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There is neutrality even regarding norms of justification, not just regarding the conceptions of the good invoked in justifications.

Western Theories of Justice

Ultimately, the idea is to protect individuality and eccentricity, as the following passage from a recent case concerning the making of a statutory will brings out nicely: Just as a testator has always had the freedom … to make testamentary dispositions which are unreasonable, foolish or contrary to generally accepted standards of morality, so too a person in his lifetime has the freedom to act in a manner which is for example unwise, capricious, or designed to spite his relations.

If autonomy is, indeed, itself a value about which reasonable persons disagree, then it is not suitable to underpin, or be part of, a liberal system which is meant to be justifiable to all of its reasonable citizens. They tend to go on as if this wider issue is unimportant and the only thing that matters is the more downstream question of how autonomy is internally configured, such that it is compatible with different conceptions of the good. This rests on two assumptions: 1 that the so configured autonomy can be defended without, more upstream, invoking a contestable conception of the good; and 2 that the only thing one can reasonably disagree about is the conception of the good.

They then either bite the bullet and accept that autonomy is a contestable value among reasonable persons, albeit one that internally requires compatibility with different conceptions of the good.

Autonomy's Substance

This seems to be Christman's current approach op. We will see later that this is mistaken, but for now I just want to note that something like a move to a political conception of autonomy is required if one's ultimate purpose is compatibility with reasonable pluralism. Also, I show in this section that the suggestion that there could be accounts of autonomy that are devoid of normative content is mistaken.

Christman echoes this when drawing out an implication of his account: One implication of this theory is that people could turn out to be autonomous despite having desires for subservient, demeaning, or even evil things and lifestyles. I don't take this to be a defect of the model. Such restrictions on what kind of decision outcomes one can autonomously choose are actually quite rare in the literature, but real life might provide other examples, such as social workers who judge that one cannot autonomously decide to live in squalor.

Capacity and competence are sometimes distinguished — for example, by presenting capacity as a psychological term that comes in degrees and competence as a binary legal standard. I will treat them synonymously in this article. Such statements suggest that we should also reject any views which restrict the content of the reasons one has for choosing a certain option. Vincent ed. Some authors use it in an even stronger sense still.

  • Audens Games of Knowledge.
  • Individual versus Communal Autonomy: A Critical Study of Rawls' Liberal Conception of Pluralism.
  • Autonomy in Moral and Political Philosophy (Stanford Encyclopedia of Philosophy).
  • Justification of Galston’s liberal pluralism.
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To see this, consider how Benson distinguishes between different kinds of substantive views. The following view is an example: 32 32 This seems to be Benson's own view since see op. This also means that indirectly substantive accounts allow for the possibility of unwise yet autonomous decisions: The normative competencies these theories describe, however, need not entail any direct, normative restrictions on the contents of autonomous agents' preferences or values.

Public Reason

These theories typically allow that normatively competent persons can choose what is unreasonable or wrong or value what is bad, because competence lies some distance short of perfect evaluative perception or responsiveness. Still, indirectly substantive accounts of autonomy are normatively substantive insofar as the competencies in question cannot be characterised correctly in a purely descriptive way. If not already before, then at least at this point, the reader should feel like pushing back against the purported distinction. For example, procedural independence excludes influences such as manipulation or coercive persuasion, and these, I take it, are ineliminably normative notions.

Something similar holds true of procedures too. It might be often overlooked, but procedures contain at least implicitly normative substance. Zalta ed. Last accessed 4 November at Requiring of persons that they understand and weigh in the balance all the relevant information, including future consequences, for every decision would be to impose a particular way of life on them — the examined way of life, which could be accused of being overly intellectualist.

Reconstructing Rawls: The Kantian Foundations of Justice as Fairness By Robert S. Taylor

Equally, Paul's decisions might be manifestly inconsistent with Saul's worldview, but this does not necessarily mean that they are faulty or any less autonomous. This leaves only a distinction between directly and indirectly substantive views. Before I suggest that even this distinction is not really where the action is, I consider one objection to the argument just made.

One might argue that, while it is, indeed, impossible to eschew all normative content, it is at least possible to eschew specifically ethical content. To argue in this way is to overlook two related points that are important in our context. First, there is reasonable pluralism also about epistemic issues, such as regarding the question of what counts as sensitivity to evidence and, indeed, what counts as evidence.

Reasonable pluralism extends as to where this distinction ought to be drawn. For such a perfectionist, the ethical would encompass all of the normative, directly or at least indirectly.

While the perfectionism would presumably be incompatible with reasonable pluralism, such a view of the scope of the normative seems clearly compatible — it seems that some persons willing to be convinced otherwise will maintain the broad view of the ethical even after free and extended discussion. I did this for two reasons. Even competent persons have no absolute right regarding treatment decisions, for they may be hospitalised and treated under mental health legislation in England and Wales, to stick with our example context, under the Mental Health Act , as amended Now, this by itself does not yet settle the matter as to autonomy's substance.

It might be that these considerations about the actual practice of legal regimes merely tell us that such regimes have still a way to go before living up to their liberal aspiration.


If we want to know about liberal aspirations, then we do better to turn to liberal theories than liberal practices. These theories have delineated the proper ideal liberals should aspire to achieve. In this way, one might reject the import and relevance of any appeal to actual practices. However, this is not the best reaction for liberals. For a start, liberal practices are actually as or even more revealing about liberal considered judgements — the building blocks for theorising about ideals — than what theorists propose counterfactually in the rather shielded environment of their studies and seminar rooms.

For all the failings and biases of the legal system, what withstands the scrutiny of courtrooms should at least deserve a hearing too. What matters for them are not raw intuitions, but considered judgements refined by way of seeking wide reflective equilibrium.

Surely, the insights from actual legal practice are part of this process. True, the insights reflect the actual existing practices and there is a danger of a status quo bias; but the way we engage in counterfactual reasoning and imagination, at least indirectly, also reflects existing practices and also involves the danger of status quo bias — indeed, it might be a safer response to this bias to tackle one's entanglement with the existing social world directly, rather than have recourse to what one takes to be ideals and fall into the trap of thinking that subject matter alone thinking about ideals rather than existing practices or engaging in counterfactual reasoning suffice to escape this entanglement.

At least some liberal theorists express the view that they want to build on existing practices, rather than pretend that they can theorise in a void. However, it is possible to argue for the same conclusion without relying directly on appeals to the actual reality of liberal legal regimes.

  1. Elizabeths London: Everyday Life in Elizabethan London;
  2. The Big Boasting Battle.
  3. University of Toronto Law Journal.
  4. Instead, a more conceptual point about their nature can do the argumentative work. It might be that in a given society, an overlapping consensus emerges such that, for example, certain contracts — perhaps involving very high interests rates or the risk of debt bondage — are seen as something no one could autonomously agree to, and, hence, in such a society the state would not enforce such contracts. Or it might be that in such a society an overlapping consensus exists such that parents cannot exclude their children from their last will simply because of dislike or callousness — not because the detrimental effects this might have on values other than autonomy, but as not properly expressing autonomy which, in this society, is understood to contain internally some moral constraints, perhaps because the self that is doing the legislating and determining is understood in a minimally moral way, such that people could not recognise themselves in outright callousness.

    Such constraints on autonomy might lead to much less interference as hardly anyone actually wanted to make callous wills or tried to enter the contracts in question. It might also be compatible with more reasonable worldviews than insisting, for example, that people actually follow certain prescribed deliberative procedures something certain communities, such as religious ones which insist on the passivity of human decisions as part of an openness to their god or gods, might reasonably reject as too demanding. Rather, liberals should ask a different question and then distinguish accounts according to the answer to that question: is the proposed account of autonomy, whether it be directly or indirectly normative, compatible with reasonable pluralism?

    Indeed, even this will not suffice — for actual agreement about what is compatible with reasonable pluralism might not anticipate an outlook that an actual or potential member of the community might hold in the future, where such outlook is denying the features in question in a way that is reasonable i.

    In response, the first point is that it is a genuinely difficult challenge to demonstrate that a consensus position is compatible with reasonable pluralism. However imaginative we might be, history tells us that we human beings are not particularly skilled at anticipating normative outlooks that call into question the reigning consensus but are nonetheless reasonable. Various positions regarding slavery or women might well have been consensus position at the time and were then seen as irrevocable, but we think of them now as unreasonable — as something to which no one could agree to after free and extended discussion, even if willing to be convinced otherwise.

    Yet, the fact that judgements about what is and is not compatible with reasonable pluralism are preliminary and fallible is not a specific problem for what I propose here, but inherent to the Rawlsian framework I internally criticise and expand.

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    One need only recall Rawls's own approach to demonstrate the compatibility of his political liberalism with reasonable pluralism: he engages in a series of case studies of worldviews that have survived the test of time and are in common currency today in order to show that each of them is compatible with political liberalism.

    Even if he were successful in these case studies — something that is rather questionable 48 48 See Freyenhagen, op. I cannot hope to offer a full demonstration here, so two examples will have to suffice. First, courts, regulative bodies, and parliaments have, particularly in recent years, restricted loan and mortgage arrangements in ways that suggests a restriction of decision outcomes on the basis of a certain conception of autonomy.

    These measures have broad support across party lines and class divisions, and from among very different worldviews. The effect of these regulations is that customers cannot — in a legally binding fashion — choose to enter contracts that are deemed to charge excessive interest rates or are unaffordable for them even if the interest rates are not excessive. While it may be attractive to allow for exceptions to the rules, this also creates a kind of instability.

    Is justice merely an instrumental good, having no intrinsic value? If that were the case, then it would make sense to say that the role of reason is simply to calculate the most effective means to our most desirable ends. But then, assuming that our ends were sufficiently desirable, any means necessary to achieve them would presumably be justifiable—so that, morally and politically, anything goes, in principle, regardless how revolting.

    Is this the best we can do in our pursuit of an adequate theory of justice? As justice is both a moral and a political virtue, helping to prescribe both a good character and right conduct, the question of how such obligations arise is crucial. But, then, what is the logical link here?

    Why should we, morally speaking, act for the sake of agreeableness and utility?