Promising, Consent, and Citizenship: Rawls and Cavell on Morality and PoliticsAuthor(s): Stephen MulhallSource: Political Theory, Vol. 25, No. 2 (Apr., 1997), pp. 171-192Published by: Sage Publications, Inc.Stable URL: http://www.jstor.org/stable/191944Accessed: 20/07/2010 13:45

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PROMISING, CONSENT, AND CITIZENSHIP Rawls and Cavell on Morality and Politics

STEPHENMULHALL University of Essex

IN AN EARLIER ARTICLE' I attempted to elucidate and defend Stanley Cavell's recent critique of John Rawls's theory of jusfice2-a critique mounted from the perspective of what Cavell calls "moral perfectionism." In this essay I return to that topic, because I feel that I failed entirely to dispel the appearance of idiosyncrasy and eccentricity that Cavell takes few pains to avoid in his development of his critique and that I did so in part by failing properly to contextualise it. In particular, I failed to emphasise the degree to which Cavell's recent critique of Rawls's first book is a successor to, and perhaps a reiteration of, his much-earlier criticisms of an early paper of Rawls's that is primarily devoted to issues in moral philosophy, and I also failed to explore the question of whether Cavell's criticisms of A Theory of Justice might be applicable to Rawls's most recent book, Political Liberal- ism. By rectifying these imbalances and omissions, I hope to reinforce my earlier conclusion-namely, that Cavell's critique focuses upon an aspect of justice as fairness that is fundamental to Rawls's vision of morality and politics quite generally, and that remains constant throughout his career, including his recent espousal of a purely political liberalism.

MORALITY: PROMISING, PUNISHING, AND PLAYING GAMES

In his 1955 essay, "Two Concepts of Rules"3 (hereafter TCR), Rawls's immediate goal is to defend utilitarianism against the objection that it conflicts with elementary moral principles relating to punishing and promis- ing, for example, that it is not an acceptable reason for breaking a promise that it is best on the whole not to keep it. He does so by drawing a distinction

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between individual acts of promising or punishing and the "social institution or practice" of promising or punishing, and then arguing that utilitarianism is designed to justify the practice as a whole rather than individual acts performed within it. In the course of his argument, he also draws an analogy between such practices and games. This permits him to argue that submitting a utilitarian defence for breaking a particular promise would be no more intelligible than refusing to leave the field after one's third strike in a game of baseball on the grounds that it would be better on the whole to allow four strikes to constitute "striking out"-an argument which accounts for our suspicions about the compatibility of utilitarianism and promise-keeping. But he can nevertheless dismiss those suspicions, by arguing that a utilitarian defence of the practice of promising as a whole would be just as feasible as one directed to the three-strike convention in the game of baseball; in the case of promising, for example, one need only point out that a practice which denies to the promisor, as a defence, any general appeal to the utilitarian principle has the great utilitarian advantage of allowing the future to be tied down and plans to be coordinated in advance. Rawls takes these arguments to show the importance of the distinction they deploy, and he ends his essay in diagnostic mode, by outlining two very different conceptions of the logical status of the rules of human practices: one-which Rawls thinks philosophers are prone to assume-serves to obscure the importance of the distinction between practices and individual acts, whereas the other-to which he is committed-makes clear its necessity and its logical basis.

Cavell's primary concern involves the assumption that underlies the whole course of Rawls's argument-that promising and punishing are practices or social institutions. Rawls defines his quasi-technical term "practice" as follows:

Any form of activity specified by a system of rules which defines offices, roles, moves, penalties, defenses and so on, and which gives the activity its structure. As examples one may think of games and rituals, trials and parliaments. (TCR, p. 3, fn 1)

What justifies Rawls's claim that promising can be added to this list of examples, that it fits this definition "beyond question"?

This is shown by the fact that the form of words "I promise" is a performative utterance which presupposes the stage-setting of the practice and the proprieties defined by it. (TCR, p. 30)

But so are "I warn, beseech, bet, pick, accuse, forgive you," "I commend him to you," "I withdraw, protest" performative utterances. Are they all practices?

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They can certainly be thought of as social actions, ones occurring between persons against a definite social ground, and there are particular ways of performing them-not just anything you do will be competently performing them. But this shows only that they are conventional as well as social, that they have what one might call a logic or grammar; it does not show that this is specified by a system of rules that defines a set of offices, roles, moves, defences, penalties, and so on. Comforting, threatening, and revenge are also social actions possessed of a grammar (only someone who has been injured can take revenge, only someone who is suffering can be comforted), but although they can take highly institutionalised forms (e.g., revenge, in societies that have not developed certain legal concepts of crime and redress), they need not do so (I can be injured by another, and take revenge upon her, in highly unexpected and uninstitutionalised ways).

If Rawls's analysis of promising were correct, then being a promisor could be called an office, but it is obviously unlike other offices that are established in practices such as games or law-courts. Unlike the office of pitcher or prosecuting counsel, there is no special procedure for entering it (no oaths), no established routes for being selected or training yourself for it, and so on. If it is an office, it is one that any normal adult is competent to hold, and one that she can hold simply by putting herself in it with respect to anyone with whom she is in, or with whom she might create, a certain form of relationship. The same holds for the idea that promising is a practice with certain specified defences. In learning what a promise is, we do indeed learn what defences it is appropriate or competent to enter, and where, should we fail to keep it. But these are not defences specific to promising as opposed to other supposed practices; they are just the defences we learn in learning to defend any of our conduct that comes to grief-those excuses, explanations, justifications (what Cavell calls "elaboratives") that make up the bulk of moral defence per se. Someone who has not yet grasped those defences does not simply lack the information needed to participate in a specific social institution; for if she were unaware of the various ways in which human actions can be excused, defended, or justified, in what sense would she understand what a human action is? Such a person would lack a mastery of social intercourse per se, a mastery without which she would not qualify as a responsible and autono- mous member of society.

What is going wrong here can perhaps most clearly be seen if we turn briefly to Rawls's parallel analysis of punishing as a practice or social institution. For Cavell, unlike promising, punishing is or includes a clear case of a social institution; but "the institution of punishment" can be conceived in two very different ways.

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We may be conceiving of it either on a par with institutions like kinship systems, law and religion, institutions which distinguish societies from hives or galaxies, general dimen- sions in terms of which any community of human beings will be described; or we may be thinking of it as a specific institution, on a par with monogamy or monotheism or suttee or death by stoning, institutions in terms of which one society is distinguished from another society, or from the same society at an earlier stage. (The Claim of Reason, Oxford: OUP, 1979, pp. 299-300; hereafter CR)

On Cavell's view, utilitarianism can of course justify one specific institution of punishment over another, but it cannot, and is not meant to, justify the general institution of punishment as such-since the only utilitarian justifi- cation for punishment is its deterrent effect, utilitarians can only justify the lightest system of punishment that is compatible with that effect and so must in principle be committed to abolishing it altogether wherever feasible. Whatever the merits of that view, however, it should be clear that Rawls's analysis of promising as a practice treats it as if it were one specific social institution, as if it might be compared to or replaced by another such institution (in the way an institution of revenge might be superseded by a legal system), whereas, for Cavell, promising is more akin to one of the general dimensions by means of which human forms of life might be distinguished from the activities and interactions of bees and stars. Human beings make and break promises, just as they point to objects, follow rules, make threats, issue orders, and make and break friendships; to point this out is not to engage in comparative sociology or comparative anthropology, but to compile remarks about the natural history of mankind.

To see this, we need only try to imagine altering or removing such dimensions of our form of life. We can imagine someone urging a reform of a given institution of revenge or punishment, or even urging that the institu- tion of revenge be left behind altogether, but what might it mean to urge a reform (let alone the supercession) of the "practice" of promising? And how might one justify that "practice" as it now stands? Rawls offers the following justification:

The point of the practice is to abdicate one's title to act in accordance with utilitarian and prudential considerations in order that the future may be tied down and plans co-ordinated in advance. There are obvious utilitarian advantages in having a practice which denies to the promisor, as a defence, any general appeal to the utilitarian principle in accordance with which the practice itself may be justified. (TCR, p. 16)

This second sentence is not obviously comprehensible. For since (as Rawls emphasises) it is part of the concept of promising that one does not keep or break promises on general utilitarian grounds, there would be no promise

Mulhall / PROMISING, CONSENT, AND CITI1ZENSHIP 175

apart from a knowledge of that fact on the part of the would-be promisor; so we could not intelligibly attempt to justify individual actions falling under that concept by appeal to that fact. The first sentence makes the "advantages" of the "practice" of promising appear rather more optional, rather less fundamental, than they really are. For abdicating one's title to act upon utilitarian and prudential considerations is not, as it were, just one institu- tional way of coordinating our plans for the future; the very existence of human society, and the coherence of individual conduct, depends upon our so doing. Such abdication is not one specific human institution, but a precondition for any institution among persons at all. Moreover, by isolating such abdication as the point of the "practice" of promising, Rawls implies that promising is the central, or even the only, way in which human beings do so abdicate; but any human commitment has exactly this effect, and promising is by no means the only way in which human beings create commitments.

There are any number of ways, other than promising, for committing yourself to a course of action: the expression and declaration of an intention, the giving of an impression, not correcting someone's misapprehension, beginning a course of conduct on the basis of which someone else has taken action, and so on. (CR, p. 298)

There is nothing sacred about promising that is not sacred about express- ing an intention, or any other way of committing oneself (a category to which-insofar as any utterance carries with it implications or commitments of the kind analysed by Austin, Wittgenstein, and Grice, amongst others-we must assign any and all linguistic acts). Promises are important when it is important to be explicit about one's commitments, but that does not make our many and various nonexplicit commitments any less real or constraining.

In other words, Rawls's analysis makes promising appear both less fundamental and more special than it really is. As a result it makes promising appear to be more like a game than it really is. About competitive games, much that Rawls packs into his definition of a practice holds true. There are clearly defined offices; what counts as a move in the game, and so how one might adjudicate disputes over whether a given action counts as a move, is settled in advance by a system of rules (the rules of play), and one can easily imagine disputes over possible reforms of the game's rules-over baseball's three-strikes-and-out rule, or soccer's offside rule-disputes to which utili- tarian considerations would be pertinent. Even with respect to games, how- ever, Rawls's analysis rigidifies the reality of practices.

On his account, whenever a person is questioned or challenged about a particular action that is defined or specified by a practice, and that challenge

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is not directed at the practice as a whole, he "must assume that the questioner either doesn't know that he is engaged in it or doesn't know what the practice is" (TCR, p. 27). Since the form of the action is specified by a rule that helps to define the practice as a whole (since it is only by reference to the stage-setting of the practice that his action is the action it is), the only justification he can give for the specific action is to cite the relevant rule, and someone can only intelligibly raise a question about that specific action if they are either ignorant about the practice he is engaging in or ignorant that he is engaging in it. The example Rawls gives to back this up is drawn from baseball.

In a game of baseball, if a batter were to ask "Can I have four strikes?", it would be assumed that he was asking what the rule was; and if, when told what the rule was, he were to say that he meant that on this occasion he thought it would be best on the whole for him to have four strikes rather than three, this would be most kindly taken as ajoke. One might contend that baseball would be a better game if four strikes were allowed instead of three; but one cannot picture the rules as a guide to what is best on the whole in particular cases, and question their applicability to particular cases as particular cases. (TCR, p. 26)

Here we are touching upon the practice conception of rules that Rawls concludes his essay by recommending over the summary conception (which pictures rules as guides to what is best on the whole), and it should be clear how this conception might be thought to underline the distinction between justifying practices as a whole and justifying the individual actions that occur as part of them. His batter is questioning an action whose form is partly definitive of the practice of baseball, and with respect to this particular (highly implausible) example, Rawls's claim that this question shows the ques- tioner's incompetence or ignorance is surely true. But does that claim generalize to all questioning of all actions that one might think of as defined or specified by the practice of baseball?

The problem is that "action defined by the practice" is ambiguous: it could refer to any action that is required by the rules of the game, or it could refer to any action that does not violate those rules (any action within the legitimate limits of play). The point is that most legitimate moves in the game are not required by the rules of play: only in situations where no alternative move is open to her do the defining rules of play dictate what a player must do, although of course they always dictate how she must act if her action is to count as a legitimate move in the game. If accordingly, at a certain point in the game, she chooses to try to steal second base when it was open to her not to do so, and her action conforms to the rule book's specification of what

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counts as stealing second base, her decision so to act can nevertheless be competently challenged (e.g., as short-sighted, selfish, or otherwise ill- considered), and it cannot then competently be answered simply by citing the rule that defines what it is to steal a base.

In one sense, of course, such a challenge is not directed at the player's grasp of the defining rules of the game; it rather criticises her grasp of what one might call its strategic principles-and it might be thought that they do not determine what it is to play the game but rather what it is to play the game well. But no one who grasped a game's defining rules and yet showed no grasp of its strategies would count as a competent player; as Cavell puts it, "a certain mastery of the game is required in order to be said to play the game at all" (CR, p. 304). Accordingly, a query about a player's action that is based upon its violation of a game's principles of play can be thought of as a challenge to her grasp of what it is to play the game-of something that helps to define the practice of baseball.

In general, then, "not knowing what a game is" is not synonymous with "not knowing the rules of the game"; so it is not the case that every intelligible challenge to a particular action specified by a practice can be satisfactorily answered by citing its defining rules. Rawls's analysis of games fails to accommodate this fact; it is as if he presupposes that every action performed as part of a game must be determined by (rather than simply being in accordance with) the defining rules of that game-as if every move in a game is prescribed by its rule book. And because he leaves no room for strategic rules in his vision of games, he loses sight of what is perhaps the most fundamental fact about them-that within games, what we must do is ideally completely specified and radically marked off from what we ought or should not do, so that we might focus exclusively on the latter.

It is as though within the prosecution of a game, we are set free to concentrate all of our consciousness and energy on the very human quests for utility and style: if the moves and rules can be takenfor granted, then we can give ourselves over totally to doing what will win, and win applause. (The idea that freedom is achieved through subjection to the law is fully true to the conduct in games.) (CR, p. 308)

The point of a game lies not in the framework of prescription that makes up its rules of play, but in the space the rules of play define; within that space, those who can marry a grasp of strategy to the necessary talent and physical condition, who can see what ought to be done and are in a position to do it, are set free to achieve forms of human excellence. Rawls's vision of games mistakes the framework for the space, the prescriptive means for the celebra- tory ends they subserve.

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Cavell's view, therefore, is that Rawls's understanding of games is as erroneous as his understanding of the phenomena he erroneously treats as analogous to games-namely, punishing and promising. But the most fateful implication of that erroneous analogy is its suggestion that how an action is to be described and evaluated in moral terms is determined in advance by something akin to a system of rules. Part of what will be called "rules" in a game's rule book settle what counts as a move in the game, how disputes over whether or not a given action so counts are to be settled when certain eventualities arise, and what penalties or defences are open to those who make such a move. Without this prearranged common knowledge, games could not be practised, and umpires and referees could not do what they do. But moral conduct cannot be practised in this way, and moral conflict cannot be settled by reference to anything analogous to the defining rules of a practice. An action such as making a promise is not analogous to a move in a game, because in such contexts, what precisely was done-what "move" was made, what "defence" offered-is not settled in advance but is rather an open question.

A moral debate over the breaking or keeping of a promise will exactly concern such questions as whether what you said was (tantamount to) a (serious) promise, whether you were really prevented from keeping it (or perhaps only succumbed to temptation or intimidation), whether, knowing what was likely to happen, you ought to have made it, whether you did what was possible to alleviate the consequences for the promisee. (CR, p. 295)

As we saw earlier, competence in moral argument is a matter of knowing which defences, excuses, and justifications it is appropriate to enter and when, but although the relevance of a particular consideration is not up for discussion or argument, the precise weight to be attached to it is-and this second question is typically the core of any real moral dispute, in which an appropriate defence may be met by a pertinent counter, and then by a pertinent response to that counter, and so on. So, although any responsible and autonomous member of society must know how to make a promise, and know that making a promise amounts to making a commitment, and know that one does not break or keep particular promises on general utilitarian grounds, it does not follow that anyone who has made a promise and then failed to keep it is necessarily subject to moral condemnation. Everything will depend upon the nature of the competing considerations, the efforts made by the promisor to warn those relying on her promise, and so on; in fact, if the immediate consequences of keeping the promise were sufficiently severe, and the promisor did everything possible to mitigate the negative consequences of

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breaking her promise, and she enters her justification in the right way at the right time, then it would not be obviously paradoxical to our moral sensibili- ties for her to excuse her action in utilitarian terms.

For Cavell, then, moral discourse is not an arena in which individuals take up positions and make moves whose responsibilities and consequences are fixed in advance, but rather one within which an individual comes to fix the position for which she is prepared to take responsibility and others attempt to decide whether that position is something they can respect. Moral agents must make a final judgment concerning where they will stand and how they will regard the different stances of others, and those judgments must conform to the logic or grammar of what Cavell calls elaboratives, but they are not determined by rules or principles agreed upon and known in advance.

By now, perhaps, we can see what Cavell thinks of as the common thread in Rawls's portrayal of games, punishing and promising. By analysing them in terms of his technical definition of a practice, at the heart of which lies his conception of defining rules, he rigidifies these forms of human life, reducing them to arenas in which the precise range and scope of our responsibilities are fixed in advance by impersonal principles, and restricting our role in them to the carrying-out of the fixed responsibilities of an officeholder. With respect to games, this means that he stresses the constraining framework of the rules of play to the exclusion of the freedoms and virtues that those constraints make possible. With respect to punishing, it means that his focus is upon the social specificity of its institutional manifestations rather than upon its species-specificity as a response to wrongdoing and guilt. With respect to promising, it means that he regards one amongst many ways of creating the commitments that make human social interaction possible as if it were a unique but modifiable mode of interaction; in short, Rawls treats promises as if they were legal contracts.

About these everything Rawls says about offices, defences, moves etc., is true; the details of "offer," "acceptance," "consideration," "misrepresentation," etc., are elaborately specified, the practice is definitive, and a given conflict can be adjudicated (umpired). This, however, involves a whole way of looking at society, one in which all human relationships are pictured as contractual rather than personal, within which one's commitments, liabilities, responsibilities are from the outset limited, and not total, or at any rate always in the course of being determined. We still relate to one another as persons, but only insofar as we stand in certain socially defined roles with respect to one another. The picture is made clearer if we include the suggestion that the central idea underlying the English Law of Contract is that of a bargain. (CR, p. 299)

It would not be difficult to link this liberal vision of morality to the rationalization of society that sociologists have characterized in terms of a

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distinction between Gemeinschaft and Gesellschaft, and thereby to the com- munitarian critique of liberalism. But it might prove more illuminating to conclude this section of my essay by adopting the diagnostic mode of which Rawls makes use at the end of his own, and ask: why should someone misrepresent both promising and the moral life more generally in this particular way? How or why might someone adopt a conception of rules that encourages him to contractualize both our personal responsibilities and our interpersonal relations?

To think of the commitments to which human speech and action gives rise as fixed by a system of defining rules ensures that those commitments are limited in advance, and limited in impersonal ways; to think of human relationships as exhaustively determined by our occupation of socially de- fined roles limits in advance the range and depth of their claims upon us as persons. On Cavell's view, the reality is that the reach of such commitments and relationships is always in the course of being determined, and so must in fact be fixed by us. So Rawls's vision of the moral life effectively makes the self's commitments and relationships less fluid and more evident than they really are, and thereby conjures up a fantasy of a self that is more fixed, more invulnerable and more transparent to itself than it really is.

Take first Rawls's conception of the self's commitments. The concept of human action is tied to the concept of elaboratives because the independence of the world and the preoccupations of the mind ineluctably drive a wedge between what an agent thinks of herself as doing and what she actually does; that gap is only made bearable by her capacity to excuse or explain it, and thereby to contribute to determining what she is answerable for (e.g., by characterising the actual consequences of what she did or failed to do as unforeseen or unforeseeable, as inadvertent or accidental, as heedlessly or unwillingly entrained). By subjecting personal answerability for one's ac- tions to impersonal limits, Rawls trades one kind of human freedom for another: he restricts the potential individuality of our elaborations, and so our personal contribution to fixing that for which we are answerable, but he also restricts the capacity of world and mind to require such elaboration of us, to put in question any settled sense we might have of what we are or can be responsible for, and so of who we are. He transforms one person's determi- nation of the limits of her vulnerability as an agent into an objective and foreseeable limitation upon human vulnerability as such, and thereby attenu- ates the self's sense of exposure to its world and to the opacity of its own motivations. In short, by restricting the self's capacity for self-definition, Rawls fortifies its capacity for self-possession.

A similar trade-off grounds his contractualization of human relationships. By regarding their range and extent as fixed by impersonal rules defining the

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social roles we occupy, Rawls relieves us of the responsibility of having constantly to define and redefine their limits as our moral relationships with others develop and alter under the pressure of new circumstances and unforeseen actions. Instead, we can regard our ability to continue to inhabit the same moral universe as purely a function of our success in applying the defining rules of our moral practices, and any discontinuation as the result of a certain kind of impersonal incompetence. In neither case do we discover something about the particular other with whom we are dealing, or about ourselves; moral encounter is no longer a matter of exploring and defining the positions we feel able to occupy, and so of defining ourselves. Such a vision rules out any advantages that might accrue from interpersonal relations of greater depth or intimacy, but it also rules out any disadvantages that might accrue from any deep or intimate claims that others may make upon us. For the key anxiety consequent upon remaining open to the development of a more personal relationship with others is that more of the self must be exposed in order to do so. Once again, Rawls sacrifices the self's potential for self-definition to its desire for self-possession.

POLITICS: CONSENTAND CITIZENSHIP

A Theory of Justice

In his Carus Lectures, Cavell argues that Rawls's contractual vision of the moral life carries over into his vision of politics and social justice, as that is presented in A Theory of Justice (hereafter Ti). To begin with, section 52 of A Theory ofJustice deploys entirely unaltered the idea of promising as a social institution or practice that we have spent so much time criticising here. In other words, that early account of this human activity is deemed by Rawls to fit neatly into the wider theory that he is constructing in this much later book. But can it be shown that this wider theory itself embodies an unduly contractual notion of the political life?

In A Theory of Justice, something that we might call the conversation of justice occurs at two points. There is the conversation eventual citizens must have about the fairness of the original position in which the principles of justice are chosen, and there is also the conversation actual citizens must have in judging the degree to which those principles are embodied in the actual society of which they are part. The first, founding conversation is meant to establish the faimess of the principles required in the second conversation, to measure the degree to which existing social institutions diverge from ideal

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justice. The first conversation aims to attain reflective equilibrium between some set of principles and those of our intuitions about justice that survive upon reflection, but how is the second conversation to be conducted? Rawls says that "the measure of departures from the ideal is left importantly to intuition" but is ultimately to be understood as a matter of the degree of society's compliance with "the principles that characterize a well-ordered society under favourable circumstances," and that "those who express resent- ment [at the existing state of society] must be prepared to show why certain institutions are unjust or how others have injured them" (TJ, pp. 245, 246, and 533). These remarks imply that the second conversation of justice also involves a matching of intuitions and principles and that if an initial judgment that an injustice is being perpetrated cannot ultimately be backed up by reference to (or articulated in terms of) a principle of justice, then it must be rejected, and those of us to whom the accusation was voiced can think of ourselves and "our conduct [a]s beyond reproach" (TJ, p. 422).

As Rawls explicitly acknowledges, his general approach to the question of social justice carries on the tradition of social contract theory. By aiming to ensure that any principles that are agreed to within it are fair, the structure of the original position gives us reason to consent to membership of any society that embodies them, and thus makes those principles central to any attempts to assess whether our actual society at any given moment deserves our continued allegiance. In other words, the emphasis upon principles that is central to the first conversation of justice carries through to the second conversation of justice, and this has very specific consequences.

The idea of directing consent to the principles on which society is based rather than, as it were, to society as such, seems to be or to lead to an effort to imagine confining or proportioning the consent I give my society-to imagine that the social contract not only states in effect that I may withdraw my consent from society when the public institutions of justice lapse in favour of which I have foregone certain natural rights (of judgement and redress), but that the contract might, in principle, specify how far I may reduce my consent (in scope or degree) as justice is reduced (legislatively or judicially). But my intuition is that my consent is not thus modifiable or proportionable (psychological exile is not exile): I cannot keep consent focussed on the successes or graces of society; it reaches into every corner of society's failure or ugliness. (Conditions Handsome and Unhandsome, pp. 107-8)

On Rawls's principles-based understanding of political consent, a society's partial compliance with its principles of justice must amount to its distancing itself from its members-the degree or depth of the distancing being propor- tional to the degree of its noncompliance with those principles. On Cavell's understanding of political consent, such partial compliance may rather pre-

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sent itself as a sense of compromise by it or conspiracy with it-as revealing the degree to which I have given my consent to injustice.

In effect, Rawls's interpretation of membership in the political commu- nity, just like his interpretation of promising, is too contractual; he under- stands the nature and extent of the commitments and responsibilities to which they open us as settled in advance by impersonal defining rules or principles. This has the effect of distancing us from society, making it appear as an artifact-an effect that is indeed central to the teaching of the social contract myth, but it also has the effect of denying something that is equally central to its teaching-its articulation of how deeply we experience ourselves as joined to society, as being implicated in or identified with it, and so as having always already consented to it. He misses, in short, its sense that our consent is to society as such as much as it is to any principles upon which it might be founded.

For Cavell, the classical contract theorists (particularly Rousseau) do not think that the full reach of our consent to society is determinable in advance in terms of specific principles, regardless of whether or not we explicitly or tacitly agreed to them, or whether instead we can legitimately think of ourselves as if we had done so. On his view, these theorists rather begin from the datum that we think of this society as ours, that we recognize ourselves as party to society and its arrangements, but that we do not always recognize ourselves as responsible for the specific inequalities, lacks of freedom, and absence of fraternity that they sustain. Faced with these circumstances, we need to discover how far our consent reaches, for what it makes us responsi- ble, and to what we are prepared to continue to consent; the content of our consent, its substance, and its range are not settled in advance of such practical instances of the second conversation of justice but are rather one of their central topics, part of what must be determined by them.

A better sense of what such determination involves will appear if we look more closely at how, according to Cavell, the myth of the social contract conceptualises political consent. What I consent to when I consent to the social contract is not mere obedience to the government, but membership of a political community, and for Cavell, that has two implications:

First, that I recognize the principle of consent itself; which means that I recognize others to have consented with me, and hence that I consent to political equality. Second, that I recognize the society and its government, so constituted, as mine; which means that I am answerable not merely to it, but for it. So far, then, as I recognize myself to be exercising my responsibility for it, my obedience to it is obedience to my own laws; citizenship in that case is the same as my autonomy; the polis is the field within which I work out my political identity and it is the creation of (political) freedom. (CR, p. 23)

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Politics here appears as an arena in which the self defines or creates itself; political autonomy is an aspect of human autonomy as such, and insofar as I exercise my political responsibilities, I must think of myself as shaping or forming my (political) identity. But this process of self-definition is essen- tially communal; the field within which it can alone be achieved is constituted only insofar as I recognize others, and they recognize me, as fellow-members; since the polis is a community, and since I cannot consent to the polis as mine without recognizing that anyone else who gives their consent can equally claim it as their own, I must view the laws of the perfected polis as both mine and ours. I cannot work out my political identity alone.

In other words, to speak for oneself politically is to speak for the others with whom you consent to association, and it is to consent to be spoken for by them-as someone in mutuality speaks for you, someone who speaks your mind. Speaking for others and being spoken for by others is part of the content of political consent; granting that consent is a condition of speaking for oneself politically. But then the fundamental "disadvantage" of withdrawing one's consent becomes clear: it would amount to having nothing (political) to say, to being politically voiceless. Without recognizing a political commu- nity as yours, which means making yourself answerable for it and allowing others to speak for you, there is no such thing as political identity, no possibility of working out that aspect of one's autonomy. This is why the social contract myth thinks of us as deeply joined to society; to talk of membership as having "advantages" amounts to thinking it an advantage to exist politically, to have a political self.

It will therefore hardly be news to a social contract theorist that, despite the specific imperfections of most actual political communities, they will rarely outweigh the disadvantages of withdrawing one's consent from it. This means that the mode of political discourse that is likely to dominate everyday political life is that of dissent-not an undoing of consent, but a dispute about its content, a dispute within it over whether present arrangements are faithful to it. It amounts to declaring that, whilst the political community continues to be yours, it does not in this respect speak for you; it amounts to an attempt to exercise your responsibility to make the laws of the polis your own, ones for which you are prepared to be answerable. Nevertheless, if at some point the degree of society's distance from its ideal becomes intolerable, then a withdrawal of consent may appear unavoidable. Since, however, that too is a kind of political act, it must involve speaking both for yourself and for others: you must say both "It is not mine any longer" (I am no longer responsible for it, it no longer speaks for me) and "It is no longer ours" (not what we bargained for, we no longer recognize the principle of consent in it, the original "we" is no longer bound together by consent but by force, and

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so no longer exists). It is, in effect, a last-ditch attempt to re-found the political community, to restore its faithfulness to the original contract by forcing an acknowledgement of its present faithlessness.

Both withdrawals of consent and disputes about its content are exercises of one's political voice and so constitute part of what Cavell calls the second conversation of justice. In both cases, those engaged in them are attempting to determine the substance and range of their consent-to discover what position they are prepared to take up with respect to the present arrangements of society. In determining what they are answerable for politically speaking, they work out the limits of their political identification, and so the limits of their political identity-which means the limits of the community with which they consent to associate. In short, they explore, define, and redefine the depth of their membership and the extent of those joined with them. Insofar as they continue to claim a political voice, they must acknowledge that they speak for others and that others speak for them, but who those others are is no more knowable a priori than the range and substance of their consent. In these ways, political intercourse constitutes a mode of education: it presupposes that the finding and forming of myself requires the finding and forming of my relations with others.

From Cavell's perspective, Rawls multiply distorts the reality of political intercourse. He assumes that those who exercise their political voice accord- ing to the terms of the social contract myth possess a settled and shared knowledge of the preexisting limits of their consent, since this consent is directed at the principles that found their society rather than at society as such. This implies that their political identity is not so much found or formed by their intercourse with others as confirmed or reaffirmed; its depth and extent-which, according to the terms of the social contract, means the depth of their identification with society and the extent of those who share that identification-is never open to exploration or further definition (or redefi- nition) through political engagement or activity in the community, but is entirely transparent or self-evident in advance of any particular political discussion or encounter with others. In short, the (political) self, like the moral self, is entirely obvious to itself.

As we have seen, it further implies that consent can be thought of as a matter of degree and as entirely proportional to the degree of society's success in implementing its founding principles. This eliminates what is surely not an uncommon aspect of political phenomenology-the sense that at least some of society's failures of justice implicate its members, that amongst the worst of the ill consequences attendant upon social injustice is the fact that it is done in our name, and that no mere personal recitation or reiteration of our commitment to principles of justice can eradicate our responsibility for

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what is being done. For if we think of political consent as consenting to have a political voice, and if having a political voice means allowing others to speak in your name, then you cannot pick and choose between the particular things they say as representative of your political mind-you cannot, as it were, consent to society but withdraw your consent from some subset of the things said and done in its (and so in your) name, as if your political mind was partly public and partly private. According to the terms of the myth of the social contract, there is no such thing as a private part of your political mind, no such thing as a private mode of political speech. To distance yourself from your society's imperfections, you must either entirely withdraw your consent, which means losing your political voice entirely-becoming politi- cally voiceless, with all the "disadvantages" that accrues; or you must show that your society's representatives do not speak for you by speaking (differ- ently) for yourself-by dissenting politically, which means addressing those you take to be in community with you and claiming that your present political arrangements are faithless to your original compact. You will then find out how many of those you address are ones for whom you can speak, and thereby provisionally fix the limits of your political community and the limits of your political identity.

By thinking of political consent as directed toward principles, Rawls's vision of politics further entails that those who charge that society is now intolerably faithless to its original contract (those who prepare for, or herald, their withdrawal of consent) can only legitimately do so if they can show that their society has been radically faithless to its principles. What this perspec- tive obliterates is the possibility that this faithlessness might take the form of her society's failing to give her a voice in her own (political) history. The idea here is one that is given expression in Marx's talk (in The Critique of Hegel's Philosophy of Right) of "a social group that is the dissolution of all social groups, of a sphere that has a universal character because of its universal sufferings and lays claim to no particular right because it is the object of no particular injustice but of injustice in general." It is central to Mill's descrip- tion of our times (in On Liberty) as an epoch in which everyone who exercises their taste and decides a course of conduct thinks first of conformity, "until by not following their own nature, they have no nature to follow." The problem is not that a fair rule or principle has been unfairly applied in their case; the problem is rather that the whole framework of principles in terms of which they must conduct the second conversation of justice is experi- enced as so pervasively and systematically unresponsive to their suffering that it appears to stifle them, to constitute a vocabulary in which nothing that can be said truly speaks their mind, gives expression to their experience. Their sense is that society as it presently stands threatens their political identity

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because they can no longer recognize its institutions as ones in which they might lead a life that might genuinely be expressive of their sense of who they are.

Insofar as one might think of the right to lead a life of one's own as a fundamental principle of liberal democracy, such an appeal could be said to be a matter of principle, but its ground lies not in society's failure to apply one of the principles of justice, but in one of its member's experience of pain-individual pain, but of political origin, and therefore acknowledged by the sufferer as something to which she has consented, for which she bears some measure of responsibility. Since, however, it threatens her sense of identity, and since its political origin entails that she must regard those she takes to be fellow members of her political community as implicated in its imposition, she can only take up that personal responsibility by threatening to withdraw her consent-which means claiming that society is no longer hers and no longer theirs, by in effect asking those she regards as her fellows whether they can continue to consent to the way things are when one of those with whom they take themselves to be in community characterises their present political arrangements as ones in which she can only exercise her voice in this radical, and in a sense self-punishing, way-calling attention to society's refusal of her voice by refusing society her voice.

On Cavell's view, such a challenge puts the extent and range of our political commitments in question; presuming upon a shared identification with society, it asks us to recognize an unusual but radical threat to the well-being of a fellow member and challenges us to acknowledge our implication in that threat-which would mean taking on the responsibility of speaking our mind about it, demonstrating that society's representatives do not speak for us when they maintain that threat, and thereby beginning to do what we can to deflect or eliminate it. Since this appeal does not base itself on principles, such action could not resemble that required to respond to political dissent-no readjustment of political reality to its framework of principles will suffice, but only an openness to the need to re-found society, to the possibility that faithfulness to its founding principle of mutual consent might require that its founding principles of justice be transformed from the ground up. In this context, personal misery aims to provoke impersonal shame, and if that shame results in political action, it may show to the sufferer that her society is not yet entirely faithless to its original compact, and so not yet entirely undeserving of continued consent. Of course, the person so addressed may choose not to respond; he may think that the challenge is based not on misery but on envy, or is otherwise incompetently leveled, and he may be right. But on Cavell's view, any such challenge is not dismissable as incompetent in advance, purely by reference to its form; our political com-

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mitments to one another are not so narrowly defined, or so impersonally discharged. We must rather respond to the specific qualities of each such challenge, and if we decide to dismiss one, then that is our personal respon- sibility- that is the position we choose to take up with this particular would-be fellow member of our community. Since her address puts in question her continued sense of identification with us, then our negative response redefines the limits of our community-and in so doing, it further fixes our sense of who we are, politically speaking. On Cavell's view, therefore, by choosing to define political relationships in such a way as to make them beyond or above such reproaches, Rawls has made them unduly narrow and superficial. More particularly, he has helped to ensure that his ideal political community will be unresponsive to any calls for revisions of its founding vision, to any sense that its inevitable faithlessness might sometimes take the form of violating the identity of its members rather than their rights. Rawls's overly contractual conception of consent omits its embodiment of our consent to envisage transformations in the substance of our consent, and so to transformations of our selves and our society.

Political Liberalism

Against this background of argument, it is not difficult to see what Cavell might make of the shifts in methodology and emphasis attendant upon Rawls's recent representation of his theory of justice as fairness as a species of political liberalism. A key component of Rawls's definition of the purely political realm is his conception of its concerns as relating to the person understood purely as a citizen-an aspect of the person's identity that is to be sharply distinguished from those that depend upon her membership of sub- and supra-political communities such as churches, professional bodies, and trade unions, and that is a function of her embeddedness in certain basic political, social, and economic institutions. The more precisely Rawls defines the duties and obligations he associates with citizenship, the more evident it is likely to appear to Cavell that Rawls is attempting thereby to limit the responsibilities and commitments of political existence or identity to those of citizenship-or more precisely, the more contractual his conception of citizenship turns out to be. The problem is not, of course, that Rawls has a strong sense of the distinctiveness of the demands placed upon us in our political relationships-as opposed to those that flow from other kinds of association or identification with others (religious, moral, aesthetic, profes- sional, and so on). The problem is rather that he conceives of those distinc- tively political demands as if they apply only insofar as we stand in a certain

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socially defined role with respect to one another-as if citizenship were a special kind of institutionally defined or practice-based office rather than a basic dimension of human existence and relationship that is essentially open or partly undefined in advance.

This contractualizing emphasis appears in its most general form in the third of Rawls's criteria for specifying the realm of the political. We have already mentioned his conception of citizenship and its relation to the basic institutions of society, but his third criterion restricts any political theory that aims to deal with such matters to resources that are available in the public political culture of the society to which that theory is intended to apply. This means that it must not draw upon elements of any particular comprehensive doctrines or conceptions of the good-on pain of failing properly to respect the equal right of all its citizens freely to choose how to live their lives. This restriction derives from Rawls's conviction that Western liberal democracies exist in a condition of reasonable pluralism; their members are subject to the burdens of judgment (a variety of quasi-conceptual factors that make reason- able disagreement over fundamental moral issues inevitable), and a variety of competing and reasonable conceptions of the good have accordingly established significant support. Since reasonable citizens are bound to dis- agree over which of these comprehensive doctrines to adopt, and since they are equally bound to acknowledge this fact, they can only respect the freedom and equality of their fellow citizens by agreeing not to utilize their coercive political power in ways that are justifiable only by reference to one of these controversial comprehensive conceptions.

This specification of what counts as a legitimate political theory-namely, a purely political as opposed to a comprehensive one-bases its definition of the political realm, and so of political identity and citizenship, upon the presupposition that the boundary between purely political values and con- ceptions and comprehensive ones can be sharply and objectively settled in advance of everyday political debate (i.e., before engaging in the second kind of conversation about justice), and it assumes further (on pain of self- condemnation) that this can be settled in ways that do not themselves draw upon elements of controversial comprehensive doctrines. On closer inspec- tion, however, both assumptions appear excessively demanding and distor- tive of the reality of political debate.

Let us imagine, for example, someone who accepts Rawls's description of modern societies as existing in the condition of reasonable pluralism, and who further accepts that the very great value of a society organised along the lines of justice as fairness generally outweigh any values that might be furthered by the political imposition of any particular reasonable comprehen-

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sive conception. Such a person might nevertheless feel that certain funda- mental political issues overturn this general calculation of costs and benefits-that the specific comprehensive value at stake in the issue is of such importance as to justify a local suspension of the general priority of the relevant political values. One obvious such issue in contemporary society is that of abortion. For those who regard abortion as murder, no citation of the general gains that accrue from a liberal polity will outweigh their conviction that the state should give no support to those who engage in that practice. What, then, might a defender of purely political liberalism say to such citizens?

Rawls says this:

Suppose ... that we consider the question in terms of three important political values: the due respect for human life, the ordered reproduction of human society over time, including the family in some form, and finally the equality of women as equal citi- zens.... Now I believe that any reasonable balance of these three values will give a woman a duly qualified right to decide whether or not to end her pregnancy during the first trimester. The reason for this is that at this early stage of pregnancy the political value of the equality of women is overriding ... any comprehensive doctrine that leads to a balance of political values excluding that duly qualified right in the first trimester is to that extent unreasonable; and depending on details of its formulation, it may also be cruel and oppressive. (Political Liberalism [hereafter PL], p. 243, fn 32)

It is hard to avoid the conclusion that the voice of the opponent of abortion has here been firmly stifled. No hint emerges that the question of abortion is "troubled," because for many it involves the destruction of a human life; everything Rawls says implies that this concern (whether religiously in- flected or not) is somehow politically irrelevant-that any such opponent of abortion must either be failing to acknowledge the importance of political equality for women or is somehow committed to an unreasonable balancing of that political value with others. Even if we acknowledge that this is no more than a sketch of a possible argument, the skeleton of assumptions it lays bare makes it clear that even such troubled issues as these do not suggest to Rawls that the boundary between what is and what is not a political value is open to question, that the point of the process of political debate is precisely to work toward answers to such questions, and that in so doing both our conception of the political realm and our conception of ourselves as citizens is subject to further provisional definition.

What will only heighten the sense of misery and rage produced in opponents of abortion by this passage, the point that crystallizes their sense of voicelessness, is its seemingly untroubled use of the idea of what is and is not reasonable. We saw earlier that this idea is utilised by Rawls to define the

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boundary between political and comprehensive concerns and that it must do so without itself breaching that boundary. Its epistemological overtones certainly suggest the kind of impersonality and a priori precision charac- teristic of Rawls's contractualism, and its role is equally characteristic: the impersonal limits of the reasonable function as a means of excluding from the realm of politics the quality that Cavell has interpreted as characteristic of the realm of morals but that Rawls's contractarian account of that realm represses-the availability of a multitude of different but equally reasonable positions. In other words, Rawls uses his idea of the reasonable to ensure as far as possible that the realm of politics need not grapple with the possibility of reasonable disagreement.

Unfortunately, a closer inspection reveals that this exclusionary move is more controversial than it may appear. For what is "reasonable" is more a moral than an epistemological notion for Rawls; in part it is defined by an acceptance of the quasi-conceptual idea of the burdens of judgment, but it also requires an acceptance of a very specific conception of society:

Reasonable persons ... are not moved by the general good as such but desire for its own sake a social world in which they, as free and equal, can cooperate with others on terms all can accept. (PL, p. 50)

In other words, the reasonable is an element of Rawls's idea of society as a system of fair cooperation between free and equal persons; it is an aspect of his purely political but nevertheless morally substantive conception of social fairness. But then he cannot invoke it as the pivot of a supposedly objective or noncontroversial defence of this conception of society against those who might question its value or even reject its basic terms outright; for then he would either be arguing in a circle (taking for granted one central part of what is supposed to be in question) or he would be forced to reach beyond the limits of the purely political to defend his conception of society (including its conception of what is reasonable) as part of a comprehensive conception of human well-being.

It seems, then, that Rawls can only give an appearance of impersonality and definitiveness to his conception of the political realm; his vision of how any legitimate political theory must conduct itself certainly issues in a conception of the political relationships as clearly defined in their extent and range, but only because he presents a controversial conception of the limits of the purely political as if it were beyond reasonable disagreement. Taking up a fixed position on such an issue is not, of course, morally or rationally incompetent, but by presenting the matter as if it were impersonally fixed in advance, Rawls avoids the obligation to bear the personal responsibility that

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goes with the making of that decision, and its consequent fixing of the limits of the political community. From Cavell's point of view, Rawls's constant tendency to contractualize human moral and political relationships here reaches its apotheosis.

NOTES

1. "Perfectionism, Politics and the Social Contract: Rawls and Cavell on Morality and Politics," Journal of Political Philosophy 2, no. 3 (September 1994).

2. Mounted in S. Cavell, Conditions Handsome and Unhandsome (Chicago: University of Chicago Press, 1990).

3. In The Philosophical Review 64 (1955): 3-32.

Stephen Mulhall is aformier Prize Fellow of All Souls College, Oxford, and is currently reader in philosophy at Essex University. His publications include Liberals and Com- munitarians (2d ed., Blackwell, 1996), Stanley Cavell (1994), and Heidegger and "Being and Time" (1996).