Wenar, L. Political Liberalism, An Internal Critique

Political Liberalism: An Internal Critique
Author(s): Leif Wenar

Source: Ethics, Vol. 106, No. 1 (Oct., 1995), pp. 32-62
Published by: The University of Chicago Press
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Political Liberalism:
An Internal Critique*
Lef Wenar
I
The political theory that John Rawls presents in Political Liberalism
violates Rawls's own restrictions on political theory. The conception
ofjustice that Rawls claims can be the focus of an overlapping consen-
sus will not be acceptable to diverse comprehensive views as we know
them and can expect them to become.'
Rawls's argument forjustice as fairness has always had two dimen-
sions. The first develops the content of the theory by showing how
general conceptions of person and society are modeled in the original
position, and how the original position selects the two principles of
justice. The second argues that these principles can order society stably.
Rawls says that concerns about stability in this second dimension
spurred him to make extensive revisions to the justice as fairness of
TheoryofJustice (pp. xv-xxi).2 Rawls now contends that the citizenry
of modern democracies will inevitably divide on philosophical and reli-
gious grounds, and that a political theory cannot gain free and endur-
ing support from its citizens unless it limits its claims to the domain
of the political. As justice as fairness was originally presented, Rawls
says, it could plausibly be seen as a sectarian doctrine that could not
hope to order society without oppressive state action (pp. xvi, 37). In
Political Liberalismjustice as fairness is presented as a political concep-
* I would like to thank sincerely Richard Arneson, Alyssa Bernstein, Tony Laden,
Steve Macedo, Glyn Morgan, David Peritz, Thomas Pogge, Jedediah Purdy, John Rawls,
George Stergios, and the editors of this journal for their suggestions for this article.
This article was written before the publication of Samuel Scheffler's fine essay, "The
Appeal of Political Liberalism" (Ethics 105 [1994]: 4-22); I am encouraged by the fact
that it shares in some of Scheffler's concerns.
1. John Rawls, Political Liberalism (New York: Columbia University Press, 1993).
All page references in parentheses in the text are to this book.
2. John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press,
1971).
Ethics 106 (October 1995): 32-62

X 1995 by The University of Chicago. All rights reserved. 0014-1704/96/0601-1002$01.00
32

Wenar Political Liberalism: An Internal Critique 33
tion-a conception whose parsimonious claims can capture and main-
tain the allegiance of reasonable people with divergent philosophical
and religious commitments.
In Rawls's language, presenting justice as fairness as a political
conception is a response to "the fact of reasonable pluralism"-the
fact that free institutions tend to generate a diversity of reasonable
comprehensive doctrines (pp. 36-37). A political conception should
be compatible with a wide variety of comprehensive views because of
its restrained posture toward values outside its provenance:
1. a political conception is freestanding, presented independently
of any comprehensive doctrine (pp. 10- 13, 140-41, 144-45);
2. it articulates only political values (p. xx), but does not claim
that these values are more important than other values (p. 157); and
3. it is independent of long-standing controversies in philosophy;
in particular it has no distinctive metaphysical doctrine of the person
(pp. xix-xx; 10; 29, n. 31; 154).
Such a political conception is "a module, an essential constituent
part, that fits into and can be supported by various reasonable compre-
hensive doctrines that endure in the society regulated by it" (p. 12,
see also pp. 144-45). It is therefore an appropriate focus of an "over-
lapping consensus" of reasonable comprehensive doctrines. Rawls pos-
its that such an overlapping consensus could include all of the main
historical religions (except some varieties of fundamentalism) as well
as rational intuitionism and the doctrines of Kant, Bentham, Mill, and
others (pp. 145-46, 168-72).
This article argues that justice as fairness as presented in Political
Liberalism fails to live up to its self-image as a political conception.
This self-image is described by the three numbered statements above
plus Rawls's claim that many familiar religious and philosophical views
could converge on justice as fairness in an overlapping consensus. I
will argue that there may be a conception of justice within Political
Liberalismthat is independent and inclusive enough to fit Rawls's image
of a political conception-but that this conception is only part of the
full theory that Rawls lays out. The full theory that Rawls advances
is, in fact, not a political conception but a partially comprehensive
doctrine-a doctrine that could support a political conception within
an overlapping consensus, but that is itself too exclusionary to be the
focus of such a consensus. Very few comprehensive views, as we now
know them or can expect them to become, will support justice as
fairness as Rawls describes it.
Rawls is led to overextend justice as fairness, I believe, mainly
because he wants to answer certain questions about an overlapping
consensus: why such a consensus is necessary, how one could come
about, and how one could persist. The idea of an overlapping consen-
sus is Rawls's own (it seems unanticipated in the history of political

34 Ethics October1995
theory), so it is not surprising that he is drawn to discussing these
issues. And certainly, were an overlapping consensus ever to evolve,
many citizens would speculate about why and whether it was necessary,
how it could have come about, and how it could persist. Rawls's diffi-
culties arise when he tries to build particular answers to these questions
into a political conception itself. For these arejust the sorts of questions
that various comprehensive doctrines -will answer differently. Justice
as fairness might live up to Rawls's image of a political conception if it
were presented without the elements that address the above questions
about overlapping consensus. These elements are the burdens ofjudg-
ment, the reasonable moral psychology, and political constructivism.
As it stands, the justice as fairness of Political Liberalismis what Rawls
says the justice as fairness of TheoryofJustice was: a sectarian doctrine
that cannot stably order a nonrepressive society. This conclusion
will emerge after we examine Political Liberalism'scentral normative
concept.
II
Justice as fairness proceeds through Political Liberalism to the soft
rhythm of the reasonable. Rawls refers to reasonable principles of
justice, reasonable judgments, reasonable conditions on a process of
construction, reasonable decisions, a reasonable political conception of
justice, reasonable expectations, a reasonable overlapping consensus,
reasonable justification, reasonable norms, a reasonable society, rea-
sonable disagreement, reasonable assurance, reasonable faith, reason-
ably favorable conditions, the virtue of reasonableness, a reasonable
idea, reasonable measures, reasonable requirements, reasonable ac-
tions, reasonable doubt, a reasonable basis of public justification, rea-
sonable answers, a reasonable variant of the public conception of jus-
tice, a reasonable understanding, reasonable belief, a reasonable
combination and balance of values, reasonable extensions ofjustice as
fairness, a reasonable expression of political values, unreasonable
force, reasonable pluralism, reasonable comprehensive doctrines and
reasonable ways of affirming them, and reasonable agents or persons,
who have a reasonable moral psychology.3 Clearly we need to study
the meaning of this term.
Rawls deploys the idea of the reasonable mostly in the second
dimension of the argument for justice as fairness-not in its content
but in its presentation. The content of justice as fairness has always
been laid out starting from the conception of the person as free and
3. These terms can be found in Political Liberalismon pp. xx, xx, xxi, xxi, xxi, 34,
36, 44, 49, 54, 55, 86, 101, 101, 157, 186, 195, 200, 220, 221, 226, 227, 236, 236, 236
(n. 23), 241, 245, 247, 247, 43, 43, 60 (n. 14), 52, 49, and 86, respectively.

equal, together with the conception of the well-ordered society; these
fundamental conceptions are modeled in the original position, which
selects the familiar two principles of justice. This content-the pro-
gression from the conceptions to principles-has changed relatively
little since Theoryof Justice. In contrast, the conception of the person
not as free and equal but as reasonable has developed considerably in
response to Rawls's concerns about pluralism and stability (pp. xv-xxi,
133-34). The reasonable is now as important for the presentation of
the theory as fairness is for the content of the theory-for the reason-
able is used to explain how justice as fairness can be (what it was
not before) a political conception of justice. Rawls now believes that
presenting his theory in terms of the reasonable allows it to bypass
controversies about moral and religious truth, and so to be the focus
of a stable overlapping consensus.
What, then, does Rawls mean by 'reasonable'? He does not offer
definitions for most of the 'reasonable' terms above, although he recog-
nizes the need to do this.4 His strategy seems to be to give explicit
definitions for two pivotal terms-'reasonable comprehensive doc-
trine' and 'reasonable person'-and then to expect that the other terms
can be defined by reference to these. So, for example, 'reasonable
pluralism' is explained as a diversity of incompatible but reasonable
comprehensive doctrines (p. xvii, see also p. 43), and 'reasonable dis-
agreement' is disagreement among reasonable persons (p. 55). Let's
assume that similar derivations are possible for the other terms, and
examine the two "grounding concepts."
Rawls's explicit characterization of 'reasonable comprehensive
doctrine' is unsuccessful:
Now we need a definition of [reasonable comprehensive] doc-
trines. They have three main features. One is that a reasonable
doctrine is an exercise of theoretical reason: it covers the major
religious, philosophical, and moral aspects of human life in a
more or less consistent and coherent manner. It organizes and
characterizes recognized values so that they are compatible with
one another and express an intelligible view of the world. Each
doctrine will do this in ways that distinguish it from other doc-
trines, for example, by giving certain values a particular primacy
and weight. In singling out which values to count as especially
significant and how to balance them when they conflict, a reason-
able comprehensive doctrine is also an exercise of practical rea-
son. Both theoretical and practical reason (including as appropri-
4. As Rawls says, his theory "specifies an idea of the reasonable and applies this
idea to various subjects: conceptions and principles, judgments and grounds, persons
and institutions. In each case, it must, of course, also specify criteria to judge whether
the subject in question is reasonable" (Political Liberalism,p. 94, see also p. 48).

ate the rational) are used together in its formulation. Finally, a
third feature is that while a reasonable comprehensive view is
not necessarily fixed and unchanging, it normally belongs to, or
draws upon, a tradition of thought and doctrine. Although stable
over time, and not subject to sudden and unexplained changes,
it tends to evolve slowly in the light of what, from its point of
view, it sees as good and sufficient reasons. (P. 59)
This characterization fails to rule out comprehensive doctrines
that are clearly unreasonable in Rawls's sense: Moslem fundamental-
ism, white supremacist, and rational egoism are all exercises of theo-
retical and practical reason within a tradition of doctrine.5 We might
(although Rawls does not) try further to restrict this characterization
by stipulating that reasonable comprehensive doctrines are not only
exercises of practical reason (i.e., they single out and balance values),
but are exercises guided by particular principles of practical reason as
well-the reasonable principles. Rawls mentions the content of these
principles in passing: "Principles of fairness and justice that define the
fair terms of cooperation are canonical examples. So are principles
associated with the moral virtues recognized by common sense such
as truthfulness and fidelity" (p. 83). Yet this interpretative line is rather
meager, since these two sentences give only limited guidance for classi-
fying the kinds of comprehensive doctrines with which we are familiar.
Fortunately, there is a more attractive interpretative option, which
is to make the characterization of 'reasonable comprehensive doctrine'
itself directly dependent on the characterization of 'reasonable person'.
A reasonable comprehensive doctrine, on this line, is a comprehensive
doctrine that a reasonable person could affirm. Rawls presents a wealth
of material on what makes for a reasonable person, and this derivation
has some textual support.6 'Reasonable person', then, is to be the
concept that grounds the meanings of all of Rawls's other 'reason-
able' terms.
In the course of Political LiberalismRawls specifies five attributes
as definitive of the reasonable person. Reasonable persons:
5. Joshua Cohen has similar difficulties defining 'reasonable comprehensive doc-

trine' in a paper that seems to have influenced Rawls's view considerably: "An under-
standing of value is fully reasonable just in case its adherents are stably disposed to
affirm it as they acquire new information and subject it to critical reflection" ("Moral
Pluralism and Political Consensus," in The Idea of Democracy,ed. D. Copp, J. Hampton,
and J. Roemer [Cambridge: Cambridge University Press, 1993], pp. 281-82).
6. Rawls says, "In a particular case someone may, of course, affirm a reasonable
doctrine in an unreasonable way, for example, blindly or capriciously. That does not
make the doctrine as such unreasonable. A reasonable doctrine is one that can be
affirmed in a reasonable way" (p. 60, n. 14). If we may take a page from Aristotle and
say that a doctrine is affirmed in a reasonable way if it is affirmed in the way a reasonable
person would affirm it, we arrive at the proposition that a reasonable doctrine is one
that can be affirmed by a reasonable person.

1. (a) possess the two moral powers -the capacities for a sense of
justice and for a conception of the good; (b) possess the intellectual
powers of judgment, thought, and inference; (c) have a determinate
conception of the good interpreted in the light of some comprehensive
view; (d) are able to be normal, fully cooperating members of society
over a complete life (p. 81, see also pp. 15-35);
2. are ready to propose and willingly abide by principles and
standards that are fair terms of cooperation, given assurance that
others will likewise do so (pp. 48-54);
3. recognize the burdens of judgment (pp. 54-58);
4. have a reasonable moral psychology (pp. 81-86); and
5. recognize the five essential elements of a conception of objectiv-
ity (pp.l 1O-12).7
Note here that 'reasonable moral psychology', as part of the char-
acterization of the reasonable person, cannot depend on 'reasonable
person' for its meaning. It is the only 'reasonable' term not grounded
in 'reasonable person'; its meaning is discussed below.8 There are
also two small textual difficulties smoothed over in the above list of
attributes. First, in Ic Rawls specifies parenthetically that the compre-
hensive view used to interpret the conception of the good is a reason-
able view (p. 81). Of course we cannot refer to reasonable views here
without circularity. Second, Rawls sometimes refers to 'reasonable per-
sons' to explain the burdens ofjudgment (pp. 54-58) and in a way that
suggests that the burdens of judgment are not integral to reasonable
personhood.Y However, the balance of the text clearly favors the above
list. I suggest we solve the first problem by rendering Ic as I have
above, and the second by saying that the burdens of judgment are
an account of sources of disagreement among people conscientiously
exercising their powers of reason and judgment, thus avoiding refer-
ence to reasonable persons.
We take, then, the reasonable person as defined by the above five
features to be Rawls's grounding concept for the reasonable. With this
7. There may be some overlap in this list (e.g., la may imply lb and 2). This will
not affect the argument here.
8. Also note that this list confines the 'conception-dependent desires' of the reason-
able moral psychology to category 4. Thus I have taken out of Id the desires to be and
to be recognized as a fully cooperating member of society (clearly conception-dependent
[see pp. 81 -86]); and I mean 2 not to rely on conception-dependent desires. Conception-
dependent desires are discussed in Sec. III below.
9. This peculiarity seems to have resulted from Rawls having moved some of the
description of the burdens of judgment almost verbatim from his "The Domain of the
Political and Overlapping Consensus," New YorkUniversityLaw Review 64 (1989): 233 - 55
(his last paper on justice before Political Liberalism)to the current book. Yet in Political
Liberalismthe burdens of judgment are clearly intended to be definitive of reasonable
persons (pp. 48, 54); in "The Domain of the Political and Overlapping Consensus" the
burdens of reason (as they were then called) are clearly not so intended (see p. 236).

characterization of the reasonable person we can improve on Rawls's
explicit characterization of 'reasonable comprehensive doctrine'. For
now there is substance to the claim that a reasonable comprehensive
doctrine is one that could be affirmed by a reasonable person. A
reasonable doctrine must acknowledge-or at least not deny-that
reasonable persons have the features that make them reasonable. In
other words, a reasonable comprehensive doctrine is one that acknowl-
edges, or at least does not deny, that reasonable people have each of
the above five attributes.'0
So Rawls's reasonable persons have the five attributes listed above,
and they affirm that they have these attributes in affirming reasonable
comprehensive doctrines. Since Rawls believes that the reasonable,
as embodied in persons and comprehensive doctrines, allows him to
present justice as fairness as the focus of a stable overlapping consen-
sus, these are the sorts of persons and doctrines he requires for his
view to be (by his own standards) both feasible and appropriate. I will
argue that in making these central concepts too expansive, Rawls
has extended justice as fairness beyond the bounds of a political
conception.
III
To show why Rawls's conception of the reasonable is too expansive,
I will use as a foil a characterization of the reasonable person that is
only part of the full characterization that Rawls gives-specifically,
one limited to only the first two of the five attributes listed above. In
this limited characterization, reasonable persons have the two moral
powers and the powers of thought and judgment, have a determinate
conception of the good, are able to be normally cooperating members
of society, and are ready to abide by fair terms of cooperation. But
they are not conceived of as acknowledging the burdens ofjudgment,
as having a reasonable moral psychology, or as recognizing the essen-
tials of objectivity. This limited characterization of the reasonable per-
son is used to ground a proportionally limited set of definitions of the
other 'reasonable' terms. So in the limited conception of the reason-
able, there is no requirement that a comprehensive doctrine must
acknowledge the burdens ofjudgment, the reasonable moral psychol-
ogy, or the essentials of objectivity in order to be reasonable.
Were justice as fairness presented using this limited conception
of the reasonable, it might well be as freestanding and inclusive a view
as Rawls claims his fuller presentation is. Yet the contrast between
10. See Rawls, "The Domain of the Political and Overlapping Consensus," p. 247,
n. 31, where a reasonable comprehensive doctrine is defined as a doctrine that recognizes
the features of a reasonable person.

the limited presentation and Rawls's own presentation will show that
adding each of the three further attributes to the characterization
of the reasonable person ties justice as fairness to a particular and
exclusionary philosophical position.
In contrasting the limited and the fuller presentations of justice
as fairness, it will help to make two idealizing assumptions about the
people considering whether to accept these presentations. First, I will
assume that everyone affirms the content of justice as fairness. That
is, all affirm the conceptions of the person as free and equal and of
society as a fair system of cooperation; all affirm that the original
position is an appropriate heuristic device for modeling these concep-
tions; and all affirm that Rawls's two principles would be chosen by
this procedure. Using this "best case scenario" will let us focus on
the presentation of justice as fairness and ignore disputes about its
content.11 Second, I will assume for expositional ease that all are fairly
clear about how political values fit into their overall views.
Let us then consider the limited presentation ofjustice as fairness
as a political conception and whether it could be the focus of an
overlapping consensus (an overlapping consensus focused on the lim-
ited presentation I'll call a "limited consensus"). On the face of it, this
11. We are assuming, then, that a consensus focused on each of the presentations
of justice as fairness is as "broad" and as "deep" as possible given reasonable pluralism
(Political Liberalism,pp. 149-50, 164-67). In assuming this we may have already ex-
cluded utilitarianism, and this brings up a puzzling interpretative issue. In discussing
the depth of a consensus, Rawls says that agreement should reach to ideas such as the
conceptions of person and society (pp. 149, 164-67); a consensus shallower than this
"lacks the conceptual resources to guide how the constitution should be amended and
interpreted" (p. 165). Yet he also says that utilitarians might be able to join an overlap-
ping consensus on justice as fairness (pp. 169-7 1). Now a utilitarian might agree that
the principles of justice as fairness are the best workable approximation to what the
principle of utility requires (p. 170), but could a utilitarian agree that Rawls's conceptions
of person and society lie behind these principles? If not, utilitarianism's agreement with
the content of justice as fairness cannot be deep enough for it to join an overlapping
consensus (although its agreement can be deep enough for a constitutional consensus
[p. 158]). A few years ago Rawls himself excluded utilitarianism from a consensus
focused on justice as fairness: "It seems that while some teleological conceptions can
[belong to an overlapping consensus], others quite possibly cannot, for example, utilitar-
ianism [Rawls's footnote here: Here I mean the view of Bentham, Edgeworth and
Sidgwick, and of ... R. B. Brandt . , R. M. Hare ... and J. J. C. Smart]. Or at least
this seems to be the case unless certain assumptions are made limiting the content of
citizens' desires, preferences, or interests. Otherwise there appears to be no assurance
that restricting or suppressing the basic rights and liberties of some may not be the
best way to maximize the total (or average) social welfare" ("The Idea of an Overlapping
Consensus," OxfordJournal of Legal Studies 7 [1987]: 1-25, p. 12). It is not clear on
what grounds Rawls has included utilitarianism in a possible deep consensus in Political
Liberalism.See Scheffler pp. 8-11. I would like to thank David Peritz for instructive
discussions (Cambridge, Mass., Fall 1993) on this point.

limited presentation does indeed fit the image of a political conception
summarized in the first section (the three numbered statements and
the claim of inclusiveness). It can be presented independently of any
comprehensive doctrine; it articulates only political values, but does
not claim that political values are more important than others; it is
not committed to a controversial conception of the person (or so we
will assume until Sec. V). The limited conception may prove, as Rawls
says his full conception is, acceptable to a wide range of people from
rational intuitionists, Kantians, and Millians to the partisans of various
religions-and without necessitating diminished belief in these views.
Of course, each citizen in a limited consensus would affirm justice as
fairness for her own reasons and in her own way, but this is just what
Rawls leads us to expect.'2
Someone might immediately object that citizens in a limited con-
sensus, though agreeing on the content of justice as fairness, would
be too ready to appeal to their comprehensive views when discussing
or voting on how to apply the two principles. This, the objection
continues, would undermine the value of public reason.'3
Yet the limited conception shares with Rawls's full conception
all of the elements that underwrite public reason. First, the sense of
justice-one of the two moral powers that are on both presentations'
lists of attributes of the reasonable person-already implies a willing-
ness "to act in relation to others on terms that they also can publicly
endorse" (p. 19). Second, this desire for public justifiability is even
more strongly connected to another attribute of the reasonable person
that is common to both presentations-the desire to propose and abide
by fair terms of cooperation. Discussing the reasonable with respect
to this desire, Rawls says that
12. "A political conception is at best but a guiding framework of deliberation and
reflection which helps us reach political agreement on at least the constitutional essen-
tials and the basic questions of justice. If it seems to have cleared our view and made
our considered convictions more coherent; if it has narrowed the gap between the
conscientious convictions of those who accept the basic ideas of a constitutional regime,
then it has served its practical political purpose. This remains true even if we cannot
fully explain our agreement: we know only that citizens who affirm the political concep-
tion and who have been raised in and are familiar with the fundamental ideas of the
public political culture, find that, when they adopt its framework of deliberation, their
judgments converge sufficiently so that political cooperation on the basis of mutual
respect can be maintained. They view the political conception as itself normally sufficient
and may not expect, or think they need, greater political understanding than that"
(Political Liberalism,p. 156).
13. A political conception provides a basis for public reason when it supplies a
vocabulary within which citizens and officials can reason about the fundamental justice
of their institutions, and when it explains why citizens and officials should confine
themselves to this vocabulary when constitutional essentials or matters of basic justice
are at stake (ibid., pp. 212-54).

it is by the reasonable that we enter as equals the public world
of others and stand ready to propose, or to accept, as the case
may be, fair terms of cooperation with them. These terms, set
out as principles, specify the reasons we are to share and publicly
recognize before one another as grounding our social relations.
Insofar as we are reasonable, we are ready to work out the frame-
work for the public social world, a framework it is reasonable to
expect everyone to endorse and act on, provided others can be
relied on to do the same. (Pp. 53-54)
Citizens within a limited consensus already have the desire to
justify their common institutions to each other within the bounds of
public reason. Thus justice as fairness presented with the limited con-
ception of the reasonable person fulfills all of Rawls's requirements
for a political conception. We can now turn to the features beyond
the limited presentation that make justice as fairness as Rawls presents
it unsuitable to be a political conception.
The Burdens of Judgment
The burdens of judgment are the third feature that Rawls attributes
to reasonable persons (pp. 54-58). In making this attribution, Rawls
implies that people within an overlapping consensus focused onjustice
as fairness will accept the burdens of judgment, and also that reason-
able comprehensive doctrines must acknowledge (or at least not deny)
them. The burdens ofjudgment are the first feature that, I claim, take
the full presentation of justice as fairness beyond its self-image as a
political conception of justice.
The burdens ofjudgment are supposed to explain the difficulties
of making correct judgments about values and facts, and so to explain
disagreement among people conscientiously using their powers of rea-
son and judgment. They are as follows (pp. 55-57):
a) the relevant evidence is conflicting and complex, and therefore
hard to evaluate;
b) we may disagree about the weight different considerations are
to be given;
c) our concepts are vague, so we must rely on judgment and
interpretation;
d) the way each person assesses evidence and weighs values is
shaped by her particular life experiences (by her ethnicity, class, place
in the division of labor, etc.);
e) it is difficult to make an overall assessment of an issue when
there are normative considerations of different force on both sides; and
f) in any society some selection of values must be made from
among all that might be realized.14
14. This 'sixth burden ofjudgment' seems to me to be less a source of disagreement

than an occasion for disagreement. Decorators may have different ideas about which

What is the role of the burdens ofjudgment injustice as fairness?
Rawls asserts that their main purpose is to underwrite toleration and
thus public reason (pp. 58-59, 61). Yet this cannot be right: as we
have just seen, toleration and public reason are already secured by
the first and second attributes of the reasonable person-and in partic-
ular by the desire to propose and abide by fair terms of cooperation.
People with this desire want to cooperate Awiththeir fellows according
to rules acceptable to all. They believe it illegitimate to use political
power to repress comprehensive doctrines simply because these are
different from their own doctrines, as there can be no publicly shared
justification for such repression. There is nothing else here for the
burdens of judgment to do, beyond what the limited conception of
the reasonable person has already done.15
Rawls also suggests that accepting the burdens of judgment leads
people to endorse liberal constitutional principles like liberty of con-
science and freedom of thought (p. 61). Yet accepting the burdens of
judgment is not necessary for endorsing these constitutional princi-
ples. Many comprehensive doctrines that emphatically do not endorse
the burdens of judgment gladly support liberty of conscience and
freedom of thought. And they do so for what justice as fairness sees
as the right reasons-from their affirmation of the political concep-
tion of citizens as free and equal and of society as a fair system of
cooperation.
Take, for example, modern Roman Catholic doctrine.16 Catholic
teaching is unequivocal on liberty of conscience and freedom of
thought.
This Vatican Synod declares that the human person has a right
to religious freedom. This freedom means that all men are to
be immune from coercion on the part of individuals or of social
groups and of any human power, in such wise that in matters
furnishing would be best for a room in the White House; the fact that only one scheme
of furnishings can be put in the room doesn't cause the disagreement, although dis-
cussing what scheme will be used may bring the disagreement out in the open.
15. Although Rawls claims that the burdens of judgment are "of first significance
for a democratic idea of toleration" (Political Liberalism,p. 58), they are not mentioned
in the lectures on overlapping consensus and public reason. In fact, beyond the sections
in which they are outlined, the burdens of judgment only appear in a summary sentence
(p. 86) and briefly in a discussion of constructivism (pp. 119, 121).
16. As Baudelaire says, "To support his thesis, he quotes, like all unbelievers, the
Fathers of the Church" (TwentyProse Poems, trans. M. Hamburger [San Francisco: City
Lights, 1988], p. 39). I am not a Catholic, and draw on this particular body of doctrine
because it is well developed and carefully stated-and because the Catholic church is
the largest church in the United States. I believe I have given the correct sense to
Church doctrine but will be happy to be corrected by those with more authority on
these matters.

religious no one is forced to act in a manner contrary to his own
beliefs. Nor is anyone to be restrained from acting in accordance
with his own beliefs, whether privately or publicly, whether alone
or in association with others, within due limits. The Synod fur-
ther declares that the right to religious freedom has its foundation
in the very dignity of the human person, as this dignity is known
through the revealed Word of God and by reason itself. This right
of the human person to religious freedom is to be recognized in
the constitutional law whereby society is governed. Thus it is to
become a civil right.17
Here it is particularly clear how a comprehensive doctrine can
proceed from liberal conceptions of society and person to liberty of
conscience without passing through the burdens ofjudgment.18 I con-
clude that the burdens ofjudgment are at best unnecessary for endors-
ing the content of a liberal view.
But the burdens of judgment are more than unnecessary. By
insisting that they be part of the characterization of the reasonable
person, Rawls excludes many who could otherwise join a liberal con-
sensus. The burdens of judgment exclude many with sincere reli-
gious beliefs.
This conclusion is unavoidable once we view the burdens ofjudg-
ment from a perspective both liberal and firmly religious. Were we
pressing a liberal perfectionist line in which social institutions are
designed to favor autonomy and experimentation over stultifying su-
perstition these points of view could be ignored. But Rawls's theory
claims to be tenable by members of all the main historical faiths (and
this without skepticism or hesitancy). So we must examine the theory
from the viewpoint of religious believers even if we do not ourselves
believe. When we do, we will see why many sincere believers will balk
at the burdens of judgment.
The difficulty is that religious doctrines typically deny that the
burdens ofjudgment obtain. This, on reflection, should not be surpris-
ing. The burdens of judgment are meant to explain (among other
17. Declaration on Religious Freedom, art. 2. Further endorsements of these civil

freedoms are in the Declaration at art. 10, and in the Pastoral Constitutionon the Church
in the Modern World (Gaudium et Spes) at art. 21. These texts are all in The Documentsof
Vatican II, ed. Walter M. Abbott (New York: Herder & Herder, 1966). See also Pope
Paul VI's encyclicals, EcclesiamSuam (1964), encyclical 271, arts. 74-75, and Populorum
Progressio (1967) encyclical 275, art. 13; many of these themes are reiterated in John
Paul II's encyclical RedemptorHominis (1979). All encyclicals cited can be found in The
Papal Encyclicals, 1958-81, ed. C. Carlen ([n.p.]: McGrath, 1981).
18. For the Church's view of the person as (politically) free, see Gaudium et Spes,
arts. 21, 26, and 75; for the citizen as equal, see ibid., art. 29; for society as a fair and
democratic association, see arts. 31 and 75; and for a general list of political and civil
rights due to all, see art. 26.

pluralisms) why some people believe in one faith, while others believe
in other faiths, and still others are agnostics and atheists."9 The expla-
nation essentially says that questions about religion-about which is
the true faith, if any have truth at all-are hard to think through even
under the best of conditions, and that people answer these questions
differently because of their particular life experiences (because of their
ethnicity, class, place in the division of labor, etc.). By contrast, a
religious doctrine-as a purportedly authoritative guide to moral re-
quirements and/or salvation-characteristically presents itself as uni-
versally accessible to clear minds and open hearts. When a religious
doctrine addresses the diversity and lack of religious belief, it is most
unlikely to ground its explanations in the difficulty of the issues and
the limited perspectives of both believers and nonbelievers. For this
would suggest the likelihood of error on both sides. Rather, heresy
and infidelity are due to worldly temptation, demonic intervention,
divine predestination, and so on-forces within the horizons of the
religious doctrine's sure scheme of value and fact.
To take Catholic doctrine again as an example, the burdens of
judgment are repudiated outright:
Through divine revelation, God chose to show forth and commu-
nicate Himself and the eternal decisions of His will regarding
the salvation of men. That is to say, He chose "to share those
divine treasures which totally transcend the understanding of
the human mind." ... This sacred Synod affirms, "God, the
beginning and end of all things, can be known with certainty
from created reality by the light of human reason" (see Rom.
1:20); but the Synod teaches that it is through His revelation
"that those religious truths which are by their nature accessible
to human reason can be known by all men with ease, with solid
certitude, and with no trace of error, even in the present state
of the human race."20
And, although Catholic doctrine may be unusual in its claim of
pontifical infallibility,21 it is not unusual in claiming that "the body of
the faithful as a whole ... cannot err in matters of belief" and that
19. Recall that the burdens of judgment are not only meant to explain disagree-
ments on political issues, but disagreements about all of the issues that separate coherent
comprehensive doctrines (or those aspects of the disagreements that can't be explained
by self-interest or irrationality) (pp. 54-58).
20. Dogmatic Constitutionon Divine Revelation, art. 6, in Abbott, ed. See also Pope
Paul VI, Ecclesiam Suam, encyclical 271, art. 107, where it is said that believers in other
faiths must see that God has revealed "definitely and infallibly how He wishes to be
known, loved, and served."
21. See The Dogmatic Constitutionon the Church (Lumen Gentium) at art. 24, in Ab-
bott, ed.

teaching must be accepted "with a religious assent of the soul."22 To
ask Catholics and other believers to accept the burdens of judgment
is to ask them to abandon-unnecessarily-fundamental aspects of
their faith and their attitude toward it. This is unnecessary because
the Catholic church, like other established churches, now endorses a
political view sympathetic to (and sometimes indistinguishable from)
the content of justice as fairness.23
A friend of the burdens of judgment might here come to their
defense. If Catholic doctrine rejects the burdens, then it is rejecting
premises needed for a sound defense of liberal toleration. We should
expect, the objection continues, that Catholic doctrine will be forced
for reasons of internal coherence either to accept the burdens or to
admit that it is (as it saw itself for so long) an illiberal faith. Or perhaps
Catholic doctrine will stay as it is-why should this affect political
liberalism? Rawls is doing ideal theory, not trying to drum up support
for his view among existing comprehensive doctrines. Changing the
characterization of the reasonable (by taking the burdens ofjudgment
out of the definition of 'reasonable person') just because some existing
(and probably internally inconsistent) comprehensive doctrine con-
flicts with it would mean giving in to unreason.24
As a reply, we must first remember where the burden of proof
about the burdens of judgment lies. It is Rawls who claims that his
presentation of justice as fairness could be embraced by the main
historical religions (p. 170). If his presentation conflicts with the dogma
of just such a religion, he must revise either his claim to inclusiveness
or the part of his presentation that causes the conflict. As for ideal
22. Ibid., arts. 12, 24.

23. See nn. 17 and 18 above. Since Vatican II Catholic orthodoxy no longer counte-
nances the Thomistic doctrine of 'thesis-hypothesis', which stated that Catholics are to
support civil liberties where they are in a political minority but to enforce state religion
where they are in a political majority. See Catholic University of America, ed., The New
Catholic Encyclopedia (New York: McGraw Hill, 1967), the entries under "Freedom of
Religion," "Church and State," and "Tolerance." The "Americanization" of Church
doctrine by John Courtney Murray and others has brought official Catholic teaching
thoroughly in line with liberal democratic values-at least on the sorts of issues that
justice as fairness concerns itself with. See V. Yzermans, ed., American Participation in
the Second Vatican Council (New York: Sheed & Wards, 1967), chap. 16; P. Carey, The
Roman Catholics(Westport, Conn.: Greenwood, 1993), chap. 7; and G. Burns, Frontiers
of Catholicism(Berkeley: University of California Press, 1992), chap. 3. On the Church's
stance on reducing economic inequalities, see Pope Paul VI, PopulorumProgressio,encyc-
lical 275, art. 34; on the unacceptability of both an untrammeled free market and a
planned economy, see ibid., arts. 26, 33; on the unacceptability of racism, see ibid., art.
63; for the (Rawlsian) thesis that unforced consent doesn't make for a fair contract if
there is inequality, see ibid., arts. 58-59.
24. Richard Arneson showed me the necessity of replying to these objections (No-
vember 7, 1994).

theory, I should emphasize that Catholic doctrine is only cited here
as a particularly clear exemplar of religious doctrine. My central claim
is that the main historical religions characteristically (if perhaps not
universally) reject the burdens ofjudgment.25 This is because, as above,
the burdens of judgment explain religious diversity by stressing the
difficulty of finding the truth even under the best conditions, while
universalistic religions present themselves as accessible to all clear
minds and open hearts. If it is true that religious doctrines characteris-
tically reject the burdens of judgment, then this will be a challenge as
much within ideal theory as are Rawls's own arguments that different
faiths can join an overlapping consensus (pp. 145-72). The main
objection is about religious doctrine in general, and so meets Rawls
on his own grounds.
Finally, rejecting the burdens ofjudgment need not be incompati-
ble with supporting liberal toleration. There is nothing incoherent in
a church requiring that liberty of conscience be protected even for
those unbelievers misled by evil or distracted by mammon. As in the
Catholic text above, a church may say that there is a dignity to humans
that comes from being God's special creation, and this dignity is vio-
lated by political oppression of any sort. Furthermore, a stable liberal
polity may be the environment most conducive to spreading the Word.
Now it is clear that Rawls does not think the burdens ofjudgment
imply hesitancy, uncertainty, or skepticism about comprehensive doc-
trines (pp. 62-63, 150-54). Since I think it is clear that they do imply
these things, and since I believe they add nothing essential to the
presentation of justice as fairness, I should explain why I think Rawls
found it so important to include the burdens ofjudgment in the defini-
tion of 'reasonable person'. It was, I believe, to explain why an overlap-
ping consensus is necessary and to tell us how we should regard this
necessity.
The burdens of judgment are pivotal in Rawls's interpretation
of the political history of the modern period, an interpretation he
summarizes in his introduction (pp. xxii-xxviii). Essentially, the abso-
lutist Church of the fifteenth century had its authority broken by the
25. A survey of texts from the three most popular churches in the United States
besides the Catholic church (which, along with Catholicism, claim about three-quarters
of all affiliated believers in the country) seems to support this claim. See, e.g., "Baptists
and the Bible" and "The Bible" in Encyclopediaof SouthernBaptists, ed. Clifton Allen et
al. (Nashville: Broadman, 1978); "God, Arguments for the Existence of," in Lutheran
Cyclopedia,ed. Erwin Lueker (St. Louis: Concordia, 1975). Only the Methodists seem
not to be universally hostile to the burdens ofjudgment (see United Methodist Church,
ed., The Book of Discipline [Nashville: United Methodist Publishing, 1992], par 2. 68).
Yet I don't particularly want to emphasize the fact that these denominations by and
large reject the burdens of judgment; rather, I want to emphasize that there are good
internal reasons for religious doctrines in general to reject the burdens of judgment.

Reformation in the sixteenth century, and the resulting religious wars
were so draining that the contending sides grudgingly accepted toler-
ant political institutions. Under these freer institutions (here is one
place where the burdens of judgment come in) religious and philo-
sophical systems continued to fragment, leaving us in our present
state of pluralism. Yet now that we are in a position to understand the
burdens of judgment and their role in fostering diversity, we can see
why this diversity is not to be lamented. For people who accept the
burdens ofjudgment are reasonable, and so can reach a nonrepressive
(if limited) political union. Once we accept the burdens of judgment
and their historical importance, we will see why an overlapping consen-
sus is the only just and feasible choice for unity.
By making the burdens of judgment definitive of a 'reasonable
person', and by using them to explain why an overlapping consensus
must be our goal, Rawls appears to be making this historical story and
its consequences part of the official presentation ofjustice as fairness.
That is, he seems to be saying that reasonable people will believe his
history of pluralism and will gladly see it concluded in an overlapping
consensus. The historical story about pluralism, on this interpretation,
is not just obiter dicta; rather, it is the main reason that the burdens
of judgment are included in the theory.
Yet if Rawls does indeed intend to make this historical story part
of the official presentation of justice as fairness, he is going too far.
Certainly a Catholic might be excused for looking on the emergence
of 'reasonable pluralism' with something less than enthusiasm, and
will almost inevitably have a different interpretation than Rawls of the
history involved.26 Catholic doctrine seems to imply that evil forces
had a role in the Reformation and subsequent religious fragmentation,
although members of separated churches now are guilty of no more
than being descended of those who were misled. The progress of
human reason under free institutions does not enter into the Catholic
version of the rise of pluralism, since a Catholic may well see this as
"progress" away from the truth.27
26. See, e.g., "A Response" to Revelation by Frederick C. Grant: "What I really
wish is that we could all go back to the days of Erasmus and work together in harmony,
especially in biblical studies, and forget all about the intervening four centuries of
confusion, distrust, and antagonism. But history is irreversible. We must go on from
where we are" (Abbott, ed., p. 132).
27. See Lumen Gentium, art. 16: "But rather often men, deceived by the Evil One,
have become caught up in futile reasoning and have exchanged the truth of God for
a lie, serving the creature rather than the Creator (see Rom. 1:21,25)"; and Decree on
Ecumenism,art. 3 in Abbott, ed.: "From her very beginnings there arose in this one and
only Church of God certain rifts (see I Cor. I 11:18-19, Gal. 1:6-9, 1 Jn. 2:18-19),
which the apostle strongly censures as damnable (see I Cor. 1:11 ff.; 11:22). But in
subsequent centuries more widespread disagreements appeared and quite large Com-

And why should one not see reasonable pluralism as at least unfor-
tunate-even if one is not a Catholic? One of the points most repeated
in Political Liberalismis that reasonable pluralism is the inevitable result
of human reason under free institutions (pp. xxiv, 3-4, 36-37, 129,
135, 144), and Rawls emphasizes that reasonable pluralism is not to
be seen as "unfortunate" or "a disaster" (pp. 37, 144, xxiv). Yet isn't
it disappointing that human reason under free institutions divides
people from each other by multiplying mutually exclusive comprehen-
sive doctrines? And isn't this particularly wrenching since it becomes
very likely that those on all sides of the dispute hold comprehensive
doctrines that are substantially false? Could one not reasonably see
modern history as the diversification of error and illusion, or at least
as the intensification of tragic conflicts of value?
Rawls introduces the burdens ofjudgment and his historical story
because "the fact of reasonable pluralism ... calls] for explanation"
(pp. 54-55). Perhaps this is true, but I can see no reason why there
needs to be a nationally accepted explanation, instead of a variety of
different (and possibly conflicting) explanations in the minds of those
citizens who care to consider the issue. Favoring one version of history
and one attitude toward pluralism is no business of a liberal theory.
People should be accepted as reasonable members of society so long
as they are now ready to cooperate on fair terms with their fellow
citizens, whom they regard as free and equal.
In sum, adding the burdens of judgment to the definition of the
reasonable person does not ensure a tolerant overlapping consen-
sus-it is itself insensitive to the sincere and the devout. Going beyond
the limited consensus in this respect only serves to exclude the faithful
from the class of the reasonable, and to ensure that an overlapping
consensus among the "reasonable" would be a community of the un-
certain, a society of the unsure.
A ReasonableMoral Psychology
The most puzzling of Rawls's extensions beyond the limited conception
of the reasonable person is his elaboration of a 'reasonable moral
psychology' for such persons. Rawls's description of this moral psychol-
ogy emphasizes the importance of "conception-dependent desires."
Conception-dependent desires are desires to act in accordance with an
ideal that is formed by reference to reasonable or rational principles
(an example is the desire to be recognized as a normal and fully cooper-
munities became separated from full communion with the Catholic Church-develop-
ments for which, at times, men of both sides were to blame. However, one cannot
impute the sin of separation to those who at present are born into these Communities
and are instilled therein with Christ's faith. The Catholic Church accepts them with
respect and affection as brothers."

ating member of society [pp. 81-86]). This moral psychology is central
to Rawls's explanation of the transition from a political modus vivendi
to a constitutional consensus, and from there to an overlapping con-
sensus (pp. 158-68).
In explaining this moral psychology as an aspect of his political
conception, Rawls acknowledges that it is a Kantian moral psychology
and argues against competing philosophical conceptions of the person
(pp. 48-54; 82, n. 31; 85, n. 33; 100). These arguments are per-
plexing. As we have seen, one of the three defining features of a
political conception is that it is independent of long-standing controver-
sies in philosophy and, in particular, that it makes no distinctive meta-
physical claims about the nature of persons (pp. xix-xx; 10; 29, n.
31; 154). How can Rawls maintain that his view makes no distinctive
metaphysical claims about the nature of persons while arguing
for a Kantian conception of the person and against other moral
psychologies?
This discrepancy is so puzzling that it is worth taking another
look at Rawls's claim about his theory's broad acceptability:
If we look at the presentation ofjustice as fairness and note how it
is set up, and note the ideas and conceptions it uses, no particular
metaphysical doctrine about the nature of persons, distinctive
and opposed to other metaphysical doctrines, appears among its
premises, or seems required by its argument. If metaphysical
presuppositions are involved, perhaps they are so general that
they would not distinguish between the metaphysical views-
Cartesian, Leibnizian, or Kantian; realist, idealist, or materialist
-with which philosophy has traditionally been concerned.
(P. 29, n. 3 1)28
Perhaps Rawls means here that justice as fairness as he presents
it makes no commitments regarding certain speculative issues in the
philosophy of mind-say, on the nature of personal identity. This
might be correct, but these are not the only-or the principal-topics
on which debates in moral and political philosophy have turned. De-
bates have been most lively across just the terrain that Rawls's moral
psychology covers-for example, as to whether conception-dependent
desires are a fundamental part of human psychology. Rawls, of course,
recognizes that philosophy of mind is not the crucial area, and has for
28. See alsoJohn Rawls, "Justice as Fairness: Political Not Metaphysical," Philosophy
and Public Affairs 14 (1985): 223-51, pp. 230-31: "A conception of the person in a
political view, for example, the conception of citizens as free and equal persons, need
not involve, so I believe, questions of philosophical psychology or metaphysical doctrine
of the nature of the self. No political view that depends on these deep and unresolved
matters can serve as a public conception of justice in a constitutional democratic state."

a long time.29 Yet how, then, can he claim that his political conception
"applies the principle of toleration to philosophy itself" (pp. 10, 154)?
There seems nothing to do but to list some of the philosophical
positions that cannot become part of Rawls's full overlapping consen-
sus because of their conceptions of the person.30 Followers of Bentham
will be ruled out, as Bentham's conception of the person as motivated
solely by pleasure and pain countenances no conception-dependent
desires.3" Rawls himself notes "the obvious non-Humean character of
this account of motivation" of the reasonable person (p. 84), which is
certainly correct- Hume thinks we are guided by passions like the
general appetite to good and not, as in Rawls, by reasonable and
rational principles because of their rational authority. So Humeans
are also left outside the consensus.
Hobbes's followers (who, it must be said, are probably more nu-
merous than Hume's) will also be excluded.32 David Gauthier's views
are explicitly ruled out by Rawls (pp. 52, 53), as are those of anyone
who finds only the rational and not the reasonable compelling (pp.
51-53). This last is particularly telling: "Only as a result of philoso-
phy," Rawls says, "or a subject in which the rational has a large place
(as in economics or social decision theory), would anyone think it
necessary to derive the reasonable from the rational, moved by the
29. SeeJohn Rawls, "The Independence of Moral Theory," ProceedingsandAddresses

of the American Philosophical Association 48 (1975): 5-22: "Moral conceptions regard
persons differently and prize different aspects of their nature. So although every concep-
tion employs a criterion of identity that recognizes the results of the philosophy of
mind, each may specialize its criterion to fit the requirements of a particular moral
order and conception of the person" (p. 17). The passage goes on to criticize classical
utilitarianism for having a 'container' conception where persons are merely places where
valuable experiences occur.
30. The effect of Rawls's full account of reasonableness on which doctrines can
join an overlapping consensus here follows the arguments already given. Reasonable
comprehensive doctrines acknowledge-or at least do not deny-that people are rea-
sonable in the ways specified by the political conception. If the reasonable moral psychol-
ogy is made part of the definition of 'reasonable person', then those doctrines that deny
that people have such a psychology will not count as reasonable and so cannot join an
overlapping consensus.
31. Jeremy Bentham, Introduction to the Principles of Morals and Legislation, ed. J.
H. Burns and H. L. A. Hart (London: Athlone, 1970), pp. 11, 36, 96-124.
32. See, e.g., Jean Hampton, "Hobbes does not start from the fact of societal
pluralism, but from an individualistic conception of human beings and what he takes
to be the psychological fact that our highest goals (self-preservation and glory) are
self-regarding, meaning that individuals' interests will inevitably diverge and generate
conflict. Rawls does not endorse Hobbes's conception of the person, nor his facts of
human nature" ("Should Political Philosophy Be Done without Metaphysics?" Ethics 99
[1989]: 791-814, p. 800). For more aspects of Hobbes's view of the person that are
incompatible with Rawls's, see Jean Hampton, Hobbesand the Social Contract Tradition
(Cambridge: Cambridge University Press, 1986), pp. 6-26.

thought that only the latter was intelligible" (p. 52). Now Rawls may
in fact be correct in this philosophical dispute about moral psychol-
ogy-but a dispute it is, and it is vain to tell those philosophers, econo-
mists, and decision theorists that their views are compatible withjustice
as fairness as Rawls presents it. In fact, it seems that only those who
affirm a Kantian conception of the person are eligible to be reasonable
members of a society well ordered by Rawls's theory.
As we did with the burdens of judgment, we must ask what is
gained in exchange for making the political conception so exclusion-
ary. Rawls uses the reasonable moral psychology to show that an over-
lapping consensus could come about-that is, to fend off the charge
of utopianism (pp. 158-68). As he invoked the burdens ofjudgment
to explain why an overlapping consensus is necessary, Rawls appeals
to the reasonable moral psychology to prove that an overlapping con-
sensus is possible.
Yet it seems that championing the reasonable moral psychology
makes Rawls's consensus impossible. If (as has been argued here)
many philosophical views cannot endorse Rawls's account of moral
psychology, then partisans of these views will naturally resist justice
as fairness as a whole. And to think these views will die out to be
replaced by Kantianism is to hope forjust the kind of convergence that
Rawls warns us we cannot expect. As with the burdens of judgment,
presenting an official explanation of an overlapping consensus based
on a controversial conception of the reasonable person can only im-
pede the formation of a real overlapping consensus.
Suppose, on the other hand, that we were to remain within the
limited conception of the person and to aim for a limited consensus. We
would not make Rawls's moral psychology part of the presentation of
justice as fairness, or even say much about why we think a limited consen-
sus could be feasible. Then let us say that justice as fairness presented
with the limited conception proved very popular, and a consensus on it
in fact came about. In this case, Rawlsians would have their explanation
of how the consensus formed. Another group-perhaps a group like
the Mormons, who think that the U.S. Constitution is a divinely inspired
document and that the political history of the country is providentially
guided-might have another explanation.33 So long as all groups will-
ingly cooperate with each other on fair terms that all can accept, this
consensus appears to lack for nothing. There may be no deep agreement
on how the society has progressed to liberal equality, but this sort of
agreement is more than a free society should hope to achieve.
33. See, e.g., Ezra Taft Benson, The Constitution:A Heavenly Banner (Salt Lake City:
Deseret, 1986). Benson was the president of the Church of Latter Day Saints until his
death in 1994.

Constructivismand Objectivity
Rawls presents political constructivism as the guarantor of the objectiv-
ity of justice as fairness. Specifically, Rawls is concerned to show that
justice as fairness satisfies certain "essentials of objectivity." These
essentials require that a political conception provide a framework for
thought and a conception of correct judgment by distinguishing a
point of view (here the original position) from which an objective
order of reasons can be specified and these reasons applied to agents,
and in such a way that agreement in the judgment of these agents can
be explained (pp. 110-12). Rawls says that political constructivism
satisfies these requirements by describing how the conceptions of per-
son and society as conceptions of practical reason, along with certain
principles of practical reason, are correctly modeled in the original
position. The original position then is shown to be the appropriate
standpoint within practical reason for determining objective practical
principles for the relevant topic-the basic structure of a constitu-
tional democracy.
It is easy not to notice that Rawls's discussion of constructivism
in Political Liberalismis not well motivated in terms of the goals that
the book sets for itself. Because Rawls is presenting innovative work
in a relatively less explored tradition of political theory, and because
there are fascinating comparisons to be made with previous Kantian
theories, one may not stop to wonder why Political Liberalismneeds an
account of objectivity at all. But in a theory whose goals are, as Rawls
repeatedly emphasizes, solely practical-and in a theory that takes
itself to be avoiding controversial philosophical topics-an account of
objectivity seems fated for trouble.
I will argue that like the burdens ofjudgment and the reasonable
moral psychology, political constructivism as part of the presentation
of justice as fairness excludes many familiar comprehensive doctrines
from a possible overlapping consensus. In fact, the conflict between
what Rawls describes as a political conception and his presentation of
his own theory is the most severe here.
To see why, we first need to take a closer look at how Rawls
conceives of the relationship between the comprehensive doctrines of
citizens in a consensus and the political conception that is the focus
of the consensus. He says, "I assume, then, that citizens' overall views
have two parts; one part can be seen to be, or to coincide with, the
publicly recognized political conception of justice; the other part is
a (fully or partially) comprehensive doctrine to which the political
conception is in some manner related" (p. 38). There are three possible
interpretations of what Rawls thinks this relationship is like.
First, a person might simply have contradictory elements in her
outlook-she might accept the political conception despite the fact

that her comprehensive doctrine contains conflicting political values.
Certain passages might make it seem that Rawls thinks this acceptable:
"These two aspects of their moral identity citizens must adjust and
reconcile. It can happen that in their personal affairs, or in the internal
life of associations, citizens may regard their final ends and attachments
very differently from the way the political conception supposes" (p.
31, see also p. 15). An overlapping consensus might be maintained in
spite of widespread internal conflict of this sort so long as the values
of the political conception always outweighed the political values of
each citizen's comprehensive doctrine.
On reflection, however, this cannot be what Rawls intends. Pas-
sages like the one above must be read to say that a citizen's nonpolitical
values may not resemble the values of the political conception-for
example, a citizen might believe that women as members of some
associational hierarchy are not entitled to vote, while as citizens they
are so entitled. To allow a conflict of political values between the
political conception and the comprehensive doctrine would be to see
citizens as schizophrenic in a way inappropriate to ideal theory.
Second, a political conception would not conflict with citizens'
comprehensive doctrines if these comprehensive doctrines were en-
tirely bereft of political values. The conceptions of person and society
and all that flows from the political conception would simply exhaust
people's political views -their comprehensive doctrines as such would
have nothing to say on such matters. This sort of overlapping consen-
sus, if not positively ruled out by Rawls's work, cannot sensibly be
expected. The comprehensive doctrines that we are familiar with, even
if not fully comprehensive, already contain political values that order
the political realm with some specificity. As we saw above, for example,
Roman Catholicism already endorses a broad liberty of conscience.
The third sort of relationship, the one that Rawls seems to be
hoping for, is one of convergence-that each person's comprehensive
doctrine will support the conceptions of person and society and the
principles of justice for its own reasons, and that its political values
will match up with those of the political conception all the way down
the line. Thus a Catholic might believe that God has sanctioned the
conceptions of the person as politically free and equal, and of society as
a fair system of cooperation, and that these conceptions are adequately
modeled in the original position. A rational intuitionist might believe
that the conceptions of person and society are certified by an indepen-
dent order of values, and that the principles ofjustice are true norma-
tive statements as judged against that order (pp. 11 3-14). In an over-
lapping consensus, on this view, everyone's comprehensive doctrine
supports and coincides with the political conception in some such
manner. This interpretation has the most textual support, as in this
representative passage: "Many if not most citizens may want to give

the political conception a metaphysical foundation as part of their
own comprehensive doctrine; and this doctrine (I assume) includes a
conception of the truth of moral judgments. Let us say, then, that
when we speak of the moral truth of a political conception, we assess
it from the point of view of our comprehensive doctrine" (p. 126).
This, then, is the way Rawls envisions comprehensive doctrines
and a political conception as related. It is not, however, a way that
most comprehensive doctrines could relate to his full presentation of
justice as fairness. The incompatibility arises from the way Rawls's
characterization of the reasonable person interacts with his description
of an overlapping consensus.
Rawls claims that it is "definitive of reasonable agents" that they
accept the essentials of objectivity (p. 112). This, in itself, does not go
beyond the limits of a political conception-different comprehensive
views in an overlapping consensus might satisfy the essentials of objec-
tivity in different ways.34 However, Rawls also strongly suggests that
the members of an overlapping consensus are to accept political con-
structivism itself as the correct account of objectivity for the political
realm (pp. 1 10-15). That is, in their political thought all are to endorse
the conceptions of person and society as conceptions of practical rea-
son, all are to accept the original position as a constructivist procedure,
and all are to view the two principles ofjustice as specifying an objective
order of reasons because they are the result of a constructivist proce-
dure. Comprehensive views, however else they differ, are to "grant
that political constructivism provides an appropriate basis of objectivity
for its limited political purposes" (p. 1 10).
By "limited purposes" Rawls means that political constructivism
is not to speak to the objectivity of nonpolitical values. Constructivism
is, however, to provide the official account of the objectivity of political
values, an "open and public basis of justification" for the content of
justice as fairness (p. 115). In short, Rawls intends political constructiv-
ism to be an independent and overriding source of normative force.
He intends that political constructivism itself will give the reasons for
citizens in a well-ordered society to act justly, and that these reasons
will apply to citizens regardless of their own comprehensive accounts
of truth and objectivity.
This is apparent in Rawls's description of the third essential of
objectivity, which he claims that political constructivism satisfies: "A
conception of objectivity must specify an order of reasons as given
by its principles and criteria, and it must assign these reasons to
agents, whether individual or corporate, as reasons they are to weigh
34. It seems overly philosophical to insist that a person have a view on what
constitutes objectivity in order to qualify as reasonable; but this is not our concern here.

and be guided by in certain circumstances. They are to act from
these reasons, whether moved by them or not; and so these assigned
reasons may override the reasons agents have, or think they have,
from their own point of view" (p. 111). Whatever the source of
reasons as seen from within their comprehensive doctrines (the
will of God, correspondence with an independent order of values),
citizens are to act in accordance with the principles ofjustice because
these are produced by the constructivist procedure. The deciding
reasons for each person's actions as a citizen are given by the con-
structivist procedure as such.35
Rawls may think that without a "freestanding" account of objectiv-
ity, an overlapping consensus focused on justice as fairness, if ever
reached, could not persist over time. I will discuss this in a moment.
For now it is important to see that if political constructivism is indeed
intended as an overriding source of normative force it will not be
compatible with the comprehensive doctrines that Rawls claims it
will be.
This is because comprehensive views, as we know them and expect
them to remain, are settled in their explanations of the origins of
normative force. To be a rational intuitionist is not only to believe
that normative propositions are certified by an independent order of
moral values, it is also to believe that they are certified in no other way.
To be a Catholic is not only to think that God's word is authoritative on
matters of basic justice, it is also to believe that there is no other source
of authority on such matters. The fact that political constructivism
avoids controversy about the truth of moraljudgments is not sufficient
for it to avoid controversy about the sources of normativity. If a person,
to be a reasonable citizen of a just consensus, must believe that con-
structivism provides the real reasons for just action, then there are
now no such reasonable people. None, that is, save adherents of a
comprehensive Kantian constructivism, to which we will return in the
next section.
Rawls tries to avoid these implications by describing an accommo-
dation between constructivism and comprehensive doctrines, using
rational intuitionism as an example. Sometimes he writes as if the
intuitionist in an overlapping consensus merely believes something
35. Rawls suggests this view elsewhere in Political Liberalism,as when he says that
to hold his political view we must not believe that knowledge of how we are to act as
citizens is directly accessible only to the clergy, or that the political order is derived
from the values in God's intellect, or that we must be persuaded to do our political
duties by divine sanctions; rather, we are to hold that this knowledge is accessible to
all normally reasonable and conscientious persons, that the political order arises from
human nature itself, and that human nature gives us sufficient motives to lead us to
act as we ought (pp. xxvi-xxvii, see also pp. 22-23, 97).

extra, something beyond political constructivism-that the judgments
made from the original position are true in addition to being reason-
able (pp. 112-14). In fact, the intuitionist is being asked to believe
that constructivism and not intuitionism specifies which judgments
are correct for matters of political justice. Sometimes Rawls seems to
suggest that constructivism's account of objectivity is continuous with
intuitionism's because intuitionism's "sparse" conception of the person
as knower of an independent realm of moral values could be part of
a "fuller" conception of the person-a conception of practical rea-
son-used in laying out the constructivist procedure.36 To take an
extreme analogy, this would be like saying that a Moslem can be a
Christian since the Christian trinity merely adds two more divinities to
the Moslem pantheon. Intuitionism, like other philosophical theories,
both affirms its own conception of the person and affirms that no
fuller conception is needed.37
Nor can a Rawlsian appeal to the theory of public reason to resolve
the conflict between citizens' comprehensive views and constructivism.
An appeal might go something like this: citizens can think to them-
selves that God or an independent moral order or whatever is the real
source of objective reasons, but must speak as if constructivism has
overriding normative authority when engaging in political discourse.
A full discussion of public reason would take us too far afield, but it
should be clear enough that this reply creates more problems than it
solves. Public reason can give citizens reasons for appealing in public
to only part of what they believe, but it can't give citizens reasons to
profess beliefs that contradict their comprehensive doctrines. If public
reason is construed merely as a guise that citizens put on for politics,
despite the fact that it conflicts with their beliefs at the deepest level,
then there can be no stable overlapping consensus. For this sort of
public reason would inevitably result in hypocrisy (where people pub-
36. "Rational intuitionism is not, to be sure, forced to use this sparse conception
of the person. It simply has no need for more complex conceptions of person and
society; whereas in constructivism such conceptions are required to provide the form
and structure of its constructivist procedure" (ibid., p. 92).
37. If this objection is correct, it shows that Rawls has not escaped some of the
views on constructivism and intuitionism that 'the political turn' was meant to supersede.
See his "Kantian Constructivism in Moral Theory: The Dewey Lectures" (Journal of
Philosophy 77 [1980]: 512-72): "What justifies a conception of justice is not its being
true to an order antecedent to and given to us, but ... that ... it is the most reasonable
doctrine for us.... Kantian constructivism holds that moral objectivity is to be under-
stood in terms of a suitably constructed social point of view that all can accept. Apart
from the procedure of constructing the principles of justice, there are no moral facts"
(p. 519). And: "An essential feature of a constructivist view, as illustrated by justice as
fairness, is that its first principles single out what facts citizens in a well-ordered society
are to count as reasons of justice. Apart from the procedure of constructing these
principles, there are no reasons of justice" (ibid., p. 547).

licly endorse policies they privately reject) or cheating (where people
bend their public reasoning toward the conclusions they are really
convinced of). This is not the sort of public reason that Rawls wants,
and we should not construe public reason in this way to solve the
problems with constructivism.38
Why does Rawls present constructivism as part of the political
conception, given the difficulties inherent in any account of objectiv-
ity? It may be that he thinks that without an independent account
of objectivity a political conception cannot remain the focus of an
overlapping consensus. Without a focal theory of objective and over-
riding reasons, there might be a tendency for comprehensive doctrines
to evolve away from a consensus on the content of justice as fairness.
Agreement on constructivism as the determinative source of political
reasons might serve to stop this sort of drift. In this way, a limited
consensus, in which there is no overlap on constructivism, could be
less stable than Rawls's full consensus.
Yet if political constructivism is meant to make a full overlapping
consensus more stable, it does so only at the price of making that
consensus unreachable. By making political constructivism part of
the characterization of a reasonable comprehensive doctrine in an
overlapping consensus, Rawls has excluded from an overlapping con-
sensus those comprehensive doctrines with a stable account of norma-
tivity. He has successfully avoided divisive debates about truth only to
endorse a divisive account of the source of objective reasons. Rawls
has re-created the problems of pluralism at a higher level.
IV
The burdens ofjudgment displace firm religious faith. The conception
of the person underlying the reasonable moral psychology conflicts
with the conceptions of other philosophical theories. Political con-
structivism excludes prevalent accounts of the sources of normative
authority. Above I claimed that Rawls embeds a partially comprehen-
sive doctrine in his presentation of justice as fairness by adding these
elements to it; we are now in a position to evaluate this partially
comprehensive doctrine. After this I will offer a guess as to why Rawls
incorporates such a comprehensive view into his political theory.
The addition of these three elements to the conception of the
reasonable makes the most sense from a perspective in which political
values are weightier than any other values. In several passages Rawls
reveals that this is in fact his perspective. The principles ofjustice, he
38. I have taken the importance of relating public reason to constructivism and
the objections in this paragraph directly from remarks by Thomas Pogge (November
7, 1994). For an excellent discussion of these issues, see Thomas W. Pogge,John Rawls
(Munich: Beck, 1994), pp. 135-46, 157-67.

writes, are "designed to form the social world in which our character
and our conception of ourselves as persons, as well as our comprehen-
sive views and their conception of the good, are first acquired" (p.
41), and the basic structure has "a prior and fundamental role ... in
establishing a social world" (p. 43). The virtues of political cooperation
are "very great virtues" (p. 157), just as liberal political values are
"very great values," that should "normally outweigh whatever values
may conflict with them" (pp. 139, 168-69, 218). And most dramati-
cally, Rawls claims that the political values that govern the basic frame-
work of social life are at "the very groundwork of our existence"
(p. 139).
Nor does Rawls assign such weight to just any political values.
Rawls's partially comprehensive doctrine seems committed to the fol-
lowing claim: the exercise of free human reason under free institutions
is more important than the truth of any particular comprehensive
doctrine reached by that exercise. 'Free human reason' here means
not simply unfettered or imaginative thinking; it is a much more
Kantian idea. Free reason in this sense is reason guided only by its own
authority, in accordance only with (here political) ideas and principles
authenticated by reason itself.39 The claim that this exercise of free
human reason is more important than the truth of comprehensive
doctrines means that in ordering the political world we are to give no
weight to truth-claims from comprehensive doctrines until we have
secured institutions endorsed by and congenial to free reason itself.
Various comprehensive doctrines are allowed to join Rawls's overlap-
ping consensus only to the extent that they admit their inferior and
at most supporting position beneath the realm of the political values
of free human reason.40 Comprehensive doctrines must adjust them-
selves to match the political stance endorsed by free reason, whatever
sacrifices these adjustments entail. These kinds of statements are, of
course, precisely the sort that Rawls says a political conception must
avoid (p. 157). Yet we can best make sense of the view he presents if
we see it as including the claim above concerning the exercise of free
human reason.
For a strong commitment to free human reason best accounts for
Rawls's persuasive definition of the reasonable person. A person who
39. Rawls briefly canvasses Kant's view of reason as "the final court of appeal" in
Political Liberalismat pp. 100-101, where he distances his political conception from this
view, and at p. 120, n. 26, where he comes closer to acknowledging it. For Rawls's fuller
exposition of these Kantian ideas see his "Themes in Kant's Moral Philosophy" (in
Kant's TranscendentalDeductions, ed. E. Forster [Stanford, Calif.: Stanford University
Press, 1989], sec. 4).
40. This is why Rawls's view is only partially comprehensive. It is compatible with,
e.g., a religious account of nonpolitical values so long as these values are not thought
to outweigh the values of the constructivist political conception should the two conflict.

believes that accepting the burdens of judgment is a requirement of
being reasonable is unlikely to insist that political values are certified
by divine authority. This opens a space for Rawls's constructivist ac-
count of the authority of his political conception. Including the reason-
able moral psychology as a criterion of reasonableness similarly crowds
out secular accounts of moral authority, such as Humean and rationali-
ty-based approaches. And presenting political constructivism as the
reasonable person's guarantor of objectivity itself privileges Kantian
political values over those of any competing doctrine. Rawls's descrip-
tion of the reasonable person depends upon, and to some extent adver-
tises, the primacy of the political values of free human reason.
Incorporating this strong partially comprehensive doctrine makes
Rawls's conception of justice incompatible with almost all currently
recognizable comprehensive doctrines-except for a comprehensive
Kantianism. This comprehensive Kantianism I believe is Rawls's own
view, but a more important question is whether he is aware of this
incompatibility. It is conceivable that he sees the conflicts but thinks
that emphasizing them will thwart the formation of an overlapping
consensus that would otherwise be possible. On this line, Rawls is
counting on most people's overall views not being fully comprehensive,
and that this "looseness" will lead to "slippage" toward his political
conception.41 Rawls in this case would have an esoteric doctrine, one
whose arguments could not be made fully explicit without ruining
their effectiveness.42
I believe, however, that Rawls is not fully aware of the conflict,
and has extended the presentation of justice as fairness beyond what
his own strictures require because he earnestly wishes his political
philosophy to achieve two goals. The first I have already discussed:
Rawls wants to show why an overlapping consensus is necessary, how
such a consensus is possible, and how one could persist. Once we see
pluralism as the work of free human reason, we will see why it is
necessary and how it is possible for reasonable people to unite in a
society where the exercise of free reason is secured. I have argued
that Rawls has misjudged not in generating this theory of overlapping
consensus, but in mandating that the reasonable people who are to
form the consensus must accept it. The second and closely related
goal is the goal of reconciliation.
41. Rawls uses these terms to describe the transition from a modus vivendi to a
constitutional consensus (Political Liberalism, pp. 158-64). Notice in this account that
people who have no slippage in their comprehensive views are not described as joining
the eventual overlapping consensus.
42. Joseph Raz suggests in passing that Rawls may have an esoteric doctrine, but
does not commit him to this view ("Facing Diversity: The Case of Epistemic Abstinence,"
Philosophyand Public Affairs 19 [1990]: 3-46, pp. 21-22).

Reconciliation through political philosophy has been a theme of
Rawls's work for many years, although in published writings he has
used the term sparingly.43 His most explicit statement comes from the
unpublished but oft-cited "Briefer Restatement" ofjustice as fairness:
A third role [of political philosophy], stressed by Hegel in his
Philosophyof Right (1821), is that of reconciliation: political philos-
ophy may try to calm our frustration and rage against our society
and its history by showing us the way in which its institutions,
when properly understood from a philosophical point of view,
are rational, and developed over time as they did to attain their
present rational form. This fits one of Hegel's well-known say-
ings: "When we look at the world rationally, the world looks
rationally back."44
Rawls hopes that by presenting a political theory based on the
reasonable and not the true, with a conception of objectivity and of
public reason, he can show us how we can come to be unified despite
our diversity and to reason together despite our disagreements. In
fashioning a theory that he believes strong enough to attract this
convergence he has built in the primacy of Kantian political values.
We are all to come together in seeing justice as the highest value and
practical reason as providing its content and authority. Reconciliation
is to see beyond the particularities of one's fellow citizens, and to view
them and oneself as free and equal, reasonable and rational, at the
very groundwork of their and our existence.
This is a noble goal. Yet it is not one that can be achieved if
the pluralism that Rawls describes is indeed endemic to our culture.
Reconciliation through the realization of Kantian political values is
one way of viewing the social order, but it cannot be made official
doctrine without excluding the philosophical and religious perspec-
tives with which it competes. It may be possible to reach a just, stable,
and public society, but each person within it must be allowed to find
reconciliation from her own point of view.
43. See Rawls, "Justice as Fairness": "We try, then to leave aside philosophical
controversies whenever possible, and look for ways to avoid philosophy's longstanding
problems. Thus, in what I have called 'Kantian constructivism,' we try to avoid the
problem of truth and the controversy between realism and subjectivism about the status
of moral and political values. This form of constructivism neither asserts nor denies
these doctrines. Rather, it recasts ideas from the tradition of the social contract to achieve
a practicable conception of objectivity and justification founded on public agreement in
judgment on due reflection. The aim is free agreement, reconciliation through public
reason" (p. 230). See also Political Liberalism, pp. 157-58, and Rawls's "Briefer Re-
statement" (Harvard University, Cambridge, Mass., 1994, unpublished manuscript), pt.
2, sec. 21.
44. Rawls, "Briefer Restatement," pt. 1, sec. 1, para. 3. (Quoted with author's
permission.)

V
I have argued that Rawls's presentation of justice as fairness is based
on a conception of the reasonable that a variety of comprehensive
doctrines, as we know them and can expect them to become, will reject.
I will close with a few words about the limited conception of the
reasonable with which I have contrasted Rawls's fuller conception.
The limited conception is based on a limited characterization of
the reasonable person. This reasonable person has the two moral
powers, the powers of thought and judgment, and a determinate con-
ception of the good; this person is able to be a normally cooperating
member of society and is ready to abide by fair terms of cooperation.
I believe that justice as fairness loses nothing that it needs when it is
presented in terms of this limited conception. Rawlsians who think
that the three additional attributes of Rawls's reasonable person are
necessary to make justice as fairness work as a political conception
need new arguments showing why.
The question then arises whether the limited conception is itself
too controversial.45 Is the conception of the reasonable person that
grounds even a limited consensus too intolerant of religious and philo-
sophical conceptions of the person? Can Catholics and Hobbesians
and Humeans, for example, accept "core" attributes like the two moral
powers?46 This is a question whose importance goes beyond the scope
of this article, for the attributes of the reasonable person used by the
limited conception are central not only to the presentation of justice
as fairness but to its content as well (e.g., in the justification of the
veil of ignorance and the derivation of primary goods). If the limited
conception is itself too robust, we must worry about the argument
from the original position as well as the argument for overlapping
consensus.47
I can only offer a conjecture on this large question. It seems to
me that many comprehensive doctrines could find credible internal
reasons to use the limited conception of the reasonable person to
generate both the content and the presentation of a theory of justice
45. Thomas Pogge has emphasized to me the importance of addressing this ques-
tion (November 7, 1994).
46. Glyn Morgan, in conversation (Cambridge, Mass., Spring 1994), has especially
taken exception to the moral power that includes the capacity to revise one's conception
of the good. Building revisability into reasonableness, he believes, makes inevitable
conflicts with religions that require a noncritical attitude toward texts and traditions.
And he does not think that political liberalism has the resources to explain its insistence
on revisability in the face of this opposition. A similar point is carefully developed in
an article by Will Kymlicka, "Two Models of Pluralism and Tolerance" (Analyse und
Kritik 14 [1992]: 33-56), from which I have learned a good deal.
47. See n. 11 above.

62 Ethics October
1995
for the basic structure.But whether proponents of various compre-
hensive doctrines will want to put effort into framing their views in
this way is a different matter, since from the points of view of many
comprehensivedoctrines Rawls'sargumentsfor why a politicalcon-
ception is needed in the first place may seem less compelling.This is
only a conjecture;more work on this question needs to be done.


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Political Liberalism: An Internal Critique

Author(s): Leif Wenar

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Ethics 106 (October 1995): 32-62

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5. Joshua Cohen has similar difficulties defining 'reasonable comprehensive doc-

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14. This 'sixth burden ofjudgment' seems to me to be less a source of disagreement

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17. Declaration on Religious Freedom, art. 2. Further endorsements of these civil

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22. Ibid., arts. 12, 24.

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29. SeeJohn Rawls, "The Independence of Moral Theory," ProceedingsandAddresses

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