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The Perfectionisms of John Rawls

Published online by Cambridge University Press:  09 June 2015

Steve Sheppard
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Extract

The acts of even the gods

Have ends beyond their intent.

John Rawls stands in a small pantheon of writers whose ideas have shaped the vocabularies of their age. Like a classical deity, his work has been invoked by disciple and dissenter alike as the essential totem of the modern liberal state. But his Promethean creation has grown independent from its original design, attaining significance not only for its initial merits but also for the competition it offers to the plan of its creator. So from the stage of Rawlsian liberal neutrality stalks the idea of legal perfectionism.

Legal perfectionism is the doctrine according to which officials may adopt and enforce laws according to the officials’ understanding of a good life, with the intended practical effect that people governed by such laws will lead better lives. In other words, legal perfectionism broadly enshrines the notion, sometime unpopular among Western theorists, that the government has, or should have, the power to reflect ideas of good and evil—the content of the good life or of good projects or of excellence—in framing the laws. While related both to older ideas of human perfection and perfectibility and to perennial concepts of virtue and morality, legal perfectionism has developed a distinct, modern meaning.

Type
Research Article
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Canadian Journal of Law & Jurisprudence , Volume 11 , Issue 2 , July 1998 , pp. 383 - 415
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Copyright © Cambridge University Press 1998

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References

1. This adaptability may be essential to Rawls’s works being perceived as classic texts by future generations. See Jacques Barzun, “Of What Use the Classics Today” in Morris Philipson, ed., The Forgotten Conditions of Teaching and Learning (Chicago: University of Chicago Press, 1991) 133 at 134–45. Thus, that Rawls’s writing has attracted not only criticism but also interpretation beyond his original designs may suggest that his writings will achieve the intellectual consonance of a classic. See Conal Condren, The Status and Appraisal of Classic Texts (Princeton, NJ: Princeton University Press, 1985) at 58, c. 8 and 9.

2. Legal perfectionism has become a growth industry in legal theory. A partial bibliography must include the recent wealth of scholarship with specific concerns, both supportive and contradictory, for the development of perfectionist theory. Certain pieces relied upon in the argument below include the following: David Norton, “Rawls’ Theory of Justice: A ‘Perfectionist’ Rejoinder” (1973) 83 Ethics 50,56 [hereinafter Norton, “A Perfectionist Rejoinder”]; T.M. Scanlon, “Rawls’ A Theory of Justice” in Norman Daniels, ed., Reading Rawls (Oxford: Basil Blackwell, 1975) particularly 169, 172 [hereinafter, Scanlon, “Rawls’ Theory”]; Vinit Haksar, Equality, Liberty, and Perfectionism (Oxford: Oxford University Press, 1973) [hereinafter Haksar, Perfectionism]; Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986) [hereinafter Raz, Morality of Freedom]; Will Kymlicka, “Rawls on Teleology and Deontology” (1987) 17 Phil. & Publ. Affairs 167,188 [hereinafter Kymlicka, “Rawls on Teleology and Deontology”]; Jeremy Waldron, “Symposium: The Works of Joseph Raz: Autonomy and Perfectionism in Raz’s Morality of Freedom” (1989) 62 So. Cal. L. Rev. 1097 [hereinafter Waldron, “Autonomy and Perfectionism”]; Stephen Gardbaum, “Commentary: Why the Liberal State Can Promote Moral Ideals After AH” (1991) 104 Harv. L. Rev. 1350, 1353 [hereinafter Gardbaum, “Liberal State Can Promote Moral Ideals”]; Robert George, Making Men Moral: Civil Liberties and Public Morality (Oxford: Clarendon Press, 1993) [hereinafter George, Making Men Moral]; George Sher, Beyond Neutrality: Perfectionism and Politics (Oxford: Oxford University Press, 1997).

3. The mere identification of a theory as perfectionist is hardly conclusive of the perfectionist nature of a theory, and it is empty to ask whether all efforts at the theoretical understanding of the relationship between morals and American law are perfectionist. Such efforts inform any understanding of the questions posed by perfectionist legal theories. There are, then, many writers who have been lately concerned with whether law does or should promote conceptions of virtue, goodness, or excellence in the citizen or society, such as the ongoing work of Ronald Dworkin, operating more or less within the construct of modern liberalism, and Michael Sandel, standing more or less outside of it. See Ronald Dworkin, Taking Rights Seriously (London: Duckworth Press, 1987) [hereinafter Dworkin, Taking Rights Seriously]; Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press, 1996); Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982); Michael Sandel, Democracy’s Discontent (Cambridge, MA: Belknap Press, 1996).

The term “perfectionism” has a distinct application in American constitutional theory, to suggest that the U.S. Constitution should incorporate particular values of liberal community. See Henry P. Monaghan, “Our Perfect Constitution” (1981) 56 N.Y. U. L. Rev. 353; Frank I. Michelman, “Constancy to an Ideal Object” (1981) 56 N.Y. U. L. Rev. 406.

4. This definition is taken, roughly, from Jeremy Waldron’s interpretation of Raz’s definitions. See Waldron, “Autonomy and Perfectionism,” ibid. 1102. Such a broad definition is necessary in order to encompass most of the various articulations of perfectionism as a justification for laws, particularly the theoretical array of the ends of perfectionist law. To promote cultural excellence, to pursue virtue, to make likely the good life, to promote autonomy, to discourage depravity, and more, have all been proffered by legal theorists as the ends of perfectionism. Each end, if adopted as the sole end of a perfectionist justification to the exclusion of other ends, would suggest a significantly different set of laws that would be justified.

5. The articulation of this modern meaning is the task performed in Steve Sheppard “The Concept of Legal Perfectionism” (manuscript on file with the author). There are earlier predicates to this modern idea of perfectionism, not the least being various forms of natural and divine law. See George, Making Men Moral, supra note 2. Related concepts are often dealt with as questions of progress, as well as human perfection and perfectibility. See, e.g., J.L. Bury, The Idea of Progress: An Inquiry into its Origin and Growth (New York: Dover Press, 1987); Arthur O. Lovejoy, The Great Chain of Being (Cambridge, MA: Harvard University Press, 1936); John Passmore, The Perfectibility of Man (New York: Charles Scribner’s Sons, 1970), Martin Foss, The Idea of Perfection in the Western World (Princeton, NJ: Princeton University Press, 1946). These ideas continue to influence the culture of American law, not only regarding particular laws, such as the perfectionist belief in abolition as a predicate to salvation, but in providing more general content to the good life, such as perfectionist ideas of the soul. See Robert M. Cover, “The Supreme Court, 1982 Term: Foreword: Nomos and Narrative” (1983) 97 Harv. L. Rev. 4; Michael H. Shapiro, “Fragmenting and Reassembling the World: Of Flying Squirrels, Augmented Persons, and Other Monsters” (1990) 51 Ohio State L. J. 331.

6. (Cambridge, MA: Harvard University Press, 1971)[hereinafter Rawls, Theory of Justice]. Rawls drew his conception of perfectionism from earlier writers, although none used the term precisely as Rawls does. See note 19 below. The doctrine as used in recent legal theory seems to be first discussed by Rawls. See Rawls, Theory of Justice, ibid, at 25. Jeremy Waldron likewise commenced his consideration of Joseph Raz’s use of the doctrine with mention of its origin in Rawls. Waldron, “Autonomy and Perfectionism,” supra note 2 at 1102.

7. Famously, Rawls’s thought experiment of the original position places ideally rational parties in a “veil of ignorance” so they may agree upon a social contract reflecting the basic principles of a just society without knowing their future talents or position. The rules selected in the experiment are the two principles of justice:

(1) Each person has the same claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all; and in this scheme the equal political liberties, and only those liberties, are to be guaranteed their fair value. (2) Social and economic inequalities are to satisfy two conditions: first, they are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least advantaged members of society.

John Rawls, Political Liberalism 5–6,291 (New York: Columbia University Press, 1993) [hereinafter Rawls, Political Liberalism]; Rawls, Theory of Justice, supra note 6 at 302. Rawls has reshaped his first principle as a result of Hart’s criticism of the claim of priority and then redrafted the second principle for harmony in the text. Rawls, Political Liberalism at 5n., citing H.L.A. Hart, “Rawls on Liberty and its Priority” (1973) 40 U. of Chicago L. Rev. 534.

8. Rawls defined his intuitionism as “the doctrine that there is an irreducible family of first principles which have to be weighed against one another by asking ourselves which balance, in our considered judgment, is the most just.” Rawls, Theory of Justice, supra note 6 at 34. According to Rawls, these first-order principles will sometimes lead to conflicting directives because there is no inherent priority by which to choose between conflicting standards. Thus, he notes that a characteristic of this doctrine is the unanalyzable nature of any distinction between the right and the good, Ibid., or between competing views of what is just. Ibid, at 40–45. However, the intuitionist specification of something as inherently good (and thus to be pursued) is made independently of specifications of the content of the right. If the right is then defined as the maximization of the good, then the intuitive approach can be perfectionist, Ibid. at 40. Rawls did not refute intuitionism and even granted that it might be correct. Rather, he rejected intuitionism in favor of a theoretical alternative that he liked better. Ibid, at 39.

9. His definition of teleological—that in such theories “the good is defined individually from the right”—is stipulative. See Rawls, Theory of Justice, supra note 6 at 25.

10. Kymlicka criticized Rawls’s description of perfectionism as teleological, particularly to contrast a deontological description. “Some perfectionists may well believe that the good they prefer ought to be maximized…. But there are also perfectionists … who would find it unfair to sacrifice one person’s pursuit of excellence just because doing so would increase the overall amount of excellence in society. Kymlicka, “Rawls on Teleology and Deontology” supra note 2 at 167. On the other hand, Kymlicka’s reconstruction simply rejects Rawls’s stipulated definition of perfectionism, which intentionally does not account for Kymlicka’s second, more egalitarian, form of perfectionist. Under Rawls’s strict perfectionism, a less successful person’s pursuit of excellence must be sacrificed to increase the overall amount of perfectionism. Cf. Scanlon, “Rawls’ Theory” supra note 2 at 172. The difference between Kymlicka’s egalitarian perfectionism and Rawls’s strict view is illustrated in the Goethe and Grisham example, infra in text accompanying note 23.

11. Rawls’s consideration of classical utilitarianism is rooted in the Benthamite view offered by Henry Sidgwick of organizing society to produce the greatest satisfaction among all individuals. Rawls, Theory of Justice, supra note 6 at 22, n.9. Rawls rejected this form of social order as insufficiently accounting for the distribution of benefits among persons, thus not taking their distinctions seriously. Ibid, at 26, 27; 183–84.

12. Rawls, Theory of Justice, supra note 6 at 22; 325, et seq.

13. He apparently rejected intuitionism as founded on a mistake, that there can be no priority of goods. Rawls, Theory of Justice, supra note 6 at 40–45.

14. One commentator has remarked on the scant detail Rawls offers concerning his opposing theories, including perfectionism. “First, it is fair to say (as students in one of my seminars observed) that Rawls has not developed a political conception for utilitarianism or for perfectionism to set alongside his own political conception of justice.” Rex Martin, Rawls’s New Theory of Justice (1994) 9 Chicago-Kent L. Rev. 737,749, n29. It is true that Rawls’s discussion of perfectionism is dispersed throughout his works, particularly in Theory of Justice. Moreover, Rawls did not concern himself with the details of perfectionism, particularly its application in a society, in anything like the degree he articulated the society he believed possible under the two principles.

15. Rawls’s description of weak perfectionism as Aristotelian should not be confused with his more famous “Aristotelian principle.” Rawls described weak perfectionism as Aristotelian because it draws generally upon Greek examples of justification, particularly the claim that Athenian slavery was justified by Greek achievements in the arts and sciences. Rawls, Theory of Justice, supra note 6 at 325. The Aristotelian principle is his articulation of a basic principle of motivation for the individual to tend to pursue a realization of the good, so that, “other things equal, human beings enjoy the exercise of their realized capacities (their innate or trained abilities), and this enjoyment increases the more the capacity is realized, or the greater its complexity.” Ibid, at 426.

16. Rawls, Theory of Justice, supra note 6 at 325.

17. Ibid, at 325–26.

18. The concentration of resources to produce excellence in culture and science, art and athletics, is a motif in Huxley’s themes of Fordism and eugenic breeding. See Aldous Huxley, Brave New World (New York: Harper and Row, 1971) at 25, et seq. Krishan Kuma discusses these images in the dystopian genre in Utopia & Anti-Utopia in Modern Times (Oxford: Basil Blackwell, 1987) at 224, et seq. Four decades after the stark images left by Huxley in 1932, it is a view designed to lose, and in the losing demonstrate why the twentieth-century liberal view is preferable. The link between Rawls’s view of perfectionism and Huxley’s book was suggested by Haksar, although to make a different point. See Haksar, Perfectionism, supra note 2 at 172. The act of labeling a theory “perfectionism” was, at least in the decade following A Theory of Justice, seen as a means of discrediting that theory, a point illustrated in the rather defensive note offered by Henry Monaghan that his use of the word really was descriptive and not “pejorative.” See Henry Monaghan, “Our Perfect Constitution” (1981) 56 N.Y.U. L. Rev. 353,358, n.35.

19. Rawls, Theory of Justice, supra note 6 at 325. Rawls referred to Rashdall and Nietzsche as sources for this presentation of the argument. In a precursor to trickle-down economics, Rashdall argued for the allocation of greater resources to those “men who are more capable of good,” the benefits of such an uneven distribution going indirectly to the less good of the same generation but uniformly and directly to all members of succeeding generations. Rashdall was more compelled by the latter argument, which reflect the benefits that modern Europe received from slave-supported Athens. Hastings Rashdall, 1 The Theory of Good and Evil (Oxford: Clarendon Press, 1907) at 241. Rawls looked to the aphorisms of Friedrich Nietzsche to support the simpler view of producing great men as the telos of society, with an essentially instrumental role for lesser people. This is an undoubtedly fair appraisal of a Nietzschean view of equal respect. See, e.g., Friedrich Nietzsche, The Will to Power Walter Kaufman, ed., (New York: Vintage Books, Random House, 1968) at 125; Richard Schacht, Nietzsche (London: Routledge & Kegan Paul, 1983) at 267.

20. Rawls, Theory of Justice, supra note 6 325.

21. There is a continuing question of what Rawls meant as “excellence” and “achievement.” His failure to answer this question is part of his argument to reject the doctrine. But from his descriptions of cultural, artistic, and scientific success, and of the claim to justify perfectionist society through the works of Goethe and Socrates, a rough conception can be formed.

One attribute of this rough conception is that it is a limited view of human perfection, the perfection of performance rather than personhood. Each of his examples cites excellence at one task (writing novels, performing scientific research, etc.) by an individual as the basis for a claim to excess resources. Excellence in performance alone, however, varies from Rashdall’s approach of tying such claims to good character and from Nietzsche’s conception of individual greatness, which is more akin to perfectibility.

22. See Rawls, Political Liberalism, supra note 7 196. Rawls defined his uses of comprehensive conceptions of the good in his work on the overlapping consensus. Ibid, at 154.

23. This illustration makes clear an essential understanding of Rawls’s strict perfectionism, that certain achievements of excellence in culture cannot or will not occur unless there is a diversion of the resources that would go to others in a fairer system to the producers of culture. See text accompanying infra note 55.

24. Ronald Dworkin, “Foundations of Liberal Equality” in 11 The Tanner Lectures on Human Values 1, 55–57 Grethe B. Peterson, ed., (Salt Lake City: University of Utah Press, 1990) [hereinafter Dworkin, Tanner Lectures].

25. This definition is narrowed from the scope in which Dworkin proposed it. He claimed merely that an impact model of ethics is based on “the value of its consequences for the rest of the world.” Ibid, at 55. This formula allows those consequences to have value for more than just contributing to higher standards of cultural excellence, although such contributions would surely have impact.

26. It may be beneficial for the reader less well-versed in Rawls’s theory to remember that “the players” is a metaphor for a single rational, ideal party; there is no real bargaining and no disagreement in the original position because the players, or party, acts on a single scheme of rationality. Rawls, Theory of Justice, supra note 6 at 139.

27. Rawls, Theory of Justice, supra note 6 at 327.

28. Ibid.

29. Ibid, at 327–28 (emphasis supplied). In essence, Rawls stated that if the standard of excellence is given substance then the players will defend the activities and projects that would be barred or inhibited by the adopted standard. What the players do not know is whether their preferences will fall outside that standard. This limitation applies Rawls’s answers to both the questions of why the players cannot determine elements of excellence which would not bar projects that are rational according to the thin theory of the good and the question of why all projects are given equal respect in the original position. See also infra note 42.

30. Ibid, at 396. The primary goods initially included goods that are socially defined—rights and liberties, powers and opportunities, means and wealth, and self-respect—and to the degree other goods are not defined by natural limits—health, vigor, imagination and intelligence. Ibid, at 62. In the slightly expanded methodology Rawls has since adopted, primary goods include specific and listed basic rights and liberties; freedom of movement and free choice of occupation; access to power and office; wealth and income; and the social bases of self-respect. Rawls, Political Liberalism, supra note 7 at 181.

31. The “veil” is briefly discussed in supra note 7.

32. Ibid, at 328.

33. Ibid, at 328. He briefly argued that such standards are too imprecise for political reliance and so they cannot support political perfectionism. He offered no reason why such standards must be unsuccessful, other than that they would be “unsettled and idiosyncratic in public, however reasonably they may be invoked within narrow traditions or communities of thought.” Ibid, at 330.

34. Ibid, at 328.

35. Rawls, Theory of Justice, supra note 6 at 328.

36. In order for the parties to adopt perfectionism, they would require “a prior acceptance of some natural duty, say the duty to develop human persons of a certain style and aesthetic grace, and to advance the pursuit of knowledge and cultivation of the arts. But this assumption would drastically alter the interpretation of the original position.” Ibid, at 328. Rawls is not, of course, opposed to the idea that people have natural duties. Indeed, he claims that each person has natural duties to establish and to support just institutions. Ibid, at 334.

37. Rawls, Political Liberalism, supra note 7 at 194.

38. See Rawls, Political Liberalism, supra note 7 at 190–201. This more expansive role of the good is considered below in section III.

39. The principle of right (the first principle) and the difference principle (the second principle) are described in supra note 7.

40. Rawls, Theory of Justice, supra note 6 at 328–29.

41. Ibid, at 329.

42. “[T]he criterion of perfection insists that rights in the basic structure be assigned so as to maximize the total of intrinsic value” among all persons. Rawls, Theory of Justice, supra note 6 at 329. Although he assigned such a valuative technique to perfectionist theory, Rawls rejected it for his own theory of justice. Ibid, at § 77.

43. Ibid, at 330.1 ignore any logical effect of this statement on his own theory, which Rawls “located” between utilitarianism and perfectionism. Ibid, at 327.

44. This point of course, presupposes the more general strength of preferring Rawls’s theory as if it is underived. Even if excellence can be defined and we can all, or nearly all, agree on its content, there is still a failure of fit between strict perfectionism and the two principles; the pursuit of a generally agreed form of excellence can lead to a loss of liberty for some for the simple reason they prefer to act contrary to such an excellence. And, the pursuit of a generally agreed form of excellence may consume resources that would have been available to the lesser off among those who reject the form. I am indebted to Kent Greenawalt for raising this point. Even so, the failure of fit is contingent upon the content of the definition of excellence being one that is opposed to the satisfaction of the two principles.

45. Lucas stands out in the crowd who criticize Rawls as unpersuasive in this result:

If I had been a Founding Father of the United States, I might well have voted for the Constitution on the grounds that, apart from its other merits, it provided a framework within which I could pursue my own happiness to the best of my ability. But if I had been persuaded by Rawls, I should have opted for some other system which gave me less freedom to rise or fall, on the grounds that for all I knew I might be congenitally unable to pursue my own happiness, and would fare less badly under a modern welfare state. If I were a born loser, I should want very different rules from those which would appeal to me if I were simply an ordinary man in the original position.

J.R. Lucas, On Justice (Oxford: Clarendon Press, 1980) at 193–94 [hereinafter Lucas, On Justice].

46. The rejection of perfectionism on these two criteria can be seen by two potential rules that might have been supported by a perfectionist society, which would have been rejected by those players whose potential projects would have been inhibited: (1) A fund for the brightest mathematicians, which because of scarce resources would have required a 5% diminution in the resources available to the rest. (2) A prohibition on lives dedicated to pushpin. According to the principles selected, however, the players might have accepted perfectionist social structures requiring: (1) A similar fund for the advanced training of urban planners. (2) A prohibition on lives dedicated to murder.

47. Rawls defined the forms of the reason and knowledge with which he endowed the players, and he deliberately removed from them the conceptions of everyday valuation and excellence he conceded we all use. See Rawls, Theory of Justice, supra note 6 at 331. Thus the players must initially consider as possibly valid life plans that not only reject the right but also include murder. This argument, and others of incoherence of the behavior of the players, is well developed at Lucas, On Justice, supra note 45 at 192, et seq. This is one of the many elements of the original position that are not universally persuasive.

48. Such religious intolerance is, obviously, an important datum in the history of Western religions. The archetype is the Inquisition. See Miroslav Hroch and Anna Skŷbová, Ecclesia Militans: The Inquisition, trans. Janet Fraser (Leipzig: Dorset Press, 1988) Rawls faces concerns for the religion argument in his clarification of justice as political and not metaphysical, in which he specifically illustrates his concerns to exclude an intolerant comprehensive view with the conflicts between Catholics and Protestants in sixteenth-century Europe. See Rawls, Political Liberalism, supra note 7 at 148, citing Quentin Skinner, 2 The Foundations of Political Thought (Cambridge: Cambridge University Press, 1978), especially part III.

49. Indeed, as an historical matter arguments for toleration emerged in Europe precisely during the height of the sixteenth-century religious disputes. See Skinner, 2 ibid. 241–54. Toleration is, of course, an ancient and recurring philosophy whose influence waxes and wanes in western culture. See the classic study of Hendrik van Loon, The Story of Tolerance: The Story of Man’s Struggle for the Right to Think (New York: Liveright Publishing Co., 1927).

50. Indeed, toleration has become such a part of everyday notions of excellence, at least in some cultures, that Lord Scarmon began a 1983 speech on legal toleration with the phrase, ‘To a lawyer, in a sense, toleration is a non-subject. Toleration is, and has been for a hundred years or more, part and parcel of the English way of life.” Lord Scarmon, “Toleration and the Law” in Susan Mendus & David Edwards, eds., On Toleration (Oxford: Oxford University Press, 1987) at 49.

51. Rawls, Theory of Justice, supra note 6 at 331, described infra note 71.

52. Raz rejected Rawls’s rejection of perfectionism because of its controversiality in the original position. “They are not more controversial nor more evaluative than some of the psychological facts available to the parties, such as the Aristotelian principle…” Raz, Morality of Freedom, supra note 2 at 127–28. Raz offered three reasons to refute Rawls’s rejection of perfectionism in the original position: in the single culture to which Rawls’s theory applies, there may be common conceptions of the good, and these conceptions, being in common, need not be excluded in the veil of ignorance; the modes of reasoning of the good may be agreed upon; in which case, we might agree to accept our second-best preferences, which is a method of compromise similar to the original position. Ibid, at 124–30.

53. This is the central approach to classical ideals of perfectionism. Its most powerful modern exposition is in Thomas Hurka, Perfectionism (New York: Oxford University Press, 1993).

54. This is a central part of the enterprise of most definitions of the good life, as it is in the construction of most ideas of natural law. While there are variations among differing approaches to such selections, there is much more in common than there is distinct. Compare the approach of Thomist approach of John Finnis to the more Humean view of James Griffin. John Finnis, Natural Law and Natural Rights (Oxford: Oxford University Press, 1980) at 59–99; James Griffin, Weil-Being: Its Meaning, Measurement and Moral Importance (Oxford: Oxford University Press, 1986) at 67–68; James Griffin, Value Judgement: Improving Our Ethical Beliefs (Oxford: Oxford University Press, 1996) at 19–36. These modern approaches, in turn, follow more empirical claims of human satisfaction, such as Maslow’s hierarchy. See Abraham Maslow, Motivation and Personality (New York: Harper, 1954) at 80–106.

55. The idea that we can arrive at a theory of the good that is assuredly excellent is one based on an objectivist approach. Sher, Beyond Neutrality supra note 2 at 176–198. One mechanism for assessing the good in an objectivist manner is presented in Gewith’s subtle use of generic goods and generic rights. Alan Gewith, Reasons and Morality (Chicago: University of Chicago Press, 1978) at 48–103. Such an approach almost certainly requires an ideal level of knowledge in the actor expressing a choice. See Richard R. Brandt, Facts, Values, and Morality (Cambridge: Cambridge University Press, 1996) at 12–60.

56. Moreover, as is suggested briefly below in part in, there is a good argument to suggest that the two principles of justice that were selected may be described in this way.

57. James Griffin, “Moral Law, Positive Law” in John Toulmin, ed., Law, Values, and Social Practices (Aldershot, UK: Dartmouth Press, 1997) at 39–58.

58. For these purposes, it is unnecessary to expand Griffin’s proposition to assert that certain ideas are universal for all legal systems and thus are artifacts suggesting universal goods. Rawls’s theory is culturally contingent, and the boundaries here of Rawls’s culture and Griffin’s legal systems are roughly similar.

59. I have in mind here some of the writings of Rosalyn Krause and Robert Hughes. A fine example of this point is provided in the Brustein’s theatre criticism, in which mainstream acceptance is a death knell for art. Robert Brustein, Dumbocracy in America: Studies in the Theatre of Guilt, 1987–1994 (Chicago: Ivan R. Dee, 1994).

60. The nature of such an assumption, especially a constructive assignment of this assumption to Rawls’s theory, must account for whether the class membership is immutable or open to class mobility. Given Rawls’s view of natural talents, it seems fairest to characterize his view of these classes as largely immutable, subject only to the development of artificial talents of some form or to the failure to develop or exercise natural talents.

61. One way to clarify this problem is to imply to Rawls a limited conception of excellence that is closed to the creation of new forms of excellence, but this clarification seems extreme.

62. Progress is here used in the historical sense described by Bury and Lovejoy. See supra note 5.

63. Not to mention Diogenes.

64. See the text accompanying supra note 29. Rawls further rooted his rejection of outcomes that might be good or bad in his refusal to allow the players to gamble, because a poor gamble would jeopardize the claims of descendants. See Rawls, Theory of Justice, supra note 6 at 128.

65. David Norton criticized the difference principle and its selection over perfectionism on related grounds. He argued that some people would have a stronger claim, and desire, for certain goods (such as Zubin Mehta for a metronome and Mario Andretti for a race car). So, the proportion of goods held by each is the measure between persons, and the justice of this allocation is assessed by merit. This test of justice is best seen in the question of the person with less, “Is the holder of more goods than me worthy of doing so?” This test suggests the difference principle is unable to reflect distinctions in the qualitative identities of citizens, an unsurprising outcome under the veil of ignorance. Moreover, the difference principle is based on a deliberately limited, and so flawed, description of human ability. Genius and excellence are not well described by a natural lottery. They are more the product of the human will. “We are now ready to say with confidence that the real exceptionality of genius lies in matters of tenacity, courage, self-discipline, willingness to sacrifice for a single objective—qualities which are by no means esoteric but available to all.” Norton, “A ‘Perfectionist’ Rejoinder,” supra note 2 at 56.

66. There is a fine line in Rawls’s arguments here that should be observed. Rawls rejected strict perfectionism under the first principle because it might require the pursuit of projects that are contrary to the player’s view of excellence. This argument recognizes that the players have a sense of cultural ends that entitle a claim upon others for success. Rawls, Theory of Justice, supra note 6 at 327. Rawls rejected strict perfectionism under the second principle, the point of consideration above in this text, because the players fear risking resources and freedom that might be diverted to others in the pursuit of excellent projects. Ibid, at 327–29. This rejection is predicated upon the absence of a natural duty, which would allow for the subordination of one’s desires for resources, rewards, and liberties (such as salary, fame, and opportunity) in response to others’ claims upon them to pursue cultural success. Ibid, at 328–29.

67. He has characterized his initial descriptions of the theory of justice as part of a theory of rational decision as incorrect, and the theory as a whole is better understood as an account of a reasonable principles of justice that is based on an intuitive theory of rational decision. Rawls, Political Liberalism, supra note 7 at 53n.

68. Rawls, Political Liberalism, supra note 7 at 48–54 and 190–206.

69. Rawls is, of course, basing his mature use of the rational as opposed to the reasonable on the Kantian notion of rational people as lacking any form of socially conceived morals, but being merely predisposed to humanity and animality. Rawls, Political Liberalism, supra note 7 at 5 In. The problem we face is that even such an amoral rationality may pursue a greater benefit to the self, a greater degree of humanity in the thin sense, that purely selfish motivations can admit. This is the reverse of the paradox of altruism: whether one can truly act for the benefit of another without concomitant benefits to the sense one has of oneself.

70. This is not to say that any example of cultural excellence can be unanimously preferred, any more than it can be said that any person’s exercise of liberty would be preferred by others. Pablo Picasso, no mean producer of a different genre of projects of cultural excellence, dismissed the Apollo XI moon landing with, “It means nothing to me,… I don’t care.” Quoted in Jane Sterns & Michael Sterns, Encyclopedia of Pop Culture (New York: Harper Collins, 1987) at 28. The failure of unanimity regarding such projects of generally agreed cultural excellence may add strength to Rawls’s view that the nature of excellence is controversial. Still, the essential nature of excellence is no more prone to controversy because of controversy at the margins than the essential nature of liberty is controversial because of difficulty in ascertaining its ultimate limits.

71. Buddhist scholar Ronald Burr suggests an affinity between this Western idea of civic participation and a significant element of the Buddhist view of the role of the individual in a just society. The three most important obligations of the individual are to take refuge in the Buddha, to take refuge in the dharma and to take refuge in the sangha. Refuge in the sangha is a form of religious obligation to venerate the monks of the Buddhist temples, especially by giving them alms. This idea of refuge in the sangha gives even the person who could never be a monk the chance to participate in the greater enlightenment of the monk. This participation by one person in the enlightenment of another seems to distinguish the sense of refuge in the dharma from some Christian ideas of almsgiving, which are otherwise quite similar. Robert Nozick suggests a phenomenon concerning sports fans that is similar to dharma. and he describes its implications for equality and liberty. Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974) at 161–64.

72. Rawls, Political Liberalism, supra note 7 at 51.

73. This is his consideration of the priority of right and the ideas of the good, Rawls, Political Liberalism, supra note 7 at 195–201.

74. Rawls, Theory of Justice, supra note 6 at 325.

75. This form allows greater and lesser degrees of perfectionism according to the weight given to the “claims of excellence and culture.” Rawls, Theory of Justice, supra note 6 at 325. Although in this formulation of the doctrine, Rawls boils down “excellence in science, art, and culture” into “excellence and culture,” there is no other reason to assume that the claim in the weakened form abandons scientists or artists as categories of valid users of perfectionistically concentrated resources.

76. Ibid, at 325–26.

77. Rawls adopted Brian Barry’s use of the indifference curve to illustrate a comparative exercise of maximizing the most critical ends until all are relatively satisfied. Rawls, Theory of Justice, supra note 6 at 37, citing Brian Barry, Political Argument (New York: Humanities Press, 1965) at 3–8 [hereinafter Barry, Political Argument].

78. Rawls, Theory of Justice, supra note 6 at 330. Again here, his conclusion is based on agreement with the two principles, not comparison to them. While this conclusion would further suggest consideration of moderate perfectionism as a principle for institutions, he concludes the same paragraph, on the next page, in the rejection of perfectionism as a conception of “social justice.” Ibid. at 331.

79. Ibid. at 331–32.

80. Ibid. at 331. This is a powerful argument, which presaged the thrust of his 1987 Hart Lecture, that arguments concerning political structure, made without reference to more general principles of good, are the basis for agreement among groups in a plural land. This he called overlapping consensus, which is to be pursued in order to make judgments that are the least controversial. See John Rawls, “The Idea of an Overlapping Consensus” (1987) 7 Oxford J. of Legal Stud. 1; and see also, John Rawls, “Priority of Right and Ideas of the Good” (1988) 17 Phil. & Publ. Affairs 251; Rawls, Political Liberalism supra note 7, lectures IV and V.

81. Rawls, Theory of Justice, supra note 6 at 331. Rawls offers no reason why resort to ad hoc claims of excellence should be the sum of arguments based on perfectionism, or why perfectionism could not have been a natural duty other than that he has defined it not to be so. This language of natural duty is strikingly reminiscent of natural law justifications, widely accepted in the last century, of sodomy laws. These are the subject of Rawls’s following example, not under a claim of natural duty but of excellence.

Most importantly, this objection presents the claim that such arguments are ad hoc as if that alone is damning. This is integral to Rawls’s theoretical approach. Yet there are numerous counterarguments, notably those derived from the writings of Blaise Pascal. See, e.g., Albert Jonsen & Stephen Toulmin, The Abuse of Casuistry: A History of Moral Reasoning (Berkeley: University of California Press, 1988).

82. Rawls, Theory of Justice, supra note 6 at 331.

83. “Since these uncertainties plague perfectionist criteria and jeopardize individual liberty, it seems best to rely entirely on the principles of justice which have a more definite structure.” Rawls cites the mere existence of disagreement between Professor Hart and Lord Devlin over the sodomy laws as sufficient to avoid the whole issue. Ibid, at 331, n.54, citing H.L.A. Hart, Law, Liberty, and Morality (Stanford, CA: Stanford University Press, 1963); Patrick Devlin, The Enforcement of Morals (Oxford University Press, 1965). It may be that Rawls is employing a concern for controversy similar to that of Professor Dworkin, who at one time eschewed basing liberal political principles in controversial claims of human nature, lest the claims appear later to be false, diminishing the legitimacy of political liberalism. See Dworkin, Taking Rights Seriously, supra note 3 at 272.

84. Rawls, Theory of Justice, supra note 6 at 331. However, controversy is only the negative reason for the rejection of perfectionism. Rawls also claimed the players would prefer the two principles, a positive reason for rejection. This contrast is developed by Scanlon. Scanlon, “Rawls’ Theory,” supra note 3 at 169. Vinit Haksar discussed Rawls’s use of controversy in justifying limits on paternalism and contrasts this approach to John Stuart Mill’s. Haksar, Perfectionism, supra note 7 at 236, et seq.

85. Rawls, Theory of Justice, supra note 6 at 536.

86. Ibid, at 536.

87. Ibid, at 328–29.

88. Ibid, at 329. Of course, this dichotomy between a corporate institution and a governmental institution must be predicated on a rejection of many forms of the consent theory of government, accepting a more Lockean than a Hobbesian view. See Ernest Barker, “Introduction” in The Social Contract vii, xx-xxi (Oxford: Oxford University Press, 1947). This may seem a tad ironic in a contractarian model of the state, such as Rawls’s. Yet it is the attempt to reconcile consent theory with a deontologic content of such consent that apparently drives Rawls’s mission.

89. Rawls’s method of managing the exchange branch is intriguing, a “representative body taking note of various social interests and their preferences for social goods.” (It is unclear whether he means “social interests” as groups of like-minded individuals or as activities promoted by the whole. The use of “their” would seem to favor the first reading.) They may authorize expenditures for government activities independent of what justice requires, after satisfying Wicksell’s unanimity principle: no activity can be created unless its means of funding are also agreed on, nearly unanimously. Rawls, Theory of Justice, supra note 6 at 282–84, citing Knut Wicksell, “Finanztheoretische Untersuchungen” reprinted and translated in “A New Principle of Just Taxation”, Musgrave and Peacock, eds., Classics in the Theory of Public Finance 72 (London: Macmillan, 1958). Rawls recognized some of the nearly insurmountable obstacles to such a creation (but still neglected the vast expense of a suitable voting mechanism). He just left such problems aside. See Rawls, Theory of Justice, supra note 6 at 283.

90. Recalling Picasso’s disregard of the first landing of man on the moon, described in supra note 70, one must consider whether such a mild degree of, perhaps self-serving, rejection should have precluded the funding of the Apollo project. Much of Rawls’s project is to protect the ability of citizens to make such choices and so have such results.

91. Rawls, Theory of Justice, supra note 6 at 332.

92. Ibid, at 332.

93. Certainly, in the American experience this has been so. The public foundation of parks and monuments in U.S. cities to honor the work and ideals of Martin Luther King has been supported by many, some of whom were very poor but saw his example as one to be promoted. In these cases, the benefit of excellence in culture was believed by the worst off to be worth diverting a small portion of tax revenues from social programs that might otherwise have helped them better meet their basic needs. While there are cynical responses—that such promotion is designed by black civic leaders to encourage guilt among wealthy white citizens and thus stimulate greater diversion of resources to poor black citizens or that such promotion was not to the detriment of social programs but to the detriment of lower tax rates—such responses still seem insufficient to explain the whole of this particular political movement, particularly its support among the poor.

94. This idea, that people in fact have such reactions, is an empirical hypothesis but one for which no statistical data is offered. Even so, as an assertion, Rawls, recognized interchanges between the security of one type of primary good for another as an element of practicality. This recognition is elaborated in his essay “Social Unity and Primary Goods” in Amartya Sen & Bernard Williams, Utilitarianism and Beyond (Cambridge: Cambridge University Press, 1982). There is a separate question as to whether self-respect and subsidy to buy food are subject to the first and second principles respectively, a condition which would have to be accounted for in factoring commensurability. See Thomas Pogge, Realizing Rawls 122, et seq. (Ithaca, NY: Cornell University Press, 1989).

95. Rawls, Theory of Justice, supra note 6 at 282–83; 331.

96. Stephen Gardbaum provides an overview of the apparent contrast between legal perfectionism and political neutrality. See Gardbaum, “Liberal State Can Promote Moral Ideals,” supra note 2.

97. This article is not, by any means, the first to suggest that effective maintenance of a fair liberal state, even a tolerant plural state very much like Rawls has suggested, will be somewhat perfectionist. Sunstein has suggested that, to ensure such pluralism and tolerance persist,

controls are necessary to cultivate divergent conceptions of the good and to ensure a degree of reflection on those conceptions. One might describe a system that took this goal seriously as embodying a mild form of liberal perfectionism. Such a system would see the inculcation of critical and disparate attitudes toward prevailing conceptions of the good as part of the framework of a liberal republic. Liberal education is of course the principal locus of this concern.

Cass R. Sunstein, “Symposium on Classical Philosophy and the American Constitutional Order: Republicanism and the Preference Problem” (1990) 66 Chicago-Kent L. Rev. 181,194. See also Pogge, Realizing Rawls, supra note 94.

98. Nagel seems to have been first to characterize Rawls’s project as neutral. See Thomas Nagel, “Rawls on Justice” (1973) 82 Phil. Rev. 220, reprinted in Norman Daniels, ed., Reading Rawls 1, 8 (Oxford: Basil Blackwell, 1975) [hereinafter, Nagel, “Rawls on Justice”]. Raz seems to be the first to characterize Rawls as “anti-perfectionist.” Raz, Morality of Freedom, supra note 2 at 117–33.

Rawls discussed his neutrality in John Rawls, “The Priority of the Right and Ideas of the Good” (1988) 17 Philosophy and Public Affairs 251, 260, et seq. [hereinafter, Rawls, “Priority of the Right”] This discussion was presaged by his arguments on the exclusion of ideals in the original position in his Columbia Dewey Lectures. John Rawls, “Kantian Constructivism in Moral Theory” (1980) 71 J. of Phil. 515 at 545, et seq.

99. Nagel, “Rawls on Justice,” supra note 98 at 9. A similar approach was taken by Haksar, Perfectionism, supra note 3 at 288–97, and by David Norton. See supra note 65.

100. Nagel did not clarify why this inequality results, nor did Raz, who accepted Nagel’s point, although Raz noted that the players who defend expensive tastes must persuade others to cooperate in the satisfaction of his desires. See Raz, Morality of Freedom, supra note 2 at 120. One method by which the veil produces inequality is based on the result once the veil is lifted. Conceptions of the good which are dependent on more scarce resources may be insufficiently defended because the likelihood is more remote that players will have this conception. Thus, players who hold these views are hampered in the bargaining process in protecting his ultimate goals. But players with a conception of the good that is statistically more likely, because it requires more commonly consumed resources, will be more likely to pursue a social structure which matches his conception.

101. Nagel, “Rawls on Justice,” supra note 98 at 10. In his examination of this passage, Raz emphasized that Rawls’s conception of the good need not apply only to the life of the individual but may be conceptions for people generally or for society as a whole. Raz, Morality of Freedom, supra note 2 at 119. James Griffin has built a powerful argument from this point. See James Griffin, Well Being, supra note 54; James Griffin, “On a Government’s Favouring One View of a Good Life Over Others” lecture, Oxford University Sub-Faculty of Philosophy, Trinity Term 1990. (On file with the author.) (Parts of the methodology of this paper are developed in James Griffin, Value Judgement: Improving Our Ethical Beliefs, supra 54.

102. Nagel’s was one of several arguments made, broadly, in this way: Rawls appears neutral. Neutrality means a number of things. Rawls rejected many of these things. Thus, either Rawls is not really neutral or Rawls offers no real reasons to support neutrality. Raz, in Morality of Freedom, and Kymlicka, in Individualism and Neutrality, may be seen in this light. Raz, Morality of Freedom, supra note 2; Will Kymlicka, “Individualism and Neutrality” (1986) 99 Ethics 883 [hereinafter Kymlicka, “Individualism and Neutrality”].

103. See John Rawls, “Social Unity and Primary Goods” in Amartya Sen & Bernard Williams, eds., supra note 94 at 168; John Rawls, “Fairness to Goodness” (1975) 84 Phil. Rev. 553. Other conceptions that may be barred include those relying on community participation. See Adina Schwartz, “Moral Neutrality and Primary Goods” (1973) 83 Ethics 302. Rawls’s acceptance of neutrality was followed by a flood of related criticism, particularly by communitarians. See, e.g., arguments collected in Amy Gutmann, “Communitarian Critics of Liberalism” (1985) 14 Philosophy and Public Affairs 308; Kukathis & Petit, Rawls: A Theory of Justice and its Critics (Cambridge: Polity Press, 1990), ch. 6. Kymlicka offered a compromise view of community participation as a value for certain groups in Liberalism, Community and Culture (Oxford: Clarendon Press, 1989).

104. Raz divided neutrality into separate forms to add clarity to the operation of the doctrine, not necessarily to attribute certain elements to one form of neutrality or to exclude other elements of the other to any one writer. Kymlicka suggested that Raz wrongly labeled Rawls’s neutrality as primarily that of neutral political concern. Kymlicka is correct in that this is not possible in the fullest extent, since Rawls bars some consequences demanded by total application of neutral political concern. Kymlicka, “Individualism and Neutrality,” supra note 102 at 884–86. But Raz was aware of Rawls’s qualifications. See Raz, Morality of Freedom, supra note 2 at 119. Further, Raz was careful to note that many of the points made concerning one version of neutrality apply to the other. Ibid, at 109.

105. Rawls, “The Priority of Right,” supra note 98 (emphasis added); cf. Rawls, Political Liberalism, supra note 7 192–94. Rawls initially drew the three divisions from Raz’s construction of political neutrality. Raz, Morality of Freedom, supra note 2 at 114–15. Rawls claims that form (2) represents Dworkin’s version of neutrality. See Ronald Dworkin, A Matter of Principle (Oxford: Clarendon Press, 1986) at 191.

106. Rawls, “The Priority of the Right,” supra note 98; Rawls, Political Liberalism, supra note 7 192–95.

107. Ibid, at 262, 264–68; Rawls, Political Liberalism, supra note 7 192–95.

108. Rawls, Political Liberalism, supra note 7 at 193.

109. Rawls’s characterization of this limited neutrality is described by Cohen-Almagor as a “qualified neutrality of aim, which “holds that the role of government is to secure equal opportunity for citizens to pursue any permissible conceptions of the good. By “permissible” is meant conceptions which appreciate the accepted principles of justice.” Raphael Cohen-Almagor, “Between Neutrality and Perfectionism” (1994) 7:2 Can. J. of L. and Juris. 217 at 222.

110. These points are made in many of Rawls’s later writings, but mainly in “Justice as Fairness, Political not Metaphysical” (1985) 14 Phil. & Publ. Affairs 245, et seq. which formed the basis for his discussion of “public reasons.” Rawls, Political Liberalism, supra note 7, lecture VI.

111. This theory is developed in John Rawls, “The Idea of an Overlapping Consensus” (1982) 7 Oxford J. of Legal Stud. 1; Rawls, Political Liberalism, supra note 7, lecture IV. The relationship between the doctrine of overlapping consensus and the conception of a political doctrine is discussed in his “Domain of the Political and Overlapping Consensus” (1989) 64 N.Y.U. L. Rev. 233; Rawls, Political Liberalism, supra note 7, lectures III and IV.

As a matter of practical politics, Rawls would be overoptimistic in this task. Some groups will be emotionally capable of surrendering some claims, which oppose other groups’ claims to participate, in a consensus that would abridge such claims. Some of these claims can be described as illegitimate for one reason or another. The claim of mafiosi to “insurance” from Brooklyn builders or of Nazis to legal discrimination against non-”Aryan” races can be easily rejected as unjust or irrational. But others are not necessarily unjust or irrational, such as a Marxist claim to abolish the ownership of land. The prosecution of each of these claims requires the loss of some interest by others, interests they are likely strongly to desire to protect. Compromise of these interests according to acceptance of some more abstract principles is unlikely by advocates of either side of any of the three claims just mentioned. The abstract claim for consensus could not be agreed upon because the casuistic result would cause rejection of the premise. As a representation of the ideal in a pluralist democracy, however, Rawls’s view is still tremendously useful.

112. This amplification of the method of public selection of the content of the overlapping consensus is in lecture II of Rawls, Political Liberalism, supra note 7.

113. Ibid, at 139. Public reason, which is a democratic principle of decision-making, is described in ibid, at 212–54.

114. Ibid, at 194.

115. In this, Rawls follows the views of Sir Isaiah Berlin, who argued that it is impossible for all of the possible goods of society to be simultaneously and equally pursued. Isaiah Berlin, “The Pursuit of the Ideal” in The Crooked Timber of Humanity (New York: Knopf, 1991) at 13.

116. Rawls, Political Liberalism, supra note 7 at 197n.

117. Rawls, Political Liberalism, supra note 7 at 196. Rawls, Political Liberalism, supra note 7 at 194. This is the form that Raz’s perfectionism takes, in that he asserts perfectionist laws, at least non-coercive perfectionist laws, are necessary in order to provide citizens with the opportunity to practice autonomy.

118. Rawls, “Justice as Fairness,” supra note 110 at 245 n.27; see also Rawls, Political Liberalism, supra note 7 at 196–200; lecture VII. This last example is a fascinating example of Rawls’s view of morality. The parents’ duty under the social structure includes inculcating their child with moral powers. Whether such powers can exist without a particular content is problematic, but when taken as a social constraint, such a duty suggests an obligation to train the child to participate in the liberal community.

119. According to these virtues, political liberalism is compatible with classical republicanism, understood as an encouragement of the moral power of citizens to participate in the protection of their liberties through political participation. Rawls, Political Liberalism, supra note 7 at 205–06. Rawls contrasts this non-metaphysical good of republican participation with an idea of civic humanism, in which political participation is seen as an end in itself, a view Rawls rejects. Ibid, at 204–06. Interestingly, Rawls makes a similar contrast with the comprehensive liberalism he describes in Raz’s Morality of Freedom, which he agrees has some resemblance to political liberalism, with his rejection the cultivation of distinct virtues of a comprehensive liberal view, such as autonomy, which is the central justification for the perfectionism Raz believes is necessary to the harms principle. Rawls, ibid, at 200; Raz, ibid, at 407–29.

120. Rawls, ibid, at 204.

121. This formulation is resonant of Rawls’s later description of this social good. Compare Rawls ibid, at 204 with Rawls, “Priority of Right,” supra note 98 at 270–71.1 am, however, indebted to Professor Hart for a much earlier insight in providing this formulation.

122. This is largely the task George has followed by sculpting a perfectionist theory political theory that is based upon the protection of civil liberties. George, Making Men Moral, supra note 2 at 189–229.

123. See Kymlicka, supra note 10.

124. Dworkin, Tanner Lectures, supra note 24. See also Ronald Dworkin, “Liberal Community” (1989) 77 Cal. L. Rev. 479.

125. Rawls, Political Liberalism, supra note 7 at 204, quoted above.

126. Dworkin presents a broader model of the challenge basis of ethics as fulfilling the Aristotelian concept of the skillfully led life, which may include many of the values of the impact model of life, but values a well-led life without reference to other ethical values. Dworkin, Tanner Lectures, supra note 24 at 57–58. The argument here is closer to that of Stephen Macedo’s in asserting that public values of liberal constitutionalism entail “many ways of living as a liberal,” which amount to a set of private liberal virtues. Stephen Macedo, Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism (Oxford: Clarendon Press, 1990) at 245, et seq.

127. Theories that are “ideal-regarding” pursue a conception of what is objectively best. “Want-regarding” theories pursue what people subjectively regard as a want based on their self-interest. Brian Barry, Political Argument 39 cited in Rawls, Theory of Justice, supra note 6 at 326. Ideal-regarding theories insist some wants should be ranked as more deserving of fulfilment than others; want-regarding theories do not. Professor Barry later considered Rawls’s use of “ideal-regarding.” Brian Barry, The Liberal Theory of Justice: A Critical Examination of the Principal Doctrines in A Theory of Justice by John Rawls (Oxford: Clarendon Press, 1973) at 19, et seq. [hereinafter Barry, Liberal Theory of Justice]. He argued that Rawls’s approach either is a slightly abstracted want-regarding theory or is perfectionist. Barry’s claim that the two principles are want-regarding is based on the original position: the players are given only wants, and thus the two principles are based only on wants. Ibid, at 22. If this is not so, the players must rely on a “full theory of the good,” a reliance which Rawls rejected in developing the thin theory of the good for precisely this use. But Barry argued that Rawls’s claim—a want should not be satisfied if it conflicts with a theory’s distribution criteria—does not make Rawls’s theory ideal-regarding: simply excluding the value of a want is not to rank it. Ibid, at 25.

Rawls also claimed that the two principles “define an ideal of the person without invoking a prior standard of human excellence.” Rawls, Theory of Justice, supra note 6 at 327. But Professor Barry convincingly argued, “if Rawls is correct in stating that the principles are ideal-regarding there is either an inconsistency in the system or the premises do ‘invoke a prior standard of human excellence.’” Barry, Liberal Theory of Justice at 26.

Without reconsidering inconsistencies in Rawls’s system, it is still possible that Barry may be best answered by rejecting Rawls’s assertion that he is not perfectionist. Rawls has continued to assert that the separate formulation of the right and its priority over the good are critical to his theory. John Rawls, “The Priority of the Right,” supra note 98; Rawls, Political Liberalism, lecture VIII. But once his theory is complete, it becomes for the reader a theory of both what is right and what is good.

128. Rawls, Theory of Justice, supra note 6 at 326–27. See ibid, at 453 for an elaboration of the well-ordered society.

129. Rawls, Theory of Justice, supra note 6 at 327.

130. Rawls, Political Liberalism, supra note 7 at 208. Rawls asserted that the personal nature of the obligation to accord justice to others is a necessary part of his claim that his A Theory of Justice is complete.

131. Ibid, at 207–09; Rawls, Theory of Justice, supra note 6 at 433, et seq.

132. One approach to blurring the distinction between the right and the good was made by Kymlicka. See Will Kymlicka, “Rawls on Teleology and Deontology” (1988) 17 Phil. & Publ. Affairs 173. There are other approaches that could support the view that what Rawls defined as rights sometimes limits his defined version of good, as his good sometimes limits his right.

133. Rawls, Political Liberalism, supra note 7 at 201–06. It should be noted that this form of univer-salizable excellence within the person may conflict with Rawls’s initial stated conception of the role of excellence in defining the good. In fleshing out his notion of the good as confined of the right defined by the two principles, Rawls claimed that individuals would have lives that include as many objectives as possible. Rawls, Theory of Justice, supra note 6 at 413. Further, motivation of individual action would reflect Rawls’s “Aristotelian Principle,” according to which citizens are attracted to using their talents in complex forms. Ibid, at 424, et seq. He illustrated the preference for greater complexity: if a person is equally skilled at checkers and chess, chess will be preferred as a more complicated game involving more faculties of intellect. This point seems to be empirically flawed or at least culturally contingent. Even so, Rawls claimed that a rational plan of life must satisfy the Aristotelian Principle. Ibid, at 440. Accordingly, an individual can pursue a good of self-respect, marked by the esteem of others who are esteemed by him.

This subjective conception of esteem led Rawls to claim that excellence is subjective. The well-ordered society must have sufficient communities and associations that everyone can find someone who will hold him in respect. This requirement is a manifestation of the rejection of perfectionism. Since the “absolute level of achievement is irrelevant,” and “as citizens, we are to reject perfection as a political principle,” there can be “democracy in judging people’s aims.” Ibid, at 442. Rawls thus barred any claim that one approach to art, science, religion, or culture is superior to any other approach; no form of social union could be superior to any other. Ibid. at 527.

Rawls’s approach was examined by Martha Nussbaum, who contrasted this version of self-respect with the concept of shame. Martha Nussbaum, “Shame, Separateness, and Political Unity” in Amelie Rorty, ed., Essays on Aristotle’s Ethics (Berkeley: University of California, 1980) 394 at 397–404. Rawls, however, does not accept such a universalizable view. He claimed that the good does not necessarily reflect a sense of justice. “For our good depends upon the sorts of persons we are, the kind of wants and aspirations we have and are capable of. It can even happen that there are many who do not find a sense of justice for their good.” These people may have to be locked up. Rawls, Theory of Justice, supra note 6 at 576.

134. Rawls, Political Liberalism, supra note 7 at 166–68.