And while Republicans have proposed several compromise amendments, most of their provisions seek to delay the mark-up process and undermine the bill. Sen. Orrin Hatch (R-UT), for instance, introduced an amendment (Hatch F7 [pdf]) to “add transition relief for the excise tax on high cost insurance plans for any State with a name the [sic] begins with the letter ‘U.’”

Now there’s a new controversy. About a year ago, Diamond published an article in the New Yorker called “Vengeance Is Ours.” Abstract is here – full text available to subscribers only (I think) from that link.

In it, Diamond recounts a story told to him by Daniel Wemp, who served as Diamond’s driver when Diamond was doing environmental field work – recording bird songs – in Papua New Guinea in 2001-2002. The story begins when Wemp’s uncle was “killed in a battle against the neighboring Ombal clan.” Diamond tells us that in Papua New Guinea, “traditional methods of dispute resolution still coexisit uneasily with the methods of state government,” and under these traditional methods (which Diamond surveys), it fell to Wemp to exact vengeance for the death of his uncle. Eventually – I’m cutting to the chase, ignoring many of the controversial details – Diamond quotes Wemp saying that Henep Isum, who was the target of Wemp’s vengeance, was hit by an arrow which “cut his spinal cord. That’s even better than killing him, because he’s now still alive today, eleven years later, paralyzed in a wheelchair, and maybe he’ll live for another ten years. People will see his constant suffering.” Diamond reports that Wemp’s attitude toward this was “unapologetically positive: a mixture of exhilaration and pleasure in expressing aggression.”

Then, there’s this exchange, which Diamond reports has “haunted me ever since”:

I asked Daniel why, on learning of Soll’s death, he hadn’t saved himself all the effort and expense, and just asked the police to arrest Isum. “If I had let the police do it, I wouldn’t have felt satisfaction, he replied. ‘I wanted to obtain vengeance myself, even if it were to cost me my own life. I had to ask myself, how could I live through my anger over Soll’s death for the rest of my life? The answer was that the best way to deal with my anger was to exact the vengeance myself.”

Unfortunately, it turns out that much of the story is demonstrably false, and Daniel Wemp is suing Diamond for $10 million. The critique is led by stinkyjournalism.org. Their information about the case is here. And here’s an article about the case from The Australian, which includes a link to a very detailed letter sent to the New Yorker by a Ph.D. student in law who is apparently serving as Wemp’s adviser.

From the outside – far outside – it looks to me as though Diamond was at a bare minimum awfully sloppy and possibly worse. But it’s not hard to imagine the possibility that as they drove through the highlands of Papua New Guinea, Daniel Wemp told some tall tales for his foreign visitor, not realizing that his stories would form the basis of a New Yorker article. Speculating wildly, it may be that Diamond was overly eager to believe the tall tales that Wemp presented because they resonated so deeply with another, more personal story. At the end of the article, immediately after reported the “haunting” conversation, Diamond tells us about the other story through which he “came to appreciate the terrible personal price that law-abiding citizens pay for leaving vengeance to the state.”

The story is of his father-in-law, a Polish Jew who fought against the Soviet invasion in 1939, was captured and sent to a concentration camp in Siberia, then fought in the Polish division of the Red Army. In 1945, he took a platoon to his village in Poland to try to find what had happened to his family. It turned out that his mother, his sister, and his niece had remained hidden for two years before being discovered and shot. He was told who the killer was, and was prepared to kill him, but he held his fire, thinking to himself, “This man behaved like an animal, but I don’t want to become an animal myself by shooting him.” Instead, he turned the killer over to the police, who “imprisoned the murderer, investigated – and then, after about a year, released him.” Diamond reports: “Until his own death, nearly sixty years after the murder of his parents and his release of his mother’s killer, Jozef remained tormented by regret and guilt – guilt that he had not been able to protect his parents, and regret that he had failed in his responsibility to take vengeance. That was the responsibility that Daniel had satisfied, and the terrible burden that Daniel had spared himself, by personally orchestrating the shooting of Isum.”

What Diamond’s father-in-law went through is horrific. But it’s hard to know exactly what lesson Diamond wants us to draw from it or from Wemp’s story. The subtitle of the article is, “What can tribal societies teach us about the need to get even?” After re-reading the article, I still don’t know exactly what Diamond thinks that we should learn. The closest he gets to an explicit answer is this: “while acting on vengeful feelings clearly needs to be discouraged, acknowledging them should be not merely permitted but encouraged.” What does Diamond mean by “acknowledging” our vengeful feelings? The closest he comes to a practical recommendation is this: “Many state governments do attempt to grant the relatives of crime victims some personal satisfaction, by allowing them to be present at the trial of the accused, and, in some cases, to address the judge or jury, or even to watch the execution of their loved one’s murderer.” Personally, I have mixed feelings about this practice. But in the age of “suck on this” celebrations of personal vengeance seem less than compelling.

To me, these stories illustrate the great importance of having an effective system of law. Diamond doesn’t say – and probably doesn’t know – why the Polish police released Jozef’s family’s killers. Perhaps they – or witnesses – thought the killing of a few Jewish women wasn’t a big deal. Perhaps it was bureaucratic bungling during the early stages of the reconstruction of Poland. Or perhaps it’s just possible that there wasn’t any admissible evidence against the accused. Here’s how Jozef had identified them:

Jozef demanded that the villagers bring him the man who had led the gang of killers. Initially, they refused or professed ignorance. At that point, Jozef and his men rounded them all up and he told them, ‘If you don’t bring me the man within one hour, I will shoot every fourth person among you.’ From the expression on Jozef’s face, the villagers saw that he meant it, and they brought him the man.”

Well, they brought him a man, and it might have been the man. But Jozef was right not to shoot him.

I’ll give the last word on the subject to Nietzsche (Genealogy II.11.4):

From a historical point of view, law represents on earth … the struggle against the reactive feelings, the war conducted against them on the part of the active and aggressive powers who employed some of their strength to impose measure and bounds upon the excesses of the reactive pathos and to compel it to come to terms. Wherever justice is practiced and maintained one sees a stronger power seeking a means of putting an end to the senseless raging of ressentiment among the weaker powers that stand under it (whether they be groups or individuals) – partly by taking the object of ressentiment out of the hands of revenge, partly by substituting for revenge the struggle against the enemies of peace and order, partly by devising and in some cases imposing settlements, partly by elevating certain equivalents for injuries into norms to which from then on ressentiment is once and for all directed. The most decisive act, however, that the supreme power performs and accomplishes against the predominance of grudges and rancor – it always takes this action as soon as it is in any way strong enough to do so – is the institution of law, the imperative declaration of what in general counts as permitted, as just, in its eyes, and what counts as forbidden, as unjust: once it has instituted the law, it treats violence and capricious acts on the part of individuals or entire groups as offenses against the law, as rebellion against the supreme power itself, and thus lead the feelings of its subjects away from the direct injury caused by such offenses; and in the long run it thus attains the very reverse of that which is desired by all revenge that is fastened exclusively to the viewpoint of the person injured: from now on the eye is trained to an ever more impersonal evaluation of the deed, and this applies even to the eye of the injured person himself (although last of all, as remarked above).

Duelfer doesn’t exactly say that he was told to find a link between al-Qaeda and Iraq. But that’s the strong suggestion of his comments, and he doesn’t object when Maddow draws that inference. (He does object to the characterization of his being ordered to use more aggressive techniques. It was more of a suggestion – one which was not acted on.)

The constructivism of the original position relies on other factual assumptions as well, and this shows – according to the argument of chapter 6 – that it cannot be identifying fundamental principles of justice. For example, it assumes that “there exist goods with which people need to be provided to pursue their life plans.” (p.293) To try to convince us that the fundamental principles of justice are not dependent on such a fact, Cohen has us “think of a being with a life plan that is internally fully provided from its inception with everything that it requires for whatever life plan it might choose.” (p.293) Similarly, a contingent fact which principles of justice ought not presuppose is that “human society is marked by both identity and conflicts of interests.” (p.294) These assumptions – that individuals are not completely self-sufficient and that there is both an agreement and disagreement about values – bring us very close to the assumption that the circumstances of justice hold.

When he turns to the discussion of the circumstances of justice, Cohen distinguishes several different questions that may easily be confused: “(1) Under what circumstances is (the achievement of) justice possible and/or necessary? (2) Under what circumstances do questions of justice arise?” For Cohen, the answers to these questions are independent of the nature of justice – the content of the fundamental principles of justice. This is just an application of his more general argument that the content of the fundamental principles of justice cannot be fact-dependent.

Rawls, on the other hand, when developing his principles of justice, assumes (among other things) that we are addressing members of a society who hold diverse and conflicting – though reasonable – values and who are not individually completely self-sufficient. I don’t know exactly what he would say about conditions in which these do not hold – whether justice would be impossible or wouldn’t be important – but, frankly, I have a hard time imagining such conditions.

The reason why Rawls makes these assumptions is because he thinks that identifying principles of justice is a matter of specifying fair terms of social cooperation. Principles of justice aim to answer the question: “what is the most acceptable political conception of justice for specifying the fair terms of social cooperation between citizens regarded as free and equal and as both reasonable and rational…?” (Justice as Fairness, pp.7-8) Contrary to Cohen’s suggestion, Rawls doesn’t identify justice with an all things considered perspective concerning how best to design social institutions. He thinks that justice is the virtue that responds to the fact of reasonable pluralism – the fact that reasonable people in a society have different and conflicting conceptions of the good, yet are not self-sufficient. And he claims that in such conditions, this virtue sets a necessary condition for the moral acceptability of basic institutions. This is not a trivial claim – as it would be if he identified justice with an all things considered perspective. (p.305) It amounts to saying that it is more important to design basic institutions that are fair to individuals conceived of as free and equal than it is to proclaim the glory of God, or to preserve a cultural heritage, or to achieve and maintain some particular distribution of welfare. Each of these may be permissible, but not if they conflict with the requirement of maintaining a fair system of cooperation among free and equal persons.

One more relatively minor but perhaps revealing point about Rawls. Cohen says that Rawls holds that Pareto improvement from equality are “required by justice, since principles mandating it would be chosen in the original position.” (p.318) Some passages do suggest this – including some statements of the difference principle itself – but I think Rawls’s considered position is that such inequalities are permitted by justice, not that they are required. It would be perfectly just for a society to maintain equality and forego an inequality that would satisfy the difference principle – and there can be good reasons for it to do so. In Justice as Fairness he points out that the difference principle “does not require continual economic growth over generations to maximize upward indefinitely the expectations of the least advantaged” and goes on to talk about “permissible” (as opposed to required) inequalities. (Justice as Fairness, pp.63-64) What ultimately matters to Rawls is not that the expected share of primary goods of the least advantaged position over a complete life be maximized. What matters is that nobody be subordinated (at a fundamental level) to anyone else. He argues that the inequalities allowed by the two principles of justice would avoid that. But so also – obviously – would greater equality, and (in general) he would have no objection to a society making such a decision.

And this brings us to the question I want to ask of Cohen: what is justice about? I’m looking for an answer analogous to what I take Rawls to hold, which is something like this: justice is about recognizing the diversity of reasonable values among the members of a society and designing basic institutions that won’t subordinate any one to any other one. Let me elaborate my confusion – and please let me know in comments if you have any ideas about how Cohen would reply. First, Cohen holds that justice is more than distributive justice. He refers, for example, to “considerations of nondistributive justice” (p.7) and he mentions that sometimes we must “trade one form of justice off against another, at the level of rules of regulation.” (p.367) Perhaps he has in mind something like political justice – say, the requirement that individuals have an opportunity for democratic participation. My question is why, on his view, are distributive justice and political justice both forms of justice? According to Rawls, they are both requirements of a fair system of cooperation. I don’t see why Cohen would say – if he would – that they are part of a single virtue.

But I’m even confused about how Cohen understands the more limited virtue of distributive justice. I’m not talking about the principle that he advocates (although I admit to being confused about that, too). I’m talking about what we might call the concept of distributive justice. On the one hand, he insists that “it would be insane for the intuition about distributive justice on which [luck egalitarians] focus to be the only norm to be taken into account in organizing a society.” (p.301) From an all things considered point of view, sometimes distributive justice should give way to other principles and virtues. I assume this means that sometimes, in determining who should get what, there are good reasons to do what conflicts with the requirements of distributive justice. But on the other hand, when describing the topic of distributive justice, Cohen says that by “distributive justice” he “uneccentrically mean[s] justice (and its lack) in the distribution of benefits and burdens to individuals.” (p.126) Alternatively, it is “giving each person her due.” (p.7) If this is interpreted as who should get what, this is an all things considered perspective. Any consideration that bears on what a person’s benefits and burdens should be appears relevant from the point of view of distributive justice.

I think this lack of clarity about the nature of justice – and even of distributive justice – shows up in an example that Cohen gives. That a change would be a Pareto improvement is a reason for favoring the change, but not a reason of (distributive) justice. (p.315) It may, for example, be preferable on “ground of human flourishing” (p.319) and this may be sufficient to recommend it, but it may nonetheless be unjust. Consider a state of nature “in which manna falls from heaven and gets shared equally because the sharers think that’s the right way to deal with manna from heaven. Now suppose an extra piece of irremovable but destructible manna falls on Jane’s plot.” (p.317) Jane, being a luck egalitarian, destroys the manna because she believes that it is not fair for her to have more than others for no good reason. Far from thinking that Jane is foolish, Cohen holds that “she is simply a remarkably just person.” (p.318)

My own reaction is that she may or may not be foolish in this case. It is possible, for example, that she is expressing a high degree of solidarity with others. If so, she is still no more or less just than if she simply consumed the manna. It is Cohen, I claim, who is here confusing the virtue of justice with something else – perhaps with solidarity. The case does not yet isolate an intuition about distributive justice (as Cohen conceives it). After all, for Cohen, justice is not about showing others that you are just – publicity is irrelevant to what justice is. So, suppose that nobody except Jane knows that she has this windfall. And suppose (what I take to be already implicit in the example) that it cannot be traded or used to enhance her social status. The example still doesn’t isolate the right intuition because Cohen has us imagine the people sharing the (ordinary) manna. So imagine that they are all completely isolated from each other, and it happens that they all receive equal amounts of manna from heaven. One day, Jane receives more. There is no way for her to share it or even to communicate with the others, but she somehow knows that she has received more than the others. Now I would say that if she destroys the stuff, she is simply being foolish. The principles of justice give her no reason to do so. Without at least even the possibility of interactions – and, indeed, without other factual conditions obtaining – the principles of justice give us no reasons to act one way or another.

Part II aims to rescue the concept of justice itself, and the argument is structured very differently. The critique does not proceed from tensions within Rawls’s work. Rather, we get an argument in defense of a certain meta-ethical position. Cohen remarks that “the meta-ethical literature says very little about the question pursued in the present chapter. But a notable exception is the work of John Rawls, who argued that fundamental principles of justice and, indeed, ‘first principles’ in general, are a response to the facts of the human condition” – which is exactly the position that Cohen rejects. (pp.258-259) Rawls is simply mistaken, Cohen thinks, because he confuses “the first principles of justice with the principles that we should adopt to regulate society.” (p.265)

First, definitions. A “principle” is “a general directive that tells agents what (they ought, or ought not) to do.” (p.229) And a “fact is, or corresponds to, any truth other than (if any principles are truths) a principle, of a kind that someone might reasonably think supports a principle.” (p.229) (Cohen recognizes a distinct sense of “fact” that might be suggested by the phrase “the moral facts,” but the meta-ethical question that this possibility raises is not his concern.)

Next, the thesis – “a principle can respond to (that is, be grounded in) a fact only because it is also a response to a more ultimate principle that is not a response to a fact: accordingly, if principles respond to facts, then the principles at the summit of our conviction are grounded in no facts whatsoever.” (p.229) Cohen is apparently using “respond to” and “grounded in” synonymously – and later he uses “grounds for affirming,” “reflects,” “represents a reason to endorse,” and “justifies” in similar ways. Cohen claims that his thesis applies “to anyone’s principles, be they correct or not, so long as she has a clear grasp both of what her principles are and of why she holds them.” (p.233)

And then the argument, which contains three premises:
1. “whenever a fact F confers support on a principle P, there is an explanation why F supports P, an explanation of how, that is, F represents a reason to endorse P. That first premise rests upon the more general claim that there is always an explanation why any ground grounds what it grounds.” This general claim, Cohen says, is “self-evidently true.” (p.236)
2. “the explanation whose existence is affirmed by the first premise invokes or implies a more ultimate principle, commitment to which would survive denial of F, a more ultimate principle that explains why F supports P.” (p.236) Cohen challenges anyone who denies this to “provide an example in which a credible and satisfying explanation of why some F supports some P invokes or implies no such more ultimate principle.” (p.236)
3. the process of citing more ultimate principles in the second premise cannot continue indefinitely. Cohen believes it is simply “implausible that a credible interrogation of that form might go on indefinitely.” Furthermore, such a process would require “something like an infinite nesting of principles, and few will think that there exist a relevantly infinite number of principles.” And finally, if such an infinite sequence were necessary to justify some fact-based principle, this would imply that the anyone affirming the fact-based principle did not have “a clear grasp of what her principles are and of why she holds them.” (p.237)

Hence, the conclusion: “every fact-sensitive principle reflects a fact-insensitive principle.” (p.237)

The picture is supposed to be something like this: Suppose we endorse a principle only on the assumption that certain factual conditions hold – say, assumptions about human nature or about natural or social circumstances. There is an explanation as to why these factual conditions are relevant, and the explanation is going to invoke another more general principle that is not dependent on those conditions holding. Repeating this procedure, we will eventually reach a principle that is not conditional on any factual assumptions at all – it is fully general in that sense. Although Cohen says that the more general principles explain why the facts are relevant, it seems to me that they also justify the more specific, conditional principles (in conditions where the relevant facts obtain). The issue is confused by talk of factual conditions themselves justifying principles. (That’s what calls for explanation, according to Cohen.) The correct question should not be why some fact justifies some principle, but why some principle is justified when some fact obtains. And when we ask that question, it becomes more clear that Cohen has an unduly narrow understanding of justification. This may also be revealed by his use of “grounding,” “reflects,” etc. as synonyms for “justifies.” What seems to be excluded is some kind of process of reflective equilibrium, in which justification goes not only from more general to more specific, but potentially in either direction. (See note 19 on p.243.) Perhaps Cohen holds that such a justification would not be sufficiently “satisfying.”

The reason this matters for Cohen, I think it is safe to say, is because it allows him to distinguish “fundamental principles” from “rules of regulation.” I think the next two chapters will be better places to discuss this distinction, but here I’ll just record what he says about the distinction and make one comment. A rule of regulation is “a certain type of social instrument, to be legislated and implemented whether by government itself or within social consciousness and practice. A rule of regulation is ‘a device for having certain effects,’ [quoting Nozick] which we adopt or not, in the light of an evaluation, precisely, of its likely effects, and, therefore, in the light of an understanding of the facts. And we evaluate those effects, and thereby decide which fact-bound principles to adopt, by reference to principles that are not devices for achieving effects but statements of our more ultimate and fact-free convictions [i.e., fundamental principles].” (p.265) (Elsewhere, e.g. p.21, he says that rules of regulation can be responsive to values other than justice.) My comment is simply this: given this characterization, the rules of regulation are not simply fact-dependent (non-ultimate) principles. And fundamental principles are not simply maximally general (non-fact-dependent) rules of regulation.

One reason this distinction is important is that Cohen thinks that philosophers should be especially concerned to identify fundamental principles. He complains that there has been “insufficient effort to identify” fact-free principles (p.269), and that “the question for political philosophy is not what we should do but what we should think, even when what we should think makes no practical difference.” (p.268) This may seem somewhat peculiar since a principle is practical by definition – it’s “a general directive that tells agents what (they ought, or ought not) to do.” (p.229) His point, I think, is that philosophy should still be concerned to distinguish between principles that differ in their recommendations only under circumstances that do not and will not obtain. The choice between two such principles makes no “practical difference” but is still important for philosophers. It is only when we know what our principles recommend under all conceivable factual circumstances that we will fully understand them.

But if Cohen wants us to focus on ultimate principles, how does he think they should be justified? Officially, he remains agnostic. He specifically rejects the implication that “ultimate principles cannot themselves be justified.” (p.238) He believes he is only committed to the claim that “ultimate principles cannot be justified by facts.” (p.238) But facts are anything other than principles. So if principles are not justified by facts, they can only be justified by other principles. And ultimate principles must somehow be self-justifying or not justified at all. Rawls’s characterization of this position as a form of “rational intuitionism” seems appropriate.

An alternative model of justification, I suggested above, is some kind of reflective equilibrium. If that’s right, then justification proceeds from where our considered judgments are most secure. And as Cohen recognizes, our most secure moral judgments are fact-dependent: “it is, for example, bewildering to try to say what principles we would affirm for beings who were otherwise like us as we are in our adult state but whose normal life spans occupied only twenty-four hours…” (p.246) Yes, that is bewildering. I suppose that if pressed, I might concede that we don’t fully understand the concept of justice until we know what it would require for beings such as that – and for all other conceivable beings in all conceivable circumstances. But there are still plenty of things that we – or at least I – don’t understand about justice for beings like us in circumstances like those that we face. And I’m quite confident that our prospects for improving our understanding of justice are greater when we make certain factual assumptions, even if doing so postpones the question of justice in its full generality.

It’s interesting to compare “The Times of Harvey Milk” to “Milk.” Despite Sean Penn’s amazing performance, I like the documentary much better – but this very well could reflect my own failings in film appreciation. Some footage is used in both – including the Feinstein announcement. But the clips don’t always serve the same purpose. In “Milk”, they show President Carter telling an audience to “vote against proposition 6” – the 1978 California initiative to prohibit gays and lesbians (and arguably anyone who supported gay rights) from teaching in public schools. But “The Times of Harvey Milk” shows more. Carter had finished his speech, and began to leave the podium. Off-mike, Governor Jerry Brown says to him: “and Ford and Reagan have already come out against it, so it’s perfectly safe.” Carter leans back to the mike and says: “Also, I want to ask everybody to vote against proposition 6.” He smiles, and walks off. Anyway, whether or not you’ve seen “Milk,” you should find 1-1/2 hours, brace yourself, and watch “The Times of Harvey Milk.”

Dear Amazon.com Customer,

We’ve noticed that customers who have purchased or rated Political Liberalism (Columbia Classics in Philosophy) by John Rawls have also purchased Do the Right Thing: Inside the Movement That’s Bringing Common Sense Back to America by Mike Huckabee. For this reason, you might like to know that Do the Right Thing: Inside the Movement That’s Bringing Common Sense Back to America will be released on November 18, 2008.

But Greenspan is the more interesting case. In a speech at Georgetown Law School on October 2, against a background of boilerplate about the wonders of the free market, he argued [pdf]:

Another important requirement for the proper functioning of market competition is also not often, if ever, covered in lists of factors contributing to economic growth and standards of living: trust in the word of others… In a market system based on trust, reputation has a significant economic value. I am therefore distressed at how far we have let concerns for reputation slip in recent years… During the past year, lack of trust in the validity of accounting records of banks and other financial institutions in the context of inadequate capital led to a massive hesitancy in lending to them. The result has been a freezing up of credit.

G.A. Cohen – critical of Rawls’s institutional focus – is sometimes accused of being exclusively concerned with the ethos of a society and individual behavior, rather than the background institutional structure within which individuals act. In his new book, he denies this – both are important for justice, he says. Unlike Cohen, Greenspan really does seem to be blaming the market participants rather than the regulatory regime – market players should have been more concerned about their reputations. As the Times article summarizes his view, traders “got greedy” and sacrificed their “integrity.” I’m pretty sure Greenspan, the Ayn Rand acolyte, wouldn’t quite put it this way, but still, he holds that no institutional changes could have altered the outcome.

At the same time, of course, he holds that now there’s plenty for the government to do in cleaning up the mess that irresponsible individuals have produced: “the federal government must take aggressive steps to protect workers and businesses from the harmful effects of a financial crisis. The great majority of those deserving this protection had no role in causing the crisis.” Hmm. I thought market transactions weren’t supposed to harm innocent third parties. But when they do, self-professed libertarians “urgently advocate immediate, extensive action that would … prevent a serious economic contraction.” But not, apparently, greater disclosure on market transactions.

The contrast between these two locations is confirmed to some extent by Walk Score. Our old house was a lowly 23 while our current house gets a 68.

But what is a non-neutral reason? Well, there are some obvious examples such as: that a person’s conception of the good is false; that some activity would displease God; that pursuing some goal would not realize some higher faculty to the greatest extent possible. In fact, he provides a list of 12 such non-neutral reasons. Can we provide a unified analysis of what makes these reasons non-neutral? No – at least De Marneffe hasn’t been able to do so. There seems to be no morally relevant property that all non-neutral reasons share. The idea of neutrality seems to unify various ideas of liberty, but it does so in name only. At the level of philosophical analysis, then, the idea of neutrality does little work. However, this is consistent with saying that the principle of legislative neutrality is substantively defensible, that is, that those 12 types of reasons fail to justify coercive legislation.

Two additional notes. First, legislative neutrality does not rule out all forms of paternalistic legislation, since in some cases it might be possible to offer justifications that are not listed among the 12 types of non-neutral reasons. This shows that the Neutrality Principle is a superior successor to the Harm Principle. Second, Rawls’s idea of public reason does not provide a unifying analysis of neutral (or non-neutral) reasons because a liberal, political conception of justice may still be non-neutral. Consider, for example, Rawls’s two principles of justice followed by (given lexical priority over) a principle allowing the government to promote certain conceptions of the good through ordinary legislative action based on majority preference. According to Rawls’s criteria, this counts as a liberal conception, and it is not based on any particular comprehensive doctrine, so it is political. Yet, it seems to violate the principle of legislative neutrality (although it depends how this is spelled out precisely). (It seems to me that this suggests the idea of “constitutional neutrality” which may have been closer to Rawls’s position than “legislative neutrality.”)

Next, Jacob Levy asked “Is Neutrality Sustainable?” The question concerns the relationship between the justice of institutions and the virtues of individuals. The challenge goes like this: the stability of just institutions depends on the virtues of individuals, but neutral liberal institutions cannot foster the necessary virtues among citizens. Critics have tended to assume that the relevant virtues can only be promoted through deliberate state action, but this is not at all clear.

After all, historically liberal institutions emerged out of non-liberal institutions, and presumably there were not already liberal individuals pushing for this emergence. Or at least there weren’t already liberal institutions to create the virtues among the relevant virtues among the individuals who created the liberal institutions. Kant, in particular, recognized the possibility that institutions may improve morally without a prior moral improvement among citizens. So, the case has not been made that neutral institutions must be unstable. He ended by suggesting that the state has obligations of neutrality in its domain, but so do other institutions in their own limited domains.

Ruwan Ogien then presented “A Minimalist Justification for State Neutrality.” Although most discussions are concerned with neutrality among controversial conceptions of the good, we should still remain neutral even if there is empirical agreement on (part of) a conception of the good in a given society. Where there is controversy, neutrality can be based on the need to preserve peace and stability. The case for neutrality is harder where there is agreement. The fundamental case for neutrality rests not on a contrast between the right and the good, but between what we do to ourselves and what we do to others. Sometimes it is argued that attempts to promote a specific conception of the good will be self-defeating, because in order for a life to be good, it must be freely chosen. But this assumption is itself a controversial assumption about the nature of the good life. More narrowly, however, it is self-defeating to try to force someone to live an autonomous life. Mill himself defended the Harm Principle on utilitarian grounds, but in fact, it is older – part of the French Declaration of the Rights of Man, and Raz defends it on autonomy grounds. So, the Harm Principle is something like a fixed point in our common sense morality and it can be given different justifications.

Richard Arneson criticized neutrality in “Neutrality and Political Liberalism.” He began by questioning the alleged asymmetry between controversies about the nature of the good, which requires neutrality, and the treatment of controversies about the nature of the right, which does not. An explanation for this asymmetry, perhaps, is that it is only reasonable controversy about the good which disqualifies the use of specific conceptions of the good. But is there reasonable disagreement about whether “same-sex sex” is good? Empirically, there would seem to be, but it doesn’t seem reasonable. If we attempt to base our defense of same-sex sex on a general right to autonomy, this would require the promotion of equal opportunity for sexual goods. If the state can promote racial harmony – and equal opportunity along this dimension – it can also promote same-sex tolerance and equal opportunity along that dimension. But this involves declaring it to be good (or at least not bad).

Political Liberalism fails as an interpretation of neutrality because affirming a particular comprehensive doctrine while recognizing others as rational and reasonable is incoherent. Or at least it would be incoherent once the reasons for and against it are shared and understood. And insofar as the best evidence available is inconclusive, we should be indifferent or unsure. If we relax our standards and require not full rationality but some range of normal human imperfections – so that we require a person to be merely “somewhat responsive to reasons” – then there is no hope of achieving an overlapping consensus. If we have a broad and inclusive account of “reasonable,” we’re not going to be able to generate any specific principles or policies. If we have a narrow and demanding account of “reasonable,” we’re not going to have divergent comprehensive doctrines and we will not be neutral among conceptions of the good.

The next speaker was Alan Patten, “Religious Accommodation and Religious Neutrality: Accommodating Conscience.” Liberty of conscience certainly includes liberty of belief, but what about acting on those beliefs? Clearly two extreme positions are inadequate: liberty of conscience is not only about beliefs and not actions, nor does it require tolerating any and all actions. Contrast two models for drawing the limit. The priority view says that restrictions on conscientious action are acceptable only if there are strong reasons for doing so. The formal view holds that restrictions are permissible only if the restrictions are neutral (in aim) among conscientious positions and must not make accommodations to other comparable concerns. In other words, the formal view does not directly weigh the strength of reasons. The key type of case where they differ will be one in which a non-discriminatory policy conflicts with conscientious action that is adopted for neutral reasons, but these reasons aren’t very strong or important. In such a case, the priority view says that the restriction is not okay while the formal view says that it is. This tells in favor of the priority view, although recent Supreme Court decisions seem to favor the formal view.

The final speaker on the first day was George Crowder, “Neutrality and Liberal Pluralism.” Crowder developed an account of the relationship between value pluralism (along the lines of Berlin) and liberal neutrality. But this limited accommodation is compatible with a moderate perfectionism that also supports autonomy. The pluralist holds: 1. some moral values are objective and universal; 2. there are multiple and irreducible such values; 3. these values often conflict; 4. they are incommensurable. Such a position is not relativism, which denies the universality of any values. How is rational choice (and really the issue seems to be the choice of social policies rather than individual decision-making) possible? Three models: 1. subjectivist – choice is non-rational, so we get a kind of agonistic politics (rather than looking for a consensus); 2. contextualist – rational choices can be made given a context, which can be understood as a culture – this suggests a kind of conservatism; 3. conceptual – value pluralism itself may give reasons for liberalism.

The conceptual account goes as follows: 1. respect for plurality of the goods requires that we recognize the goods that could contribute to a good life, even if we cannot accommodate them all and regret those that we do not realize. 2. although we cannot promote all values (since many are incompatible), there is a presumption in favor of inclusion – liberalism is not neutral in this regard but promotes diversity. 3. there is room for reasonable disagreement since pluralism holds that there is a diversity of reasonable rankings of goods. 4. to choose well under pluralism is to think for ourselves and not simply to rely on tradition or other rules. Autonomy is not just one more of the pluralistic values, on this account, because it follows from the basic commitment to respect the plurality of values. Although autonomy is not always given priority over other values, there is a strong (but rebuttable) presumption in favor of it.

The second day started with Christine Sypnowich, “Human Flourishing: A New Approach to Equality.” The ultimate answer to the question “equality of what?” is flourishing. If people flourish equally, we don’t care what other inequalities there might be. On the one hand, liberals tend not to take flourishing seriously, while on the other hand, perfectionism seems largely uninterested in equality. We need to develop a form of egalitarian perfectionism. Historically this has not been an uncommon position and was exemplified by William Morris. Flourishing has three elements: 1. autonomy; 2. objectively valuable pursuits; 3. happiness (understood subjectively). It is too much to expect that we could equalize flourishing since, among other reasons, people just have different characters which will always result in different levels of happiness.

A major concern is people who have capabilities but choose not to realize them. Providing an unconditional social minimum may be disrespectful toward our capacity for self-discipline. Feeling that one is deserving is itself part of well-being, so if society picks up the tab for bad decisions, this may actually be harmful. Still, we should not assume that all forms of flourishing are productive. Surfing may be an example – think of it as a kind of art – even if surfers are missing something by not contributing to social production.

Another major concern is the charge of paternalism. But perfectionism need not be monolithic or coercive. In fact, coercion is incompatible with perfectionism since part of flourishing is autonomy. If people are coerced, they are not flourishing. Still, sometimes autonomy must give way to objective content. Market relations, in particular, are not neutral but promote certain values, often incompatible with the objective goods of flourishing. Social policies always encourage some values over others, so they should be guided by a proper account of flourishing.

During discussion, Daniel Weinstock clarified an earlier remark of his about the relative availability of pop music (“Britney Spears”) and classical music (“Benjamin Britton”). On his view, it makes sense for the state to subsidize classical music so that people have a genuine choice regarding what to listen to. Sypnowich replied dismissively that this is what she would expect from a liberal – the real reason we don’t subsidize polka music (her example) on the radio is because “it’s crap.”

Next was Andrew Lister, “Public Reason, Liberal Neutrality, and (Same-Sex) Marriage.” Opponents of same-sex marriage say that it is incompatible with God’s will. Sandel distinguishes two replies – the “naïve” view engages with and denies the claim directly, while the “sophisticated” view says that God’s will, whatever it is, is irrelevant to social policy. But marriage is itself a public affirmation of the value of certain type of relationship. Is it possible to defend marriage on the basis of public reasons at all? After all, marriage is not only a private contract – it can impose social costs, for example, in granting immunity from testimony against a spouse. It is possible to make an instrumental argument based on public reason for a two-person family – it serves children better than alternatives, for example. But the empirical grounds for this claim are not so clear. And even if it is true, its truth depends on other social conditions, such as the lack of availability of socialized child-rearing. Any attempt to specify an account of public reason in terms of “reasonable acceptability” will have to specify the precise conditions under which acceptability is assessed.

Steven Wall attempted to develop a limited neutrality within a broader perfectionism in “Pluralistic Perfectionism and Restricted Neutrality.” Like Crowder, he began from an account of value pluralism. If reasons run out in selecting among some values, there will be no rational grounds for choice among models of a good life A, B, and C, and some people may opt for each. Perfectionists allow the state to promotion the (or a) good life. But perhaps the state should be neutral among A, B, and C since each is a form of the good life and exemplifies different and competing values. Restricted neutrality allows the state to promote good lives over mistaken or bad ones, even if the mistaken views have adherents. This account is a non-neutral defense of neutrality. But why be neutral among A, B, and C? If the state were to favor one over the others, it would be arbitrary and this would be unjust discrimination. But favoring these over a mistaken conception D would not be arbitrary or unjust. As Rawls emphasizes, self-worth is important and the social basis of it is important, as well. However, the self-worth of someone wrapped up in an unworthy way of life is problematic.

Stephen Macedo gave a broad defense of public reason against various criticisms in “Neutrality and Public Reason.” He began with a quote from Barak Obama (from 2006) which was remarkably close to Rawls’s idea of “inclusive public reason.” Although the idea of public reason has liberal credentials, fundamentally it is democratic – it’s a way for a polity to engage in collective deliberation and decision-making. Adherents of religion may feel excluded – that the society doesn’t respond to their sincerely felt beliefs in the way that they would want – but this is simply because of the fact of diversity. Public reason does not lead to “sanitized” philosophical argument – there remains plenty of room for the “rough and tumble” of ordinary politics. And there are good grounds for giving special protection to the process of political deliberation itself. A political community is a special kind of community with its own duties and norms, and it is possible that these norms may conflict with those of other communities. There will always be a potential tension between the political norms of a diverse society and the norms of the various religious communities. And in some cases, individuals will follow the norms of their particular communities rather than the political norms.

Anthony Appiah apparently cut short in the interest of time his discussion of “Expressive and Instrumental Neutrality.” We should think of neutrality as an expressive ideal. It prohibits the state from favoring people on the basis of their identification with some group. For example, left-handed people are disadvantaged by some state policies. But this is not due to hostility toward members of that group so is not a violation of neutrality. Rather, it is based on the need for uniformity in certain matters, which is then left up to majority to decide based on considerations of efficiency. So it is unlike a policy that involves discrimination against a group on the basis of their identification with it. Some, like Nagel, argue that neutrality is required where(ever) there is coercion. But this is inadequate. Consider a proposal that bans Sikhs from wearing turbans because they have been subject to bigoted attacks when they do. The protection of Sikhs from attacks is a good public reason and their desire to wear a turban is not based on a public reason. Still, it would be wrong to ban the wearing of a turban on this ground. Toleration is required because of the requirements of equal respect – and this is a matter of expressive neutrality.

Lastly, Joe Heath presented “Political Egalitarianism” – with “political” understood in Rawls’s sense. It is surprisingly common to see appeals to egalitarianism that obviously go far beyond the limits of “the political.” Of course, sometimes this is done as part of a self-conscious effort to generate a comprehensive or partially comprehensive moral doctrine. But it is also common in political discussions. Luck egalitarianism is an example of this. As soon as we start to take seriously the demand for a political answer to the question “equality of what?” we are pushed in the direction of relying on an account of welfare. Rawls (apparently) bases his choice for “narrow scope” egalitarianism – in which only the benefits of cooperation are the object of egalitarian distribution – over “wide scope” egalitarianism – in which the accidents of birth are also compensated for – on the strains of commitment argument. Nobody should be expected to sacrifice everything (or too much) for others. This leaves him vulnerable to Cohen’s reply that we force people to sacrifice for each other all the time. A better defense of narrow scope egalitarianism emphasizes the need for a political argument. The problem isn’t the difficulty of motivating people to sacrifice for one another. It is the justificatory burden in a political context in arguing for wide scope egalitarianism. This type of narrow scope egalitarianism is compatible with endorsing a threshold conception (non-egalitarian) for dealing with radically different capacities.