OPR VII.21: The Testing Conception

Overview of §21

The Deliberative Model, as is now familiar, is indifferent between the various rules in the socially optimal eligible set as possible bases of equilibrium.  It doesn’t select one of the rules as the favoured basis of an equilibrium.  The lesson of §19-20 is that it does select one of the rules as the favoured basis of an equilibrium once it is in actual fact the basis of an equilibrium.  Since the Deliberative Model, according to Gaus, “explicates the moral point of view” (425), that raises questions about the power of the moral point of view to ground criticism of moral orders.  In §21, Gaus explains the extent to which the moral point of view does have that power, and why, to the extent that it doesn’t, that isn’t an objection to it. 

Privileging the status quo?

He begins by discussing the objection that moral theory thus understood privileges the status quo.  As he says, “[if] an existing rule is within the optimal eligible set, it is publicly justified for that reason” (425)—but surely the mere fact that a proposed rule happens to be the status quo shouldn’t give it an advantage, from the moral point of view, over other proposals?  Wouldn’t such an advantage be arbitrary?  Gaus’s reply highlights the fact that being the status quo is not a normatively irrelevant property: as we’ve seen, the fact that most members of a group employ a rule gives them all sufficient reason to do so, even though they may not all agree on its ranking within the eligible set.  That was the point of the Kantian Coordination Game in §19.

Social recognition is particularly important for jurisdictional rights (§18), whose function is to partition moral space so that “for each and every person there is some part of the moral space over which her evaluative standards have public standing” (372-3).  When they do this, they remove the need for public justification of the standards governing the relevant bits of moral space; all that needs justification is the jurisdictional scheme.  But jurisdictional rights can’t serve this function, of course, unless they are generally recognised: there will be competition for authority in determining the standards for all parts of moral space.  With respect to these rights, then, T.H. Green’s ‘rights recognition thesis’, according to which “to be a right holder requires that one’s jurisdiction is recognized by others” (428) is correct.

§21.2 examines a challenge (due to Ross) to the rights recognition thesis, namely that a lack of recognition surely can’t be sufficient for a person not to have a right.  (The fact that a slave’s human rights aren’t recognised in her society can’t show that she doesn’t have such rights.)  Gaus’s reply effectively reminds us that there are two distinctions in play: the distinction between those rules that are and those rules that are not in the socially eligible set, and the distinction between various different rules that are in the socially eligible set.  All schemes of rights in the eligible set must respect the abstract rights of agency (as we saw in §17), and so any society that doesn’t can be criticised on that basis.  But it’s also true that for there to be a regime of agency rights to ground “the sort of specified moral claims that an ongoing order of public reason requires” (429) one interpretation of the abstract rights of agency as expressed by one of the schemes in the eligible set must be generally recognised.  This move allows Gaus to respect what’s morally important in the Rossian challenge—the power to criticise societies that fail to respect human rights—while continuing to affirm the rights recognition thesis.

Human rights and criticism of other orders

Of course, in a society of people who didn’t conceive of themselves as agents, then the abstract rights of agency might not be essential for membership in the socially eligible set.  Similarly, in a society of people among whom there was no evaluative diversity, jurisdictional rights wouldn’t be essential for membership in the socially eligible set.  Gaus doesn’t rule out the possibility of such societies, but doesn’t think that their possibility gives us (here and now) much reason to think that we cannot legitimately criticise regimes which don’t include rights of agency and jurisdictional rights.  Those who think we don’t have grounds to do so must, implausibly, suppose that some cultures have not been permeated by the conception of persons as self-directed agents or that some societies have no evaluative diversity at all.  Both agency rights and jurisdictional rights, therefore, “have a compelling claim to the status of transcendent morality” (431): they’re human rights.

What if there are societies in which some people aren’t viewed (even by themselves) as free and equal moral persons at all, and whose relations, therefore, don’t trigger the justificatory problem at all?  Do we have grounds to criticise them?  Gaus has two things to say about this possibility (which he concedes): first, the spread of the conception of persons as self-directed agents is the spread of the foundation for conceiving oneself as someone whose deliberations must confirm the authority of moral demands on one (though this is consistent with accepting the moral authority of others)—as free and equal, in other words; and second, we should be sceptical of the idea that none of those who are said to be subject to the intrinsic or natural moral authority of others (so that there is no need for justification to the subjugated of their rule over or treatment of them) reject the hierarchical relations.  And of course that’s sufficient to remove the moral rules that subjugate them from the socially eligible set and render the regime in question a legitimate subject of our criticism.

Reform and criticism of one’s own order

In §21.3 Gaus turns to the issue of moral criticism and reform from within a moral order (discussion of which he hopes will help us to make some headway in determining what action we may take with respect to other social orders that we think are violating human rights).  He divides the discussion into different sections according to the type of morally suboptimal equilibrium that is a candidate for reform:

  • (a)  Unjustified Moral Rules That Are Social Equilibria Without Punishment.  Some oppressive orders, in which the lack of authority in the relations between the oppressed and others infects relations even among the others alone, may be in equilibrium because an all-out refusal to play by their rules would be bad for everyone “and perhaps [do] nothing to attain a just society” (436).  This should not make us think that—since any system is better than none, in such a case—that such a system must after all be within the eligible set.  That would be to fail to distinguish between ‘mere social rules’ and ‘genuine moral conventions’.  The former may be preferable in the eyes of all to no coordination at all, but that does not show that they are within the set of rules which satisfy everyone’s evaluative standards (see §16.2), and so it does not show that they are within the socially optimal eligible set.  What’s to be done in the case of equilibrium on a social rule that is not a genuine moral convention?  It can, Gaus says, be very difficult to move from ‘bad norms’ like this to acceptable ones, since “the route to a justified equilibrium that moves us through no social rule at all may be disapproved of by all or, less dramatically, by a majority of those who are oppressed” (437).  Informal social processes being insufficient, the only adequate engine of moral reform may be the political order.
  • (b)  Unjustified Moral Rules That Are Social Equilibria With Punishment.  Moral reform in the case of bad norms that have been stabilized by punishment (and not by majority resistance, even among the oppressed, to reform, as in [a]) may be easier.  Oppressed individuals have an incentive (the prospect of a less oppressive order, presumably) to violate the bad norms when they can escape detection, and even in the face of increased expenditure on detection and punishment there may be “plausible dynamics that over the long run may lead to overturning the oppressive rule” (439)—though Gaus doesn’t go into these in any detail.
  • (c)   Non-Optimal Moral Equilibria.  There is a (less urgent) case for moral reform when there is convergence on a member of the eligible set to which some other member of that set is nevertheless preferred by all.  The equilibrium rule is, therefore, not a member of the socially optimal eligible set (see §16.3).  If the preferred rule is just the prevailing rule with a ‘tweak’, then anyone aware of its Pareto-superiority should teach it to those whom she has standing to teach “as something all should aim for” (440) and make a point of appealing to it in personal interactions.  That may seed reform even if among strangers only conduct in accordance with the sub-optimal rule is justified.  When, however, the preferred rule is “a pretty radically new rule” (440), it may be that given the membership of the prevailing rule in the eligible set and the “real danger that radical change will simply bring about moral confusion” (440) there is no clear case for moral reform.
  • (d)  Moral Innovation.  A final case is where some area is covered by the eligible set, but there is no rule of positive morality: here, there are grounds for moralisation of the area in question.  (An example is the moralisation of smoking, as discussed in §16.2 and again here.)  In such cases, Gaus says, moral reform starts with “trendsetters who act on their own evaluation of what is best; others tend to copy if doing so seems likely to advance their own standards” (442).  But if trendsetting involves punishment of noncompliers, then it may fail to treat others as free and equal: for one thing, it might not be that “all concur that some rule on this matter is justified” (442) and for another, there’s no reason in the early stages of moralisation to privilege one rule in the eligible set over another.  However, trendsetters needn’t punish: their successful experiments with each other will be copied in a pattern which “radiates outward from the core trendsetting group” (443).  Gaus emphasises this possibility: it shows that if we regard moral issues as concerning only “cases of suboptimality of action based on individual ideals”—in line with Gaus’s analysis—then punishment (and associated failure to treat people as free and equal) is not essential to moral innovation.

Ideal and utopian theory

Gaus ends the §21 and the chapter with some warnings about ideal theorising.  A focus on “merely possible, perfectly just” (444) situations, characteristic of much political philosophy, is liable to make the best the enemy of the good.  For it does not distinguish adequately among those of the conditions that must be met for “ideal justice” to obtain that are urgent now and those that are not.  In failing so to distinguish, it lumps together all societies that fail to attain ideal justice, ignoring the fact, for example, that some do a much better job of doing the urgent work than others.  This failing (and Gaus focuses particularly on Rawls) makes it impossible for a theory of justice to serve as a basis for identifying urgent reform.  Worse still, it may lead to injustice, since to insist on any one conception of the fully just society “in the face of…intense and sophisticated disputes about the nature of distributive justice” (445) is to fail to respect others as free and equal.  Gaus, of course, provides the alternative:

A free social order is possible just because we do not have to agree on the ideal, and no ideal sets the benchmark of justice.  Freedom is possible in our nonutopian world because we converge on a moral equilibrium, and truly reasonable moral persons do not condemn it as unjust simply because it falls short of their ideal, since all possible equilibria fall short of some reasonable ideals. (445)


1.  Gaus’s acceptance of the possibility of a society in which some don’t see themselves as moral persons is interesting, for it seems to me to suggest that—assuming that the interactions of members of this society are nevertheless structured by moral practices—it’s not implicit in human moral practices that we are free and equal moral persons.  That seems at odds with much of the analysis of earlier parts of the book, analysis which is summed up by Gaus as follows: “The Restricted View of freedom and equality, so far from being a Kantian Extravagance, is embedded in our moral practices” (22).  Perhaps when Gaus accepts the possibility of a society in which some don’t see themselves as moral persons, he means only to accept the possibility of a society in which the view of individuals as free and equal, though implicit, is not acknowledged?

2.  A minor point.  Gaus worries that trendsetting moralisers who punish won’t respect people as free and equal in so doing, since some people may not concur that there is grounds for moralisation of some area that is not covered by the status quo rules.  But if this is an area that really is covered by all members of the eligible set of rules, then the status quo doesn’t treat people as free and equal, and any member of the eligible set will do a better job.  So, this doesn’t constitute grounds for thinking that punishing fails to treat people as free and equal (although the second problem that Gaus notes—that no one rule from the eligible set is the one that all have sufficient reason to comply with—does).  If, on the other hand, some people’s evaluative standards cannot be satisfied by rules which cover this area, then there are no grounds for moral reform in the first place (blameless liberty being the default [321]).  There’s a distinction between cases where moralisation (and innovation to achieve moralisation) is justified by the inadequacy of the status quo, on the one hand, and cases where innovation is perfectly legitimate, so long as it treats others as free and equal, on the other; it’s possible that in §21.3(d) Gaus moves from the first case to the second without highlighting this clearly enough for me to have spotted it.  But that wouldn’t sit well with what he clearly takes to be the important conclusion: that necessary moral innovation needn’t involve “authoritarian punishment” (443).

3.  Are Gaus’s criticisms of contemporary theorising about justice overstated?  For one thing, one might argue that Rawls, the object of many of these criticisms, needn’t be construed as Gaus construes him: the Rawls of Political Liberalism clearly suggests that the securing the basic liberties is more urgent than satisfying the difference principle, though not more urgent than satisfying some principle providing for basic needs (see Political Liberalism, pp. 227ff), and explicitly acknowledges controversy about distributive justice as a reason for being cautious about going further than this.  Yet at the same time he believes that the difference principle is ultimately the ideal (see e.g. Justice as Fairness, p. 133).  For another thing, you might wonder whether Gaus isn’t ignoring his own lessons.  If an equilibrium falls far enough short of our own evaluative standards about justice, controversial as they may be, why shouldn’t we condemn it as unjust?  Condemning the status quo and advocating reform are not the same as punishing those who conform to it and inciting revolution, let alone failing to conform to the status quo rules oneself.  So, it’s not at all clear that they constitute failure to treat others as free and equal.

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