A polity is grounded in a modus vivendi (MV) when its main features can be presented as the outcome of a virtually unrestricted bargaining process. Is MV compatible with the consensus-based account of liberal legitimacy, i.e. the view that political authority is well grounded only if the citizenry have in some sense freely consented to its exercise? I show that the attraction of MV for consensus theorists lies mainly in the thought that a MV can be presented as legitimated through (...) a realist account of public justification. Yet I argue that, because of persistent ethical diversity, that realism problematically conflicts with the liberal commitments that underpin the very ideas of consensus and public justification. Thus, despite the interest it has recently attracted from critics of political liberalism and deliberative democracy, MV is not an option for those wishing to ground liberal political authority in some form of consensus. So if realist and agonistic critiques are on target, then the fact that modus vivendi is not an option casts some serious doubt on the viability of the consensus view of liberal legitimacy. (shrink)

I first provide an analysis of Joel Feinberg’s anti-paternalism in terms of invalidation of reasons. Invalidation is the blocking of reasons from influencing the moral status of actions, in this case the blocking of personal good reasons from supporting liberty-limiting actions. Invalidation is shown to be distinct from moral side constraints and lexical ordering of values and reasons. I then go on to argue that anti-paternalism as invalidation is morally unreasonable on at least four grounds, none of which presuppose that (...) people can be mistaken about their own good: First, the doctrine entails that we should sometimes allow people to unintentionally severely harm or kill themselves though we could easily stop them. Second, it entails that we should sometimes allow perfectly informed and rational people to risk the lives of themselves and others, though they are in perfect agreement with us on what reasons we have to stop them for their own good. Third, the doctrine leaves unexplained why we may benevolently coerce less competent but substantially autonomous people, such as young teens, but not adults. Last, it entails that there are peculiar jumps in justifiability between very similar actions. I conclude that as liberals we should reject anti-paternalism and focus our efforts on explicating important liberal values, thereby showing why liberty reasons sometimes override strong personal good reasons, though never by making them invalid. (shrink)

This paper provides an interpretation of the licensing provisions envisaged under the Human Fertilisation and Embryology Act 1990 as a model for a rule and exemption-based procedural strategy for the adjudication of potential ethical controversies, and it offers an account of the liberal-democratic legitimacy of the procedure’s outcomes as well as of the legal procedure itself. Drawing on a novel articulation of the distinction between exceptions and exemptions, the paper argues that such a rule and exemption mechanism, while not devoid (...) of attractions, is not immune from the criticisms often levied against procedural approaches to the management of pluralism: it either has to fall back on substantive justification in ways that are not helpful when trying to arbitrate a moral controversy, or it appears justificatorily groundless. (shrink)

The members of any functioning modern society live their lives amid complex networks of overlapping institutions. Apart from the major political institutions of law and government, however, much normative political theory seems to regard this institutional fabric as largely a pragmatic convenience. This paper contests this assumption by reflecting on how institutions both constrain and enable spheres of effective action and responsibility. In this way a society’s institutional fabric constitutes, in Samuel Scheffler’s phrase, an infrastructure of responsibility. The paper discusses (...) three key normative aspects of this infrastructure. First, institutions define roles and rules, alongside forms of sanction and encouragement, so as to realise limited forms of practical, normative agreement. Second, institutions allocate and adjudicate distinct responsibilities. This creates separate spheres of initiative, ensuring responsibilities are fulfilled and providing for structured disagreement and change. Third, because we move through a plurality of institutions and associations, we experience varying responsibilities and forms of recognition. Individual identities thus depend on several different forms of recognition, and are well placed to resist totalising or fundamentalist temptations. In sum, the paper argues that a liberal institutional fabric provides essential moral stability, though not an undesirable fixity. By containing the fragility and dangers of individual moral judgment, our institutional fabric allows such judgment to play a valuable role in human affairs. (shrink)

The concept of the public realm is the most fundamental of all political concepts because it is only the shared relationship it constitutes between rulers and ruled that makes government more than mere domination. It is therefore not surprising that the question of how the public realm is to be defined has been a central concern of political thinkers from Plato to more recent philosophers like Hannah Arendt. Although the answers they have given have of course varied greatly, what is (...) relevant in the present context is simply the assumption, for well over two thousand years, that there could be an answer. What is novel today, by contrast, is the increasing realization that political theory cannot in principle provide philosophical guidance of any kind about how the public realm can be finally and definitively identified, in a way which would clearly distinguish it from the private realm and thereby enable an incontestable limit to be set to the proper scope of politics and of state action. The present essay considers how some leading contemporary political thinkers have responded to this situation. (shrink)

The primary instrument of dispute management in political liberalism is a form of political thinking and talking that tries to reconcile opposed positions with an impartial settlement based on fair arrangements and mutual respect, one that is careful to treat rival views equitably, and reasoned through from start to finish with open methods that lead to a public justification understandable to the disputants. But this model of reasoning is notoriously deficient in resolving disputes among radically different communities. A more effective (...) form of political reasoning for these disputes that yet respects the background values of liberalism is found in the languages of state depicted in realist accounts of international relations. These languages avoid liberal appeals to be reasonable, reciprocity controlled by moral criteria, and the quest for common reasons. They represent a deliberative search for an accord that will meet the interests of the disputing parties as they define these interests and understand the settlements, and in this sense are welcome models to manage divisive issues in pluralist democracies. A complete version of political reasoning would contain both liberal and realpolitik models and a mechanism to adjudicate the appropriate uses of each model. (shrink)

Je propose ici un argument « dilemmatique » en faveur de l’anti-paternalisme libéral. Soit il est vrai, comme le soutiennent les kantiens, que les règles impersonnelles, impartiales et universelles jouissent d’une priorité éthique ; soit il est vrai, comme le soutiennent des communautariens comme MacIntyre, que de telles règles ne jouissent pas d’une priorité éthique. Si les kantiens ont raison, alors – comme le veut la sagesse conventionnelle des manuels de philosophie politique – la neutralité de l’Etat à l’endroit des (...) conceptions du bien est justifiée. Et si les communautariens ont raison, alors – étonnamment – la neutralité de l’Etat est aussi justifiée. Donc la neutralité de l’Etat est justifiée. La première prémisse étant tautologique, elle s’impose d’elle-même. La seconde prémisse, établissant un lien entre priorité des règles universelles et neutralité de l’Etat, est trop connue pour retenir ici notre attention. La troisième prémisse, en revanche, établissant un lien entre la non-priorité des règles universelles et la neutralité de l’Etat, sonne comme un paradoxe. C’est donc sur elle que portera l’examen.I shall offer here a “dilemmatic” argument for liberal anti-paternalism. Either it is the case – as Kantians maintain – that impersonal, impartial and universal rules enjoy ethical priority ; or it is the case – as Communitarians like MacIntyre maintain – that universal rules do not enjoy any such priority. If Kantians are right, then – as suggested by the conventional wisdom of textbooks in political philosophy – State-neutrality towards conceptions of the good is justified. And if Communitarians are right, then – surprisingly – State-neutrality is justified too. Therefore State-neutrality is justified. The first premiss is tautological, and needs no special study. The second premiss, linking the priority of universal rules to State-neutrality, is too well known to deserve our attention. But the third premiss, linking the non-priority of universal rules to State-neutrality, sounds like a paradox. The paper thus focuses on that third controversial premiss. (shrink)

A careful reading of Hobbes' philosophical writings reveals that this author forwards no fewer than three distinct conceptions of the pre-political situation which he labels "the natural condition of humankind," or "the state of nature." By examining the relevant passages from The Elements of Law, De Cive and Leviathan, Hobbes' three principal works of political philosophy, I demonstrate that Hobbes' state of nature should not be interpreted as a single invariant concept but rather as a series of three distinct heuristic (...) or expository models. Further, I claim that distinctions between Hobbes' various conceptions of the state of nature reflect differing background assumptions concerning such factors as the prevailing degree of group stability and the level of abstractness with which representative human beings are characterized. ;After establishing this framework, I examine why Hobbes chose to include three distinct conceptions of the state of nature within his writings, and explore the relationship which appears to obtain among these three conceptions. I next examine the manner by which each of Hobbes' three types of commonwealth, namely commonwealth by institution, commonwealth by preservation and commonwealth by acquisition, can be understood to arise from each of Hobbes' three conceptions of the state of nature. In this section, I focus my analysis upon the transitions which occur when the unencumbered and isolated individuals who inhabit the state of nature enter into the social contract by "transferring" their respective rights of nature to the sovereign of their incipient commonwealth. Moreover, I examine Hobbes' explanation of why each subject incurs an obligation to obey his sovereign's decrees and I address the apparent difficulty of maintaining the subjects' allegiance to their sovereign in light of Hobbes' portrayal of human beings as passionate and predominantly self-serving creatures. I conclude by arguing that given Hobbes' characterization of humans as passionate and predominantly self-serving creatures, one can probably not expect commonwealths to arise in the manner that Hobbes describes, and one can certainly not expect such commonwealths, if established, to endure for any substantial period of time. (shrink)