<<

. 8
( 13)



>>

judgments about how they would like to distribute consumption opportuni-
ties over their own lifetimes. This is analogous to the “fatty foods” case, inso-
far as our capacity to defer grati¬cation has an obvious biological dimension.
Thus there may be grounds for the government to adopt measures designed to
promote higher savings rates (and thus to reduce short-term consumption).
However, this should not be thought of as partiality to one particular value,
such as “frugality.” A program to encourage savings is neutral with respect
to what these savings will eventually be spent on. It only forces consumers
to defer some portion of their consumption; it doesn™t privilege one form of
consumption over another.
Vance Packard, The Hidden Persuaders (New York: David McKay, 1957), p. 107.
7.
Liberal Autonomy and Consumer Sovereignty 225

8. For a very sober discussion of these issues, see Michael Schudson, Advertising,
The Uneasy Persuasion (New York: Basic Books, 1986).
9. There are certain special cases, such as addictive substances, where the con-
sumer™s behavior can be clearly at variance with his or her expressed prefer-
ences. The fact that even many of these cases remain controversial, however,
shows just how signi¬cant a burden of proof one must meet in order to justify
restrictions on the market aimed at redressing consumer irrationality. A lot
of anti-consumerism fails to meet this threshold, and doesn™t even try.
10. Tibor Scitovsky, “On the Principle of Consumer Sovereignty,” American
Economic Review, 52 (1962): 262“268 at 265.
11. See Tyler Cowen™s two books, In Praise of Commercial Culture (Cambridge,
MA: Harvard University Press, 1998), and Creative Destruction (Princeton, NJ:
Princeton University Press, 2002).
12. Galbraith, The Af¬‚uent Society, p. 134.
13. This is most obvious when it forms part of the classic Keynesian strategy for
counteracting the business cycle. During a recession, consumers have an
incentive to defer purchases until others have made their purchases. This
is collectively self-defeating, and perpetuates the recession. The Keynesian
prescription is for the state to correct this by taking money and spending it
on everyone™s behalf.
14. Cass Sunstein, After the Rights Revolution, (Cambridge, MA: Harvard University
Press, 1999), p. 43.
15. Thorstein Veblen, The Theory of the Leisure Class (New York: Penguin, 1979).
16. Ibid. See pp. 97“100. His view is often misunderstood on this point. See,
for example, James Twitchell, Lead us into Temptation (New York: Columbia
University Press, 1999), p. 37.
17. Ibid., p. 100.
18. Robert H. Frank, Luxury Fever (New York: The Free Press, 1999), p. 146.
10

Political Liberty

Integrating Five Conceptions of Autonomy

Rainer Forst




1. Although “liberty” today is generally recognized as a fundamental crite-
rion for the legitimacy of a society™s basic institutional structure, disputes
over its content continue unabated. Within the history of political phi-
losophy as well as in contemporary debates, a wide variety of theories
provide competing accounts, ranging from republicanism to Marxism,
from libertarianism to various forms of liberalism (“perfectionist” or
“political”).1 In the following, I want to suggest that the best way out
of these controversies can be found in an intersubjectivist concept of political
liberty comprised of an adequate integration of ¬ve different conceptions of
individual autonomy.

2. The term “political liberty” is used here in a rather broad sense, includ-
ing both the republican “liberty of the ancients” and the liberal “liberty
of the moderns.”2 In contrast to the more narrow notion of “political
autonomy” “ the participation in the exercise of political self-rule “
“political liberty” is understood as the liberty that persons have as citi-
zens of a political community “ that is, the liberty that they can claim as
citizens and that they must grant each other as citizens.

3. The “intersubjectivist” approach I defend is not to be confused with
communitarian approaches, according to which a person can be free
only if his or her individual life is part of and constituted by the “larger
life” of a political community that provides its citizens with a sense of
the good and virtuous life.3 Rather, what I mean by “intersubjective” lies
on a different plane from that of the quarrel between individualistic and
communitarian notions of personal freedom. It is to be explained by the
226
Political Liberty 227

terms “reciprocity” and “generality”: political liberty is the form of liberty
that persons as citizens grant each other reciprocally and generally. It
is not “the state” or “the community” that “distributes” rights and liberties
to citizens; rather, the citizens themselves are at the same time the authors
and the addressees of claims to liberties (usually in the form of rights
claims). As citizens, persons are both freedom-claimers (or freedom-users)
and freedom-grantors. And by analyzing this double role, we will ¬nd that
it implies different conceptions of individual autonomy.
On this approach, the question of liberty is part of the larger question
of justice; for the relevant criteria of (reciprocal and general) justi¬cation
are criteria of procedural justice.4 In a phrase: All claims to political
liberty need to be justi¬ed as claims to justice, yet not all claims of justice
are claims to liberty.

4. In speaking of “a” concept of political liberty, I am diverging from Isa-
iah Berlin™s well-known view that there are “two concepts of liberty,” one
positive and one negative.5 I cannot go into the details of Berlin™s text
here, but a few remarks are necessary. First, Berlin is by no means clear in
his analysis of these concepts. For example, terminologically, he speaks
not only of two “concepts” but also of two different “notions” as well as
“senses” of liberty. This suggests that there is an ambiguity between the
thesis that there are two incompatible concepts of political liberty and the
thesis that there is only one concept with two different and contradicting
interpretations that constitute two different conceptions of that single
concept.6 In Berlin™s text, we ¬nd support for both of these readings. At
one point, it seems that there really are two concepts of political liberty:
“The former [i.e. those who defend negative liberty] want to curb au-
thority as such. The latter [i.e. those who defend positive liberty] want it
placed in their own hands. That is a cardinal issue. These are not two dif-
ferent interpretations of a single concept, but two profoundly divergent
and irreconcilable attitudes to the ends of life.”7 In other passages, Berlin
underlines the common core of both notions of liberty: “The essence of
the notion of liberty, both in the ˜positive™ and in the ˜negative™ senses, is
the holding off of something or someone “ of others who trespass on my
¬eld or assert their authority over me, or of obsessions, fears, neuroses,
irrational forces “ intruders and despots of one kind or another.”8
Second, and more importantly, Berlin™s characterization of negative
liberty implies a particular notion of positive liberty. For the question of
negative liberty “ “How much am I governed?” or “Over what area am I
master?” “ presupposes an answer to the positive question “ “By whom am
Rainer Forst
228

I governed?” or “Who is master?” It is only the answer that some notions
of positive liberty give “ “Master should be the higher, more rational self,
i.e. what we, who hold power, know is more rational given our common
higher ends and duties!” “ that Berlin rejects.9 Yet there is no question
that negative freedom implies a certain conception of the autonomy of a
person as “a being with a life of his own to live”10 “ that is, as having the
capacity of re¬‚ection and meaningful choice between options in his or
her life. One can even say that securing this kind of autonomy is the point
of negative liberty. Thus Berlin says that the extent of liberty depends not
only on the number of options open to somebody and the dif¬culty of
realizing them, but also on how important these options are “in my plan
of life, given my character and circumstances.”11 (Two further criteria are
(1) how far options are opened up or closed off by the deliberate action
of others, and (2) the importance generally attributed to these options
by society.) Thus negative liberty serves autonomy, yet an autonomy that
is not de¬ned by “higher” values (which would allow for external ethical
judgments about what is good for a person): “I wish to be a subject, not
an object; to be moved by reasons, by conscious purposes, which are my
own, not by causes which affect me, as it were, from outside.”12
This suggests, third, that Berlin™s thesis is not that there are two irrec-
oncilable concepts of liberty, but that there is one core concept and two
interpretations of it that historically diverged and opposed themselves to
one another. Berlin™s thesis is primarily historical, not conceptual: “The
freedom which consists in being one™s own master, and the freedom which
consists in not being prevented from choosing as I do by other men, may,
on the face of it, seem concepts at no great logical distance from each
other “ no more than negative and positive ways of saying much the same
thing. Yet the ˜positive™ and ˜negative™ notions of freedom historically de-
veloped in divergent directions not always by logically reputable steps,
until, in the end, they came into direct con¬‚ict with each other.”13 Thus
there is one concept according to which it is the task of political liberty to
enable and secure personal autonomy; but there are different conceptions
of political liberty, depending upon which notion of autonomy serves as
the basis. Every “freedom from” is a “freedom to,” yet it is a matter of
dispute which kind of self-determination or self-realization is to be the
aim of political liberties. “If it is maintained that the identi¬cation of the
value of liberty with the value of a ¬eld of free choice amounts to a doc-
trine of self-realization, whether for good or for evil ends, and that this is
closer to positive than to negative liberty, I shall offer no great objection;
only repeat that, as a matter of historical fact, distortions of this meaning
Political Liberty 229

of positive liberty (or self-determination) . . . obscured this thesis and at
times transformed it into its opposite.”14
One may, therefore, understand the core concept of liberty according
to the formula suggested by MacCallum: “x is free from y to do or be (or
not to do or be) z.”15 Yet this formula is far too abstract; what matters
is how one ¬lls out x, y, and z in a political context. What is a “truly”
self-determining actor (the empirical or a “true” self)? What counts as a
constraint of liberty (external or internal constraints)? Which actions and
aims are characteristic of a self-determining (or “self-realizing?”) actor?
What is needed is an analysis of the forms of autonomy that are at the
center of a concept of political liberty.

5. The objection could be made that it is not very useful to try to ex-
plain a dif¬cult concept like political liberty with the help of another, no
less contested concept like individual or personal autonomy. For while
it is true that many political philosophers applaud the idea that political
liberty is needed for its value to us as autonomous “purposive beings,”16
for its service to our well-being as autonomous agents choosing “valu-
able options,”17 as an expression of the “full autonomy” of citizens in a
liberal well-ordered society,18 or as ensuring the “equiprimordiality” of
both “private” and “public” autonomy19 “ it is equally true that these the-
orists mean very different things by “autonomy.” But it seems to me that if
one starts from the basic idea that persons are simultaneously the authors
and the addressees of claims to liberty in a given political community, one
can develop a differentiated concept of political liberty that allows for a
critical perspective on the diverse conceptions of autonomy employed by
the theories mentioned here.

6. I suggest the following de¬nition: The concept of political liberty is
comprised of those conceptions of autonomy that persons as citizens
of a law-governed political community must reciprocally and generally
grant and guarantee each other “ which means that political liberty in-
cludes all those liberties that citizens as autonomous freedom-grantors
and freedom-users can justi¬ably claim from each other (or, negatively,
that they cannot reasonably deny each other) and for the realization of
which they are mutually responsible. To spell this out, ¬ve different con-
ceptions of individual autonomy have to be distinguished: moral, ethical,
legal, political, and social autonomy. All of these play a certain role in the
concept of political liberty, yet none of them should become “ as is so of-
ten the case “ paramount and dominant at the expense of the others. This
Rainer Forst
230

is the problem of most one-sided “negative” or “positive,” individualist or
communitarian conceptions of political liberty: They make a certain con-
ception of autonomy absolute. To avoid this, a multi-dimensional single
concept of political liberty is necessary.

7. Talk of conceptions of autonomy presupposes an underlying concept of
autonomy. According to this concept, a person acts autonomously “ that
is, as a self-determining being when she acts intentionally and on the
basis of reasons. She is aware of the reasons for her action, can “respond”
when asked for her reasons, and is thus “responsible” for herself. Au-
tonomous persons in this sense are accountable agents “ accountable for
themselves to both themselves and others; they can reasonably explain
and justify their actions. Yet what do “accountability” and “reasonable jus-
ti¬cation” mean here? To whom “ beside herself “ is a person accountable
and to whom must the reasons for action be justi¬able if she is to count as
autonomous? This question necessitates a distinction between different
conceptions of autonomy, depending on the practical contexts in which
the justi¬cation of actions is required. All of these contexts of justi¬cation
are intersubjective contexts of communities, yet of very different kinds,
implying different kinds of reasons for accountable action. Persons are
autonomous, then, to the extent to which they can recognize and act
on good reasons in these diverse contexts. We should always consider
persons to be “situated” in certain contexts, yet we should not think that
there is only one kind of “situation” in which persons ¬nd themselves.20
Thus I propose the following set of distinctions, which, however, I can
only spell out insofar as it is necessary for the question of political
liberty.

8. In a moral context, a person can be called autonomous only if he
or she acts on the basis of reasons that take every other person equally
into account, so that these reasons are mutually justi¬able. Wherever the
actions of a person affect others in a morally relevant way, they must
be justi¬able on the basis of reciprocally and generally binding norms,
and therefore all those affected “ individually “ can demand that the
agent justify his action on the basis of reasons that are “not reasonable
to reject”21 “ that is, that are not reciprocally and generally rejectable.
The criteria of reciprocity and generality then are recursively arrived at,
starting from the validity claim implied by moral actions and norms.22
The criterion of reciprocity means that none of the parties concerned
may claim certain rights or privileges it denies to others, and that the
Political Liberty 231

relevance and force of the claims at issue is not determined one-sidedly;
generality means that all those affected have an equal right to demand
justi¬cations. Every moral person has a basic right to justi¬cation, a right
to count equally in re¬‚ections regarding whether reasons for action are
justi¬able.23 This is what, in my view, is implied by the Kantian idea of
the dignity of a person as an “end in itself,” as a justi¬catory being. A
moral person can demand to be respected as an autonomous author and
addressee of moral claims; he has the freedom to say “no” to claims made
by others that violate the criteria of reciprocity and generality.24 Morally
autonomous persons recognize the community of all moral persons as
the relevant context of justi¬cation and do not restrict the community
of justi¬cation in any other way. Yet even though this context is one
that transcends all other local communal contexts, it is not a worldless,
“transcendental,” or “acontextual” context, so to speak. It is, rather, the
very concrete context in which persons respect each other as human
beings, whatever else they may or may not have in common with regard
to other contexts such as a culture, a state, a family, and so on.
For the present question of political liberty, it is important to see that
the conception of moral autonomy plays a fundamental role in the deter-
mination of that concept. For especially as freedom-grantors, but also (in
a certain sense) as freedom-users, citizens must view themselves and each
other as morally autonomous. To the extent that they are freedom-users,
citizens consider it to be one of the tasks of political liberty to help create
a society in which they can be responsible moral agents, in which they
can rely on each other in everyday life and have the chance to develop
moral capacities; as freedom-grantors, citizens ¬rst and foremost have to
be able to justify their freedom-claims to each other mutually and gener-
ally and must grant them on the basis of sharable (that is, non-rejectable)
reasons. The basic liberties that will become part of positive law are those
that morally responsible and autonomous agents cannot reasonably deny
each other. Thus they have a certain moral content as “human rights” “
a content, however, that remains abstract and indeterminate as long as
it is not put into a concrete form, institutionalized and interpreted in
fair procedures of legislation and adjudication. These liberties constitute
the abstract core of basic legal principles and rights; yet their content is
not a priori given by substantive moral norms or “natural rights”; rather,
it is determined by the criteria for justi¬able claims to liberty. The basic
moral “right of justi¬cation” corresponds to a veto-right of all those whose
claims are in danger of being ignored or silenced. Without this basic form
of moral, mutual respect there can be no political liberty.
Rainer Forst
232

9. Since the abstract moral core of basic rights has to be determined and
institutionalized in legal and political contexts, what is needed, beside
the conception of the “moral person,” are the conceptions of the “legal
person” (as the concrete, positive form of personal rights and duties
and as the addressee or subject of the law) as well as the conception of
the “citizen” (as the author of the law, who in democratic procedures
of deliberation and decision-making determines the concrete form the
legal person should take). This gives rise to the conceptions of legal
and political autonomy, but before discussing them, I want to mention
another conception of autonomy that is basic to understanding the role
that legal and political autonomy play “ namely, ethical autonomy.
As I have explained, moral autonomy refers to the capacity of agents to
act on morally justi¬able reasons in cases in which one™s actions morally
affect other agents. The moral context, however, is not the only one in
which a person has to answer the practical question of what she should do.
For as an “ethical person” “ that is, as the person she is in her qualitative,
individual identity, she has to ¬nd meaningful and justi¬able answers to
questions of the good life “ her good life “ that are not suf¬ciently an-
swered by taking moral criteria into account (and that can come into
con¬‚ict with moral answers). Ethical questions are those a person must
answer as somebody who is “constituted” by relationships, communities,
values, and ideals that serve as the (re¬‚ectively af¬rmed) “¬xed points”
or “strong evaluations” of her life25 ; they are questions concerning “my
life,” the life one is responsible for as its (at least partial) author. A per-
son is ethically autonomous when she determines what is important for
herself on the basis of reasons that most fully and adequately take her
identity into account “ as the person she has been, as she is seen, as she
wants to be seen and to see herself in the present and the future; ethical
re¬‚ection is retrospective and prospective at the same time. Thus, even
if an autonomous person is not the single author or creator of her life,
she is, in the ¬nal analysis, more responsible than anybody else for her
life choices. An ethically autonomous person answers ethical questions “
“what is good for me?” “ for herself with others, but she herself is responsible
for such answers. Thus the reasons that ultimately count as good ethical
reasons are those she can explain, on due re¬‚ection, to those “concrete
others” that are signi¬cant to her “ although every meaning these reasons
have for others might fall short of the existential meaning they have for
the person whose life is in question.
These very general remarks move on the surface of a large debate in
ethical theory about the problem of what constitutes a good answer to
Political Liberty 233

the question of the good life. Even apart from the issue of the relation-
ship between ethical and moral reasons, there have been many different
theories of the form of ethical life as well as a plurality of conceptions of
its content. Should one realize oneself in the pursuit of one™s “authentic”
wishes or in striving to achieve “originality,” or in the pursuit of objective
values or of duties to God? Should one live a coherent life, as a narrative
or even a ¬xed “life-plan,” or should one constantly liberate oneself from
¬xed identities and the social meanings that encroach on one™s ethical
autonomy? What distance from others or communities is necessary?
As it seems to me, one would not just burden a theory of political liberty
with an insoluble task if one expected it to decide these questions and
choose the “right” answer; one would also misunderstand a central point
about political liberty. For as soon as one understands that one of the main
reasons why personal liberty is so important is that there can be, and will
be, very different and incompatible answers given to the question of the
good life, and that there is no generally agreed upon objective yardstick
to evaluate them, one understands that one of the main characteristics of
a plausible concept of political liberty is that it should not be based on one
particular ethical answer. Rather, in this context one can say that political
liberty is the freedom of persons from being forced to live according to
one of these speci¬c answers (and the freedom to live according to the
answers one thinks most meaningful).
But one may object that this argument itself is based on a quite speci¬c
version of ethical autonomy. To answer this, it is necessary to distinguish
between ¬rst-order conceptions and a second-order conception of ethical auton-
omy. First-order conceptions follow particular ethical doctrines about the
form and content of the good life, such as those mentioned; the second-
order conception allows persons to live according to one or the other
¬rst-order conception and to re¬‚ect on and decide between these concep-
tions autonomously. This does not mean that it is the (“unencumbered”)
higher-order choice between them that makes one ethically autonomous;
rather, the leading insight is that one of these ¬rst-order answers can be
absolutely suf¬cient for an autonomous and a good life, but that, given
that there can be reasonable disagreement about the right answer,26 the
political community cannot choose one of the ¬rst-order conceptions as
the basis for answering the question concerning the extent to which law
and politics should guarantee the exercise of ethical autonomy. It is true
that an important purpose of political liberty is to enable persons to lead
an ethically autonomous life, but it is not its purpose to “make” people
lead an autonomous life according to one of the ¬rst-order conceptions
Rainer Forst
234

or according to the second-order conception. Ethical autonomy is one
of the main points of legally guaranteed autonomy, but the legally se-
cured space of personal life is determined by the moral criteria of reci-
procity and generality alone, not by ethical judgments about the good
and autonomous life.27 Contrary to what many (liberal or communitar-
ian) theorists think, citizens need not believe that a speci¬c version of
ethical autonomy is a necessary precondition for the good life in order
to institutionalize the possibilities to live according to ¬rst- or second-
order conceptions of ethical autonomy, because not granting and secur-
ing this kind of freedom is a violation of a person™s dignity as a morally
autonomous being with a right to reciprocal justi¬cation. Political liberty
essentially rests on the respect for moral autonomy, and the respect for
ethical autonomy in a comprehensive sense is an implication of this.

10. The conception of legal autonomy can thus be introduced as a matter
of not being forced to live according to a speci¬c conception of ethical au-
tonomy. Here lies the truth of the liberal defense of “negative” liberties,28
although this entails no absolute priority of individual liberties beyond
their reciprocal-general legitimacy. Respecting legal autonomy thus im-
plies respecting the freedom of persons to live according to their ethical
convictions “ a form of respect not just due between ethical communities,
so to speak, but also within them. None of these communities may force
its members to live according to a traditional way of life “ and, likewise,
the legal community may not force someone not to live according to
such a way of life, for that would make the second-order conception of
autonomy into a ¬rst-order conception.29 The goal of legal autonomy “
to enable persons to live a life that they can regard as being worthy to live “
can only be reached if the parameters of legally secured ethical spaces
and options are not themselves of a particular ethical nature, but are justi-
¬able in a more general, “reasonable” way. But how can this “reasonable”
limit be drawn?
The autonomy of a “legal person” is constituted by the legal de¬ni-
tion of the boundaries around the area of personal freedom (Willk¨ r in u
the Kantian sense) granted to each individual. From the discussion of
moral and ethical autonomy so far, it follows that the limit to be drawn
between permissible and unacceptable uses of personal freedom cannot
legitimately be determined by substantive ethical values, since these val-
ues favor one conception of the good life over the other. Legal autonomy
should legally guarantee the possibility of second-order ethical autonomy,
though not on the basis of an ethical judgment about what is “good” for
Political Liberty 235

persons but on the basis of norms justi¬ed by the moral criteria of reci-
procity and generality. In determining these norms, every person is taken
into account as a person with equal rights to legal recognition precisely
because he or she is at the same time a particular ethical person. Only in
this way can the legal person, constituted by general norms, be a protective
cover for ethical persons and their “thick” identities; only in this way can
it be fair to different conceptions of ethical life.
Thus the formula of “reciprocal and general justi¬cation” can be used
to answer the question as to what a “reasonable” basis for the mutual re-
spect of personal freedom can be. Only those claims to liberty (or those
claims to restrict certain liberties) are justi¬ed that cannot be rejected
on the basis of reciprocally and generally acceptable reasons. And to ¬nd
these reasons, the participants must ¬nd ways to “translate” their argu-
ments into a language that others can understand and accept “ at least
accept in the sense that they see that the claims being made do not vio-
late reciprocity. If a particular ethical community then tries to generalize
its speci¬c values and present them as a legitimate basis for general leg-
islation, it must be able to explain why this is morally justi¬ed, given its
legitimate interests and the interests of all others. If the members of that
community succeed in showing that they do not just argue in favor of
their ideas of the good that they want to become socially dominant, but
in favor of moral goals others can agree to, their claim is justi¬ed. Per-
sons do have a right to have their ethical identity respected equally, yet
they do not have a right to have their ethical views become the basis of
general law.30 The general law is not neutral in the bad sense of ignoring
ethical values as such; it is neutral only in giving equal respect to ethi-
cal identities, trying to avoid the danger of marginalizing some through
a kind of “ethical law.”31 No unquestioned ethical, objective values are
available a priori to determine the legitimate uses of personal freedom
in a political community. As a result, a space opens up for a plurality of
ethical conceptions and ways of life “ ways of life that by no means have
to be “liberal” in a substantive sense or those of “unencumbered selves”
beyond “constitutive commitments.”32 The autonomy of legal persons
does not imply a speci¬c conception of the good life “free from” duties,
commitments, communities or traditions of, say, a religious kind. It is
a fallacy to see legal and ethical contexts connected in that way; indi-
vidual rights are not based on the idea of individualistic or “atomistic”
life-plans.
Legal autonomy implies that a legal person is accountable and re-
sponsible only to the law, not to certain ethical values. Since positive law
Rainer Forst
236

regulates only the external behavior of persons, abstracting from their
motives, it opens a space of personal arbitrariness in which persons have
the right “not to be rational,” to use Wellmer™s phrase,33 understood in
the sense of ethical nonconformity and the freedom not to take part in
public or political discourses,34 not, however, understood as the absolute
freedom from the need to justify one™s actions morally to others affected.
Intersubjectively justi¬ed rights to personal liberty have to be reciprocally
and generally acceptable; thus, even if legal persons need not act out of
speci¬c ethical or moral motives, they have no rights to the exercise of
any form of liberty that violates the legitimate claims of others.35

11. The relation between moral, ethical and legal autonomy within a
concept of political liberty necessitates the following step: the principle
of reciprocal and general justi¬cation must be translated into procedures
of “public justi¬cation” among citizens as the authors of the law. Only if
such procedures embody the criteria of reciprocity and generality can
their outcomes be justi¬ed and claim to ensure the most adequate and
fair amount of personal liberties. As participants in these justi¬catory
procedures and as members of a political community responsible for
their outcomes, citizens are politically autonomous.
While legal autonomy means that a person is responsible before the
law, political autonomy means that a person is, as part of a collective,
responsible for the law. This alludes to the classic republican idea of polit-
ical autonomy as participation in collective self-rule36 “ an idea, however,
that too often has been interpreted as just another ethical conception,
so that the political life becomes the most important constituent of the
good life or that citizens, as “citoyens,” undergo a personal transforma-
tion and receive a new ethical identity apart from their more narrow
private interests.37 Such a conception of the good should certainly not
be ruled out, yet it is not how political autonomy in general should be un-
derstood. More important is the argument “ neglected by liberal thinkers
like Berlin “ that if personal liberty is to be secured by legitimate law, then
legitimate law needs to be justi¬ed by certain criteria of generality and
reciprocity, and, furthermore, procedures of democratic law-making are
necessary in which the claims and arguments of all those subject to the
laws can adequately be raised and considered. A concept of political lib-
erty does not imply the duty of citizens to participate in such processes,
but it does imply the formal and material existence of equal rights and
opportunities to do so. In this sense, legal and political autonomy are
inextricably linked conceptually in the idea of persons as addressees as
Political Liberty 237

well as authors of the law.38 Without the democratic institutionalization
and exercise of political power, political liberty will not be possible.
Political autonomy is thus a form of autonomy that can be exercised
only jointly with others as members of a political community. Autonomous
citizens understand themselves to be responsible for and with each other;
they “respond” to each other with mutually and generally acceptable (or
at least tolerable)39 reasons and consider themselves “responsible” for the
results of collective decisions “ a responsibility they not only have for
each other but also towards others who are not members of their political
community but who are still affected by their decisions. Regarding the
latter, one must not forget that the moral and political responsibility of
citizens does not stop at the borders of their political context.40

12. From the discussion so far, it is obvious that the multi-dimensional
concept of political liberty implies quite demanding forms of au-
tonomous action, especially on the part of citizens as authors of the law.
Thus, part of the question of political liberty is the question of the social
conditions necessary for the development of the capacity of autonomy
and for the possibility of its exercise. In this respect, any constraints on
the exercise of the forms of autonomy necessary for the equal and full
participation in political and social life that could be reduced or removed
by justi¬able political action fall within the reach of the social and politi-
cal responsibility of citizens for the creation of a regime characterized by
political liberty.41 Such constraints are not reciprocally and generally jus-
ti¬able. Social autonomy thus means that a person has the internal42 and
external means of being an equal and responsible member of the politi-
cal community “ that is, being autonomous in the four senses discussed
so far. It lies in the responsibility of all citizens to grant and guarantee
each other rights to a life without legal, political, or social exclusion “ and
the standards by which one could measure social autonomy would be so-
cial standards of a non-stigmatized, fully participating life (not speci¬c
ethical ideas about the good life).43 Rather than assuming that political
liberty consists in having certain rights, while the “value of liberty” lies
in the material possibilities of using these rights,44 it is more coherent
to regard this material possibility of realizing one™s liberties in the form
of a conception of social autonomy as an integral part of a concept of
political liberty.
The fact that this conception of autonomy results from a re¬‚ection on
the conditions for the possibility of realizing the four fundamental forms
of autonomy mentioned previously, and is thus conceptually dependent
Rainer Forst
238

upon them “ and therefore located on a different theoretical level in that
respect “ does not mean that it does not refer to a distinct, normatively
no-less-important dimension of liberty. There is no political liberty where
citizens do not have the opportunity to be fully equal and autonomous
members of the political community.45

13. In conclusion, one can say that the analysis of the concept of lib-
erty comprised of the ¬ve conceptions of individual autonomy offers a
theoretical synthesis beyond the opposition between “negative” and “posi-
tive,” and one-sided libertarian, liberal (perfectionist or not), republican,
or strictly egalitarian conceptions of liberty. It provides a comprehensive
answer to the question of how to conceptualize a political and social struc-
ture that could claim to grant political liberty: citizens are politically free
to the extent to which they, as freedom-grantors and freedom-users, are
morally, ethically, legally, politically, and socially autonomous members
of a political community.
On a more concrete level, the fruitfulness of the preceding analysis
hinges on whether it allows for a differentiated understanding of the justi-
¬cation, importance, and priority of speci¬c liberties. Since it is the point
of political liberty to enable and protect individual autonomy, every right
to a certain form of liberty, every combination of such rights, and every
restraint of certain liberties must be seen in light of whether autonomous
persons can recognize and justify this as conducive to the form of auton-
omy they think most important in a certain context.46 Rights and liberties
therefore have to be justi¬ed not only with regard to one conception of
autonomy but with respect to a complex understanding of what it means
to be an autonomous person. Integrating different interpretations of au-
tonomy in this way gives rise to a concrete, balanced conception of political
liberty that can be developed in a particular political and social context “
as an autonomous project of citizens themselves. And that, in turn, is the
essential meaning of political liberty.

Notes
This chapter is a revised version of an essay that appeared as “Politische
Freiheit,” in Deutsche Zeitschrift f¨ r Philosophie 44 (1996): 211“27.
u
For an overview of the history of theories of political liberty, see Zbigniew
1.
Pelczynski and John Gray (eds.), Conceptions of Liberty in Political Philosophy
(London: Athlone Press, 1984). Important contemporary discussions can be
found in David Miller (ed.), Liberty (Oxford: Oxford University Press, 1993),
Tim Gray, Freedom (London: Macmillan, 1990), and George G. Brenkert,
Political Freedom (London and New York: Routledge, 1991).
Political Liberty 239

2. Benjamin Constant, “Liberty of the Ancients Compared with that of the
Moderns,” in Constant, Political Writings, trans. and ed. by Biancamaria
Fontana (Cambridge: Cambridge University Press, 1988).
3. On the difference between “individualistic” and “communalist” notions of
freedom, see Albrecht Wellmer, “Models of Freedom in the Modern World,”
in Michael Kelly (ed.), Hermeneutics and Critical Theory in Ethics and Politics
(Cambridge, MA: MIT Press, 1990).
4. For a fuller account of the conception of justice that serves as the background
for the following discussion, see my Contexts of Justice: Political Philosophy beyond
Liberalism and Communitarianism, trans. by J. Farrell (Berkeley, CA: University
of California Press, 2002; German original 1994).
5. Isaiah Berlin, “Two Concepts of Liberty,” in Berlin, Four Essays on Liberty
(London: Oxford University Press, 1969/2002).
6. On this distinction, cf. John Rawls, A Theory of Justice (Cambridge, MA:
Harvard University Press, 1971), 5.
7. Isaiah Berlin, “Two Concepts of Liberty,” 166.
8. Ibid., 158.
9. For a critique of the connection between positive liberty and political coer-
cion that Berlin draws here, see Raymond Geuss, “Freedom as an Ideal,” in
Proceedings of the Aristotelian Society, Suppl. Vol. LXIX (1995), 90f.
10. Isaiah Berlin, “Two Concepts of Liberty,” 127.
11. Ibid., 130, fn. 1.
12. Ibid., 131.
13. Ibid., 131f.
14. Isaiah Berlin, “Introduction,” in Berlin, Four Essays on Liberty, LXI.
15. For this formula, which I have altered slightly, see Gerald MacCallum, Jr.,
“Negative and Positive Freedom,” in David Miller (ed.), Liberty. See also Joel
Feinberg, “The Idea of a Free Man,” in Feinberg, Rights, Justice, and the Bounds
of Liberty (Princeton, NJ: Princeton University Press, 1980), and Tim Gray,
Freedom, for similar views.
16. Charles Taylor, “What™s Wrong With Negative Liberty?” in Taylor, Philosophy
and the Human Sciences. Philosophical Papers 2 (Cambridge: Cambridge Uni-
versity Press, 1985), 219.
17. Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), 410.
18. John Rawls, Political Liberalism (New York: Columbia University Press, 1993),
18f., 72ff.
19. J¨ rgen Habermas, Between Facts and Norms. Contributions to a Discourse Theory
u
of Law and Democracy, trans. by William Rehg (Cambridge, MA: MIT Press,
1996), chapter III.
20. On this point, see my Contexts of Justice, especially chapter V, and the debate
with Seyla Benhabib: R. Forst, “Situations of the Self: Re¬‚ections on Seyla
Benhabib™s Version of Critical Theory,” and Seyla Benhabib, “On Reconcilia-
tion and Respect, Justice and the Good Life: Response to Herta Nagl-Docekal
and Rainer Forst,” Philosophy and Social Criticism 23 (1997).
21. I am using Thomas Scanlon™s phrase here, but suggest my own explanation
of the criteria of “reasonable rejection.” Cf. Thomas M. Scanlon, “Contrac-
tualism and Utilitarianism,” in Amartya Sen and Bernard Williams (eds.),
Rainer Forst
240

Utilitarianism and Beyond (Cambridge: Cambridge University Press, 1982),
and Scanlon, What We Owe to Each Other (Cambridge, MA: Harvard Univer-
sity Press, 1998), chapter 5, where the notion of “fairness” comes close to my
view.
I have developed this in my “Praktische Vernunft und rechtfertigende
22.
Grunde. Zur Begr¨ ndung der Moral,” in Stefan Gosepath (ed.), Motive,
¨ u
Gr¨ nde, Zwecke. Theorien praktischer Rationalit¨ t (Frankfurt am Main: Fischer,
u a
1999).
On this right, see my Contexts of Justice, chapters II and V.2 especially, and
23.
“The Basic Right to Justi¬cation: Toward a Constructivist Conception of Hu-
man Rights,” Constellations 6 (1999).
This notion of a moral right to justi¬cation seems to be the basis for the
24.
idea of a “presumption in favor of liberty” that Gerald Gaus, [“The Place
of Autonomy Within Liberalism” (Chapter 12 in the present volume)], fol-
lowing Feinberg, argues for as a “basic liberal principle.” There is, however,
more than a “presumption” and more than “liberty” in an abstract sense at
issue here: a non-deniable right to demand moral justi¬cation for morally
relevant actions, not a claim to “liberty” that lacks a criterion for what kind
of liberty is justi¬able. Hence the presumption Gaus argues for would at
least have to be one of “equal liberty,” and more so one of “equally justi¬-
able liberty.” Of the two components of Gaus™s liberal principle (MS p. 274),
the ¬rst one “ “a person is under no standing obligation to justify his actions” “
is too broad, for there is a standing duty to justify morally relevant actions.
The second component “ “interference with, or restriction of, another™s ac-
tion requires justi¬cation; unjusti¬ed interference or restriction is unjust,
and so morally wrong” “ is correct but builds upon the basic moral right to
justi¬cation. This I also take to be more in line with the Kantian concep-
tion of moral autonomy that Gaus stresses but that he does not suf¬ciently
connect with the other forms of autonomy I distinguish, especially legal and
political autonomy.
Cf. Charles Taylor, “What is Human Agency?” in Taylor, Human Agency and
25.
Language. Philosophical Papers 1 (Cambridge: Cambridge University Press,
1985) on the notion of “strong evaluations.” On the question of ethical
ends, see Harry Frankfurt, “On the Usefulness of Final Ends,” and “Auton-
omy, Necessity, and Love,” in Necessity, Volition, and Love (Cambridge: Cam-
bridge University Press, 1999). See also the discussion in Joel Anderson,
“Starke Wertungen, Wunsche zweiter Ordnung und intersubjektive Kritik:
¨
¨
Uberlegungen zum Begriff ethischer Autonomie,” Deutsche Zeitschrift f¨ r u
Philosophie 42 (1994).
Cf. Charles Larmore, “Pluralism and Reasonable Disagreement,” in The
26.
Morals of Modernity (Cambridge: Cambridge University Press, 1994).
This is the main difference between the approach suggested here and Raz™s
27.
“perfectionist” conception of political liberty. See Joseph Raz, The Morality of
Freedom, especially chapters 14 and 15.
For example, Ronald Dworkin, “Rights as Trumps,” in Jeremy Waldron (ed.),
28.
Theories of Rights (Oxford: Oxford University Press, 1984).
On this point, see my critique of Will Kymlicka™s notion of personal auton-
29.
omy as the basis of a conception of multicultural citizenship. Rainer Forst,
Political Liberty 241

“Foundations of a Theory of Multicultural Justice,” and Will Kymlicka, “Do
We Need a Liberal Theory of Minority Rights? A Reply to Carens, Young,
Parekh and Forst,” Constellations 4 (1997), reprinted in Kymlicka, Politics in
the Vernacular (Oxford: Oxford University Press, 2001), chapter 3.
This leads to the important question of toleration. See my “Toleration,
30.
Justice, and Reason,” in Catriona McKinnon and Dario Castiglione (eds.),
The Culture of Toleration in Diverse Societies: Reasonable Tolerance (Manchester:
Manchester University Press, 2003), and “Tolerance as a Virtue of Justice,”
Philosophical Explorations 2 (2001). I develop a comprehensive, historical,
and systematic theory of toleration in Toleranz im Kon¬‚ikt. Geschichte, Gehalt
und Gegenwart eines umstrittenen Begriffs (Frankfurt am Main: Suhrkamp,
2003).
An example of a one-sided “ethical law” is the construction of a “positive
31.
freedom of religion,” according to which the strict principle of the religious
neutrality of the state deprives members of a dominant religion of the possi-
bility to express their beliefs. To remove, for example, crosses and cruci¬xes
from classrooms in public schools would violate that right, as the “Verwal-
tungsgerichtshof Munchen” (the highest Administrative Court in Bavaria)
¨
(NVwZ 1991, 1099) decided in 1991. Contrary to this, the “Bundesverfas-
sungsgericht” (German Supreme Court) found in 1995 that the law accord-
ing to which crosses and cruci¬xes had to hang in classrooms in Bavarian
public schools was unconstitutional and violated the basic right to freedom
of religion and conscience of persons with different beliefs (1BvR 1087/91).
On this, see my “A Tolerant Republic?” in Jan-Werner M¨ uller (ed.), German
Ideologies Since 1945 (New York: Palgrave, 2003).
This is the fear of Michael J. Sandel, “The Procedural Republic and the
32.
Unencumbered Self,” Political Theory 12 (1984), and Alasdair MacIntyre, “Is
Patriotism a Virtue?” in Ronald Beiner (ed.), Theorizing Citizenship (Albany,
NY: State University of New York Press, 1995).
Albrecht Wellmer, “Models of Freedom in the Modern World,” 241, 245.
33.
Cf. Klaus Gunther, “Die Freiheit der Stellungnahme als politisches Grund-
¨
34.
recht,” Archiv f¨ r Rechts- und Sozialphilosophie, 54 (1992), 58“73.
u
Thus I disagree with Albrecht Wellmer™s thesis (“Models of Freedom in
35.
the Modern World,” 245ff.) that the “principle of equal liberties” and the
“principle of communicative rationality” derive from two different normative
sources. Rather, they are united in the principle of reciprocal and general
justi¬cation.
See the important recent interpretations of that idea by Philip Pettit,
36.
Republicanism: A Theory of Freedom and Government (Oxford: Clarendon Press,
1997), and Quentin Skinner, Liberty Before Liberalism (Cambridge: Cambridge
University Press, 1998).
See, for example, Benjamin Barber, Strong Democracy. Participatory Politics for a
37.
New Age (Berkeley, CA: University of California Press, 1984) and, in a differ-
ent, less Rousseauian sense, Hannah Arendt, “What is Freedom?” in Arendt,
Between Past and Future (Harmondsworth: Penguin Books, 1985).
See Jurgen Habermas, Between Facts and Norms, chapter III, on the “equipri-
¨
38.
mordiality” of “private” and “public” autonomy. Whereas I try develop the
argument for the conceptual linkage of legal and political autonomy on the
Rainer Forst
242

basis of the principle of reciprocal and general justi¬cation and its mean-
ing in different contexts, Habermas argues that the equiprimordiality thesis
derives from a combination of the “discourse principle” (of the general jus-
ti¬cation of norms) with the “legal form” of the institutionalization of the
“communicative liberties” that are necessary for political self-determination.
The problem with the latter approach is that it does not adequately recon-
struct or underscore the (independent) moral core of basic rights. On this, see
my “Die Rechtfertigung der Gerechtigkeit. Rawls™ Politischer Liberalismus
und Habermas™ Diskurstheorie in der Diskussion,” in Hauke Brunkhorst and
Peter Niesen (eds.), Das Recht der Republik (Frankfurt am Main: Suhrkamp,
1999), section 4.
On this point, see my “The Rule of Reasons: Three Models of Deliberative
39.
Democracy,” Ratio Juris 14 (2001).
Three problems that I cannot go into arise here. First, to what extent this re-
40.
sponsibility reaches back into the past; second, to what extent claims of third
parties have to be taken into account in political decisions; and third, how
“independent” a political community needs to be politically and economi-
cally in order to count as politically autonomous. On the second point, see
my “Towards a Critical Theory of Transnational Justice,” in T. Pogge (ed.),
Global Justice (Oxford: Blackwell, 2001).
For a discussion of such a wide criterion of constraints, see David Miller,
41.
“Constraints on Freedom,” Ethics 94 (1983), 66“86.
Constraints on “internal” means of being socially autonomous are those that
42.
result from a lack of social means of acquiring knowledge, capacities, and
quali¬cations that could be avoided by an alternative, reciprocally justi¬able
distribution of resources.
Cf. Amartya Sen, The Standard of Living, G. Hawthorn (ed.) (Cambridge: Cam-
43.
bridge University Press, 1987), and Sen, Inequality Reexamined (Cambridge,
MA: Harvard University Press, 1992).
Cf. John Rawls, A Theory of Justice, 204f., 224f; Rawls, “The Basic Liberties and
44.
Their Priority,” in Political Liberalism, 356ff.
It should be stressed here, as I said at the beginning, that arguments for
45.
political liberty, although they are arguments for justice, do not exhaust all
the arguments for justice. Thus the notion of social autonomy discussed here
highlights just one aspect of social justice from the viewpoint of a theory of
political liberty. For a more comprehensive discussion of distributive justice
based on the principle of reciprocal and general justi¬cation and the notion
of “full membership,” see my Contexts of Justice, chapter III.4. I am grateful to
Stefan Gosepath for asking me to clarify my understanding of the relationship
between justice and liberty.
One can, for example, justify the exercise of the right to freedom of expres-
46.
sion via its relevance for the free development of one™s ethical identity as well
as via its importance for political communication or as a basic demand of the
respect of an individual™s moral autonomy “ and thus possible restrictions of
the exercise of this right will have to be evaluated in light of those dimen-
sions of autonomy that would suffer from the restriction that is proposed,
with priority given to moral considerations.
part iv


THE POLITICAL

Liberalism, Legitimacy, and Public Reason
11

Liberalism without Agreement

Political Autonomy and Agonistic Citizenship

Bert van den Brink




In recent years, liberal political theory has been revolutionized in a num-
ber of ways.1 First, initiated by John Rawls, mainstream liberalism has
dropped its self-understanding as a comprehensive moral in favor of a
purely political self-understanding. Second, several authors have started
criticizing this now widespread “political” self-understanding of liberalism
in a number of ways. Some claim that liberalism is not a purely political
doctrine at all. Others argue that, irrespective of the question whether it is
or is not, it cannot claim to be based in the hypothetical agreement of all
reasonable citizens. As Marilyn Friedman puts it: “. . . political liberalism
is simply one more political doctrine among many, freestanding or not,
with no greater politically independent, consent-based claim to anyone™s
allegiance than many of its political rivals.”2
Of course, it is not at all clear that this conclusion is warranted. But sup-
pose it is. And further suppose that in a pluralistic social world, ongoing
interpretative con¬‚icts over the requirements of a just and well-ordered
society, its constitutional essentials, and its principles of justice are more
characteristic of political cooperation than fundamental agreements as
to these requirements are. We then arrive at a starting point for nor-
mative political theory that is strikingly different from that of political
liberalism. For our main question would no longer be: which substantive
agreements among reasonable citizens would help warrant political legit-
imacy, and appropriate understandings of political autonomy and civic
responsibility? Rather, it would be: which ways of conducting interpreta-
tive con¬‚icts over what these notions mean to and require of citizens are
able to inform us about legitimacy, autonomy, and civic responsibility in


245
Bert van den Brink
246

societies that are not characterized by ¬rm agreements on constitutional
essentials and principles of justice? Think of the famous picture that can
be seen both as a duck and a rabbit. See the duck as a political theory
that builds on the importance of informed consent. See the rabbit as a
political theory that builds on the importance of informed dissent. Now
think about politics as a pluralistic practice in which ¬nding a civilized
way of shaping informed dissent is at least as important as ¬nding a civi-
lized way of overcoming it. Finally, read this chapter as an attempt to see, for
once, the rabbit rather than the duck in the landscape of politics “ that
is, to see civic practices that shape fundamental political disagreements
in legitimate ways as more informative for a normative political theory
for a pluralistic society than civic practices that overcome fundamental
disagreement.
I will start with a discussion of the accounts of political legitimacy
of agreement-based liberalism and what I will call “liberalism without
agreement” (Section I). Subsequently, I will consider the accounts of
political autonomy of both versions of liberalism and argue for an ag-
onistic understanding of political autonomy, central to which is the
moral right to contest arbitrary claims to sovereignty, rather than to
act in accordance with ideal-theoretical objective principles of fairness
and political justice (Section II). Assuming that liberalism without agree-
ment and its agonistic understanding of citizens™ autonomy are viable
aspects of a political doctrine, I will then go on to sketch some gen-
eral aspects of the understandings of public reason and civic virtue
this doctrine must embrace (Section III). Finally, I will focus on two
general civic dispositions “ a disposition for responsiveness to and en-
durance of the burdens of citizenship under conditions of disagreement “
that I consider preconditions for the adequate exercise of citizens™ po-
litical autonomy under non-ideal conditions of political cooperation
(Section IV).


I Liberalism With and Without Agreement
How do political theorists and political philosophers, liberal ones espe-
cially, perceive the relationship between social and political cooperation
and the necessity of a substantive agreement on a shared framework for
such cooperation? Authors in¬‚uenced by contractarian political thought
hold that a just and well-ordered society would be one in which citizens
are united by their hypothetical agreement to essentials of a fundamental
Political Autonomy and Agonistic Citizenship 247

framework or contract “ specifying principles, rights, and goods “ for their
cooperation. As John Rawls famously put it:

. . . our exercise of political power is fully proper only when it is exercised in
accordance with a constitution the essentials of which all citizens as free and
equal may reasonably be expected to endorse in the light of principles and ideals
acceptable to their common human reason.3

As a principle of legitimacy, there is not much that can be held against
this. It is important to see that the principle does not inform us about the
requirements of ordinary, non-ideal social and political cooperation, in
which the exercise of political power is hardly ever “fully proper.” Since it
does not aim to do so, at ¬rst sight it may seem that this cannot generate
problems for our understanding of everyday cooperation. Yet the princi-
ple of legitimacy is said to be of use for a normative political theory that is
supposed to inform the members of actually existing liberal societies.4 As
such, it seems to be confronted with a considerable gap between its ideal-
ized agreement-based understanding of social and political cooperation
and the dynamics of non-ideal, everyday such cooperation.
Many liberal authors, Rawls among them, think about the way to reach
fair social and political cooperation roughly in terms of the following
four-step program: First, we determine, through a principle of legitimacy,
what would make political institutions and the exercise of political power
legitimate. Second, we determine, through detailed accounts of justice,
the use of reason, and social circumstances such as the “fact of pluralism,”
that possible arrangement A (rather than possible arrangements B, C, D,
and so on) is the best arrangement we can arrive at. Third, in a practical
step, we ask how arrangement A can be realized. Fourth, we think about
fair social and political cooperation as a practice that ideally takes place
within the framework set by arrangement A “ that is, a practice that only
comes into its own under conditions of the “fully proper” exercise of
power.
The ¬rst step is usually accounted for either in terms of consent of
the governed5 or in terms of some consent-independent notion of the
well-being of the governed.6 Whatever method is chosen, it is correctly
assumed that, on principle, constitutional-democratic institutions and
the exercise of political power should respect the legitimate needs and
interests of all citizens. The second step depends on an assumption that
is more problematic. Political philosophers who spell out detailed lists of
social primary goods, principles of justice, and institutional arrangements
Bert van den Brink
248

that should be accepted from common human reason make themselves
vulnerable to often quite justi¬ed critiques of their substantive proposals
and the methods used to formulate them. This is, of course, what has
happened to Rawls™s principles of justice, his list of social primary goods,
and thus his interpretation of basic needs and interests time and time
again.7 Since Rawls never stopped reformulating both his substantive
ideas and his methods and taught us much in the process, this is certainly
not something we should regret. But we may want to ask whether the
assumption is really warranted, that by discussing substantive accounts
of justice, reason, and social facts that have to be taken into account,
theorists and citizens will one day reach an overlapping consensus on
these issues “ that is, will all agree, although for different reasons, that
substantive (politically liberal) arrangement A should be preferred to
arrangements B, C, and D?8 Maybe it is more important that we always
keep that discussion open in light of our competing accounts of justice,
reason, and the circumstances of politics.
Here it is interesting to take a look at the work of the growing num-
ber of theorists who state that a ¬rm agreement on principles of justice
and constitutional essentials is not a necessary condition for reasonable
cooperation at all. James Tully defends such a view:

Principles, rights, goods and identities are . . . constituents of the ˜framework™
[for civic cooperation] in a special sense. Politics is the type of game in which the
framework “ the rules of the game “ can come up for deliberation and amendment
in the course of the game. At any one time, some constituents are held ¬rm and
provide the ground for questioning others, but which elements constitute the
shared ˜background™ suf¬cient for politics to emerge and which constitute the
disputed ˜foreground™ vary.9

If this understanding of politics is correct, then the consensus-based “four-
step program” for reaching political legitimacy I sketched earlier must be
mistaken. Agreement is an important aim in politics, and we should try to
strive for it whenever this is necessary. But disagreement is important, too,
and the right to withdraw one™s consent, to contest the political authority™s
account of one™s needs and interests, is as important in an account of
politics as is the right to consent. If we focus on the importance of an
agreement to the political conception of justice of some ideal model
too strongly, then this insight may be lost from view. Politics is not a
practice that truly comes into its own under conditions of the fully proper,
agreement-based exercise of power (step four). Rather, in the non-ideal
social and political world we inhabit, it is a practice that “ in lack of full
Political Autonomy and Agonistic Citizenship 249

legitimacy “ continually goes back and forth between the different steps in
light of new insights, theoretical breakthroughs, and social and political
developments. The main reason why this alternative view includes all
steps equally in its account of politics (while dropping the “comes into
its own” claim of the fourth step) is that it is based on a more radical
understanding of the consequences of ethical and political pluralism for
our best account of politics. Most importantly, it does not try to transcend
the empirical circumstance under which, in pluralistic societies, deep
disagreements as to what is right and good do not just concern questions
of “the good life.” They also concern the question as to which principles
of justice and constitutional essentials we should accept, and what they
require of us.
What is the exact difference here? Although Rawls, like most liberals,
is a master at acknowledging the diversity of often incompatible and ir-
reconcilable comprehensive ideas about the good in society, he is very
hesitant to admit that this diversity may run so deep that citizens may
have fundamental disagreements about the requirements of justice and
political morality. But this is not seen as a convincing move by all liberal au-
thors. As Jeremy Waldron, a prominent liberal and critic of Rawls™s work,
puts it:

John Rawls insists that ˜a diversity of con¬‚icting and irreconcilable comprehensive
doctrines™ is ˜not a mere historical condition that may soon pass away; it is a
permanent feature of the public culture of democracy.™ And he says it is therefore
fortunate that we do not need to share a common view in society about religion,
ethics, and philosophy. But liberals have done a less good job of acknowledging
the inescapability of disagreement about the matters on which they think we
do need to share a common view, even though such disagreement is the most
prominent feature of the politics of modern democracies.10

The things liberals such as Rawls think we do need to share a common
view about are, of course, principles of justice, social primary goods, cer-
tain political goods, the fact of pluralism, the burdens of judgment, and
so on.11 Waldron does not dispute that, in practice, we often “need to
act together on the basis of a common view.” But he does dispute the as-
sumption that the need for a common view as, for instance, represented
by decisions and actions of the legislative, the executive, and the legal
branches of government, makes “the fact of disagreement evaporate.” A
common view, Waldron claims, “. . . has to be forged in the heat of our
disagreements, not predicated on the assumption of a cool consensus
that exists only as an ideal.”12 In other words, the felt need for a common
view is often purely practical and cannot realistically be based on the
Bert van den Brink
250

assumption that reasonable citizens, if only they were adequately placed
to make the right normative judgments, would necessarily reach a sub-
stantive agreement on principles, rules, policies, and so on.13
If, in the light of these alternative views, we go back to the “four-step
program” for reaching political legitimacy and fair civic cooperation,
we can conclude the following. Liberalism without agreement, as repre-
sented here by Tully and Waldron, does not hold that legitimacy cannot
at all be accounted for in terms of either the consent of the governed
or some consent-independent notion of the well-being of the governed
at all. As “ideas of reason,”14 both ideas are of extreme importance. But
although consent and accounts of well-being are important, liberalism
without agreement recognizes that the normal “circumstances of politics”
are “action-in-concert in the face of disagreement” “ and that the liberal
tradition has not taken this circumstance seriously.15 This is a problem
for the liberal tradition to the extent that we can reasonably assume that
its methodological foundations “ which make so much of the idea of an
agreement-based framework for social and political cooperation “ make
it vulnerable to false assessments of the actual necessity of agreement in
¬‚ourishing liberal-democratic societies. The other side of the coin of ori-
entation to fundamental agreement is that those who do not agree (even
when they do so for good reasons) will not be taken entirely seriously for
fear of the possibility that by granting their claims, the agreement-based
foundations of political legitimacy may evaporate. That psychologization
is not as far-fetched as it may seem at ¬rst sight. Claims to the lack of
legitimacy of existing political arrangements by women, working classes,
and cultural minorities have too often been confronted with this inde-
fensible reaction.16 Although informed agreement is a condition of the
fully legitimate exercise of power, understanding it as a realizable ideal
at the institutional level of practical politics threatens to make our civic
practices blind to the circumstance that the constitutional essentials and
understandings of justice of even the most decent societies we know are
not in any narrow way based in substantive agreements among all reason-
able citizens. Disregarding that circumstance in our theoretical accounts
may well result in normative theories that are blind to the need for an
analysis of the ways in which members of such societies cope with the
constitutive circumstance of politics that agreed upon common courses
of action are often rather necessitated by the need for clarity, consistency,
and the sheer need for an authorized normative framework for cooper-
ation, than by any deep agreement based in the ideal conceptions of
justice and civic cooperation among those members.
Political Autonomy and Agonistic Citizenship 251

II Political Autonomy With and Without Objective Principles
Both accounts of a liberal politics at issue here are thoroughly demo-
cratic. This means, among many other things, that these accounts greatly
value the political autonomy of the citizen. Narrowly understood, politi-
cal autonomy is the capacity of the citizen to have an equal voice in the
democratic process by which the political community she is a member of
gives itself the law. It involves (1) having the formal right to participate,
(2) possessing certain cognitive capacities for making reasonable politi-
cal judgments and having a suf¬ciently democratic disposition (in which
moral capacities such as a sense of justice, openness to the needs and inter-
ests of others, and willingness to accept the better argument play a crucial
role17 ), and (3) taking an authentic stance on the political proposal one
makes “ that is, proposals one genuinely identi¬es with.18 More broadly
understood, political autonomy is de¬ned by one™s status as a bearer of
rights under a constitutional regime. In that broader interpretation, char-
acteristic of classical liberalism, political autonomy is primarily under-
stood as freedom from unwarranted political intervention in one™s private
affairs. I am here mainly interested in the ¬rst, narrow understanding of
political autonomy, which understands the citizen as a competent source
of practical reasoning as to questions that concern the common good.
Agreement-based liberalism starts from a conceptualization of political
autonomy that is arrived at through a method of deduction from the
agreement-based framework for cooperation it proposes. In A Theory of
Justice, for example, Rawls claims that if in moral education, future citizens
are made to act according to certain principles of fairness or political
justice, they are acting autonomously insofar as these principles are ones
that “they would acknowledge under conditions that best express their
nature as free and equal beings.”19 These principles, which determine
whether we are autonomous, “. . . are objective. They are the principles
that we would want everyone (including ourselves) to follow were we to
take up together the appropriate general point of view.”20
An important practical point of this understanding of autonomy is
to protect social and political cooperation from the potentially divisive
consequences of more loosely formulated conceptions of autonomy that
are less bounded by objective principle:

The essential point here is that the principles that conform best to our nature as
free and equal rational beings themselves establish our accountability. Otherwise
autonomy is likely to lead to a mere collision of self-righteous wills, and objectivity
to the adherence to a consistent yet idiosyncratic system.21
Bert van den Brink
252

Of course, this liberal conception of political autonomy does not in any
way force citizens to accept principles they do not recognize as objec-
tive. Rather, the idea is that the principles being proposed conform best
to our reasoning abilities. We make them our own “ and ourselves po-
litically autonomous and authentic “ by recognizing this and by whole-
heartedly accepting them as principles we would choose ourselves. The
autonomous person may believe that the principles that the liberal doc-
trine proposes are not really objective because she genuinely believes that
she has good reasons not to identify with them. She may be right about
this and thus have a reason for no longer embracing them and for propos-
ing better principles “ ones that she believes ¬t better with the legitimate
interests of all citizens. In the end, it is the autonomous person and her
reasoning abilities, not the content of some set of principles of justice,
that remains the normative anchor of this view. The autonomous person
makes conscious decisions as to the best morally defensible, universal-
izable principles she can arrive at. Finally, it is a sign of her autonomy
that she wholeheartedly sticks to these principles and is willing to defend
them in democratic deliberation.22
Now let me gradually introduce the alternative view by pointing to
an unresolved issue in Rawls™s work since Political Liberalism. Rawls some-
times presents agreement on “the very same principles of justice” as a
condition of reasonable social and political cooperation. On other occa-
sions, however, he states that people can reasonably disagree about the
exact understanding of those principles and what they require.23 But this
causes a problem for agreement-based liberalism. For if it is the case that
“full autonomy” is “realized by citizens when they act from principles of
justice that specify the fair terms of cooperation,”24 then we either have
to conclude that political liberalism is not always interested in full au-
tonomy or that it admits that, relative to different authentic, reasonable,
but irreconcilable conceptions of a just society, competing understand-
ings of full autonomy can be found in pluralistic societies. For we may
conjecture that different conceptions of a just society come with differ-
ent conceptions of the principles of fairness and political justice that
citizens would “acknowledge under conditions that best express their na-
ture as free and equal beings.” Such principles have consequences for
the conceptualization of citizens™ public accountability and thus their au-
tonomy. Since Rawls in his writings since Political Liberalism had become
more consistent in stating that agreement on the very same principles
is not a condition of fair social and political cooperation, the latter
conclusion “ that competing understandings of full autonomy can be
Political Autonomy and Agonistic Citizenship 253

found in pluralistic societies “ seems to be the one that is intended.
This development pushes political liberalism in the direction of what I
call “liberalism without agreement”: a version of liberalism that does not
require a ¬rm agreement as to an “objective” framework for social and
political cooperation.
But what does it require? To start with, it requires a ¬rm conceptual dis-
tinction between non-ideal and ideal understandings of the basic frame-
work for social and political cooperation. On the one hand, it recognizes
the importance of a non-ideal, contingently given, and still developing
constitution and basic structure of society, the essentials of which are
contested in the sense, again, that Tully suggests: elements of it, includ-
ing elements of the basic structure of society, “come up for deliberation
and amendment” in the course of democratic practices. On the other
hand, it recognizes that citizens need ideal conceptions of the constitu-
tion and the basic structure in order to evaluate the legitimacy of the con-
tingently given framework for cooperation. And just as Rawls seemed to
accept in his work since Political Liberalism, liberalism without agreement
accepts that a diversity of reasonable ideal conceptions does not necessar-
ily constitute a threat to political cooperation. These ideal conceptions
are the ones that citizens remain faithful to when they say, with Jeremy
Waldron, that they accept the circumstances of politics: the practical need
for “action-in-concert in the face of disagreement” (over ideal interpreta-
tions). Their action-in-concert concerns their prudential acceptance of
the non-ideal, but in practice authoritative, framework; their disagree-
ments concern their competing political ideals as to a better framework.
In this way, liberalism without agreement retains the tension between
ideal and non-ideal accounts of politics and makes it the basis of its the-
oretical account of politics. Non-ideal agreements warrant stability and
limited legitimacy; disagreements as to the options open to the political
community for improving stability and legitimacy warrant a practice of
re¬‚exive political deliberation that makes a pluralistic democratic society
aware of its own limitations.
Both the non-ideal basic framework for social and political coopera-
tion and the various ideal conceptions of political justice held by citizens
have a formative force in constituting practices of political autonomy. By
law, the non-ideal framework de¬nes freedoms, opportunities, and limits
that constitute a practice of self-government. This can be done along lines
of representative democracy, radical democracy, classical republicanism,
and so on. These doctrines have different ideal understandings of politi-
cal autonomy. Some understand it against the background of a “negative”
Bert van den Brink
254

conception of liberty;25 others understand it in light of a “positive” con-
ception of liberty;26 still others work from a republican conception of
freedom as “non-domination.”27 Furthermore, these doctrines contain
different ideas as to the institutional ordering and the forms of political
participation a practice of self-government requires. In non-ideal prac-
tices “ the only kind of practices in which political cooperation is really
necessary “ a mixture derived from these and other traditions will be held
in place by positive law. At its best, such a non-ideal mixture will be seen by
all citizens as a “good enough” practice of democracy, even though most
of them may well believe that arrangements would be much better if only
their ideal conceptions of political justice were taken more seriously.
This is where the duck and the rabbit become visible again. Agreement-
based liberalism may want to say: the “good enough” practice will be based
in some kind of agreement, if only an agreement to disagree. And that
may well be true. But liberalism without agreement may want to respond:
to the extent that the good enough practice is not endorsed by all in
light of principles and ideals they wholeheartedly identify with, it is not
the kind of agreement that agreement-based liberalism is after at all. If
my account of political autonomy is derived from classical republicanism
and yours from classical liberalism, then our both agreeing that a good
enough constitutional compromise is more bene¬cial to a democratic
practice and more legitimate than the lack of any such compromise does
not imply that our agreement makes a truly legitimate exercise of polit-
ical power possible. From our respective ideal-conceptions, we will both
be unsatis¬ed with the constitutional compromise™s understanding of the
public role and responsibilities of both the autonomous citizen and the
state and therefore not give it our wholehearted consent. But if we take
our own political ideal conceptions of society seriously, and grant others “
as we must “ the right to do the same, then we will have to keep the ¬eld
open for democratic encounters in which we try the ¬nd better solutions,
which are to be laid down in law, which will be more legitimate (and
agreement-based) than the current ones. Keeping the ¬eld open, going
back and forth through the four steps of debating criteria of legitimacy,
ideal arrangements, the connection between the ideal and the non-ideal
conceptions before us, and the question under what circumstances pol-
itics comes to its own, is a constitutive aspect of political interaction, not
just a means to reach what agreement-based liberalism thinks would be
a proper political order: an order in which the basic framework would
be uncontested because it coincides with the conceptions of justice of all
reasonable citizens.
Political Autonomy and Agonistic Citizenship 255

Liberalism without agreement cannot deduce its understanding of po-
litical autonomy from objective principles. But the picture I have sketched
so far does leave room for an account of political autonomy. In demo-
cratic politics, the interpretation of constitutional essentials and the basic
structure that individual citizens favor, as based in contested but reason-
able conceptions of political justice, and the interpretation laid down in
positive law, are not necessarily identical. This, liberalism without agree-
ment says, is and always will be a normal circumstance of politics. Indeed,
in democratic thought, it is a condition sine qua non of the political au-
tonomy of citizens.
The point has often been made by theorists who adhere to a so-called
“agonistic” understanding of politics. The adjective “agonistic” stems
from the Greek noun agon, which refers to a game,28 a struggle, a contest,
and to “the con¬‚ict of character in classic drama.”29 Agonistic accounts
of politics see politics primarily as a free activity of contestation of claims
to a will-uniting sovereignty as upheld by positive law, not so much as
an institutionalized and proceduralized practice of reasonable opinion
formation and decision-making through which the political autonomy of
the subject and the authority of positive law can ultimately be reconciled.
When Hannah Arendt and Michel Foucault, independently of each other,
claim that “. . . it is precisely sovereignty [that citizens] must renounce”
(Arendt), and that we need “. . . a political philosophy that isn™t erected
around the problem of sovereignty”30 (Foucault), they mean that the ex-
pectation of identity of the political will of “the people” and the political
will of individual citizens should be renounced.
Of course, this does not mean that the authentic political conceptions
of justice of individual members of society should by de¬nition overrule
the will of the people. After all, authentic political conceptions of jus-
tice can be wrong.31 It rather means that the political conceptions of
individual citizens should not be overruled by the will of the people or
a purportedly “objective” framework of cooperation simply because they
diverge from it. As seen from this perspective, state-centered ideals of le-
gitimate political power such as the general and sovereign will and a basic
structure of society founded on purportedly “objective” principles may
in political practice become instruments of political repression. This will
happen as soon as they are thought of in terms of true representations of
the objective and sovereign will of all members of society at what is no
more than the practical, non-ideal level of political cooperation. In prac-
tice, democratic decision procedures are simply not precise enough to
warrant the assumption that their outcomes truly represent the legitimate
Bert van den Brink
256

needs and interests of all. At best, they are good enough outcomes, which
have a limited and thus always contestable claim to legitimacy.
If we take this analysis of political power and its relation to democracy
as our starting point, then the citizen™s political autonomy should not
be de¬ned in terms of her status as a bearer of a speci¬c set of legal
rights as derived from ideal-theoretical objective principles,32 but rather
in terms of her moral right either to consent to or to contest any empirical
de¬nition of what de¬nes her as a citizen, including her legal status, in an
intersubjective search for more adequate, morally acceptable de¬nitions.
Especially by disagreeing, by breaking open set frameworks and routines
for the sake of the integrity of the civic association, the citizen asserts her political
autonomy.33
It is important to note that in liberalism without agreement, just as
in the Rawlsian brand of political liberalism, political autonomy is con-
ceptualized as a form of moral autonomy. When I said in the preceding
paragraph that agonistic autonomous action is engaged in “for the sake of
the integrity of the civic association,” I implicitly introduced the idea that
a politically autonomous person is not just guided by her own interests,
but by “a universalized concern for the ends of all rational persons.”34
Political liberalism and agonistic liberalism without agreement both em-
brace that ideal of autonomy. But according to the agonistic view, the
autonomy of the citizen consists in her ability to give herself and her
fellow citizens the law in an open-ended practice that is not guided by
objective principles of justice, but by a shared moral orientation towards
the good and integrity of the civic association, which “ as a civic form of
association “ is understood as an attempt to specify, correct, and adjust
principles of justice time and time again in light of ever-changing chal-
lenges to the ideal of civic association. Citizens who participate in this
project are politically autonomous insofar as they wholeheartedly en-
dorse the ideal conceptions of political cooperation they defend, accept
accountability for their consciously made choices (that may be wrong) for
what they regard as morally defensible political options, and are willing
to defend these choices as long as they wholeheartedly agree with them.
The main difference with agreement-based liberalism is that this account
of political autonomy is not derived from shared objective principles, but
rather from the circumstance of the lack of such principles and the chal-
lenges to political cooperation associated with that fate of the political
community.
As a moral conception of political autonomy, the agonistic view is not
without guidance. It stresses the requirement of reciprocity in political
discourse and in the granting of equal rights. It therefore evades the
Political Autonomy and Agonistic Citizenship 257

consequence that Rawls fears so much “ that the practice of political au-
tonomy will succumb to “a mere collision of self-righteous wills” and
that the lack of objective principles will lead to the dominance of a
“consistent yet idiosyncratic system” of political cooperation. The non-
agreement-based agonistic view recognizes the danger that self-righteous
wills may collide and that idiosyncratic systems of political thought may
gain much in¬‚uence in society. But it assumes that the collision of self-
righteous wills and the in¬‚uence of idiosyncratic systems can be con-
trolled as long as enough citizens aim to defend the integrity of the civic
association. For although reasonable citizens of pluralistic societies tend
not to reach full consensus with regard to their exact understandings
of the nature and requirements of justice, freedom, equality, mutual re-
spect, solidarity, toleration, civility, and indeed autonomy, they are joined
by the shared belief that these values are important and should some-
how be incorporated in all reasonable political conceptions of society.
A shared, if general, disposition towards democratic civic cooperation
rather than a substantive agreement on constitutional essentials binds
them together. Self-righteousness cannot be reconciled with such a dis-
position. If democracy has agonistic aspects “ that is, is a game “ then
respect for and openness to one™s political opponents is a necessary
condition of competent autonomous citizenship. Idiosyncratic political
systems do not respect the moral and political autonomy of their mem-
bers. But since moral autonomy and civic responsiveness are of central
importance to agonistic democratic thought, lack of objective princi-
ples of fairness and political justice need not lead to a derailed political
association.
So at the theoretical level, some of the dangers that may seem inher-
ent in the agonistic view can be evaded even at the level of de¬nitions.
At the practical level, however, the dangers are great indeed. If political
cooperation among autonomous citizens can no longer be conceptual-
ized as a practice that is embedded in a ¬xed and objective framework
for cooperation, then questions as to the stability and the legitimacy of
agonistic political cooperation arise. In the remainder of this chapter, I
will address some of these questions, especially with regard to the use of
public reason and the role of basic civic dispositions.


III A Brief Re¬‚ection on the Use of Public Reason
The notion of public reason, understood as an intersubjective reasoning
practice in which citizens deliberate on the courses of action open to the
political community, seems to have taken the place of objective principles
Bert van den Brink
258

of justice in recent liberal theory.35 This move should be applauded. For
through the use of public reason, the danger that principles of justice or
frameworks for cooperation that are taken to be objective will in practice
turn into instruments of heteronomous domination can be identi¬ed
and, perhaps, repaired.
I will not attempt an overview of the debate on the requirements of
public reason here.36 Rather, I will brie¬‚y discuss two possible ways of
thinking about the use of public reason in order to make a point about
the importance of shared democratic dispositions for the non-agreement-
based view. The ¬rst way concentrates on the reasonableness of opinions and
arrangements that issue from public deliberation. The second way concen-

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