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§4. A Third Alternative

§4. A Third Alternative

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is to the point, since the idea of this contract is an idea of reason and as

such it is nonhistorical. We understand the social contract the right way

when we understand it as the highest criterion of constitutional and basic

law. As the highest criterion, it obliges every legislator to frame laws in

such a way that they could have been produced by the united will of the

whole people and so to have the consent of each subject in the general

will. Kant says: “This is the touchstone of any public law’s conformity with

right. . . . [I]f a public law is so constituted that a whole people could not

possibly give its consent to it, . . . it is unjust” (ibid.). And at another place:

“for what the whole people cannot decide upon for itself, the legislator

cannot decide for the people” (MdS :–).

. As an example of the application of this principle, Kant says that the

law cannot establish a certain class of subjects as a privileged and hereditary

class (“Theory and Practice,” :), nor can it declare a religion the religion

of the state with appropriate sanctioning powers (MdS :–). “No people can decide never to make further progress in its insight (enlightenment)

regarding beliefs, and so never to reform its churches, since this would be

opposed to humanity in their own persons and so to the highest Right of

the people.” Any such law would be invalid, since it would violate our

descendants’ rights by preventing them from making further progress in

religious understanding.

The two distinctive features of the social contract mean that the contract formulates the highest principle in political matters, and honoring

that principle fulfills the first duty that everyone has as a reasonable and

rational person to enter into a social union with everyone else in which

the rights of all citizens are guaranteed by the principles of right. Everyone

has this duty. Thus in entering society by the social contract, each of us

achieves the very same end, an end we all share and ought to share. Hence

the first special feature of the contract. The second feature of the contract—

its being the highest criterion of basic law—follows from what reasonable

and rational persons could agree to as the test of basic law. This is enough

of Kant’s political doctrine to indicate that it is a third alternative. It is

different from starting with single individuals as atoms independent from

all social ties and then building up from them as a basis. And it does not

use the idea of the state as spiritual substance and individuals as mere acci-



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dents of its substantiality; the state is the arena in which individuals can

pursue their ends according to principles each can see are reasonable and

fair.



§. Hegel’s Legacy as a Critic of Liberalism

. Some writers think that among Hegel’s important legacies for today are

his criticisms of liberalism. Hegel’s critical insights are indeed significant; it

is less clear that liberalism, especially a liberalism of freedom, cannot recognize and account for them.

It is occasionally said of a liberal society that it has no universal, collective goal but exists only to serve the particular and private ends of its individual members, of what Hegel thinks of as civil society. A familiar example

of this is found in Hobbes’s political philosophy. In his state of nature, all

persons have the private or personal end of their own happiness, or of their

own security. These ends are, of course, not shared; they may be of the

same kind, yet they are not the very same end. Hobbes’s social contract

establishing the sovereign does not involve a shared end, much less an end

that everyone ought to share, except insofar as they are rational (as opposed

to reasonable). Moreover, the state’s institutions are a common end only

in the sense that they are a means to each individual’s separate happiness

or security. Those institutions do not specify a form of public political life

that is to be seen by citizens as right or just in itself and from which they

are moved by their sense of justice to act. The society of Leviathan is a kind

of private society. Hegel says of Hobbes’s approach that “it excludes mind

because it leads only to a juxtaposition.” There is no real unity since the very

same end is not publicly shared. This is one sense of atomic individualism.

As we have just seen, this criticism is not true of Kant. He supposes

that all citizens understand the social contract as an idea of reason, with

its obligatory shared end that they politically establish a social union. On

his doctrine, citizens have the very same end of securing for other citizens,

as well as for themselves, their basic constitutional rights and liberties.

Moreover, this shared end is characterized by reasonable principles of right

and justice; it is a form of political life that is reasonable and fair. It is to

citizens’ good, of course, that their rights and liberties are respected, yet



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respecting them is what citizens owe one another as the shared end of their

republican regime. So much is true of any liberalism of freedom, whether

that of Kant or J. S. Mill, or of A Theory of Justice. It is incorrect to say that

in a liberalism of freedom the state has no publicly shared common ends

but is justified entirely in terms of the private aims and desires of its citizens.

The tradition of the liberalism of freedom started at least with the Reformation and gives special priority to certain basic liberties: liberty of conscience and freedom of thought, liberties of persons and the free choice of

vocation—freedom from slavery and serfdom—to mention several basic

cases. Political liberalism is also a liberalism of freedom. Moreover, it assures

all citizens adequate all-purpose means (primary goods) so that they can

make intelligent use of the exercise of their freedoms. Their happiness,

though, is not guaranteed, for that is a matter for citizens themselves. The

liberalism of the (classical) utilitarians—Bentham, James Mill, and Sidgwick—is distinct from the liberalism of freedom. Its first principle is that

of the greatest happiness summed over all individuals. If it confirms the

liberal freedoms, it is a liberalism of happiness; yet if it doesn’t confirm these

freedoms, it is not a liberalism at all. Since its basic ideal is that of maximizing happiness, it is a contingent matter whether doing this will secure the

basic freedoms.

. A second criticism of liberalism is that it fails to see, what Hegel

certainly saw, the deep social rootedness of people within an established

framework of their political and social institutions. In this we do learn from

him, as it is one of his great contributions. But I don’t think that a liberalism

of freedom is at fault here. A Theory of Justice follows Hegel in this respect

when it takes the basic structure of society as the first subject of justice.

People start as rooted in society and the first principles of justice they select

are to apply to the basic structure. The concepts of person and society fit

together; each requires the other and neither stands alone.

If citizens of a constitutional democracy are to recognize one another

as free and equal, basic institutions must educate them to this conception

of themselves, as well as exhibit and encourage this ideal of political justice

publicly. This task of education is part of the role of a political conception.

In this role, such a conception is part of the public political culture: its first

principles are embodied in the institutions of the basic structure and appealed to in their interpretation. Acquaintance with and participation in

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that public culture is one way citizens learn that conception of themselves,

a conception which, if left to their own reflections, they would most likely

never form, much less accept and desire to realize.

Consider further how the various contingencies of social life affect the

content of people’s final ends and purposes, as well as the vigor and confidence with which they pursue them. We assess our prospects in life according to our place in society, and we form our ends and purposes in the

light of the means and opportunities we can realistically expect. Whether

we are hopeful and optimistic about our future, or resigned and apathetic,

depends both on the inequalities associated with our social position and on

the public principles of justice that society not merely professes but more

or less effectively uses to regulate the institutions of background justice.

Hence the basic structure of a social and economic regime is not only an

arrangement that satisfies given desires and aspirations but also an arrangement that arouses further desires and aspirations in the future. This it does

by the expectations and ambitions it encourages not only in the present

but over a complete life as well.

Moreover, native endowments of various kinds (say, native intelligence

and natural ability) are not fixed natural assets with a constant capacity.

They are merely potential and cannot come to fruition apart from social

conditions; and when realized, they can take but one or a few of many

possible forms. Educated and trained abilities are always a selection, and a

small selection at that, from a wide range of possibilities that might have

been fulfilled. Among what affects their realization are social attitudes of

encouragement and support, and institutions concerned with their early

discipline and use. Not only our conception of ourselves and our aims and

ambitions, but also our realized abilities and talents, reflect our personal

history, opportunities and social position, and the influence of good and ill

fortune. These kinds of reasons show our rootedness in society, as a reasonable liberalism fully recognizes.

. A third criticism of liberalism is that it cannot account for the intrinsic

value of institutions and social practices as such. As Hegel sees it, the good

of these social forms must go beyond the fulfillment of the aims and desires

of individuals, even though these aims are social: they are the aims of citizens, officeholders, and politicians, all engaged in maintaining their democratic institutions; they are the aims of composers, performers, and conduc[  ]



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§4. A Third Alternative

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