More than modus vivendi, less than overlapping consensus ... · More than modus vivendi, less than...

Compromise

Compromis

Christian Arnsperger and Emmanuel B. Picavet

More than modus vivendi, less than overlappingMore than modus vivendi, less than overlappingconsensus: towards a political theory of socialconsensus: towards a political theory of socialcompromisecompromise

Abstract. Political theory often relies on a definite vision of the lack of consensus,which does not necessarily exclude the possibility of some modus vivendi. It turnsout however that a mere modus vivendi is widely felt to be insufficient to warrantpolitical stability and a well-ordered society. Starting from distributive-justice issuesand problems of ethical conflict in democratic society, it is argued that the middleground between a mere modus vivendi and full-blown consensus has room for auseful concept of compromise which accounts for basic aspects of the dynamics ofpolitical arrangements.

Key words. Compromise – Consensus – Distributive ethics – John Rawls – Modusvivendi – Negotiation – Public values

Resume. La theorie politique s’appuie souvent sur une certaine vision de l’absencede consensus, et cela n’exclut pas necessairement la possibilite d’un modus vivendi.Or, un simple modus vivendi est souvent percu comme insuffisant pour garantirla stabilite politique et une societe bien ordonnee. En partant de questions de justicedistributive et de problemes de conflits ethiques dans les societes democratiques, lesauteurs defendent la these d’apres laquelle l’espace intermediaire entre un simplemodus vivendi et un consensus authentique peut accueillir un concept de compromisrendant compte utilement de certains aspects centraux de la dynamique desarrangements politiques.

Mots-cles. Compromis – Consensus – Ethique distributive – John Rawls – Modusvivendi – Negociation – Valeurs publiques

Social Science Information & 2004 SAGE Publications (London, Thousand Oaks, CA and New

Delhi), 0539-0184

DOI: 10.1177/0539018404042579 Vol 43(2), pp. 167–204; 042579

www.sagepublications.com

1. Introduction

Our aim in this article is to investigate the potential role of compro-mise as an autonomous category for political philosophy. As amatter of fact, the category of compromise has been given littleroom alongside those of modus vivendi and consensus. This margin-alization seems partly unwarranted (a) given the fact that, in thehistory of Western social democracies, various forms of ‘‘class com-promise’’ grew out of the increasing realization that open ‘‘class con-flict’’ – or, rather, its constant threat – had to yield to a form ofnegotiated conflictuality;1 and also (b) given the fact that difficultethical issues in democracies appear to be dealt with through a com-promise between conflicting views, a compromise located at somedistance from an idealistic consensual construction of a commonnotion of the good or the just. This passage from struggle to compro-mise through a transformation of unregulated conflict into negotiatedconflictuality provides at least one precious indication: compromisehas nothing to do with the abandonment or the mere denial ofconflictuality, but rather concerns a change in the form(s) of conflic-tuality. It is not ‘‘peace’’ in the Kantian sense of a suppression of anycause of future conflict (as investigated in Kant’s Perpetual Peace).Modern bargaining theory has made this quite clear, since ‘‘strik-

ing a compromise’’ means essentially agreeing on a certain pointlocated at some distance from each party’s so-called ‘‘fall-back posi-tion’’, i.e. the position which each party could guarantee itself in theabsence of a compromise. But formal models of bargaining –whether static or sequential – give us little feel for the tense, held-back conflict which inhabits the bargaining ‘‘solution’’ itself. TheNash bargaining solution, which says that the negotiated solutionwill depend both on the parties’ relative preferences and on theirrespective ‘‘weights’’ in the negotiation process, gives little evidenceof the lurking tension which coexists with the apparently reasonableoutcome, and this is still the case in such dynamic models of bargain-ing as that of Ariel Rubinstein (1982). What is at stake here is theextent to which human reason is or is not able to ‘‘transmute’’ conflictby allowing the negotiated dimension to supersede the dimension ofpure brutality or of power-mongering.Within the last 30 years, two game theorists and one philosopher

have coined expressions which provide evidence for the philo-sophical puzzle posed by compromise as negotiated or regulatedconflictuality. Robert Aumann (1976) wrote about ‘‘agreeing to dis-

168 Social Science Information Vol 43 – no 2

agree’’ – a highly paradoxical, and even oxymoronic, expression;some years later, David Gauthier (1986) offered a theory of‘‘morals by agreement’’, where he used bargaining theory in anattempt to construct a neo-Hobbesian theory of politics; finally,Yanis Varoufakis (1991) wrote a summa entitled Rational Conflict,which studies bargaining outcomes and evolutionary games.

Two theses which deserve close examination are thus carried tothe forefront of social or political analysis (although we are notclaiming that these theorists have had projects similar to our own):(1) reason can regulate conflict in organized social life, rather thansimply denying it; (2) conflict is not incompatible with con-sequence-oriented rational behavior, even when its products areundesirable, so that conflict can be analyzed through reason andits mechanisms clarified from a rational-choice perspective (seeHirschleifer, 1995). These two ideas, of course, are two sides of asingle coin – namely, the opportunities of a rational ‘‘channeling’’ ofconflict into non-destructive social ways of life, through an adequateunderstanding of the mechanics and the sources of conflict.2 In theend, the notion that, under rationalized conflict, antagonistic indi-viduals and groups can construct some kind of agreement if onlythey can agree to disagree is dependent on one’s faith in reason asan effective regulator of social conflict – that is, one’s belief in thefact that rationality and conflictuality need not be mutually incom-patible. This was already neatly brought out, in a more or lessdefinitive manner, in the Hobbesian characterization of the lawsof nature as theorems established by (calculative) reason, which arecapable of regulating human interaction in a way that makes thisinteraction dramatically more profitable than the disastrous ‘‘stateof nature’’. What is left open for examination to this day is thepossibility of a rational regulation of conflict in a democratic envir-onment, where absolute submission to a sovereign will is not thenorm in dealing with ordinary social conflict.

We would like to take the debate a few steps in that directionthrough an investigation of the theoretical opportunities for develop-ing a compromise-based political philosophy. First of all, we analyzethe reasons why ordinary conceptions about political life compelus to think about social justice in terms of compromise (section 2).We then show that this shift in fact enriches the spectrum of politicaltheory (section 3): the figure of compromise supersedes in rele-vant respects, and improves upon, the not uncommon view ofpolitical life as a mere modus vivendi (subsection 3.1), and it allows

Arnsperger and Picavet Compromise 169

us to argue that something less than full-blown moral agreement onjustice is required for the analysis of political processes (sub-section 3.2). Thus, we want to formulate a twofold claim: in liberalsocieties, the figure of compromise possesses an intrinsic dignitywhich has been underplayed both by supporters of a ‘‘modusvivendi’’ view and by supporters of a ‘‘social consensus’’ ethical view.

2. Moral unity vs disruptive conflict: two insufficient tools for

political theory

2.1. The seemingly unending quest for ‘‘common values’’

In a democratic environment where opinions can be freelyexpressed, where various individuals and groups can hope to havetheir own way through elections and organized pressure (whichgive them a causal influence on social states of affairs) and wheresocial choices are not delivered in the form of acts of an unquestion-able authority, fears of division and ethical tension are usually verydeep. Statements about the pressing necessity not to divide thepeople and not to allow differences to result in political troubleare frequently heard in democratic political life, presumably inresponse to anticipated hazards to what used to be described asthe health of the body politic. For example, in contemporaryFrance the repeated attacks of politicians on ‘‘communitarianism’’(whether theoretical or practical) would hardly be understandable,given the lack of understanding of that notion in the generalpublic at the moment, were it not for the perceived dangers of ethicalsecession on the part of various social groups who reject, or arevictims of, some of the country’s collective choices: the very poorquite generally, as well as a fraction of the unemployed or pre-cariously employed workers, and also religious people or ethicalgroups who are dissatisfied with the collective ethical choices –think of education, attitudes towards religious practice, andbioethics.3 Simultaneously, political philosophy, considered as aspecific subject, has always been studied (from Plato onwards) inconnection with the risks of dissolution of the harmonious wholeunder the pressure of particular interests and concerns.When pluralistic social life under freely accepted authorities is the

guiding ideal (rather than absolute submission to a ruler or a rulingbody, and the replacement of individual viewpoints by an over-


arching one), agreement on common ethical values and basic normsmay appear indispensable to make sure that the body politic cannotbe torn apart by particular interests and value conflicts.4 This leadspolitical theory directly into ecclesiological questions (what do wehave in common at the deepest ethical level? what are ourcommon values and faith? what is the real, moral cement of ourunity?), in spite of the predominantly contingent causes whichaccount for the fact that some people happen to be citizens of agiven country. In a universe of moral plurality among nations(where many things are both considered horrible crimes in someplaces, and viewed as normal facts elsewhere – think of procuring,marijuana dealing or euthanasia across European countries), thisperspective results in nation-based communitarianism, with specificvalues attached to the birthplace or the residential location. A cor-ollary of nation-based communitarianism is the ideal of ‘‘integra-tion’’ as a perspective for immigrants – by which is commonly meantnot only the good development of individuals in their host country(an imperative we could derive from the 1948 Universal Declarationof Human Rights), but also their acceptance of the so-callednational (moral) values, including some basic conception of thejust and the unjust (compliance with laws being commonly con-ceived as ‘‘just’’ per se, whatever their content). This moral ideal,which is so deeply influential in contemporary France for instance,amounts to an invitation to join together in one single ‘‘faith’’about justice (much along the lines of a public conception of justice,as philosophers think of it). Public attacks on infra-national com-munitarianism and other supposedly divisive doctrines seem to beconsidered a necessity to preserve the ‘‘purity of the faith’’.

To be sure, it is a remarkable fact that, in modern democracies, inwhich ethical and political pluralism is widely considered a goodthing, the quest for common (national or universalistic) values isstill ongoing (and perhaps accelerating), in spite of the troublesomeevidence of deeply – perhaps even increasingly – contrasting viewsabout justice, morality and the good society. In this context, theoriesof justice as philosophers think of them are eagerly seized upon bypolitical authorities, with a view to their ‘‘application’’, in aneffort to examine their ability to express or make explicit ‘‘real’’common values on which a consensus is, or ought to be, possible.One may think of the unending quest for charters of fully developedrights (to go beyond the UN Declaration of 1948), and also of theperiodic reassessment of the specificity of ‘‘American’’ as opposed


to ‘‘European’’ values, sometimes with neo-nationalistic or national-communitarian overtones.This intriguing feature of modern political life has something to

do, we conjecture, with the reluctance to think of the democraticprocess in a pluralistic society as a process of compromise betweenexisting interests and values which need not merge into a single con-ception of justice (just as we may or may not become friends withour colleagues). With the potential usefulness of this milder concep-tion of political unity going unnoticed, the only favored model issome agreement on a particular, fully developed conception ofjustice (even if this conception does not cover all aspects of sociallife – a limited but monistic view which is, for example, a leitmotivin John Rawls’ philosophical writings).

2.2. Limiting conflict without changing one’s mind: the importanceof rational avoidance

Such a milder conception of political unity needs to make rationalityand conflictuality compatible. This opens the way for a crucial ques-tion. Clearly, within a framework of ‘‘compromise as rational con-flictuality’’, strategic rationality appears as the central behavioralcategory of the actors. But rational actors are concerned withpeace and cooperation no less than with successful threat and co-ercion. What are, then, the relative weights to be attributed to theoffensively strategic dimension (i.e. strategic behavior aimed atextracting maximal surplus for one’s own party whatever themeans, including the threat of violent or coercive actions) and tothe peacefully strategic dimension (i.e. strategic behavior aimed atfostering peaceful cooperation partly by keeping visible disagree-ment within individually acceptable limits)?Along with our view that it is unnecessary to substitute a single

public conception of justice for conflicting individual values, ourcentral thesis in this article is that rational conflictuality requiresboth the offensively strategic and the peacefully strategic dimensions,and that, in modern liberal societies, compromise cannot be ade-quately understood as an outcome resting merely on a balance ofoffensively strategic pretensions. This would be too much of a reduc-tion, and we could not then make full use of the potential of thisconcept for political theory.


In liberal societies, the ‘‘mutual threat’’ aspect, which makes itirrational for any one party to deviate from the equilibrium point,is supplemented, and possibly even rendered unnecessary, by the‘‘rational avoidance’’ aspect, which makes it irrational for any oneparty to insist on having their own views fully implemented at theexpense of all others.

As has been argued more extensively elsewhere (Picavet, 2003,2004), one of the implications of such a view of liberal social com-promise may be that certain contemporary forms of behavior orforms of life, while having increasingly come under attack as beinganomic or as spelling the ‘‘end of ideology’’, may in fact have aperfectly rational foundation. This could be true of the increasing‘‘privatization’’ of ethical or ideological debate (with substantialpolitical debate becoming a living-room activity rather than anaspect of political careers), the growing ‘‘dullness’’ of the topics leftfor collective discussion in the public sphere, etc. These phenomenamay be due not to a loss of social commitment or of personal interestin ethical issues, but to a realization by citizens that expressingcertain preferences publicly, or acting in accordance with somemoral principles, may lead to poor results, all things considered.

The positive results of my own action can be insignificant, forexample, if my concern is with a very general cause such as environ-mental protection (most people will pollute anyway) or a desperatecause (such as hostility to meat-eating). Sometimes, people defendcauses which are non-local in the sense that (1) ‘‘this will be doneelsewhere, anyway’’ even if we see to it that it is not the case ‘‘here’’and (2) what really matters is whether it happens somewhere ornot, rather than specifically whether it happens in one’s own countryor before one’s eyes or in one’s neighborhood, except perhaps forsymbolic reasons (think of the fight against abortion, pornography,male supremacy or the lack of religious faith in various countries).Moreover, the outcome can involve personal trouble (losing friends,losing one’s reputation) as well as conflicts which can be resolvedonly by some options crushing others and asserting themselves,not through conclusive rational argument (when incommensur-ability makes this impossible), but through destructive assertionsof brute power, diffuse mutual hostility in the population and harm-ful games of political influence.

In such cases, which have a close affinity with the classic examplesof irreducible value conflicts in political theory, there are mechan-isms which lead to a definite limitation in the choice of the means


to promote one’s own cause through conflict with others. Obviouslyenough, this limitation, which is so important for peaceful sociallife, in no way implies that people will change their mind aboutthe just and the unjust in public life. Nor should we misinterprettheir well-warranted and calculated prudence by saying that theyare led to believe that they should change their mind in favor of anew moral outlook.The drawbacks and the low magnitude of the concrete interests

one may further through one’s own action must normally be takeninto account by rational individuals when they consider expressingtheir own views in the public sphere. This can limit the clashes ofvalues, which are sometimes described in a picturesque mannerby political writers (from the Weberian ‘‘war of the gods’’ to the‘‘clash of civilizations’’). Hence, also, the possible rationality ofindividual disinterest for some aspects of the democratic process(notably, party activity). To be sure, these agreement-buildingfactors are not in themselves of a moral nature; rather, they act asconstraints on individual efforts to reach some kind of good result(this result being possibly characterized in part by moral con-siderations). These factors can only be analyzed in the light of indi-vidual rational choice in the instrumental sense. Nevertheless, it isimportant to analyze the chances that spontaneous agreement oncommon terms might emerge. This is because liberal moral theory,by contrast, emphasizes the need for a morality-based consensuson justice, precisely from reasons which pertain to the requirementsof peaceful life in a common natural and institutional environment.People with very different views about morality and the good life,

according to the standard liberal argument, can live together in apeaceful manner only if they are prepared to accept an alternativemorality (perhaps exchanging their own comprehensive doctrine infavor of a political view of justice). What then if people are in factcapable of living together peacefully while keeping to their ownconception of justice? Observation of ordinary life in democraticcountries with very deep ethical divisions, such as France or theUnited States, provides some evidence that people with radicallyantagonistic views are in fact capable of confining their quarrellingwithin reasonable limits, especially when the political supremacyof one particular view or set of views (say, in the form of certainofficially proclaimed ‘‘rights’’) is out of reach for all parties.Thus we should pay attention to the possibility of peaceful social

life within the limits of a calculated limitation of one’s means of


action, and we should be prepared to envisage the theoretical optionin which the resulting kind of practical agreement (or equilibrium ofclaims) is not to be set aside too quickly as unreasoned or ill-reasoned agreement.

After all, is it not strange that political theory appears to be sodeeply concerned with the memories of civil wars when the issuesto be examined are those of ordinary collective choices about ques-tions which simply happen to be of interest to individuals with viewsabout morality and justice? This leads to arguments in favor ofchanges in personal moral outlook which are perhaps unwarrantedfrom a political perspective. To be sure, the political risks associatedwith ethical tensions should not be underestimated; but conflict isnot necessarily an all-or-nothing issue; it can be a matter of degree,5

and some conflicts are acceptable within a business-as-usualframework.

2.3. Retreating from the ideal of moral unity: a cautious move

At the same time, in liberal societies the abandonment of a mutual-threat perspective does not mean that the disagreements whoseexpression is being rationally channeled do not remain alive.Indeed, what the postwar idea of a Fordist compromise sought tomaterialize was a regulated sphere for the continuation of disagree-ment and for the constant renewal and circulation of mutuallyincompatible claims.

Obviously, if consensus just emerges as the result of individualvalues, there is no ground for rejecting it since it is – by definition– consensual; the only problems left should have to do with thecontent of the terms of the consensus. What remains doubtful isthe usefulness of a philosophical methodology in which we try toconceive of a consensus by constructing a procedure that merelyreplaces one individual perspective on justice by an alternative one.While the fact that social antagonisms may be forever unbreachablehas been a constant object of deep preoccupation for all of post-Machiavellian political philosophy (Arnsperger, 2002), endeavorsin the Rawlsian vein to create the social and cognitive conditionsfor an ‘‘overlapping consensus’’ between irreducibly antagonisticcomprehensive conceptions of the good (Rawls, 1993, 1999a)appear to neglect some deep implications of irreducibility itself –even if we should take good notice of the evolution of Rawlsian


theory, from A Theory of Justice to Political Liberalism and beyond,with an increasingly modest moral content.6 We run the risk ofplacing excessive faith in the ability of those who hold a given com-prehensive doctrine to renounce that doctrine in favor of a proble-matic ‘‘single higher-order view’’ about justice, or reason, or thegood polity.The next question is therefore: what do we stand to lose if we

retreat from the ‘‘single higher-order view’’ ideal? Surely there ismore philosophical richness in theories which allow for ‘‘publicreason’’ or, quite generally, a ‘‘public’’ perspective on ethical prob-lems. Consider, for example, John Rawls’ two examples in section 3of ‘‘The Idea of Public Reason Revisited’’ (Rawls, 1999b). The firstis the sad story of ‘‘Catholics and Protestants in the sixteenth andseventeenth centuries when the principle of toleration was honoredonly as a modus vivendi. This meant that should either party gainits way it would impose its own religious doctrine as the sole admis-sible faith’’ (1999b: 589). The second example is the following, morecomplex one:

a democratic society where citizens accept as political (moral) principles the sub-

stantive constitutional clauses that ensure religious, political, and civil liberties,

when their allegiance to these constitutional principles is so limited that no one

is willing to see his or her religious or nonreligious doctrine losing ground in influ-

ence and numbers, and such citizens are prepared to resist or to disobey laws that

they think undermine their positions. And they do this even though the full range

of religious and other liberties is always maintained and the doctrine in question is

completely secure. (1999b: 589)

In his analysis of these two examples, Rawls puts forward anessential alternative between mere modus vivendi, on the one hand,and the acceptance of politically appropriate moral principles ofjustice, on the other hand (more precisely, in the language of hislate philosophy, the recognition of ‘‘public reason’s role in determin-ing legitimate law’’). In both cases, stability is possible: the constitu-tion can be honored as ‘‘a pact to maintain civil peace’’ (especiallywhen antagonistic religious communities have stable relativeshares of the population ‘‘for the indefinite future’’); discussion interms of political ideas and values serves ‘‘to quiet divisivenessand encourage social stability’’, and avoids the arousing of ‘‘sectar-ian hostility’’. In such cases, we do not ‘‘give up forever the hope ofchanging the constitution so as to establish our religion’s hegemony,or of qualifying our obligations so as to ensure its influence and


success’’; rather, Rawls argues, ‘‘[t]o retain such hopes and aimswould be inconsistent with the idea of equal basic liberties for allfree and equal citizens’’ (1999b: 590) – what we would have issimply a conditional respect for democracy.

Note that, in the above passage, the lack of real peace (in the senseof the elimination of agonistic or hegemonic tendencies) turns out tobe a drawback of modus vivendi solutions, but not the reason fortheir rejection. Rawls’ analysis leads him to dismiss compromiseor ordinary agreement because he equates compromise with meremodus vivendi. In the examples under consideration, we may havestability, but not stability ‘‘for the right reasons’’; and the rightreasons are ultimately to be found in moral argument about justicein institutions, more precisely in ‘‘a firm allegiance to a democraticsociety’s political (moral) ideals and values’’, as exemplified, in thediscussion above, by the reference to respect for equal basic liberties.However, the persuasive message in the argument, we suspect, isprecisely that the search for common values, in favorable circum-stances, can indeed be part of a trust-fostering political process.

Now it seems obvious that Rawls’ discussion carries forth animportant common-sense view: it is indeed difficult to have durablepeace in a society where hostile groups are constantly eager to seizepower in an absolute manner. But this is a long way away from thethesis according to which only a single, publicly recognized ideal ofjustice can be an effective means to build a better polity. It is hard toimagine that, in a context of real, all-out mutual hostility, allegianceto common ideals of justice could be more than an opportunisticstrategic move. Other possibilities should be discussed.

Another attractive feature of Rawls’ discussion is that agreementon common moral values is indeed an effective way to build peaceand civilized common life in many contexts; but there is some dis-tance from interpersonal agreement (the simultaneous awarenessof common values by many individuals) to anything like ‘‘publicreason’’ or objective values in political life. Perhaps it shouldremain possible to think of politics as a space of rational agreementbetween people with differing values, not as a separate sphere thatwould be structured by yet another overarching value system. Wecould then think of public norms and institutions as organizationprinciples, without placing undue confidence in the formal analogybetween public norms and the norms of individual (private) systemsof evaluation.


Let us turn to the other solutions. Hostile groups and other peoplein the society may agree on rules of the games which make it prac-tically impossible to seize power in an absolute manner (think oflegal devices for the protection of civil liberties and personalsecurity, international security mechanisms and early, discouragingrepression of rebellious actions). Taking good notice of possiblehegemonic tendencies (without placing too much hope in the con-version of the intolerant to a higher-order perspective) is a strongmotivation to go in that direction.As Rawls’ discussion nicely points out, an important considera-

tion when evaluating such rule-devising enterprises should be a con-cern for equal treatment, i.e. giving all individuals similar guaranteeswith respect to possible coercive action on the part of others. What isat stake is equal treatment of individuals by the norms and the insti-tutions quite generally; we have no reason to restrict equal treatmentto the religious question highlighted by Rawls. The equal-treatment,no-supremacy requirement could be a built-in constraint on normsand institutions generally speaking; in other words, it could be aconstitutive property of social compromises, the acceptance ofwhich can be facilitated by persuasion efforts in favor of personalvalues related to reciprocity or impartiality.Moreover, moral persuasion in the normal course of social life can

lead individual members of hostile groups to put agonistic tenden-cies aside. They can learn to cooperate; this, by the way, is notalien to Rawls’ picture of ‘‘religious and secular doctrines of allkinds’’ getting on together and cooperating ‘‘in running a reason-ably just and effective government’’ (Rawls, 1999c: 616), whichcorrectly testifies to the fact that value conflicts do not necessarilythreaten public order.7 In the case at hand, various arguments areavailable through which each party could convince itself of the use-lessness of aggressive strategy, thus enabling both parties to gobeyond a mutual-threat equilibrium. For instance, members ofeach party may become aware that there is no point in trying togain supremacy or numerical superiority by coercive means, froma religious point of view, because this is likely to affect the imageof religion negatively.We are not saying that this scenario tends to prevail in all circum-

stances. Wars of religion are out there to illustrate the intrinsicdangers of such a situation. What we want to argue is that switchingto a higher-order view – ‘‘a firm allegiance to a democratic society’spolitical (moral) ideals and values’’ – is not the kind of direct escape


from violence we might suppose it is. Rather, it expresses somerespectable personal ideal of the good social life (in a society oftolerant, like-minded people with a sincere love of democracy andequality). Are we to lose sight of such an ideal if we retreat fromthe logic of homogenizing consensus? Yes and no. What we maylose is the public endorsement of the ideal in a public set of moralprinciples. We need not lose the chance to witness the progress ofour favored democratic evolution in the hearts of the individualmembers of society (which is perhaps what really matters after all,from a moral point of view).

As a matter of fact, treating people as they are now (or in the fore-seeable future) is the safest path if our aim is to secure peace and atolerably good social life. Of special interest in this respect are thepossible collective-action and reciprocity-building strategic storiesthrough which hostile communities (in the reassuring shadow ofthe state’s force) may enter an era of stability in which moral persua-sion can have its way in all camps, thanks to adequate compromiseswhich respect requirements of equal treatment. After all, we cannotalways speculate on a complete change of heart for security-buildingpurposes; and there is no alternative to moral persuasion and pro-gress in moral awareness from the point of view of moral progresstowards a society we accept as a morally good one (from our ownperspective).

In the examples we discussed, Rawls’ analysis still appears veryattractive from our own viewpoint because, in such cases, thepresumed imperatives of ‘‘public reason’’ really express classic intui-tions about the ways of compromise between community pre-tensions; in such matters, universal acceptance of basic libertieseffectively coincides, for all practical matters, with a fair (equal-treatment-compatible) compromise through which all parties agreeon permissible forms of competition. It then becomes possible tolive together harmoniously, as Rawls emphasized. But this wouldnot be the case in situations where no such thing as the conspicuous,and indeed excellent, solutions expressed by the time-honored basicliberties appears to be available. For example, if we think of eco-nomic-inequality problems, the official endorsement of publicvalues which are compatible with the real harshness of living con-ditions for some individuals, or with shocking inequalities, canplay a role in the rejection of the public sphere altogether becauseit adds another injury to the harm people already suffer. The sameremark could apply to deeply controversial issues in bioethics,


where the very habit of presenting in the guise of ‘‘ethics’’ some legalsolutions which are ethically unacceptable to some people merelyadds to the harm done to the offended, in a useless (and politicallydangerous) way.A specific advantage of an approach which puts compromise at

the forefront is that no doctrinal comparison is possible betweenindividually favored doctrines of justice and the state’s officialdoctrine. This advantage is appreciable especially if we leave theclassical domain of basic liberties to enter the troublesome ethicaldivisions about specific social questions (such as bioethics, medicalethics, school-and-religion issues, imprisonment and death penaltyissues). In such matters, a nation’s collective choices can always beinterpreted as the official embodiment of a particular ethical out-look, although no such interpretation is necessary. Ethical divisionscan then be considerably heightened by the perspective of replacingthis particular (individually objectionable) ethical outlook by the(personally favored) true morality. No such substitution is to beindividually hoped for – or objectively feared, politically speaking– if we confess that the real operation of public norms and insti-tutions is to help people strike an acceptable compromise, andprogressively develop rational-avoidance arguments and a mutual-respect personal ethos (in addition to fair competition rules forpossible legislative changes in the future). There is therefore nopoint in attacking public values in the name of one’s own values(a frequent, seductive and highly disruptive rhetorical strategy indemocratic countries) because there are no specific ‘‘public values’’(in the moral sense) in the first place. Thus we may hope to protectdemocracy from a real danger in pluralistic contexts. This, webelieve, is a good answer to the famous parity arguments (whyshould I prefer the state’s values – i.e. alien values – to my own,favored ones?) which happen to be so effective in promoting anihilistic personal ethos (‘‘everything goes’’) in democratic countries,most conspicuously in the political sphere.

2.4. The requirements of consistent pluralism

Let us now show how a specific approach to common values canbe derived from the idea of rational conflictuality. We shall use‘‘common values’’ to refer to the common interests people mayagree upon (possibly in a very stable and non-aggressive manner);


in accordance with the conclusions of the preceding discussion, theyshould not be equated with public values which are part of a publicmoral or political doctrine. Thus, our specific definition of commonvalues will locate their ‘‘commonality’’ neither in one particulardominant doctrine nor in an empty middle ground between alldoctrines. Their materialization appears conditional on a somewhatparadoxical ‘‘agreement to go on disagreeing’’, while neverthelessstraining to keep the disagreements from being used to generate vio-lent conflicts in the public sphere. In that way, liberal democracyemerges as an instance of social compromise much more than asan instance of either mutual-threat modus vivendi or overlappingconsensus.

From the usual ethically absolutist viewpoint, justice is portrayedas unified and is understood as the virtue of institutions. Peopleshould agree on moral terms, and this is true even of a pluralisticand politics-oriented moral theory such as Rawls’.8 These institu-tions are normally a concern to a plurality of individuals in thesense that their operation has consequences in their own lives.

But we should be reminded that aggregating the diversity of indi-vidual conceptions of justice into a single conception is not the onlyway to live together under common rules. People may prefer thedesign of institutions which, while reflecting no single concept ofjustice, do have definite, attractive properties with respect to indi-vidual conceptions of justice. The value of contributions to socialethics and social-choice theory can usually be ascertained in thisperspective (rather than as contributions to the building of a systemof ethics that could become public ethics). Take, for example, insti-tutions which imply nothing radically unacceptable for understand-able reasons in the eyes of anyone, while promoting common,substantial interests to a significant degree. This leads to a pluralisticapproach to the problems of social justice – an approach in which,without denying the importance of the relationship between ethicsand politics, we do not recognize as a starting point the need forthe basic structure of society to testify to the validity of one singleconception of justice (or, equivalently, the view that the politicalconception of justice should be selected simply by applying a parti-cular moral doctrine about justice which some individuals findattractive).

This may appear to be a straightforward application of thegeneral requirement of impartiality. Insofar as individuals feel con-cerned by the treatment they are given in society at the most basic


level (the status they are publicly recognized to have, the publicconceptual basis of the protections they enjoy, the basic rights andobligations which are relevant to them . . .), there exist specific indi-vidual values and interests involved in the implementation of parti-cular explicit or implicit conceptions about justice. People are hurtwhen a conception of justice they cannot accept is implemented(or when things turn out as though it were the case), and this specificharm is not always reducible to the way their own material interestsare impaired by the laws. For instance, if I am a feminist of a certaintendency, I may suffer in a distinct manner from the fact of living ina fully liberal society where procuring and pornography are thrivingindustries, even though my recognizably personal interests are in noway affected by the laws which make it possible: for instance, I donot watch television, my children do not work in pornography orrelated industries, I have no financial interest whatever in the sup-pression of those activities, I live in a part of the city where thereis no visible prostitution, and so on. I may feel affected by the factthat my dignity as a woman, or as a human being, is not fully recog-nized in the structure of society; in Nagelian terms, I may suffer froma loss in the value of my inviolability status (Nagel, 1994). Anotherexample would be the harm caused by an anti-egalitarian policy toall egalitarian individuals (whether rich or poor, and whether theystand to gain or lose from the policy). Hence, if we take the generalimpartiality requirement of moral theory seriously, it would bestrange indeed to be concerned with the conception of justice ofsome individuals and not others.Summing up, this amounts to a pluralistic view of social justice, in

which there is no presupposition that a single view of justice shouldbe publicly recognized and amenable to individual acceptance aswell. This avenue of research is not alien to theoretical possibilitieswhich have been evoked with precaution by John Rawls himself,especially in his Commonweal interview (1999c). There he commentson Cass Sunstein’s ‘‘good’’ argument according to which we shouldoppose (Rawls’ own favored) liberalism about assisted suicide, bypointing to the fact that promoting such a highly divisive cause isproblematic for a public institution such as a court of justice in ademocratic country. This amounts to recognizing the importanceof degrees and compromise in matters of principles: individualsmay tolerate seeing some of their important convictions countedfor nothing in the public sphere, but not all of them, and perhapsnot in the form of a fundamental interpretation of a public, morally


interpreted principle (such as individual freedom in private matters).Specific political dangers can be associated with the public endorse-ment of controversial values or solutions, which are highly offensiveto some individuals for universally understandable (if not shared)reasons.

From the point of view of peaceful common life, the social equili-brium of claims then appears to be more essential than rationalagreement on a moral conception of justice in the proper sense.One important circumstance is the state of affairs in which no-onefinds it useful to engage in socially disruptive actions (especiallyactions involving the use of violence, oppressive coercion orthreat). This can be true – with the expected benefits for flourishingpolities – even in the (frequent) case where many citizens think theylive in an unjust state, in the precise sense that the state’s norms andinstitutions do not reflect their own views about justice.

Note that an equilibrium of claims does not imply that citizenshave no claim or express no claim at all. Indeed, the permanent dis-agreement on matters of collective justice is a source of continuingclaims – think of death-penalty, abortion or foreign-policy oppo-nents in the United States, nuclear-power opponents in France,anti-capitalist radical groups in Italy and Germany. But ethicaldisagreement at the deepest level, as exemplified in such classicalexamples, is in no way incompatible with the enjoyment ofcommon benefits from social cooperation in a democratic andpeaceful state. In themselves, such benefits have little to do withjustice in the moral sense; but very few of us would claim they areunimportant altogether. They are indeed a matter and a cause ofagreement.

In spite of our intended rehabilitation of division and conflict inthe field of the normative study of politics, we find it by no meansobvious that a society in which tacit agreement on disagreementconditions is the rule (rather than explicit agreement on a commonset of substantial values of justice) should be less peaceful, or less‘‘well ordered’’. The magnitude of diffuse conflictuality in a societywhere the possibility of conflict is institutionalized is not necessarilyhigher than in a state where the ideology of consensus-basedcommon values still prevails.

To ascertain this, it is useful to think of the wide-ranging conflictswhich follow in western liberal states when official, substantialvalues concerning justice (such as officially proclaimed ‘‘humanrights’’, the fundamental principles of law, or consensual social


values and norms as identified by ethical experts or counselors) coex-ist with ongoing disagreement on the precise meaning of norms andvalues, and indeed words. Striking examples of these permanentconflicts are those associated with much-feared questions such asthe following: is the death penalty a cruel and inhuman treatment?Is voluntary abortion compatible with the protection of humanlife? Is the authorization of assisted suicide a consequence of indi-vidual freedom? Is market capitalism compatible with the protectionof everyone’s individual dignity and basic social rights? Is embryocell research or human cloning a violation of humankind’s (non-instrumental) dignity? Does free choice of occupation imply thatprostitution and pornography are morally and politically unobjec-tionable? Does freedom of expression mean that Nazis and otherracists should be left free to express their views publicly, withoutrestriction? Does freedom of association mean that authoritariansects should be tolerated, or encouraged?Such questions can be said to be ‘‘unavoidable’’ in the sense that

they inevitably come up, given the interpretative and ethical outlookof some groups of citizens in western countries. It would be verystrange indeed to pretend that dissenting groups are alwaysconvinced that the social answer to such questions is ‘‘just’’ in thecountry they live in, provided the country is a democratic state.We are certainly closer to the truth if we confess that members of dis-senting groups find it unattractive or useless to try and leave theirown country in favor of another country, even though they alsobelieve that the basic arrangements of the country they live in arenot an exemplification of the concept of justice they favor from apersonal point of view. It is even possible (as exemplified by theclassical death-penalty and bioethics examples) that some peoplethink they live in a radically unjust society because the laws violatewhat they personally believe to be essential, minimal moral require-ments.The approach we favor does not imply that ethics should be con-

sidered irrelevant for political studies. It is relevant from an indi-vidual point of view, concerning matters which can be collectiveby nature (such as the proper arrangement of public norms and insti-tutions). Moreover, individual judgement and attitudes are a properobject of study for social and political ethics. The relationshipbetween individual values and public norms and institutions isindeed highly relevant for the precise evaluation of the way inwhich the organization of society affects the individual’s own good.


This follows from the fact that the individual’s good is partly deter-mined by the satisfaction he or she derives from living in a societyof the ethical type he or she favors (in some respects at least): inRawls’ words, ‘‘the good of political life is a great political good’’(1999c: 617).

Our point here is that this maintained relevance of ethics in poli-tical theory should not entail that we simply pit moral unity againstdisruptive conflict in an all too binary fashion. We have shown thatthere is much more room than is usually suspected for a politicaltheory in which neither moral unity nor disruptive conflict aresocial equilibria, so to speak: something intermediate can be atwork which we find appropriate to call compromise. In radicallypluralistic societies, this notion becomes highly relevant as a theore-tical tool to make sense of morally divided social peace. After havingshown the relevance of this tool, we now proceed in the next sectionto make its substantive content and mode of operation explicit, in anattempt to demonstrate its ‘‘productivity’’ or ‘‘added value’’ com-pared to the more classical theoretical tools of modus vivendi(which corresponds to the disruptive-conflict aspect) and of over-lapping consensus (which corresponds to the moral-unity aspect).

3. More than modus vivendi, less than overlapping consensus:

compromise as a specific tool for political theory

3.1. Social and economic compromise is more than amodus vivendi

3.1.1. A surplus-sharing scenario for compromise over materialresources. Traditionally, the idea of compromise has been asso-ciated with the ideas of concession and of balance of power. Whilethis association is of course not totally unwarranted, it has neverthe-less neglected certain crucial aspects that make compromise morethan a mere set of reluctant or fear-based concessions – with theunfortunate result that even prudent thinkers such as Rawls haveperhaps been too quick to classify as a modus vivendi any conceptwhich is not synonymous with that of ethically identified consensus.What are the crucial neglected aspects?

Let us begin by considering a hypothetical situation in which twoindividuals,A and B, generate a cooperative surplus within a processof production. Suppose we are initially in a fully one-sided bargain-ing outcome, in which A, due to his absolute power over B, receives


the whole productive surplus so that B gets nothing more – or onlyan infinitesimally small amount more – than his fall-back level(which may be close to zero). This may be the case in a feudal econ-omy, where the serf has no say over what the lord gives him, or in acapitalist economy, where there is such a large ‘‘reserve army of theunemployed’’ that the individual worker can ask for nothing morefrom the employer than the bare subsistence wage. As long asthere is an unbridgeable conflict of interests between A and B, i.e.as long as B himself does not agree that there are good reasonswhy A should get so much more than his ‘‘fair share’’ (which maybe close to zero) of the surplus, there can obviously never be anactual consensus between them: there is an inherent conflictualityin the situation linking A and B. However, settling for the fullyone-sided, power-driven outcome as the only alternative to the con-sensus appears to us as an impoverishment. Is there really no way togive more room to B’s claim to a greater share?One could argue in favor of B’s uniting with other, similarly

situated agents, or appealing to the assistance of differently situatedbut concerned agents, so as to gain power through (the threat of)collective action. This solidarity-driven action (Arnsperger andVaroufakis, 2003) would allow B to force A into a more generousconcession through a shift in the balance of power (and also, as isthe case with trade unions, through an increase of his fall-backlevel through the partial socialization of subsistence funds).A’s reac-tion could then be either to band together with other As and/or touse third parties (e.g. the law-enforcing police or army) to crushthe solidaristic action of the Bs so as to regain his absolute power,or to take stock of the power shift and to engage in a new roundof bargaining so as to minimize his concession (in terms of a sharein the surplus) to B.In the first instance, legally rationalized violence is unleashed in a

belief that re-asserting his exclusive claim to the (nearly) full surplusis the only rational thing for A to do, as any concession to B wouldspell defeat. This is, then, an ‘‘all-or-nothing’’ perspective on sociallife, in which two things are implicit: first, giving more room to B’sclaimmeans leaving less room forA’s claim; and, second, having lessthan a full claim to the whole surplus is a defeat for A, uncompen-sated by any other medium- or long-term benefit. One particularcase of this is the frequently voiced idea that any social revolutionmust go through at least an initial Pareto-deterioration (Arnsperger


and De Ville, 2002): at least once, there needs to be a shift inresources which deteriorates someone’s social position and/orwell-being, and this deterioration is likely to be never again fullyerased as history ‘‘restarts from zero’’ after the revolutionary redis-tribution.

In the second instance, violence on the part of A is renounced infavor of a new round of negotiation. Here there are at least twopossible interpretations: either A realizes that he now stands nochance against the newly empowered Bs and considers it a second-best to try to minimize his new concession, or A really forgoesviolence, even though he could have unleashed it (as in the firstinstance); but the question then is why he would find it reasonableto accept such a renunciation. This branching-off into two possibleattitudes can give us a clue to what might differentiate compromisefrom a modus vivendi, already in this scenario where what is beingshared is material resources. (The contrast will become even clearerin subsection 3.1.2, when we investigate the sharing of public spacebetween competing comprehensive conceptions of the good.) A’sgiving up of violence because he believes he no longer stands achance of upholding the fully one-sided bargaining outcome cor-responds to a mere shift in the modus vivendi: in any bargainingmodel, a new and enduring balance of power calls for a new equili-brium point on the possibility frontier. On the contrary, A’s relin-quishment of potentially successful violence is a step beyond themodus vivendi: it requires, essentially, that A for some reason giveup his belief that having less than a full claim to the whole surplusis an unambiguous defeat, and his prioritization of the no-defeatobjective.

How could such a change occur? It could occur, first, because Amight realize that no longer exercising his maximal extractivepower is not, in fact, a defeat at all; but this would require asudden surge of disinterested altruism on his part, sparked by thefailed attempt on the part of the Bs to shift the balance of power.Such a surge of altruism is not impossible, and it has been used totheorize alternatives to egoistic optimization (Arnsperger, 2000a),but it certainly cannot be counted on as a central element in atheory of rational conflictuality. This leaves us with the other possi-bility, namely, that A might realize that no longer exercising hismaximal extractive power is not, in fact, an unambiguous defeat:this, we believe (and it has been widely documented – see, e.g.,


Castel, 1995; Aglietta, 1997), is what lies at the heart of so-called‘‘Fordist compromises’’ in western capitalist societies between thetwo world wars and after the Second World War. Yielding substan-tially to trade union demands and building a social safety net waspart of a broad effort to avoid the threat of continual and recurringsocial struggles, and to replace these with a ‘‘culture of social com-promise’’. Those members of society who, like A in our scenario,could have continued to mobilize legally rationalized violence tocrush struggles opted for a longer-term view, a view in which fendingoff the threat of world communism (which, it was feared, wouldthrive on social discontent) was seen as preferable to upholdingthe pre-1940 social divide. As Stiglitz (2002) has again recentlyemphasized, in the 1930s Keynes’ social-democratic theory of stateintervention in the economy (as well as the New Deal which wasderived from it in the USA) was an essential building-block of abroad program to save the capitalist system from tensions whichwere threatening it from the inside and from the outside. The con-tinued exercise of absolute extractive power turned out to be nolonger rational on the very part of those who, legally and politicallyspeaking, could have upheld it.This hints at what seems to us a very important aspect, differ-

entiating the figure of compromise from that of modus vivendi :potentially successful exercise of coercive power by some actors isrenounced in favor of salvaging an overall logic or cohesion whichthese actors have an interest in upholding, but which would bedestroyed were they to effectively exercise their power. Equippedwith this intuition derived from a surplus-sharing scenario withmaterial resources, we now return to liberal democracy and theproblem of pluralism.

3.1.2. A public-space-sharing scenario for compromise over normsand ‘‘social values’’. How are social norms constructed in liberalsocieties where different individuals (or groups) hold different andoften mutually incompatible comprehensive conceptions? Our criti-cal examination of some of Rawls’ theses has already shown us thatthe mutual forbearing from an unlimited exercise of power (incircumstances which make such unlimited exercise possible) is animportant aspect of the building of a viable compromise. This, wehave argued, can play an important role in the invention of a thirdcategory between moral unification and open, unregulated conflict.There is an opportunity here for a significant communication


between a non-idealistic approach to the ethical problems of liberaldemocracy and the kind of abstention from bullying action we haveencountered in subsection 3.1.1 for the case of socio-economicarrangements.

Thomas Hobbes’ theory of political power is a natural referencefor all political writers who endeavor to go beyond modus vivendi.In Hobbesian theory, the only way to create a peaceful coexistencebetween incompatible interests or conceptions is to tear away allindividuals’ power over each other and delegate it to an impersonalpower (the ‘‘Leviathan’’), who assures each individual that they willbe severely punished if, for whatever motive (perhaps due to theirpersonal doctrine of the good), they do not conform to the institutedpower. In a way, the Leviathan merely represents each citizen’s infi-nite power over all other citizens, i.e. each citizen’s power to threatenother citizens with death, and merely regulates the use of this multi-lateral power; we therefore have a balance of powers wrapped upinto one overarching instance which will unleash the power againstwhoever attempts to destabilize the balance. This state of affairsturns out to be a modus vivendi for calculating individuals who, inthe absence of a multilateral renunciation of the decentralized exer-cising of their own natural jus in omnia, realize that their individualstrategies for maximizing their own interests condemn all of them toshort and brutish lives.

In a certain sense, the whole dynamic of modern political philoso-phy (e.g. Macpherson, 1962; Manent, 1987) has been propelled bythis question: how is it possible to overcome the Hobbesian scenarioof external coercion so as to envisage individuals who ‘‘internalize’’the command not to harm others even in the face of deep andunbridgeable disagreement or rivalry? The answer has been dis-cussed since the time of Hobbes under the guise of different variantsof two concepts: egalitarianism and pluralism. The challenge anyversion of political liberalism has to accept is to treat as equals indi-viduals who may be incommensurably plural in their values andaspirations. While the sharing of material resources is a crucialpart of any such set-up (see e.g. Callinicos, 2000), the problem ofegalitarian pluralism generalizes beyond that into the whole realmof argumentation about the acceptability and implementation ofsocial norms. Today, philosophers know that any move beyond apure modus vivendi involves at least three aspects whose balance isvery delicate to achieve: drawing some lessons from Marx, weknow that going beyond the ‘‘balance-of-power’’ view of social


norms involves substantial equality in incomes and also, perhaps, inmore comprehensively characterized social positions; owing a debtto Rawls, we know that no truly liberal society can exist withoutthe diffusion of an egalitarian ethos in the guise of an effectivelyoperative, personal ‘‘sense of justice’’; and Habermas has convincedmany of us that no post-Hobbesian social norms are possible with-out a substantial amount of discursive symmetry between citizens, sothat the use of language and argumentation in the public sphereplays a crucial role. The question for us here is how these variousaspects interact to generate the balance between mutual threat andrational avoidance which we find so crucial for the understandingof compromise: what is the cohesion which those who could usepower and force want to safeguard and which makes them renouncetheir use of power and force?We must begin by emphatically rejecting one possible answer to

this question. We have already suggested that the cohesion whicheven the effectively powerful parties to a compromise seek to protectis not the ‘‘consensual’’ (perhaps ethical) character of social arrange-ments and social norms. Indeed, ‘‘agreeing to disagree’’ means quitethe contrary: a compromise is not a first-degree agreement whichsilences dissension but, rather, a second-degree agreement whichsuspends the deleterious effects of first-degree disagreement untilthe object of that disagreement can be taken up again in a renewed,hopefully more promising way by at least some parties (if people arelucky enough to witness this). So, if it is not consensuality which thenegotiated conflictuality of compromise aims at protecting, whatis it?We believe that, analogously to the ‘‘Fordist compromise’’ of the

postwar periods, it has to do with the perceived need to keeptogether the basic cooperative nature of society, which is not neces-sarily based on consensus, in the face of substantial threats to co-operation flowing from enacted and implemented disagreement(which usually involves at least some decentralized sanctions orhostile attitudes in social life). Consider the case of ‘‘anomy in thepublic sphere’’, i.e. the frequently lamented fact that modern liberalsocieties are characterized by an increasingly dull and bland publicdebate in which people seem to avoid all deep issues of class conflict,religious values, deep ethical options and so on. Rather than viewingthis apparent dullness as an instance of postmodern relativism andindifference to previously divisive social issues, one could equallywell explore the idea that it might be an instance of what we


suggested earlier as the rational avoidance of open conflict – not, wemust add immediately, because people love each other or care foreach other so much that they are prepared to actually give uptheir convictions, or because people have suddenly been struck bythe realization that their structure as subjects is an altruistic struc-ture (Arnsperger, 2000b), but rather because people fear that voicingopen and inflexible disagreement, or imposing their views throughthe (threat of) use of their full bargaining power, will ultimatelyharm the functioning of the whole social system of self-interestedreciprocity from which they benefit just like the others.

Consequently, public-sphere anomy may not provide an ‘‘obser-vationally identifiable’’ ground for arguing that people have lostall sense of value. In fact, it may be that they have substantiallydeepened their reflection on what – for them, egoistically speaking –is worth upholding in a social system in which some of them could,at the risk of disrupting all cooperation, try to impose their viewsforcibly. Just as the 20th-century property-owning classes progres-sively realized that repeatedly invoking property rights and usingthe state’s police forces to crush workers’ struggles in the face ofthe rising threat of a communist tidal wave was likely to eventuallycause the downfall of the economic system they favored, likewisemany contemporary movements or militants in various areas maybe apparently silenced by a fear that repeated overt disagreementmight eventually destroy mutually beneficial (though, admittedlyfor some of us, ideologically suboptimal) social cooperation. Theunderlying idea is the following: only by shaping our public use oflanguage and our ethos in such a way that we all give up our indi-vidual pretensions in public, in favor of a higher-order vision whichdoes not completely reflect any one of those individual pretensions,can we keep the public sphere from a self-destructing evolutionwhich would carry away with it all the cooperative advantages weindividually derive from it.

The question that immediately arises is, of course, the following:by characterizing compromise in this way, we do demonstrate thatit is ‘‘more than’’ a mere modus vivendi; but is it not, by the sametoken, made indistinguishable from the figure of consensus, andmore precisely of the Rawlsian ‘‘overlapping consensus’’, whichalso relies on generating a higher-order vision not completely reflect-ing any one of our individual pretensions? We do not believe this isthe case, as we set out to show now.


3.2. Social compromise is less than an overlapping consensus

Rawls’ reliance on the figure of the overlapping consensus is funda-mentally rooted in his belief that a truly liberal society needs to beregulated by what he calls ‘‘the idea of public reason’’. Althoughhe consistently replaces Kant’s use of constitutive autonomy bywhat he believes to be an anthropologically more modest notionof doctrinal autonomy, Rawls retains an unwavering faith in thedeeply architectonic virtue of reason over and above its merely instru-mental use in each individual’s pursuit of his or her own interests.One of the deepest implications of this, of course, is that socialnorms are acceptable only if they pass the test of reasonable justifi-cation: they need to be norms of the highest order (i.e. they need tobe part of the ‘‘basic structure of society’’) and they have to be theones which would be adopted in a deliberation between ‘‘free andequal citizens’’ endowed with a ‘‘sense of justice’’ in the light ofwhich they can understand the relevance of reasoning as if theywere in an ‘‘original position’’ designed – for the purposes of moraltheory – to make them impartially self-interested (that is, self-interested when no morally irrelevant personal characteristics areconsidered). In other words, each citizen cares about their owninterests being furthered by social cooperation, but their (doctrinallyautonomous) political reason forces them into provisionally ‘‘forget-ting’’ what their specific interests are, so that they will advocatesocial norms which would maximally further their own interestsregardless of what they in fact are.

3.2.1. Rawls and compromise: an attempt at clarification. TheRawlsian idea of the overlapping consensus is that the fundamentalprinciples of justice derived in the original position are such that theycan be accepted by citizens who de facto hold very different and irre-concilable comprehensive moral doctrines. The constraint imposedby doctrinally autonomous reason, however, is that all of thesedoctrines must be reasonable comprehensive conceptions: they allhave to be ‘‘the outcome of the free exercise of free human reasonunder conditions of liberty’’, and it is this exercise which the prin-ciples of justice are designed to foster. Even though Rawls claimsthat the overlapping consensus is distinct from a requirement ofunanimity, it remains the case – in our interpretation – that in theRawlsian theory of justice the principles are designed to be unani-mously acceptable to all reasonable citizens, i.e. to all citizens who


believe that their highest-order interest lies in creating the social andeconomic conditions for ‘‘the free exercise of free human reasonunder conditions of liberty’’. Such fundamental unanimity is, ofcourse, fully compatible with Rawls’ idea of a ‘‘reflective equili-brium’’ and with the fact that, for Rawls, no set of public principlesof justice is eternal.9 Our question now is: what room, if any at all,does Rawlsian political reason leave for rational conflictuality?

A compromise-friendly Rawlsian theorist could reply that there isplenty of room left, since Rawls’ principles of justice say little ornothing about all situations and ethical debates which are ranked‘‘below’’ the debate concerning the ‘‘basic structure’’; even withina society in which the most general guiding principles are unani-mously accepted by all reasonable individuals as pre-conditionsfor holding any of their reasonable moral doctrine, there mightstill be many social and moral issues over which those general prin-ciples are not decisive, and on which consequently all reasonableindividuals may need to ‘‘agree to disagree’’ so as to preservesocial cooperation in the way that was described earlier. If thisreply were accepted, we could rest quietly in the certainty that,even though the principles for the basic structure are the object ofan overlapping consensus where disagreement is transcended inthe name of reason, most other norms could remain the result ofsocial compromises where disagreements are suspended throughordinary arrangements, but kept ‘‘on the back burner’’, so to speak.

There is, however, a crucial dimension of Rawls’ theory whichsheds doubt on this compatibility. Rawls says repeatedly that theprinciples of justice themselves, i.e. the principles for the basic struc-ture, are designed to enable all citizens to be fully cooperatingmembers of society over the whole course of their lives. Indeed,this capacity to maximally foster social cooperation in the mutualinterest of all citizens plays an important role in the justificationfor the principles of justice in the original position. If this is so,given our earlier characterization of social compromise as a conceptwhose introduction is driven by the perceived necessity to upholdsocial cooperation in the face of unbridgeable disagreement, com-promise and consensus appear to be alternative, rival approaches.

This rivalry comes up in real-life occasions where social coopera-tion appears to be safeguarded through suspension of unbridgeabledisagreements. These are, in fact, cases where Kantian-constructivereason should come into play – but then the compromise-friendlyRawlsian is wrong in believing that Rawls’ theory of justice leaves


ample room for the figure of compromise alongside that of overlap-ping consensus. Rawlsian citizens will apply their logic of consensus,they will not seek compromise. The conclusion we must draw, then,is that if indeed the protection and fostering of social cooperationare at the heart both of the figure of compromise and of the figureof overlapping consensus, Rawls’ theory in fact turns out to becompromise-hostile: it deliberately favors the consensus approachover and above the rival compromise perspective.Let us be quite precise about what we mean by this statement. We

do not, of course, mean that there is no room in Rawls for the ideathat individuals suspend their unbridgeable disagreements; quite tothe contrary, Rawls uses this idea very extensively, but he uses it ina specifically Kantian fashion – namely, he assumes that reason iscapable of transcending once and for all the serious disagreementswhich stand in the way of the overlapping consensus on basic-structure principles, or the concrete implications of such principlesin the real world. This is a response, among other possible ones,to the imperative of the preservation of social cooperation over thecitizens’ whole lives. What we do mean, thus, is that Rawls givesno room to the specific combination of partial conflict-avoidanceand continued conflictuality which – for us – characterizes com-promise around important norms and institutions that materializethe ways of social cooperation. Rawls does not conceive the basic-structure principles as being the object of continued conflictualitybetween reasonable citizens and, if our diagnosis is correct, he canhardly conceive any social norm of some import to individuals asbeing the object of continued conflictuality. Because individualsare inhabited by Kantian (political) reason, they are endowed withthe hypothetical tendency to actually replace their spontaneous,doctrine-driven disagreements by a higher-order agreement on therequisites of reason; once the reflective equilibrium has been reached,there is no ongoing disagreement ‘‘underneath’’ the apparent agree-ment on the general principles.In Rawls’ Kantian perspective, the suspension of unbridgeable

disagreements actually means the replacement of the disagree-ment-causing components of the comprehensive doctrines by agree-ment-fostering components, and the capacity for this particularreplacement operation is, in fact, what defines the reasonablenessof doctrines in Rawls’ political theory. This notion of reasonablenesslogically applies to all disagreement-causing components of indi-viduals’ beliefs which actually endanger social cooperation in a


significant way. Lower-level norms and institutional questions whichhave a real connection with the basic structure should not be theobject of ongoing conflict (if only because then the possibility ofpeaceful social life would be dependent on the contingent balanceof power). Hence, in a Rawlsian society, effectively all difficultnormative questions, even those which are located ‘‘below’’ the levelof the basic-structure principles, ultimately have to be settled throughan overlapping consensus, rather than through compromise.

3.2.2. Overlapping consensus and its inability to express strategicallysuspended disagreement. The very notion of an overlapping con-sensus seems to impose much stronger normative constraints onpeople’s beliefs and attitudes than does our notion of compromise:the replacement operation just described means that the overlappingconsensus effectively shuts off the ‘‘back burner’’ of all disagree-ments: it forbids that underneath the political consensus theremight be a continued disagreement which could resurface later, ina different situation or under circumstances perceived as morestrategically favorable by some or all of the parties.

Effectively, what the figure of the overlapping consensus does is toput to use Kantian reason, and its implied unanimity, to blur the dis-tinction we suggested earlier between the offensively strategic aspectof social cooperation (i.e. strategic behavior aimed at extractingmaximal surplus for one’s own party) and its peacefully strategicaspect (i.e. strategic behavior aimed at minimizing visible disagree-ment in order to make continuing cooperation possible). In fact, itdoes even more than blur it: it actually assumes away the offensivelystrategic aspect by overemphasizing the peacefully strategic aspect,and it overemphasizes peaceful strategy to such an extent that itsstrategic dimension effectively vanishes. As a result, Rawls is onlyable to make sense of principles of justice which have been designedto foster and safeguard social cooperation but which, over time,create and reinforce the social and psychological conditions oftheir self-reproduction. That there is no room at all, in this dynamics,for strategically held-back conflict and for continued conflictuality isevidence enough of the consensus view which is so characteristic ofRawls’ approach.

His set-up can give no understanding, for example, of the follow-ing process: agent A renounces her power today because using itmight destroy social cooperation, but at the same time she keepson the lookout for more favorable conditions in which the use of


her power (or what will be left of it then) may bring her greateradvantages without, at that later moment, endangering her ownbenefits from cooperation. Some might interpret the dynamicsfrom Fordism to ‘‘post-Fordism’’ in exactly that way (e.g. Cohen,1995: 152–9; Gorz, 1997): as long as communism was perceived asa worldwide threat, and as long as the trade union ideology waschallenging neoliberal visions of society, capital owners werebetter off not pushing for massive deregulation and repression ofprotests, and accepting the principles of justice of Keynesian socialdemocracy; however, 50 years later, with the demise of the Sovietbloc, increased world competitiveness and increased per capitawealth in theWest having drasticallymodified the social-cooperationgame, neoliberal principles of justice and a more intransigent stanceof capital owners vis-a-vis workers’ collective action have becomemuch less of a threat to social cooperation. A much larger portionof enriched workers themselves stand to lose from social upheaval(especially since many of them get a part of their income fromfinance capital), so that the threat of unrest is no longer as credibleas before, and this is a strategically more appropriate time than itwas in the 1950s for capital owners and like-minded governmentsto revive an old conflict of interests and to ‘‘win the battle’’ by nowusing whatever power they still have in an attempt to undo themain elements of the earlier compromise. The conflict, technicallyspeaking, is now more decisive.What the notion of compromise specifically allows for is an image

of social interaction in which unbridgeable disagreements aresuspended strategically in order not to harm one’s own benefitsfrom social cooperation, but with the hope of being able to revivethe conflict later and to modify – if possible – even the basic structureof society. Of course, compromise is risky in this sense, because it isan obvious fact (overemphasized by Rawls, but nevertheless quiteclearly present) that once in place, a basic structure tends to createirreversibilities in many social areas: certain rights become difficult(though not impossible) to reverse, certain social practices becomecustomary and hence well established, and so on.10 So the optimiza-tion problem of the strategic compromise-builder will be a complexone: ought I to risk losing my benefits from social cooperation nowby wielding my power even if this creates increased discontent, orought I rather to risk losing my chance to reverse the social ruleslater if the (for me suboptimal) system I accept now as a compromiseturns out to be almost indestructible later? Still, whatever the case


may be, such compromise-driven thinking differs markedly from theuniversalizing and non-strategic reflections of the Rawlsian citizenslooking for an overlapping consensus. Moreover, in compromise-based social life, some kind of mutual adaptation of individualgoals and aspirations can be expected in many domains, with thehelp of moral and political analyses which can highlight the realbenefits and costs of individual or collective action.

It is true that, in the conception of compromise outlined in thisarticle, we rely on the idea that people’s concern about their ownbenefits from social cooperation leads them to generate a sharedhigher-order vision in which none of their individual pretensions iscompletely reflected. However, because of the very different natureof this higher-order vision, compared to the vision implied inRawls, the consequences of the fact that no-one’s pretensions arefully reflected are almost the opposite from what they are in Rawls.In Rawls, the centrality of social cooperation leads to the needto settle all difficult (potentially dangerous) social and ethicalquestions, even those which are ranked ‘‘below’’ the basic-structurequestions, in the form of an overlapping consensus; in the philoso-phy of compromise we outline, on the contrary, the centrality ofsocial cooperation implies that even the basic-structure questionsneed to be settled through some kind of rational conflictualitybecause there is no way to extinguish unbridgeable disagreementsor to replace them with Kantian reasonableness. The rationality ofthis conflictuality is indicated in the fact that the disagreementsare not an obstacle to the construction of a social arrangementwhich is accepted by all as a reasonable compromise.

However, the main subsequent activity of reason is not necessarilyto construct social and psychological conditions which reinforce theterms of the compromise and make it permanent, so to speak – orrevisable only through reasonable consensus, as in Rawls’ modelof the reflective equilibrium. The main subsequent activity mightvery well be, in some cases, strategic reflection on how to refineone’s pretensions until the moment they can be revived, and onhow to foster social and psychological conditions favorable toone’s pretensions (and even to one’s possible use of power) beingviewed as acceptable in ways they could not be viewed earlier.This specific activity on the part of all or some parties is what wemean here by ‘‘continued conflictuality’’: if, at any point in time,we were to ‘‘look underneath’’ the apparent compromise, we wouldsee a potential conflict between doctrines and pretensions which


have not been completely erased by the compromise and have notbeen replaced by principles of justice of the Rawlsian type; theyhave merely been strategically suspended.That is why we claim that our figure of compromise is less than an

overlapping consensus: a compromise is not a first-degree agreementwhich rationally silences dissension but, rather, a second-degreeagreement which suspends the deleterious effects of the first-degreedisagreement until the object of that disagreement can be taken upagain in a renewed, hopefully more promising way by at least someparties (thanks to changing circumstances, shifting preferences),which improves the prospects for decisive conflict, or because ofthe emergence of new opportunities to strike an agreement on anenlarged set of questions, which makes deeper agreement possible.

3.2.3. The risks of unequal treatment in a social compromise. Someconcern for unequal treatment inevitably arises about any system ofsocial organization, therefore we cannot avoid briefly discussing therelationship between, on the one hand, the preference of compro-mise over public principles of justice and, on the other hand, theresources available to individuals in their efforts to promote equalityin public debate and political action.Now, it would be quite naive to overlook the fact that one possible

result of a social compromise is that certain interests or certainvalues will dominate other interests or values. In a way, this may atfirst appear as a ‘‘natural’’ consequence of the fact that the notionof compromise abandons the Rawlsian recourse to political reason,so that, on the face of it, one might have the impression that thechances that the holders of some comprehensive conceptions mightview themselves as discriminated against will clearly increase ascompared to a Rawlsian society.This impression is false, however. Even in Rawls’ overlapping-

consensus approach (1999a), there is ample room for the violationof what he calls ‘‘neutrality of effect’’, ‘‘neutrality of aim’’ and‘‘procedural neutrality’’: the principles of justice obviously do notguarantee (1) that all comprehensive conceptions will be equallyaffected in their degree of realization, but they do not even guarantee(2) that the policies implied by the principles will make the adoptionof all conceptions equally attractive or (3) that the procedure ofjustification of the principles appeals to no moral principles at all.Recall that, while the rationale for the suspension of disagreementsis quite different in a compromise and in an overlapping consensus,


nevertheless both ideas rely on disagreements being suspended. Sothere is in fact no prima facie necessity for a social compromise, aswe have defined it, to be more discriminatory than the overlappingconsensus.

4. Conclusion

None of what we have said up to now in any way implies that socialcompromise is a ‘‘morally preferable’’ or a more ‘‘philosophicallyprofound’’ category than are those of modus vivendi or of over-lapping consensus. We have simply been claiming that it is a con-ceptually distinct category and that it has significant import in theexplanation of some types of social arrangements or processeswhich cannot really be understood with the two other categories.

Our argument in this article is not meant to deny that in certaincircumstances people may attach a specific value to living in astate where citizens are prepared to justify institutional arrange-ments and common norms to one another from unanimouslyaccepted moral principles. The aim of the argument is, rather, toremind us that this is not the only way to live together in anorganized framework. We need to consider the costs incurred byindividuals whenever the public conception of justice is deeplyalien to their own. If these costs are very high, they may outweighthe benefits of mutual justifiability, especially when these benefitsare decreasing because no satisfactory common ground is in factavailable to moral discussions about justice. If so, we should quitesimply consider abandoning the presentation of public norms andinstitutions as grounded in requirements of impersonal justice.This, of course, does not mean that individuals cannot appreciatethe merits or defects of particular institutional arrangements fromthe point of view of their own favored conception of justice. Neitherdoes it prevent us from paying attention to the moral components ofevaluative judgements through which individuals can reach anagreement in the real world (thereby building a real-world consensus,not one based on a virtual situation of ‘‘ideal discussion’’).

Reformulating a number of current, valuable arguments aboutsocial justice in the idiom of social compromise may appear tooreductionist, since living in a society where institutions are felt tobe just may have intrinsic value as well. The point is that we donot deny the reality of this intrinsic value; what we deny is that


the only way to express it is to aim at a radically new personal moralviewpoint. After all, simply recognizing that our good is in partlinked up with our ability to consider that we are living in a justsociety is an invitation to compare this good with other goods,and some balance can be established in the course of social lifebetween all these goods, in the form of compromise. As soon asone casts doubt – as we have done here – on the idea that livingtogether under common norms and institutions should, by itself,result in switching moral viewpoints (exchanging our own favoredcomprehensive doctrines for a new, more ‘‘neutral’’ doctrine ofjustice based on ‘‘public reason’’), one is left with compromise,and moral analysis should have the ambition to help us make thebest of it in an impartial way.Compromise can indeed be effective in fostering this kind of

impartiality by strengthening our concern for being equally treatedin the common institutions we agree upon. Insofar as reaching acompromise is essential to avoiding destructive conflict in manyareas of social life, each of us is bound, as a matter of individualmorality in public life, to develop an interest in having the opportu-nity to accept compromise when the efforts it requires are matchedby comparable efforts on the part of others. Unanimity is, then,possible in principle, as evidenced by the ongoing stability ofmany contemporary democratic societies in which there is nocommon conception of any kind on justice; in fact, this process ofunanimity-building is likely to be powerfully eased by the honestacceptance of its being alien to justice in the strict (more ambitious,Rawlsian) sense. Indeed, under such circumstances, strategicallyrenouncing some of one’s pretensions in the social bargain needsto be clearly distinguished from the heartbreaking (and often use-less) abandonment of one’s own moral views about justice.To be sure, much of our current discourse on justice is best under-

stood as pointing to common aspects of our individual goods, andthe balance between our claims to the politically mediated goodlife will probably be less biased (i.e. more impartial) if we take expli-citly into account the harm individuals are de facto exposed to whenthey are publicly treated as citizens who ought to accept as (univer-sally) ‘‘just’’ something they deem (personally) ‘‘unjust’’. We believethat if one aims at attenuating the consequences of inequalities in the(more or less biased) elaboration of social compromise in the realworld, this de facto individual harm should be taken into accountalongside the specific difficulties faced by various individuals and


groups when, given the content of their claims, they try to have theirown way through democratic institutions. Real-world agreement onless biased social compromises can result both from the changingbalance of forces in the political game and from the growing aware-ness of the intrinsic value of being treated equally in public life. Thusthere should be ample room left for moral persuasion, even if weabandon, for the purposes of political theory at least, the perspectiveof an overlapping consensus between moral subjects.

Christian Arnsperger holds a PhD in economics and is Senior Research Fellow at

the Belgian National Science Fund (FNRS, Brussels), as well as permanent

member of the Hoover Chair for Social and Economic Ethics at the Universite

Catholique de Louvain. He teaches epistemology of economics and critical

analysis of market economies. His main research areas are philosophy of econ-

omics, critical epistemology of social science, political economy and political phil-

osophy. He has recently published ‘‘Toward a Theory of Solidarity’’ (with Yanis

Varoufakis), Erkenntnis 59 (2003); and the second edition of Ethique economique

et sociale (with Ph. Van Parijs), Paris: La Decouverte, 2003. Author’s address:

Universite Catholique de Louvain – UCL, Chaire Hoover, Place Montesquieu 3,

B-1348 Louvain-la-Neuve, Belgique. [email: [email protected]]

Emmanuel B. Picavet is Maıtre de conferences in political philosophy at the Uni-

versity of Pantheon-Sorbonne (Paris 1), and a member of the Institut d’histoire et

de philosophie des sciences et des techniques (Paris 1 University and Centre

National de la Recherche Scientifique). His research is mainly focused on the

application of rational choice theory and the theory of norms in the field of

political analysis (Choix rationnel et vie publique, Paris: Presses Universitaires de

France, 1996; Kelsen et Hart: la norme et la conduite, Paris: Presses Universitaires

de France, 2000; John Rawls: Theorie de la justice, I, Paris: Ellipses, 2001). He has

also published on epistemological topics (Approches du concret, Paris: Ellipses,

1994; Les modeles de l’action, ed. with Bertrand Saint-Sernin, Renaud Fillieule

and Pierre Demeulenaere, Paris: Presses Universitaires de France, 1998). Author’s

address: IHPST, 13 rue du Four, 75006 Paris, France.

[email: [email protected]]

Notes

1. The distinction between ‘‘open conflict’’ and ‘‘conflictuality’’ is, of course,

essential to understand this sentence. Open conflict is, trivially, any instance of an

actually enacted antagonism, which involves violence of coercion. Conflictuality is,

rather, the property of any situation of antagonism, i.e. the fact that the situation

contains a potential for open conflict.

2. On the main approaches to the sources of human conflictuality and their com-

parative historical importance, see Waltz (1959).


3. This perceived danger has been aptly described by Rawls (1999b, section 3), in

the course of a discussion of examples around the difficult coexistence of religions:

‘‘. . . Society is divided into separate groups, each of which has its own fundamental

interests distinct from and opposed to the interests of the other groups and for which

it is prepared to resist or to violate legitimate democratic law’’ (1999b: 589).

Characteristically, the ultimate danger here appears to be the violation of the law.

What, then, if the divided society under scrutiny is not one in which the law is

violated? Think of an ethically divided society (such as contemporary France)

where the police and other repressive powers are very strong and organized, so

that when violations of the law go unpunished, this is usually because of a lack of

political will and not because of a collective inability to arrange for security. This

situation is perfectly consistent with the well-documented fact that many people in

France do not feel obliged for moral reasons to abide by the law.

4. For a recent synthesis of the philosophical issues involved in the present

debates on such matters, see Weinstock (2002).

5. This has been forcefully argued by Hirschleifer (1995) from a methodological

perspective on modeling.

6. See Rawls (1999c: 617), reacting to B. Prusak’s remark (‘‘Your problem in your

recent work, then, is different from your problem in A Theory of Justice’’):

Yes, I think it is. A Theory of Justice was a comprehensive doctrine of liberal-

ism designed to set out a certain classical theory of justice – the theory of the

social contract – so as to make it immune to various traditional objections.

The difference is that, in Political Liberalism, the problem is how do you

see religion and comprehensive secular doctrines as compatible with and

supportive of the basic institutions of a constitutional regime.

7. Along similar lines, see the characterization by Salais (1998: 280–1) of the

mixing of plural ends and particular references in the compromise-based dynamics

of institutions.

8. Thus, in ‘‘The Idea of Public Reason Revisited’’, his ultimate theoretical syn-

thesis, the author explains that, when citizens realize that ‘‘they cannot reach agree-

ment or even approach mutual understanding on the basis of their irreconcilable

comprehensive doctrines’’, they need to consider ‘‘what kinds of reasons they may

reasonably give one another when fundamental political questions are at stake’’;

comprehensive doctrines should therefore be replaced by ‘‘an idea of the politically

reasonable addressed to citizens as citizens’’ (Rawls, 1999b: 574). This basic scheme

is of course congenial to those of us – we are no exceptions – who think that political

argument about the appropriateness of norms and institutions should not be con-

fused with the application of a single, particular moral system. But, Rawls goes

on to argue, ‘‘[p]olitical conceptions of justice are themselves intrinsically moral

ideas’’ (1999b: 610). The indispensable character of such conceptions is the object

of our critical inquiry.

9. Indeed, even the basic structure may be changed in time, but its change will be

accompanied, in an appropriately Rawlsian world, by unanimous (reasoned) accep-

tance of the required changes: it is emphatically not disagreement which drives the

change; unanimous agreement among reasonable individuals under changing con-

ditions is indeed called for.

10. For a precise, social-choice-theoretical analysis of the conceptual relationship

between early agreement and privilege, see Seidl (1996, 1997).


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