one conventional morality, but many. The gut reactions that sustain such morality vary from individual to individual (and even in the same individual from time to time) and from culture to culture. Human nature includes a disposition to form and sustain a variety of groups, each leading its own way of life, and to distinguish between ‘we’ and ‘they.’  Everyone is more comfortable with his or her own kind, prefers their interests to those of outsiders, tends to adopt their moral attitudes, and judges their behavior more gently than that of outsiders.  Even if race is a fiction whose birth and hoped-for demise can be traced in history, racism is real and xenophobia perennial.

Human beings need cultural and social boundaries and are inclined to defend them, and to an unknown degree these boundaries reflect entrenched features of human nature.  We find categorical ambiguity both threatening and fascinating:  what Richard Rodriguez calls our “brown future” is therefore tragic as well as erotic.[i]    One prominent student of international affairs even goes so far as to say, “It is human to hate.  For self-definition and motivation people need enemies.”[ii]   Both one’s own kind and outsiders are, however, constantly redefined.   People did not always recognize Nineteenth-Century ‘racial’ categories – white people, black people Asians, and American Indians, to which Hispanics were then added –, and these categories now fail to correspond to the way many Americans view the world.[iii]

 Nationalism and (as we shall see in the next chapter) identity politics respond to pervasive weaknesses in liberal theory.[iv]  Liberal theorists ask adherents of contending ways of life to proceed for public purposes as if their views were not truths, but mere facts about themselves (‘accidents of birth’).  But since liberals are also a group defined in part by birth and education, the de facto relativism of liberals extends to liberal principles as well, leaving them without any normative structure governing political life.    The alternatives are a richer understanding of common human morality than liberals are comfortable with, appeal to a transcendent Source of obligation, and endless conflict.

Group conflict leads to pressures on marginal men and women to choose an unambiguous allegiance; solidarities across group lines are also suppressed.  A double illusion results:  that all members of the group have identical material interests, and that all members of the group share an identical world picture and identical have moral codes.  In the resulting ‘tribalist’ world, loyalty means uncritical acceptance of the decisions of one’s leaders, at least about dealings with outsiders.  And it is impossible to maintain significant allegiance to a nation whose institutions or behavior one has come to regard as seriously flawed (and so those who perceive such flaws are ‘unpatriotic’ or ‘disloyal’).  One source of anxiety is the willingness of reflective people to betray the groups of which they are members, even on behalf of causes of questionable value; one intellectual, troubled by spying by some members of the British cultural elite on behalf of the Soviet Union when it was an ally of Nazi Germany, wrote:  “Less intellectual people have simpler ideas and more direct instincts.”[v]   

In response to tribalism, individualists minimize communal claims, pointing out that each person experiences the world in a slightly different way, and that food that goes into one person’s mouth does not end up in another person’s stomach.  Meanwhile, cosmopolitans demand that we sacrifice particular allegiances for the sake of humanity as a whole.  These requirements correspond to the two principal objections to duties to particular people and groups identified by Samuel Scheffler:  the ‘voluntarist’ objection that men and women should not be subject to obligations without some form of consent, and the ‘distributive’ objection that, even if we consent to such obligations, their observance is unjust to outsiders who might otherwise benefit from the care members of a group lavish on one another.[vi]

The question, what holds a group together and makes them a community?  thus remains urgent for both theory and practice.  The theoretical issue is how We’s lesser than the human species can be philosophically defended. The practical issue is whether we can design and put into effect institutions that enable people to pursue their varying associational interests, recognize those of others, and respect the rights of outsiders to be treated as persons of equal worth as those within the group.  In this chapter, I consider these issues in terms of conventional political units, postponing other forms of identity to chapter 5.



John Dunn has observed,

The handbooks or official proclamations of our ethical heritage . . . are intractably universalist . . .. From the theory of justice suggested by scholastic philosophers to that recently urged with such charm by John Rawls there is no place for the nation or indeed for the sovereign political body as a unit of conceptual account.[vii]

Nationalism, however, is both the most powerful and the most divisive underpinning for individual identity and social solidarity in our world. [viii]  It enables us to transcend racial, sexual, and class barriers, though at the cost of creating a new and more powerful set of barriers.  It binds its adherents across generations – a point of importance to those concerned with the quality of the culture, the environment, or the institutions that we leave to posterity.  For it is not possible for contemporary Americans to enter into a contract with George Washington, or with Americans who are born after they die, but nationalism supplies a transgenerational bond, commonly described with the metaphor of blood, but often understood in ideological rather than genealogical terms, that motivates our seeing ourselves as part of a common project with such persons. 

Nationalism, except where it is imperialistic, also allows for a multitude of ways of life, and the desire of the adherents of each of them to create a friendly social and political world, by embracing a form of de facto relativism limited by the principle, Follow the standards of your national group.  We cannot dismiss the promotion of French in Québec or the English-only movement in America as manifestations of bigotry.  For such movements arise from concern about the possible breakdown of the national solidarity (and even the communication) necessary to political life.   Both national minorities and national majorities exhibit an attachment to their language and culture, though the feelings of national majorities are less vociferous since less threatened.  Democratic forces in politics have usually been nationalist (and egalitarian only within the national group):  a democracy in which diverse sorts of people co-exist in harmony (or at least peace) may the goal of our politics (or one of them) but cannot be a secure path to that goal.[ix]  

             A nation-state is more importantly a group of people than a patch of territory:  it is not surprising that the inhabitants of the Falklands/Malvinas, since they could not sustain their society as an independent entity, preferred to join with distant Britain than with nearby Argentina.  But the national consciousness appealed to may also be, outside nationalist myth, empty:  two contending groups may be indistinguishable except for badges of identification subsequent to their quarrel.  The issue, Does the nation create the state or the state the nation? admits of no precise resolution; the two grow up together.

It is not enough to rely on an individual’s self-identification:  if someone without a trace of Jewish or Seminole ancestry decides to define himself as Jewish or Seminole, those generally regarded as Jewish or Seminole will have something to say about the matter.[x]   But nationalism requires a principle for identifying a given person as a member of this group rather than that, and for deciding which among several identities is closer to a given person’s core.    

Definitions of nationhood move between a ‘civic’ pole (Renan), which treats it as a product of the concurrent wills of its members, and an ‘ethno-cultural’ pole (Herder), which appeals to (supposedly) objective facts such as shared language, beliefs, and ancestry. An element common to definitions of nationhood of both sorts is that that the group “either have or seek political self-determination” (not necessarily independent statehood).[xi]  In cases where the desired institutions are in place, this clause creates no problem, but in other cases it supposes that the would-be nation already exists as a collective subject, capable of seeking political self-determination, even when there exists no lesser political unit corresponding to the new national group.  

The best descriptive definition of a nation frankly admits its arbitrariness:  a nation exists when a significant number of people consider a class of persons of which they are members to form a nation, behave as if it formed one, and get away with it.[xii]  (We should define ethnicity in parallel terms.)[xiii]  In formulating this definition, I have modified the more usual definitions to make it clear that only some members of the putatively national group initially assert its nationhood. ‘Getting away with it’ includes persuading members of the supposed national group to recognize themselves as such, and accept certain standards of conduct and belief as a result; as well as gaining the recognition of outsiders.  The need to persuade insiders raises the issue, whether reasons can be given for accepting national identity.

The best normative account of nationhood is cultural.  I understand by the ‘culture’ of a society the conglomerate of shared understandings that its members (often incoherently and half-consciously) share.[xiv]  Cultures are resources that can be deployed in a wide range of different ways, most importantly for present purposes to meet embattled groups’ heightened need for solidarity.  They also impose, largely unconscious, constraints on their adherents.  Individuals endowed with unusual creative gifts, political and social movements, elites, and ordinary folk contribute to the formation of culture, though not everyone is equally important.[xv]  Democracy increases the culture-forming role of ordinary folk, but they have some role even in the most hierarchical societies.

Programs of ‘ethnic cleansing’ not only kill or expel people, but also attempt to destroy the collective memory of the target group, including its libraries and museums, and hence also the ability of any survivors to transmit their way of life to subsequent generations.[xvi]  Other forms of cultural cleansing include the Politically Correct slogan, Hey, hey, ho, ho, Western culture’s gotta go! (Stanford, 1988); and the activities of librarians without noticeable political allegiance, but devoted to the ‘de-accession’ of superfluous volumes.[xvii]     

Christopher Heath Wellman describes co-nationals as teammates in the game of life (though he himself is somewhat skeptical about his account). 

The nationalist’s most promising avenue is to explain why co-nationals share a relationship akin to that among teammates. … Nationalists can invoke the relationship among teammates because there is a sense in which co-nationals are imagined “teammates in life.”  Co-nationals are teammates in life in so far as they share a common view of how one should live one’s one life.  That is, nations regularly instruct one in a variety of subtle and not-so-subtle ways how to live a good life. … Our self-esteem depends crucially on our confidence in our way of life.  One does not choose among ways of life as one shops for a candy bar:  we typically mature into adulthood with a relatively well-defined and inelastic conception of the good life.[xviii]

Cosmopolitans argue that there is no reason to believe that national culture, at least as such, is worth preserving.[xix]  Insofar as we value culture as a matrix for moral (and other) education, there is no reason why national culture should be preferred to other sorts.  Insofar as national culture is a part of a person’s identity, it is not necessarily more important to him than being (for example) a stamp collector, and its objective value depends entirely on its content.  Nationalists reply that, except for religious identities not presently at issue, non-national identities are too thin to provide a guide to life. 

The question in theory and the question in practice are precise opposites.  As a matter of theory, we need to find some stable place for special obligations with some universalistic moral theory.[xx]  Our account of special obligations must also be consistent with the ways collective identities get formed in practice.[xxi]  The practical issue is how we are to get people to heed the interests of outsiders– ranging from survival to the preservation of their own particular way of life.   The methodological issue is whether the moral intuitions that favor special obligations to compatriots are so corrupted by the existing system of nation states as to be unreliable guides to normative politics.[xxii]  If so, how do we avoid discrediting all of our intuitions?  If not, how do we maintain enough distance from our spontaneous reactions, so that tribal affections and enmities do not overwhelm universalistic principles even within the national community?[xxiii] 

Claims about national character, though dangerous, are not mere random figments of prejudice:  otherwise we would expect the same stereotypes for Arabs and Swedes.  Understanding nationhood or ethnicity requires a thick description of a national or ethnic culture, in which architecture, costume, etiquette, history, cuisine, language, politics, religion, attitudes toward wealth and income, styles of building, naming customs, sexual mores, television programs, traditional patterns of work, sports, and much else are blended to form a complex picture. [xxiv]  (In New England the Red Sox are a great deal more than a baseball team.) [xxv]  What features enable us to draw a line between one culture and another is a difficult issue, but pride of place belongs to language and religion – including religion half-believed or truculently rejected, as well as ‘functional religions’ such as Marxism.

The resulting description inevitably engages the sympathies and antipathies of the observer, producing unquantifiable judgments easy to dismiss as prejudices.[xxvi]  Nonetheless, the icy distance that is the alternative to impressionism dehumanizes its object, since to be human is to care how human beings live.  Any community (and not just a national community) is likely to have questionable antecedents:  we maintain communities not because they are morally pure but because they are essential parts of what we are.[xxvii]  Nor can cosmopolitans do without appeals to our collective repudiation of injustices such as slavery and the internment of Japanese Americans during the Second World War, and to our tradition as a haven for refugees, who have every reason to fear chauvinism. [xxviii]



One thing distinguishes nationalism from other forms of group politics is nationalists’ claim to sovereignty or at least political autonomy.  Within a sovereign state, or at least so thoroughgoing nationalists demand, all other identities are subordinated to common political allegiance.  Rival states interact normlessly in the international arena.

Sovereignty can neither be taken literally nor ignored.  Though rulers compromise the requirements of sovereignty whenever it suits them to do so, these very rulers also invoke the rhetoric of sovereignty to buttress their power.  Dissidents within a nation-state (and their sympathizers outside it) also invoke the idea of sovereignty to challenge a compromised government and its external sponsors.  Many states (sometimes called  ‘quasi-states’) now owe their persistence to the support of the international community, which thinks in terms of sovereign states.[xxix] 

The principle of humanitarian intervention cuts both ways.  On the one hand it is an expression of the sovereignty of the intervening state, which often does not wait for international authorization to invade the sovereignty of another.  On the other hand it can subject the target state to prolonged external rule, and to the enforced restructuring of its institutions in accordance with norms its people may not recognize; and imposes on the intervening state endless responsibility for what happens in the target state.[xxx]  And without the support of traditionally recognized forms of legitimacy, even well intended interventionist regimes quickly become tyrannical.  There is no clear distinction between crimes that shock the conscience of humanity and merely unpleasant governmental behavior or social practices.  Bombing a people into civilization is an inherently absurd enterprise.  The asserted right to free foreign nations from internal tyranny, in the absence of strong prudential and institutional constraints, amounts to a claim to empire.[xxxi]


On Lesser Sovereignties

Nationalist rhetoric to the contrary, sovereignty can be both lost and divided.  The North might have lost the Civil War.  When the Philippines gained its independence, and Hawaii was admitted as a state, the power of the American federal government was limited in ways that could not be reversed without a constitutional revolution.  At least in American usage, moreover, sovereignty, or some of its attributes, is ascribed to entities that are far from possessing it in the full sense, notably the States of the American Union and Native American tribes.[xxxii]  In part the concept of lesser sovereignty means that smaller associations are not mere delegates of the national government, but derive their authority from their own members; the same can be said of any private association.  More importantly, the force of such claims is to impose institutional barriers on intervention by centralized authority, for the sake of a distinctive way of life practiced in the local group.  To be effective, such barriers must be imposed even in hard cases.

As a general rule, people care about constitutional issues as such only when the substantive issue is, in their view, unimportant; those for whom an issue is of high priority are always nationalists (if not internationalists) about it.  None of my readers’ idea of the good society includes the rape of female college students by football players, or the condoning of such behavior by college officials.[xxxiii]  But nationalizing the law of rape would be a large step toward turning the States of the American Union into administrative districts.[xxxiv]  And the same holds of the abuses of power alleged against tribal governments.
            Thus ‘states’ rights’ (and localist) solutions to issues such as abortion, assisted suicide, church-state relations, pornography, and stem cell research at least deserve consideration, though they can easily slip into a game of What’s mine is mine and what’s yours is negotiable.   Whether limitations on federal power are worth defending depends on both the strength of the case for decentralization and the suitability of the States of the Union or American Indian tribes as its vehicles. The same is true a fortiori of the regionalism advocated by George Kennan. [xxxv]  The case for decentralization depends in short on the continuing vitality of local cultures as vehicles for community.  

The geographical mobility of contemporary society does not necessarily defeat the argument for localism.  For new residents often adopt the attitudes common in the state to which they move, and when they have a choice about moving prefer a friendly cultural atmosphere.  The culture of California is a result of many such decisions; the culture of Florida owes much to its role as a home for senior citizens.  The state where I now live, Rhode Island, has a distinctive culture, resulting in part from its situation as a small state without much political clout, which had to be pressured into accepting the Constitution; and in part from truce between the Roman Catholic Church, the Mafia, and the Yankees.  My state of summer residence, Maine, also has a distinctive culture, though with different origins.  The state where I was born, Illinois, did not, being divided at least between Chicagoland and downstate.  In any case, the demand for units of politics, in which we can somehow see ourselves reflected, becomes more rather than less intense when what happens in any part of the world affects people everywhere, and people everywhere are increasingly aware of that fact. 



Yet lesser sovereignties remain lesser sovereignties, subject to the claims of the superior sovereign whenever the case for intervention appears sufficiently urgent.  Under what circumstances, we may ask, is it legitimate for the smaller group to break away from the larger group, and claim full-fledged independence?  Even a tolerant majority may encounter secessionist demands for self-determination. 

Nearly everyone will grant a ‘remedial’ right to secede.[xxxvi]  If an identifiable group is subjected to genocide or ethnic cleansing, or to the neglect of its interests beyond a certain point (say, the British neglect of the Irish during the Potato Famine), and can, as a matter of fact form a state of its own, then it is hard to deny its right to do so.  A more difficult case is that of a lesser sovereignty whose customary autonomy the metropolis is eroding – say the British Colonies in North America just before the War of Independence.  The issue here is whether what is on offer is subjection of a sort destructive of the target society, or a more acceptable kind of centralizing impulse.[xxxvii]  If repressive policies deny a minority culture any vehicles for expression (consider laws prohibiting jazz or traditional forms of dress), we have a serious case for secession. The criterion of ‘discriminatory redistribution’ is, however, too friendly to secessionists.[xxxviii]  In any case, secession for an unjust purpose, say the protection of slavery, is wrong. 

   The difficult issue arises from the assertion of a ‘primary’ right to secede, one independent of any asserted misbehavior on the part of the metropolis.  The most troublesome problem here arises from the existence of minorities within the territory claimed by the secessionist minority – for example, Anglophones, Native Americans, and immigrants in Québec – who also claim a right to self-determination, as well as members of the seceding minority within the remainder state.  

Murray Rothbard draws the libertarian conclusion:  an ‘anarcho-capitalist model’ of human society, in which the functions of the state pass to private property owners, who have complete liberty to exclude both persons and activities from their territory.[xxxix]  This proposal neglects the claims of vulnerable human beings – and all human beings are, at some stages of their lives, vulnerable.  Moreover, private property, as much as government, is a human construction, which can be evaluated in terms of its success or failure in meeting human needs. 

Proposals for secession need to be placed within a functioning set of institutions, and asserting a strong right to secession gives majorities a strong incentive to employ repressive measures to prevent the existence of minorities strong and cohesive enough to threaten the ability of the state to protect its citizens and carry on its affairs with some assurance of a committed citizenry.  In particular a primary right to secede discourages the decentralizing solutions to majority-minority problems that are in many respects attractive.[xl]  If the considerations that support a general right to secede are pressed, human society collapses into a war of each against all – or at least of tribe against tribe – conducted though the agency of the state.  

These arguments assume a common human identity, grounding at least some claims of right – a point common to the dominant philosophy and religion of the West.  Moreover, without such a common humanity, the inevitably blurry and conflicted boundaries between nations and nationalities will lead to endless war and to limitless violence in war.   But the assumption of a common humanity is now under intense attack – both theoretical and practical – in the contemporary world.  And even if we concede the principle of common humanity, the natural law tradition,[xli] the liberal tradition, and I suspect any normative tradition worth consideration [xlii] speak with more than one voice on questions of boundaries.  Liberals are particularly embarrassed by their need for ‘hard’ boundaries for the nurturing of liberal institutions.[xliii]



There is no point opposing globalization, since intense interactions, economic and other, among various parts of the world (and intense awareness of such interactions) is an accomplished fact.  A globalized world need not be a world of unregulated capitalism, but to avoid this result we need international co-operation to control international markets.   

A worldwide empire would deal with the problems of globalization by establishing a common human identity, although one of subjection to a common authority.  I take empire to refer to the supremacy of some person or group of persons rather than to the institutional or territorial domain or subject population over which they rule.  As George Lichtheim puts it, “‘imperialism’ describes … the relationship of a ruling or controlling power to those under its dominion.  Empire is a state of affairs even when the imperial power is not formally constituted as such.”[xliv]  I also mean something more than America’s present position as a hyper-power, which allows wriggle room for French opposition to Washington’s policies.

Neither the empires of the ancient Near East, nor the Roman Empire nor British Empire, nor the Holy Roman Empire on whose behalf Dante wrote, had even the remotest prospect of controlling the entire planet.  During the period of American-Soviet rivalry, they contained us and we contained them (though regional domination was both actual and possible).[xlv]  It took the terrorist attacks of 11 September 2001 to remove the internal sources of inhibition that prevented fully imperialist policies on the part of Washington. [xlvi]  Signs of serious doubt about the project among influential Americans as well as among the rank and file quickly arose, however, and Americans were not prepared to pay the necessary price – economic or other.    Hence my references to American imperialism are to be taken as referring to tendencies rather than to accomplished facts and settled policies. 

The American capacity to rule the world alone, let alone to rule it justly, was open to serious question during the Administration of the younger Bush and even more serious question now..[xlvii]     In our examination of the resulting issues, twelve points need to be kept in mind. 

  1. Empire was not always a bad word – in ancient Rome for example it was used with pride.[xlviii]
  2. Defenses of American imperialism appeared even at a time when worldwide empire was not possible. Even during the Viet Nam adventure, a student of international relations could write, “the United States faces the imperial tasks of maintaining minimum world public order. … The Vietnamese war will eventually have to be justified … as one of the less agreeable aspects of the American world role.”[xlix]
  3. America did not create the world of international politics, controlled neither by a common authority nor a network of shared understandings.  Hence the hyper-moralism associated with Noam Chomsky is to be avoided. 
  4. Contemporary political rhetoric distorts the issues.  America has no obligation to subordinate its foreign policy to that of France.  The issue is whether France has an obligation to subordinate its foreign policy to that of the United States, even when America claims, on shaky grounds, to be acting on behalf of the international community.
  5. At some point apologies for American imperialism boil down to the ancient maxim that those to whom evil is done do evil in return, and not only, and sometimes not even principally, to the original evildoers themselves.  The dangers of ‘victimology’ are at their greatest when it is adopted by a world power.
  6. The doctrine of preemption is a euphemism for preventive war.[l]  It violates the principle of the just-war tradition that requires that war be a last resort, [li] and authorizes wars against powers that might threaten America (conceivably even France) – in other words, endless war.  If Iraq had in fact been on the verge of using ‘weapons of mass destruction’ against American targets, then we would have not seen the detour through the United Nations in which the Administration of the younger Bush engaged.
  7. The key division among just war theorists is between those who are prepared to defer, almost without limit, to the prudential judgments of those in power, and between those who look for criteria sometimes warranting opposition to governmental action.  In an exposition and defense of the doctrine of the younger Bush, written before Bush himself came to power, George Weigel persistently dismisses rejection of his prudential judgments as ‘irresponsible.’ [lii] He appeared to believe, even after the war to depose Sadaam Hussein had given birth to three daughters, that the people in the White House are the vanguard of history, and as such enjoy a capacity for political discernment, not shared by ordinary citizens, academics, Senators and Representatives, foreign statesmen or religious leaders.[liii]  
  8. In contrast, critical just war theory does not claim that the individual critic always knows better than the government, and even less ignores the twistiness of political life, including international affairs.   It arises from a consciousness of the corruptions of power, and in particular of the ability of powerful groups to find plausible rationalizations for whatever they might do to maintain and extend their power.   The lessons of history amply confirm this perception.
  9. Once a war has been started, the situation changes; it is not possible to take back moves in politics. A difficult occupation cannot always be ended by immediate withdrawal, since there may be no government competent to take charge.   Questionable decisions to wage war are likely to be repeated, especially if they meet with no opposition, and an initial error affects the whole process.  National loyalty (and solidarity with our troops) is important on my view of things, but does not require uncritical support for whatever one’s government might do.

10.  Imperialism in neo-Marxist theory, in intention at least, was not just a polemical concept, but also an attempt at dispassionate political analysis.  And it would be folly to neglect economic issues, including the economic costs of empire.

11.  Yet Marxist categories are inadequate to a form of hegemony that is at once cultural, economic, military, and political, both in its sources and its effects.  Refusal to take religion seriously, even as a manifestation of the way men and women experience their social world, vitiates the resulting analysis.[liv]  

12.  Survival is not everyone’s ultimate end; in fact there is no limit on how perverse people can get.[lv]  Hobbes acknowledged the reality of both suicide and martyrdom sotto voce, but he hoped – we can now see without good reason – that these phenomena could be kept politically unimportant.  People who are prepared to die for their convictions, their communities, or their grievances are particularly conspicuous among socially dislocated young men – a group in abundant and increasing supply in our world.  (On the other hand, those who might give passive or active support to terrorists are open to the usual incentives and disincentives.)[lvi]

Against all forms of empire, including that contemplated by Americans, stands the principle – at once Conservative and Liberal – that, in view of the limited perspectives and tendencies toward evil inherent in all human beings, no individual or group is wise or good enough to rule the world alone.  Neither Babylon of old, nor America, nor (to take an absurd case) contemporary Ireland is fit for world domination.  What is most deeply disturbing about American-style imperialism is neither economic exploitation nor the violence used in its service, but the prospect that American ideas about justice and everything else are part of the package.  It took a bloody rebellion – inaccurately called the ‘Mutiny’ – to teach the British to respect Indian cultural traditions.[lvii]  So long as people who dislike the American way of life are free not to immigrate to the United States, or to emigrate from it, this problem might not matter so much.  But a worldwide American empire forecloses this possibility.

The imperialism toward which America tends admits no limit to its extent, so that we can be hated for what we do not do as much as for what we do.  What is good about America, such as the cultural supports for democracy, is harder to export than what is bad or trivial.  Those aspects of America that are good for us may not be good for other peoples.  Much of our success depends on our favorable economic position, which in turn depends on our political and economic power, which less powerful countries are in no position to replicate.   Not every aspect of American society and culture is good, even for us – and this includes some of those things we call ‘freedom,’ as Conservatives in their more honest moods acknowledge.  Since America is a conflicted society, empire means exporting a culture war between those who want to make the whole world Massachusetts and those who want to make the whole world Wyoming. 

The simultaneous export of democracy and a market economy, in the absence of those devices by which we contain conflicts between these two principles, has aggravated pre-existing ethno-nationalist conflicts throughout the world.  America is not the source of anti-Semitism in the former Soviet Union, or resentment of the Chinese as ‘the Jews of Asia.’  Nor, though the causal connections involve some messy counterfactuals, need we suppose that we (or the West generally) have made poor countries poor.  Still, as Amy Chua has put it, “in virtually every region of the world, the simultaneous pursuit of markets and democracy in the face of a resented market-dominant minority repeatedly produces the same destructive, often deadly dynamic” – including selective nationalization of minority assets, corrupt crony capitalism, and genocide.[lviii]   

Furthermore, empire undermines domestic democracy both at the normative and the practical level.  It undermines democracy at the normative level, since there is no reason why the majority of Americans should run the world, any more than that the majority of the Roman people should have run the Mediterranean basin.  It transforms every conflict in the world into a conflict at home, endangering both democracy and civil liberties in the metropolis.  It also undermines tax and transfer methods of maintaining cohesion at home, since even an exploitative empire requires heavy setup expenses.  Most likely, a consummated American empire would create a ragtag world community, based on shared hatred of American masters (as has happened in large measure already). 

The core of the case for empire is the claim of inevitability.  As the Athenians said at Melos, “Our opinion of the gods and our knowledge of men lead us to conclude that it is a general and necessary law of nature to rule whenever one can.”[lix]  A further premise is that History – or, if one is so minded, God – has appointed one’s country or faction to rule all the others.  This doctrine means little more than the fact of opportunity, and the further argument that, if we do not rule, other people will.  On such premises the imperialist argument is unanswerable, at least for those who envisage themselves among the rulers and their favorites.  But I wonder how many people, or even how many Americans, are prepared to accept its full implications.

A slower process of fashioning a humanity-wide We might prove more durable than imposition from Washington.  And this is the process suggested by the formation of the League of Nations after World War I, and the United Nations after World War II.  The process of weaving together not only a multitude of nation states, but also a host of transnational constituencies ranging from the Catholic Church to secular international movements of all sorts, is daunting by any standard.  One danger is that those who reject the traditional state-centered approach of international law will turn it into a rhetorical construction distant from social practice, in a way that can only win the contempt of practical men and women.[lx]   Humanity-wide solidarity remains a distant goal, but one we dare not abandon.





[i] Rodriguez, Brown (New York: Viking, 2002); quotation, p. xiv.  

[ii] Samuel P. Huntington, The Clash of Civilizations and the Remaking of the World Order (New York:  Simon and Schuster, 1997), p. 97.

[iii] See the critique of the way the federal bureaucracy uses these categories in Stephan Thernstrom, “The Demography of Racial and Ethnic Groups,” in Abagail Threnstrom and Stephan Thernstrom, eds., Beyond the Color Line (Stanford, Calif.:  Hoover Institution, 2002), pp. 18-19.

[iv] As the small l indicates, I am here speaking of liberalism in the broad sense, in which most American Conservatives are liberals.

[v] Norman Gash, “Over There:  A Scholar and a Traitor,” Policy Review (winter, 1981), quoted in Miranda Carter, Anthony Blunt:  His Lives (New York, Farrar, Straus, and Giroux, 2001), p. xiv. 

[vi] See Scheffler, Boundaries and Allegiances (Oxford:  Oxford University Press, 2001), esp. pp. 4-5, 62-4, 72-3, 99, 105-7, for the voluntarist objection; and pp. 4-7, 56-64, 73-6, 83-95, 99, 107-10, for the distributive objection.  For an illuminating discussion of this book, see Scheffler et al., “Book Symposium: Boundaries and Allegiances,” Philosophical Books 44, no. 2 (April 2003): 97-134.

[vii]Dunn, “Nationalism,” reprinted from Western Political Philosophy in the Face of the Future (Cambridge:  Cambridge University Press, 1979) in Ronald Beiner, ed. Theorizing Nationalism (Albany, N.Y.: SUNY Press, 1999), p. 29. 

[viii]See, in addition to Beiner’s collection, Robert McKim and Jeff McMahan, eds., The Morality of Nationalism (New York:  Oxford University Press, 1997); Sukumur Periwal, ed., Notions of Nationalism (Budapest:  Central European University Press, 1995); Nenand Miŝčevič, advisory ed., Nationalism. The Monist 82, no. 3 (July 1999); Will Kymlicka and Magda Opalski, eds., Can Liberal Pluralism be Exported?  Western Political Theory and Ethnic Relations in Eastern Europe (Oxford:  Oxford University Press, 2001); and Richard Caplan and John Feffer, eds., Europe’s New Nationalism:  States and Minorities in Conflict (New York:  Oxford University Press, 1996).

[ix] Representing a view once widely held though now largely abandoned, G. Scott Davis thinks that democracy provides an escape from group conflict.  See his Preface to Religion and Justice in the War Over Bosnia (New York:  Routledge, 1996), p. x. 

[x] ‘Patrilineal’ Jews pose a severe problem for the American Jewish community; see Jack Wertheimer, A People Divided (New York:  Basic Books, 1993), pp. 158, 171, 172, 176.  On the dispute about the status of black Seminoles, which arose when money became an issue, see Carl Cohen, “Why Race Preference is Wrong and Bad,” in Affirmative Action and Racial Preference:  A Debate, with James P. Sterba (Oxford:  Oxford University Press, 2003), p. 176 n.246.

[xi] Christopher Heath Wellman, “Nationalism and Secession,” in R. G. Frey and Christopher Heath Wellman, eds., A Companion to Applied Ethics (Malden, Mass: Blackwell Publishing, 2003), p. 268.

[xii]Adapted from Hugh Seton-Watson, Nations and States (London:  Methuen, 1977), p. 5, with help from Dan Smith, “Reconciling Identities in Conflict,” in Caplan and Feffer, eds., Identities, p. 200; to the same effect, see Frank Cunningham, “Nations and Nationalism:  The Case of Canada/Quebec,” in Philip Alperson, ed. Diversity and Community:  An Interdisciplinary Reader (Malden, Mass.:  Blackwell, 2002), p. 191 (“will and ability”); cf. also p. 192.   

[xiii]See George Schöplin, “Liberal Pluralism and Post-Communism” in Kymlicka and Opalski, eds., Liberal Pluralism, esp. pp. 113 and 115.

[xiv] Adapted from my Human Diversity and the Culture Wars (Greenwood, Conn.: Praeger, 1996), p. 165.  Similar definitions are offered by James Davison Hunter, Before the Shooting Begins (New York:  Free Press, 1994), p. 200; and Charles Taylor, “Two Theories of Modernity,” Hastings Center Report 23, no. 2 (March-April 1995):  28.  (Taylor’s word is background.) 

[xv]Terry Eagleton usefully compares the views of T. S. Eliot and Raymond Williams in The Idea of Culture (Malden, Mass.:  Blackwell, 2000), chap. 5.

[xvi] For detail, see Nicholas Basbanes, A Splendor of Letters (New York:  HarperCollins, 2003), pp. 119-77.

[xvii] See ibid., chap.6; also Nicholson Baker, Double Fold (New York:  Random House, 2001).

[xviii] Wellman, “Nationalism,” pp. 269-70.

[xix] For extended critical discussions of some of the arguments for national solidarity, see Gilliam Brock, “The New Nationalism,” Monist 82, no. 3 (July, 1999):  374-382; Margaret Moore, “Nationalist Arguments, Ambivalent Conclusions,” Monist 82, no. 3 (July 1999):  469-490; and Daniel Weinstock, “National Partiality:  Confronting the Intuitions,” Monist 82, no. 3 (July 1999): 516-541.

[xx] For a critical assessment of Kant’s views of international relations, see John Hare, “Kantian Ethics, International Politics, and the Foedus Pacificum,” in Luis E. Lugo, ed., Sovereignty at the Crossroads (Lanham, Md.:  Rowman and Littlefield, 1996), pp. 71-92.

[xxi]Brock makes this point well in “Nationalism.”

[xxii] Weinstock suggests that they are so corrupted in “Partiality,” pp. 518-524.

[xxiii] Weinstock poses this issue in ibid., pp. 528-533.

[xxiv] For a thick description of some formative American cultures, see David Hackett Fischer, Albion’s Seed (New York:  Oxford University Press, 1989).

 [xxv] People talk about the “Red Sox Nation.”  A Red Sox victory over the Yankees prompted observations such as the “The Evil Empire had been vanquished,” and hopes that “the curse” has been broken or shifted to the Yankees, towards whom Red Sox fans feel more hostility than is usual for a rival team.   See Boston Globe (22 October 2004), § B. 

[xxvi]See for example, Rebecca West, Black Lamb and Grey Falcon (New York:  Viking, 1941), which contains such striking observations as:  “The French make love for the sake of life . . .. The Germans make love for the sake of death” (vol. 1, p. 385).

[xxvii] This point is directed at Brock, “Nationalism,” esp. p. 385 n.17.

[xxviii] See George Soros, The Bubble of American Supremacy (New York:  Public Affairs, 2004), p. ix.

[xxix]See Robert H. Jackson, Quasi-States (Cambridge:  Cambridge University Press, 1990).

[xxx]For the controversy about humanitarian intervention, see James Turner Johnson, “Humanitarian Intervention, Christian Moral Reasoning, and the Just War Idea,” and Alexander Webster, “Crusading for Humanity?” both in Lugo, ed. Sovereignty, chap. 5.  The chapter following on human rights is also of interest.

[xxxi] When defenses of the 2003 American invasion of Iraq in terms of preventive war lost much of their credibility, defenses in terms of humanitarian intervention came to the fore.  For the resulting debate, see Fernando Tesón. “Ending Tyranny in Iraq,” Ethics and International Affairs 19, no. 2 (2005):  1-20 (pro); and Ken Roth (for the Human Rights Watch), “War in Iraq:  Not a Humanitarian Intervention (January 2004) (contra).

[xxxii]For a critical account of the judicial revival of states’ rights doctrines, see John T. Noonan, Jr., Narrowing the Nation’s Power (Berkeley, CA:  University of California Press, 2002).  On the status of Indian tribes, see T. Alexander Aleinkoff, Semblances of Sovereignty (Cambridge, MA:  Harvard University Press, 2002), chaps. 5 and 6; see also the discussion of Commonwealth status in Puerto Rico in chap.  4.

[xxxiii] Relative leniency about rape is, however, traditional in Virginia, as part of a general expectation that men will be sexual predators (Fischer, Seed, p. 304).

[xxxiv] The reference is to the Violence Against Women Act, 42 U.S.C. § 13981 (b), held unconstitutional in United States v. Morrison 529 U.S. 598 (2000).  For critical discussion, see Noonan, Power, chap.6.  

[xxxv]Kennan, Around the Cragged Hill (New York:  Norton, 1993), pp. 149-151.  For supporting historical arguments, see Fischer, Seed, Conclusion, though Kennan and Fischer pick out different regions (and these both differ from the contemporary distinction between ‘red’ and ‘blue’ states).

[xxxvi] I owe the distinction between remedial and primary rights to Wellman, “Nationalism,” p. 274.

[xxxvii] Simon Schama suggests a defense of the American colonists using the precedent of British repression in Scotland.  Schama, A History of Britain, vol. 2 (New York:  Hyperion, 2001), pp. 454-477. On the repression of Scotland, see pp. 385-88.

[xxxviii] See Allen Buchanan, Secession (Boulder, Colo.:  Westview, 1991); he does not propose to write this proposal into international law.

[xxxix] Rothbard, “Nations by Consent:  Decomposing the Nation-State,” in David Gordon, ed., Secession, State, and Liberty (New Brunswick:  Transaction, 1998), chap. 4, esp. pp. 84-88.

[xl] Buchanan, “Theories of Secession,” Philosophy and Public Affairs 26, no. 1 (winter 1997):  31-61 makes this argument well.

[xli] See the ambitious cosmopolitan argument by Joseph Boyle, “Boundaries, Autonomy, and Ownership,” and the truculent reply by the ‘sovereigntist’ Jeremy Rabkin (who may over-read Boyle),  “In Defense of Reasonable Lines,” both in David Miller and Sohail H. Hasmi, eds., Boundaries and Justice (Princeton:  Princeton University Press, 2001), chaps. 15 and 16.   For a less polemical expression of the same tension within the natural law tradition, see John Finnis, “Natural Law and the Re-making of Boundaries,” and Richard Tuck, “The Making and Unmaking of Boundaries from the Natural Law Perspective,” both in Allan Buchanan and Margaret Moore, eds., States, Nations, and Boundaries (Cambridge:  Cambridge University Press, 2003), chaps. 9 and 8.

[xlii] For an overview, see Daniel Philpott, “The Ethics of Boundaries,” Miller and Hasmi, eds., Boundaries, chap. 17. 

[xliii] Ibid., pp. 338-46.

[xliv]Lichtheim, Imperialism (New York:  Praeger, 1971), p. 4.

[xlv]Stephen D. Krasner describes the impact of the end of the Cold War on the politics of international finance. “The more intrusive violations of [debtor nation] autonomy occurred only after the collapse of the Soviet Union.  During the cold war, developing states had been able to play the West off against the East.  With the collapse of Soviet power, the opportunities for balancing between the blocs disappeared, and the programs of international financial institutions became more ambitious.”   Sovereignty:  Organized Hypocrisy (Princeton:  Princeton University Press, 1999), p.  150.

[xlvi] Soros, however, quotes a “Statement of Principles” signed by many prominent Neoconservatives under the title “Project for the New American Century,” expressing an imperialistic philosophy for America under the euphemism of ‘global leadership.’ (Bubble, pp. 5-7).  The statement is reproduced from http://www.newamericancentury,org (posted 3 June 1997).

[xlvii]Students of international affairs who expect American predominance to be of short duration include Charles A. Kupchan, The End of the American Era (New York: Knopf, 2002); Joseph Nye, Jr., The Paradox of American Power (Oxford:  Oxford University Press, 2002); and Soros, Bubble.

[xlviii] In 184 B.C./B.C.E, Scipio Africanus frustrated without refuting a charge of corruption by recalling his victory over Hannibal, “the most determined enemy of your empire.”  Richard Koebner, Empire (Cambridge:  Cambridge University Press, 1961), p. 1.  Koebner’s book is a useful history of the concept of empire down to 1815; also valuable is Robert Folz, The Concept of Empire in Western Europe, trans. Shelia Ann Ogilvie (New York:  Harper & Row, 1969).

[xlix] George Liska, Imperial America: The International Politics of Primacy (Baltimore:  Johns Hopkins, 1967), Author’s Preface (not paginated). 

[l] For discussion supportive of my argument here, including extensive citations to the public statements of the administration of the younger Bush, see Neta Crawford, “Just War Theory and the U.S. Counterterror War,” Perspectives on Politics 1, no. 1 (March 2003):  5-26.   According to (then) Vice-President’s Cheney’s “one percent doctrine,” risks estimated at one percent are to be taken as certainties.  Ian Shapiro, Containment  (Princeton:  Princeton University Press, 2007), p. 56, citing Ron Suskind, The One Percent Doctrine (New York:  Simon and Schuster.  2006).

[li]On the doctrine of last resort, see J. Brian Hehir, “An Unnecessary War,” Commonweal 130, no. 6 (28 March 2003):  7-8.  .

[lii] Weigel, “Idealism Without Illusions,” Lugo, ed., Sovereignty, pp. 195-98 and 205 n.10.

[liii] For his subsequent views, see Weigel, “Just War and Iraq Wars,” First Things no.172 (April 2007): 14-20. 

[liv]The Postmodern Leftist Vincente Diaz makes an uncomfortable attempt to deal with the religious dimension of Guamanian culture, including an indigenous pro-life movement led by women.  See Diaz, “Pious Sites:  Chamoro Culture between Spanish Catholicism and American Individualism,” in Amy Kaplan and Donald E. Pease, eds., Cultures of United States Imperialism  (Durham, N.C.:  Duke University Press, 1993), esp. p. 329.

[lv] Consider German case, in which a man was for tried for killing another man he met through the Internet and eating his body parts over several months.  His defense was consent.  See and,3566,104679,00.html.  Both accessed 10 January 2004.

[lvi] This fact is crucial to the argument of Shapiro, Containment.

[lvii] Before the rebellion of 1857, Lord Macaulay, in his infamous (in India at least) Minute on Education (February 1835), denied any value to local culture.  See the citation in Simon Schama, A History of Britain, vol.  3  (New York:  Hyperion, 2002), pp. 283-84.   Schama’s discussion of  “the empire of good intentions” in chaps. 5 and 6 of this volume is worth reading.  For a detailed account of the rebellion of 1857, see Andrew Ward, Our Bodies are Scattered:  The Cawpore Massacres and the Indian Mutiny of 1857 (New York:  Henry Holt, 1996). 

[lviii] Chua, World on Fire (New York:  Anchor, 2004); quotation, p. 174.

[lix]Thucydides, The Peloponnesian War, Bk. V, § 105; trans. Rex Warner, ed. M. I. Finey (Harmondworth:  Penguin, 1972), p. 404.

[lx]The tensions between theory and practice that pervade international law are reflected in Andrew Hurrell, “International Law and the Making and Unmaking of Boundaries,” and Benedict Kingsbury, “People and Boundaries:  An ‘Internationalized Public Law’ Approach,” both in Buchanan and Moore, eds., States, chaps 14 and 15.   Robert McCorquadale, “International Law, Boundaries, and Imagination,” and Raul C. Pangalangan, “Territorial Sovereignty: Command, Title, and the Expanding Role of the Commons,” both in Miller and Hashmi, eds., Boundaries, chaps. 7 and 8, attempt to push international law in a less state-centered direction, at some cost in realism.


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