Review essay

The political face of "rational morality"

A discussion of Derek L. Phillips, Toward a Just Social Order (Prince- ton: Princeton University Press, 1986).

STEPHEN TURNER University of South Florida

Whatever else may be said about Phillips's book, it is a work of great originality and interest. The places it errs, so I shall claim, are in the premises and the conclusions. But the bulk of the work of the book lies in the steps between, which are elucidated in a way that raises many revealing questions about the various bodies of literature on which it touches. The main point of the book is to revise some recent claims made in philosophical ethics and political theory by introducing some considerations familiar from the tradition of conventional American sociological theory and from the literature on moral development and socialization. His treatment makes clear that these various traditions can illuminate and complement one another; but he is also able to show that each of these traditions must emerge from their mutual encounter changed.

Phillips examines three major recent philosophical attempts to con- struct a politically relevant rational morality, those of Rawls, Nozick, and Gewirth. He concludes that epistemological tangles vitiate the work of Nozick and Rawls. Put simply, Rawls's and Nozick's accounts both depend on questionable fictions: the "original position" in Rawls; the historically misty notion of the licit transfer and acquisition of past wealth in Nozick. Philips accepts Gewirth's claim that his approach depends solely on deductive and inductive reasoning and does not require the questionable premises employed by his competitors.

Gewirth's argument is Kantian, and revises Kant's categorical impera- five, itself a rigorous version of the Golden Rule. Like Kant's, Gewirth's revision embodies an old philosophical dream -- to make immorality not just bad, which is perhaps to say just a matter of my or your per-

Theory and Society 17: 551-569, 1988 �9 1988 KluwerAcademic Publishers. Printed in the Netherlands

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sonal likes and dislikes, but self-contradictory. Gewirth's variation on Kant depends on the notion that in acting to achieve some end, we implicitly affirm the desirability of the end and the factual necessity of taking actions that are means to these ends (which is where "inductive" reasoning comes in), and this logically commits us to generic claims about these means and ends, and in particular to the claim that we have a right to perform the acts that bring about the end. To act is implicitly to claim for ourselves the generic goods of freedom and voluntariness that are essential to our action. To fail to abide by this claim as it applies to others is thus a form of self-contradiction; hence an agent, as an agent, owes and is owed by the recipients of the consequences of actions the non-interference 1 essential to action. Gewirth's edition of the Golden Rule would run something like this: "Give unto others (for whom our actions have consequences) the generic goods (i.e., 'rights') one implicitly claims for oneself (by virtue of acting to achieve some particular end)." Not only "non-interference," but also "well-being" is essential to action, and consequently, Gewirth argues, as agents we owe well-being to other agents and are owed well-being by other agents. So the Principle of Generic Consistency; (PGC), "Act in accord with the generic rights of your recipients as well a s yourself '2 implies a duty "to prevent" people from "inflicting basic harm on themselves "'3 We have, in short, an "obligation to rescue" people from themselves and others in the name of assuring generic rights.

This obligation to rescue, which appears at first to be incidental to the PGC, is the source of its key political implications. Indeed, as one critic has put it, "the whole mighty parade of the modern welfare state" troops through this "loophole. ''4 Precisely how much can be put through the loophole is something of a puzzle. Gewirth himself con- cedes that the traditional problem with rights theories is arbitrariness: the substantive questions rights claims produce, on the order of "is health care a 'right'?," raise metaphilosophical questions like "if so, how can one tell?" and "how does one reconcile this rights claim with all the others that any given criterion might warrant?" (and which in practice may conflict). One may resolve these questions, but ordinarily they must be resolved by an appeal to something outside of the abstract concept of rights itself, such as the liberal theory that one must give up one's natural rights to enter civil society and secure the civil rights that are part of a particular political compact or constitution. In contrast, distribution problems of the sort made famous by Rawls seem to be open to solutions of a general kind, in that a "fair" solution, or set of fair solutions, can be distinguished from unfair solutions to distribution

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problems. The difficulty with these distributional theories is in their results for freedom. Gewirth points out that they "make it possible to argue that distributions fulfilling purely formal requirements are moral- ly right regardless of the contents distributed, as when all persons are equally deprived of life, liberty, or property." His own approach avoids this. "The PCG" he says, "combines the formal distributive considera- tion of equality or mutuality with a substantive consideration consisting in the freedom and well-being that derive from the generic features of action; hence it does not incur these difficulties of pure formalism "'5 The remedy for the arbitrariness characterizing substantive concep- tions of rights in ethical theories proposed by Gewirth is to treat as rights only those things that are necessarily connected with action, as freedom and well-being are.

One difficulty with this reasoning is that the notion of necessary con- nection between such abstract concepts as "action" and "rights" on which this argument stands or falls requires a departure from "induct- ive and deductive logic," as these terms are ordinarily understood. Judgments about "essential properties" and "necessary connections" require the conceptual practices of a specific tradition of philosophical analysis, and the character of the argument he offers depends heavily on these practices, which he calls "conceptual analysis" His comments on these philosophical practices are not very illuminating. He remarks that he construes "conceptual analysis on the model of deductive logic, in that when a complex concept A is analyzed as containing concepts B, C, and D, these concepts belong to A with logical necessity so that it is contradictory to hold that A applies while denying that B, C, or D applies "6 But the last clause in this sentence is the definition of logical necessity, not a method of establishing it, and the reference to deduc- tive logic is thus irrelevant to establishing the cognitive authority of the assertions, for deductive logic cannot be a model in this respect: the distinction between logical necessity in deductive logic and logical necessity in informal contexts is precisely that in deductive logic "necessity" is a relationship of formal deducibility, syntactical rather than semantic.

As a matter of rhetoric, to the extent that the results of a conceptual analysis conflict with the substantive moral judgments we ordinarily make its status as a correct conceptual analysis of the concepts on which it reties comes into question, simply because it implies that we have been making a mistake about our own concepts. To the extent that it does not conflict with our usages, it cannot be said to be morally

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informative. So to claim that an analysis subject to these constraints can be unproblematicaUy taken as the basis for a systematic revision of our received moral usages is paradoxical, unless we suppose that we have made mistakes about the application of our concepts. Politics is one area of life for which the supposition that our activities are in fact rife with moral inconsistency or rationalized immorality can perhaps be granted, so it is here that Gewirth's "conceptual analysis" may be most readily freed from this obstacle. Nevertheless, this does not resolve the general question of the cognitive and moral authority of such "analy- ses" a question that inevitably arises if an analysis produces results that conflict with strongly held beliefs and deeply entrenched social practi- ces and intellectual usages. In particular such conflicts raise the ques- tion of the cognitive and moral status of the analysis relative to the entrenched practices and usages. If the concepts being "analyzed" are regarded as themselves simply entrenched conceptual practices, as dis- tinct from ideal essences or some sort of univocal Kantian synthetic a priori, there is no reason to settle such conflicts as arise between Gewirth's analyses and other practices in favor of Gewirth.

The concepts Gewirth "analyzes" are in fact notoriously tradition-relat- ed and variable themselves. It is a familiar Durkheimian point, made in a famous lecture by Mauss, that the category "person" is radically variable across social worlds. Mauss, indeed, identifies the specific point at which a framework of ideas of agency and personhood like ours arises, where "the 'person' is more than an organizational fact, more than a name or the right to a role and a ritual mask" and becomes "a fundamental fact of law." He notes that the jurists say that in law "there are only personae, res and actiones" and that this principle still governs the division of our codes. But this "outcome is the result of a development peculiar to Roman law. ''7 Thus the vocabulary that Gewirth "conceptually analyzes" is a vocabulary with a history, just as the concepts and practices with which the analysis conflicts have a his- tory, and just as our other moral concepts are not universally shared, these are not universally shared. Moreover, the history has not ended. Notions of volition, especially in relation to culpability, have changed a great deal over the last century, in part due to the influence of social science. The boundaries employed in the law to mark the limits of voli- tion (e.g., the legal "age of reason" for a child) are wholly or partly pur- pose-relative and conventional, and have undergone continuous change. If Gewirth was to say that only the applications have changed, and not the core idea of "action," he would concede a large degree of variability in the legitimate application of such concepts. This point

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may be usefully kept in mind, for we will see that it bears directly on the question of the character of the political regime Gewirth and Phillips envision.

Gewirth extended

One reason Phillips is drawn to Gewirth's argument is precisely that it appears to provide an escape from traditions, local conceptual idioms, and historical bodies of social practice, and to identify a tradition-free Archimedean point located in the clear abstractions of agency, ration- ality, and so on, on which "general principles" may be founded. Haber- mas's notion of "undistorted communication" attempts this as well, but, as Phillips observes, the reasoning falls into the familiar epistemologi- cal traps surrounding the concept of false consciousness, 8 and in doing so, he suggests, actually serves not "emancipation" but the nihilism that feeds on epistemological doubts about ethics. Another kind of nihilistic threat also concerns Phillips, the threat posed by certain critics of "rational morality" who are not simply nihilists, or even relativists, but persons who give various accounts that purport to respond to the prob- lem of nihilism yet deny that the solution is the rational recognition of general moral principles. The alternatives specifically canvassed by Phillips include defenses of communitarian virtue moralities, such as Sullivan's, of historical telos moralities, such as MacIntyre's, and of the kind of conception of tradition associated with Oakeshott but also represented by Michael Walzer's Spheres of Justice. Maclntyre and Walzer, one suspects, cannot be easily dismissed, for they both raise questions about the extent to which our present moral categories and traditions are non-optional starting points that cannot be simply "criti- cized" in the God's-eye fashion of Kantianism. Oakeshott would say that moral categories can only be separated from the substantive forms of life of which they are a part, and criticized as "bad principles" only by an act of conceptual butchery, in which explicit, precept-like epitomizations of the moral life are detached from the tacit parts that make it into a lived social form.

Phillips's extension of Gewirth ignores these issues. His strategy is to use the concepts of American sociological functionalism to think through the problem of the realization of Gewirthian principles, in par- ticular by considering the problem of actualizing the concepts under certain general constraints (deriving from the familiar "problem of or- der"), namely the necessity to socialize children in such a way that the

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broad outlines of a society's normative system are internalized and shared, and the necessity for state power to enforce "generic rights" Logicians often clinch their arguments by showing that particular claims may not be granted "on pain of inconsistency." As a theoretical sociologist, Phillips is aware that the solution to "the problem of order" requires more than logic: the pain of inconsistency is evidently not suf- ficient for achieving the purpose of social control. A real world society governed by a rational morality thus must reproduce this morality and assure that it is causally effective.

He observes that although effective methods of internal compulsion, such as guilt, have had a bad press in twentieth-century social science, reliance on the psychological capacity for guilt is preferable to external compulsion. Producing "true guilt,' guilt for violating the principles of rationality -- making the pain of inconsistency into real inner pain, so to speak -- is, accordingly, a primary aim of socialization in the just society. 9 Institutions and institutional practices that assure this are thus justified as a means, on the ground that rational morality, in this socio- logically extended sense, requires their employment. But these methods are not sufficient, for, in the real world, attempts by educators and parents to have children experience the proper negative emotions when they do wrong simply fails to have any effect on some children, and consequently, for the sake of social order, societies need institu- tions that practice external compulsion.

Just as the practical application of the notion of rational morality in real societies requires and thus justifies socialization, the requirement for coercive institutions to protect rights legitimates the legal system. Political obligation follows from the PGC: where the state is securing generic rights its acts are the expression of a principle we cannot on pain of contradiction reject. 1~ Phillips's strategy is to attempt to turn this matter of principle into a solution to the real world problem of legi- timation, and his expectation is that a rational real world solution to the problem of securing generic rights will be accepted and thereby legiti- mate the regime that lives up to it in the eyes of its subjects. The double question this produces is this: how much does the principle legitimate, and how much is likely to be accepted? This question needs to be kept in the back of the mind in the course of considering the following dis- cussion, for each of the considerations and arguments Phillips weighs has this double life.

People without the basics cannot exercise the rights implied in the con-

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cept of agency; "freedom" vanishes where there is an inadequate level of security and subsistence. Thus the rational solution to the problem of legitimation is for the state to provide the stable and coherent environ- ment necessary for true agency. In most societies, this requires some redistribution of wealth. The moral rationale for this use of state power for this purpose is as follows: the PGC makes the right to agency rela- tive to the rights of others to agency; 11 in a society like the United States, where the rich enjoy their freedoms at the expense of the free- doms of others, i.e. those who lack basic freedoms, it is therefore just to limit the powers of the rich to use their money to act as they wish, and use it to fulfill their "rational" obligations to secure the agency of others. Phillips's reasoning in support of the notion that this would serve the state's need for legitimacy is developed in the course of an extended discussion of such persons as the philosopher of law Dwor- kin, who holds the theory that, as Phillips put it, "in every legal dispute brought before a court one party or the other has a preexisting right, which the court must vindicate." Dworkin holds that "the right answer is the proposition of law that, of competing propositions, has the best fit with the soundest theory of law, ''12 and that there is always only one right answer. Although Phillips rejects Dworkin on the grounds of the inadequacies of his theory of these pre-existing rights, he thinks that Gewirth's theory makes these deficiencies good. He retains Dworkin's comforting idea that "reason decides" in those areas of substantive politics and law to which Dworkin has applied himself, and this enables Phillips to believe that "rational" decisions will strengthen the real world claim of the state to legitimacy.

By Phillips's estimate, 20 to 25 percent of Americans and Britons presently lack the basic conditions of agency. 13 The numbers are daun- tingly high. But Phillips argues that, in the United States, a modest reduction in inequality from the present differential in wealth between the means of the top and bottom quintiles of 7:1 to a ratio of 5:1 would suffice to provide "basic rights" to those who lack them. These calcula- tions are not worked out in any detail. Phillips inserts his remarks on the topic later in the book, at the point of dealing with the problem of "who pays?" They do not follow directly from his Gewirthian premises. Gewirth does sketch a concept of "the supportive state," one that is morally justified in its provision of basic well-being for its citizens and also in addressing longer-range responsibilities, and he makes various remarks about "the need for fostering the availability of productive work"14and for strengthening the "capacities for productive work for people who are deficient in this respect. ''15 However, as Phillips says,

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Gewirth's discussion of the evaluation of "the institutional justification of social rules and arrangements"16 is rather limited, and "Gewirth has very little to say with regard to how the necessary preconditions for enjoyment of the basic rights to freedom and well-being are to be as- sured." 17

In Phillips's hands, the argument leads precisely to the end to which Gewirth's libertarian and conservative critics have suggested Gewirth's "obligation to rescue" leads. So whether Phillips merely fleshes out Gewirth or subverts his argument is a defining question. However, it is not an answerable question, for a reason that is highly revealing: as soon as Phillips begins to take into account even a few of the various considerations that are part of the creation of policy in something approximating the real world of politics, and when he begins to balance various other kinds of moral claims against particular policy strategies, the thread of the argument, and its pristine "rationality" is lost. For example, Phillips does not give any reason, as far as I can determine, as to why the rich should bear the burden of the provision of basic tights, if they are not using their wealth in a manner that is, to use his own lan- guage, "demonstrably detrimental to some people's effective exercise of their generic rights "'18 "Rescue" sometimes implies a redistribution of wealth from those that have some to those that don't, and this would result, incidentally, in greater equality. But there seems to be nothing in the core of Gewirth's argument implying that egalitarian means to the end of securing generic rights are better than inegalitarian but freedom- preserving means. Taxing the rich may be the most expedient means of raising funds under ordinary circumstances, but not always. If one is in a state, such as Britain, in which it might be claimed that the long-term diminution of total utility would have more negative consequences for generic rights than could be gained by egalitarian measures, or if one is in a third-world country in which the securing of generic rights for more citizens depended on an increase in total utility, one is obliged, on Gewirthian grounds, to prefer the means which produced it, inegalitar- ian or not.

A deeper conflict between Phillips and Gewirth would arise in the application of Phillips's redistributionist policies. Phillips notes that Gewirth takes his own argument to conflict both with Rawls's "revolu- tionary" view of redistribution and Nozick's libertarian conceptions of entitlements. But Phillips regards Gewirth's failure to answer the ques- tion of the correct form of the distribution of wealth as an omission, which he proceeds to rectify by a reconsideration of Rawls and Nozick

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in light of what has been established in the course of his sociologizing of Gewirth. Nozick's point that "whatever is to be distributed (equally or not) usually comes already 'fled' to particular persons ''19 Phillips concedes to be a strong argument. But he argues that the evil conse- quences of this doctrine for those innocents who are born without entitlements, and its failure to deal effectively with the issue of unjustly claimed entitlements, disqualify it as a serious guide to a just society. Rawls is subject to other strictures. It is not clear that Rawlsian prin- ciples would secure generic rights, as Gewirth also points out. But although they agree on the inadequacy of Rawlsian principles to secure basic rights, Phillips thinks that it is because they do not demand enough distribution, while "Gewirth insists that Rawls is guilty of not giving sufficient weight to the right to freedom. What he intends here, apparently, is not the general generic right to freedom but the exercise of freedom in the economic realm. ''2~ Gewirth also says that Rawls "overlooks the claims of desert as based on voluntary effort and accomplishment."

For Phillips, these are obviously troublesome claims, for the degree of redistribution Phillips has in mind obviously requires tampering with people's freedoms. His approach to this conflict is to notice that Gewirth quickly adds the following sentence to these remarks on Rawls: "The retort that all effort is a product of forces beyond the agent's control ignores that persons with similar advantaged socio- economic backgrounds may differ drastically in the ways they voluntar- iliy marshall the resources available to them "'21 Phillips uses this com- ment to justify taking Gewirth to hold "that those who contribute more are deserving of higher economic rewards "22 and points out that this maps onto a large sociological literature, including numerous surveys showing that when people are asked about how much persons occupy- ing various positions in the employment stratification system deserve, the answers largely reflect what they actually get. Phillips takes this to mean that the notion of desert is "quite problematic." Phillips's aim in his extensive discussion of this point is to show that "we must be ex- tremely skeptical about standpoints that rest on various claims and assumptions concerning the necessity and inevitability of large eco- nomic differentials in economic rewards "'23 and that we can conclude that far less inequality is needed, e.g., as incentive, than actually exists. The upshot of this reasoning is that, because little of this inequality is "deserved," there is no rational moral objection to it being removed by the state. But Phillips never makes this argument explicit.

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Redistributions simply for the purpose of producing equality are not justified by the argument that taxation is not a violation of freedom when it is used to provide generic rights to others. But Phillips creeps toward an assertion, and often appears to assume, that inequality is bad as such, as when he says that "a just social order requires after-tax dif- ferences more like those found in Sweden than those now existing in the United States and Canada "'24 He nevertheless finds no objection to some entitlements and transfers, and accepts those inequalities arising from entitlements that remain after the generic rights of all are as- sured 25 and after paying for "rectification policies" that take care of "earlier systematic in just ices "'26 The conflict is resolved for him by his empirical belief that "entitlements will pay a far less determinative role in a just social order than in the theory defended by Nozick, ''27 although he gives no particular grounds for this belief.

One of Gewirth's strongest claims is that his position is "not open to Robert Nozick's objection that 'no end-state principle or distributional patterned principle of justice can be continuously realized without con- tinuous interference with people's lives: ''28 Whether Phillips's just society avoids this kind of state is an interesting question. Phillips would perhaps say that it does, at least to the extent that the kinds of transactions Nozick defends do not interfere with generic rights, stabil- ity, and the rectification of past systematic injustices. But can this be done without a regime that continuously interferes with people's lives? The roots of the problem here are to be found in Gewirth's own text. Gewirth handled the conflict between freedom and equality by smug- gling in a particular, limited kind of redistribution under the heading of freedom, by saying that agency requires well-being. So the conflict between freedom and equality appears in Gewirth in the form of the tendency for the consideration of providing well-being to swallow up "non-interference?' Gewirth is aware that any "redistribution" of the sort he has in mind has the effect of dulling agency by restricting the effects of someone's actions, or by limiting their choices, and that his "supportive state" does this as well. But, he claims, his state does not require the extensive dulling of agency that would result from the con- stant interference that would be required by a state seeking a preferred "end-state?'

In the course of his "sociologizing" of the concept of well-being, how- ever, Phillips describes something that might well be regarded as an "end-state" of precisely this kind. Although the "general context of social order" that he takes to be essential to well-being is not specified

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in detail, he remarks that "human beings require a stable and coherent social environment in which they are enabled to anticipate and rely upon certain regularities and uniformities in the conduct and expecta- tions of others, to plan securely, and to work to attain their purposes and realize their personal plans "'29 One might read this to indicate that Phillips has no objection to a society in which the state continuously enforces a vague duty to rescue people from consequences of their actions that diminish their well-being in the broadest sense of under- mining this "social environment." One may note that, as he considers the legitimacy of the exercise of state power to achieve these ends to rest not on tacit or explicit consent but on the consideration that it wouM be rational to consent to such a state, he accepts the elimination of a major "liberal" check on state action, the moral requirement of obtaining actual consent of some sort. So he would have no objection in principle to a state that did this against the wishes of its subjects.

This raises the question of whether there are any limits to the potential intrusions of the supportive state. Phillips's extension of the notion of well-being to include the social conditions needed by the individual is perhaps an extension at which Gewirth would balk. But it is not evident that there is a line that he may appropriately.draw to preclude such an extension, and any formal restriction, because it is formal, would be open to extension in the application of the concepts. 3~ The differences between Phillips and Gewirth are illustrative of the weaknesses of this form of argument. Gewirth might argue that his own conception of well-being is subordinate to the concept of agency, and that considera- tions of "well-being" in this vague sense are not legitimate grounds for state interference, because well-being is a "right" only to the extent that it is necessary for agency, and relatively little well-being is required to be an agent. Phillips undermines this retort by his recognition of novel preconditions for agency. "Stability," for example, is evidently essential to agency. But there is no storehouse of packages of "stability" to be "redistributed": stability is neither an object nor a natural kind, and thus requires different kinds of interference from the sort that takes from one person to give it to another who needs it. As a "right," it might be taken to license enormous intrusions by the state, which might threaten freedom more profoundly than the relatively benign practice of taxation.

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The face of rational politics

A critic of a certain kind would consider Phillips's just society to be a regime based on a species of "Rationalism." The views of such a critic bear examination, for they suggest something fundamental about the entire line of approach taken both by Phillips and Gewirth. Gewirth and Phillips, a critic of this kind would say, have inverted the relation between substantive reasons and abstractions, such as the concept of agency. They see the abstractions as the proper home of reason, and substantive considerations as mere matters of application. The critic would say that it would be better to reverse this picture -- to see reason in the substantive reasons that living people give, and see the philos- opher's abstractions as epitomizations of these reasons, epitomizations that invariably fail to do justice to them and in any event cannot stand on their own. The gap between epitomizations and substantive ideas of politics and morality has direct political implications, as the double question mentioned above suggests, for there may be a gap between the answers to the two parts of the question. Phillips's view is that "rational- ly justifiable moral principles -- and the social arrangements to which they give rise -- are far more likely to gain consensus than are those that people accept or tolerate because of tradition, coercion, fear, ig- norance, apathy, or feelings of powerlessness "'31 The critic would observe that, were Phillips to impose the political regime as he de- scribes, the result would not be the one he envisions: the regime would very likely be in chronic troubles over legitimacy, if not over the unper- suasiveness of the abstractions, at the point of their specific application by authorities, which will inevitably appear to many of the subjects of this regime to be arbitrary and wrong. Why should this be so?

According to this kind of critic, it is an inherent vice of Kantian abstractions that they permit applications that invert their apparent sig- nificance. Stalin, the critic would say, might have employed the locution of the "obligation to rescue" and the notion that alleged rights con- flicting with the requirements of "stability" are not true rights in sup- port of his crimes, had he needed to, precisely because he could have defined well-being in such a way that these crimes appeared "induct- ively" to be appropriate means to the ends of securing the well-being of some persons who lacked generic rights, an end against which, Phillips would insist, no one holds any but generic rights, which do not include the right to refuse to consent to "rational" demands.

The same kinds of conflicts arise, albeit in milder form, in connection

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with the practice of redistribution. One point that escapes Phillips and Rawls, as well as those social-psychological commentators who con- struct experiments on the just distribution of goods, is that there is no pure ,distributive moment" in politics (or, for that matter, in business), but rather decisions that have consequences for "distributions." Deci- sions over a particular person's salary are illustrative, perhaps paradig- matic. Such decisions are ordinarily governed by a mixture of consider- ations -- prudential, utilitarian, and procedural, deriving from policy, and from various and conflicting commonsense ideas of '~tness," and especially from "particularisfic" considerations of past promises, tacit or spoken. These considerations bear little resemblance to the abstrac- tions found in texts such as those of Gewirth or Rawls. They are formu- lated and applied in the context of local traditions and of quasi-legal traditions in work relations, both of which vary greatly between coun- tries, industries, and organizations, but which are of overwhelming sig- nificance to those who occupy these life-forms. Abrogations of these understandings have often provided the only justification of strikes or revolutions that were telling for the participants in these events.

A regime like Phillips's, which would insist on their abrogation in the face of the higher rational necessity of the generic fights of faceless "recipients" with rights to such vague things as a "coherent sound envi- ronment," would appear as despotic as that of a Tsar, for the abstract- ness that makes the reasoning so compelling at the level of principle would run into the sand of endless disputes over application that could be settled only by authoritative decision in a situation of enormous uncertainty and underdetermination. These disputes would undermine Gewirth's claim that "the basis of the obligation to obey the law, then, is not simply that it is the law but rather that the law is instrumentally jus- tified by the PGC," and that "hence, indirectly, the obligation to obey the law is a rational obligation, in that to violate the law is to contradict oneself? '32 One may be consistent in consenting to the principle but not consent to the specific decision made by the state about its applica- tions. Gewirth's term "indirectly" hides the whole of the real world of politics, and perhaps of all social practice; the theory legitimates the perfect state, in which disputes over conditions and application do not arise, but not actual states, in which disputes to which "inductive and deductive reasoning" do not give "one right answer" arise incessantly.

A few examples of considerations that bear on political decisions should suffice to clarify this. Many theorists of the state have treated war as ultimate, because it is a condition in which the abrogation of the

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generic rights of many people is routinely undertaken, sometimes with the justification that only these means will preserve the future freedom and well-being of its citizens. Liberal constitutional theory makes sense of this by the distinction between natural and civil rights; war is one context in which natural rights must be given up to obtain or preserve civil rights, and service in war is a simple illustration of the necessity. Phillips says nothing about war, and little about civic duties, an omis- sion threatening to make his theory into an irrelevant formalism, because war is the great destroyer of generic rights and because meas- ures to prevent war often require their suspension. And these consider- ations are made more acute by the fact that in war the moral difficulty of politics, and in particular the need for authoritative decision in the face of uncertainty, cannot be wished away: even Dworkin has not attempted to apply his fanciful notion of "one right answer" here.

Welfare, similarly, involves decisions the character of which cannot be reduced to easy formulae. Attempts to justify welfare in terms of the liberal tradition, broadly understood, such as T. H. Marshall's, some- times make it a civil right, treating the obligation to rescue as an obliga- tion owed qua citizen to other citizens. This is an obligation regarded by the typical person in the United States and elsewhere as a matter of desert only when various conditions are met, one of which is the recip- ient's willingness to work and desire to avoid burdening others. Fla- grant unwillingness is odious: just as the little boy who cried "wolf" eroded the obligation of others to rescue him, the welfare recipient who ignores what Marshall regards as the correlative civil "obligation to work" erodes the obligation of others to rescue him through state action. To be sure, turning "willingness to work" into a condition for assistance has not proven especially workable. Neither, however, has Phillips's recipe of various kinds of guaranteed minima.

Phillips concedes that establishing appropriate levels of support is a difficult matter, and does not discuss the chronic political disputes to which the issue has given rise in such welfare states as Sweden. But he thinks of the problem solely in terms of the provision of goods, and in terms of the levels that constitute minima. Here the traditional political theory of welfare has something to contribute, but what it contributes creates difficulties for Phillips. Marshall observes that

almost any benefit or service that is really designed to satisfy a part icular individual need mus t include an e lement of discretion. For the assessment of

needs in an individual case, and of the measures that are best suited to meet

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it, involves an act of personal judgement. This is true not only of the decision how much cash income a family requires to satisfy its right to welfare, or of the organisation of care for the aged, but also of the provision of an educa- tion suited to the talents of a student and of the doctor's diagnosis of an ill- ness and his prescription of treatment. This is why the right to such benefits and services cannot be fully legal. You may sue a doctor for gross negligence, but not simply for refusing to prescribe the treatment you asked for, nor can you take legal action against an examining body for giving you lower marks than you consider you were entitled to. But discretion exercised in this way does not make a fight inferior in quality to other rights. On the contrary, it is from some points of view superior, because the question asked in each case is not "What do the regulations say must be done?", but "What action is most likely to produce the desired result?" The "means test" is transformed into a "need test", and the desired result becomes identifiable with "welfare"? 3

What makes this comment suggestive is that it parallels Gewirth's argu- ment for the rescue of persons who are unable to be agents, but it recognizes that the conditions necessary for a person to be an agent, to choose and to act on his particular choices, will vary according to the individual and his choices. There are enough stories of Marielitos who arrived in Miami ten years ago with no material possessions, and nevertheless succeeded, to underscore the point that for some, very little aid is needed to make them into full agents, while for others, no amount of aid will suffice. And this implies that there is a conceptual (or, if one prefers, an inductive) mismatch between Gewirth's and Phil- lips's foundational reasoning and the formulaic redistributive methods they envision.

Phillips cites Jencks's collaborative work, Inequality, for evidence about income distributions, but ignores its tmcheering conclusion that trying to equalize incomes by equalizing personal characteristics was an unpromising strategy. He does not cite Jencks's later collaborative work, Who Gets Ahead? This book reiterates the claim central to In- equality, that the sorts of individual properties a person shares with his or her siblings have less effect on "success" in the United States than has traditionally been believed, at least by sociologists, and that the dis- tribution of income between brothers is surprisingly similar to the distribution for unrelated pairs of males in the country as a whole. But Who Gets Ahead? goes on to claim that such traits as "industriousness" and "executive ability," as rated by teachers when the subjects of the research were in the tenth grade, have important independent effects on adult income? 4 These are suggestive results, especially in view of the consideration that Phillips's and Rawls's redistributive notion of equality is less central to American social practice than is the less tan-

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gible but nevertheless deeply ingrained sense of moral egalitarianism described by Tocqueville, the sense that, in spite of social position, past history, biography, and circumstances, "I am just as good as you" itself a secular echo of the idea of equality in the eyes of God.

Could it be that there is an American political tradition that enables something in the way of state action to realize this idea, and does so successfully? Arguably, American politics has done a great deal to give this idea of moral equality force, especially in those institutions where the state can act on the idea of "helping those who help themselves" and act in rough keeping with the preference of liberal regimes for the indirect means of rule. To take a very simple instance, the forgiving practices of the American university system, which astonish Euro- peans, are an embodiment of the idea that people deserve not just a chance to make good, a chance that might be vitiated by accidents of past circumstance and personal history, but additional chances. These practices have many parallels elsewhere in American political practice. To be sure, the generosity of the ''welfare system" broadly understood has usually been expressed in political measures that are justified by more than one substantive idea, and many times the ideas have been fairly crude rationalizations of interests, as one would expect in a politi- cal order based on procedures involving the actual consent of parties with strong and distinctive interests. Nevertheless, the mix of justifica- tions typically contains an element of the concept of desert, and often reflects the idea of the "rescue" of those who are not responsible for their troubles. The fulfillment of promises, tacit or otherwise, such as the promise or expectation of care and concern for veterans and the promises of the Social Security programs to its "contributors" is also typically an element in justification, for promises are typically con- stituent elements of actual relations of consent.

The land grants under the homestead acts and under the mineral claims system in the last century are paradigmatic of the tradition of empowering agency. The labor of thehomesteader on his h cndred and sixty acres secured the "welfare" of the pioneer family. Their welfare was thus subsidized by the state by the act of granting full property rights to the land to homesteaders who were successful for a particular period of time. The tradition continues in the present, albeit in different forms (some of which, such as "urban homesteading" and small busi- ness advice programs, are essentially urban analogues of older rural programs).

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Other policies are designed to empower agency by making it easier to achieve particular ends or acquire particular types of goods considered part of a full life. The United States today subsidizes home ownership, at an enormous cost -- but largely through tax expenditures, which "cost" in lost revenue. Here again the state does not choose for the citi- zen, but nevertheless changes the consequences of an individual's deci- sions by easing the cost to the individual of a course of action the state prefers. For the most part tax expenditures are used to assure that such basics as housing, jobs, and the long-term goods of technological prog- ress and natural security are achieved. These expenditures are "redis- tributive," but they are not primarily intended to produce an even distri- bution of wealth, and may in fact make it less even. Similarly for the tort and workers' compensation systems, which have a large element of generosity to those with special needs or special claims. 35 Health care for the indigent is provided, in part, through charity given by hospitals and physicians. Often the "redistribution" that occurs as a result of this is felt through the mechanism of higher prices, and thus, like a value- added tax, is mildly regressive.

What these methods avoid is the dulling of agency required by Phillips's regime, which preserves its citizens from the negative consequences of their free actions at the price of making it impossible for its citizens to act to secure that kind of consequence that requires the accumulation of some wealth. Phillips derides the "economic" freedoms taken away by taxation, but he does not see that the taxation he envisions would in fact have significant effects on people who are neither remittance men nor beneficiaries of gross inequities in the reward system, but simply hard-working, diligent, and quite ordinary persons. The occupants of the top quintile, whose wealth he would reduce by nearly a third, have at their median persons whose wealth consists of no more than the ownership free and clear of a conventional suburban house. Such goals are within the reach of virtually everyone, and, indeed, a r e the aspira- tions of many persons, although of those who share these aspirations, many will make choices that prevent them from ever achieving them. Politicians who have proposed this sort of economic constraint have not been welcomed in the United States, not because the proposals vio- late generally agreed-on abstract principles, but because the electorate has regarded the policies as unfair, punitive, and tantamount to rob- bery.

Such concepts as fairness and desert are not, in liberal regimes, mono- lithic and free from the conflicts and ambiguities found in any rich

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tradition of political life. The literature that Phillips discusses is an attempt to eliminate ambiguity and conflict through epitomization: Nozick epitomizes one fragment of the American political tradition, Pawls another. What Phillips hirnseff has done is to take Gewirth's epitomization of caritas as applied to "agency" and use it to construct an utopian social order -- utopian because it is an order freed of such realities of politics as the need to decide in the face of uncertainty, the threat of war, and the threat of economic decline. None of these frag- ments is sufficient; none of them is self-limiting. Each is a part parading as a whole, a part that, separated from the rest, tends to bad and often paradoxical extremes. The practitioner of these philosophical methods might concede that the only anchor that would prevent a regime found- ed on Phillips's "principles" from drifting in the direction of applying the principles in such a way that the regimes would have appalling human consequences would be substantive concepts of persons, sub- stantive limits on the range of actions to regard as a matter of rights, substantive notions of our obligations to one another as citizens and as human beings, or a substantive sense of fairness in each of the special situations in which fairness is a problem. But to accept the need for such an anchor, or, put differently, to accept the equal validity or cen- trality of the traditions defining the concepts and governing the sub- stantive application of the principles, is to deny Phillips's Kantian recta- philosophical premises. To move our ideas "toward a just society" in our substantive concepts we must engage in discourse that remolds the concepts and sensibility that the obligations and expectations of politi- cal life presuppose, something which "inductive and deductive reason- ing" by definition cannot do. It is noteworthy that social science has made contributions of this sort, and some of them, such as the rethink- ing of the concepts of race and environment in the early part of this century, have had significant consequences for "justice."

Phillips perhaps has an answer to this sort of critic. Were he to articu- late it, he would emerge from the shadow of Gewirth and enter a con- versation about politics of which the Kantian conversation is only a part. Perhaps sociological theory has something to say in this related conversation. But perhaps not, for there is a sense in which the weak- ness of Phillips's book reflects the inadequacy of "sociological theory" in dealing with politics, a weakness of philosophical ethics as well. The synthesis of the two only makes this flaw more visible.

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NoWs

1. Alan Gewirth, Reason and Morality, (Chicago: University of Chicago Press, 1978) 67.

2. Ibid., 135. 3. Ibid., 271. 4. Jan Narveson, "Negative and Positive Rights in Gewirth's Reason and Morality,"

Gewirth's Ethical Rationalism. Critical Essays with a Reply by Alan Gewirth, ed. Edward Regis Jr., (Chicago: University of Chicago Press, 1984) 106.

5. Gewirth, Reason and Morality, 204. 6. Ibid., 22. 7. Marcel Mauss, Sociology and Psychology Essays, tr. Ben Brewster, (London,

Boston and Henley: Routledge & Kegan Paul, 1979) 78. 8. Derek L. Phillips, Toward a Just Social Order, (Princeton: Princeton University

Press, 1986) 80. 9. Ibid., 241.

10. Ibid., 319. 11. Ibid., 407. 12. Ibid., 277. 13. Ibid., 422. 14. Gewirth, Reason and Morality, 313. 15. Ibid., 314. 16. Phillips, Toward a Just Social Order, 341. 17. Ibid., 345. 18. Ibid., 429. 19. Ibid., 345. 20. Ibid., 354. 21. Ibid., 355. 22. Ibid. 23. Ibid., 372. 24. Ibid., 425. 25. Ibid., 430. 26. Ibid., 429. 27. Ibid. 28. Alan Gewirth, "Replies to My Critics," Gewirth's Ethical Rationalism. Critical

Essays with a Reply by Alan Gewirth, ed. Edward Regis Jr., (Chicago: University of Chicago Press, 1984) 243.

29. Phillips, Toward a Just social Order, 337. 30. My "critic of a certain kind" will stress, in what follows, the opportunities for mis-

chief arising in connection with the application of concepts, but "induction" pro- vides others. A follower of Phillips might readily produce "inductive" evidence in support of his claim, such as that cited by Erich Fromm in The Sane Society, serving to show that modem capitalism is inherently inimical to "well-being," or that the exercise of any generic rights other than those to well-being are inimical to the well- being of others.

31. Phillips, Toward a Just Social Order, 431. 32. Gewirth, Reason and Morality, 300. 33. T. H. Marshall, The Right to Welfare and Other Essays, (New York: The Free Press,

1981) 87--88.

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34. Christopher Jencks, et al., Who Gets Ahead? The Determinants of Economic Suc- cess in America, (New York: Basic Books, 1977).

35. In this discussion my "critic" ignores voluntary insurance schemes, as does Phillips, because Phillips's argument is a justification of the use of state power to back in- voluntary means. It should be observed, however, that to some extent stability, security, and the well-being of widows, accident victims and the like, may be secured through voluntary insurance, savings, and by other choices, for example of a particular community to live in or lifestyle to lead. People obviously vary in their preferences on these matters, and in the ordering of preferences for stability in rela- tion to other goods.