Promising, Consent, and Citizenship: Rawls and Cavell on Morality and Politics Author(s): Stephen Mulhall Source: Political

Theory, Vol. 25, No. 2 (Apr., 1997), pp. 171-192 Published by: Sage Publications, Inc. Stable URL: http://www.jstor.org/stable/191944 Accessed: 20/07/2010 13:45
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ANDCITIZENSHIP PROMISING,CONSENT, RawlsandCavellonMorality Politics and

STEPHENMULHALL University ofEssex

to AN EARLIER ARTICLE' I attempted elucidate defend and Stanley of Cavell's recentcritiqueof JohnRawls's theory jusfice2-a critique from perspective what the of Cavellcalls"moral mounted In perfectionism." I thisessayI return that to becauseI feelthat failed to topic, entirely dispel of theappearance idiosyncrasy eccentricity Cavelltakesfewpains and that of and I to avoidinhisdevelopment hiscritique that didso inpart failing by it. I failed emphasise degree to to the to properly contextualise In particular, of whichCavell's recent book is a successor and critique Rawls's first to, a criticisms an earlypaperof of perhaps reiteration his much-earlier of, is Rawls's that primarily devoted issuesin moral to and philosophy, I also to the of failed explore question whether Cavell'scriticisms A Theory of of be to Justice recent might applicable Rawls'smost book,PoliticalLiberalism.By rectifying imbalances omissions, hopeto reinforce these and I my earlier that focuses conclusion-namely, Cavell'scritique uponan aspectof thatis fundamental Rawls's visionof morality to justice as fairness and and constant politicsquite generally, thatremains his throughout career, his including recent espousalofa purely political liberalism.

IN

MORALITY: PROMISING, PUNISHING, AND PLAYING GAMES In his 1955 essay,"Two Concepts Rules"3(hereafter of TCR), Rawls's immediate goal is to defendutilitarianism againstthe objectionthatit conflicts elementary with moral principles relating punishing promisto and ing,forexample, itis notan acceptable that reasonforbreaking promise a that is bestonthewholenottokeepit.He doesso bydrawing distinction it a
POL1TICALTHEORY,Vol.25 No. 2, April1997 171-192 ? 1997Sage Publications, Inc.

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172 POLmCALTHEORY/Apnl 1997

individual ofpromisingpunishing the acts or between and "social institution or and that of orpractice" promisingpunishing, then arguing utilitarianism as rather individual than the is designed justify practice a whole to acts within course hisargument, draws analogy of healso performed it.Inthe an and This him between practices games. permits toargue submitting such that a would no more a utilitarian defence breakingparticular for be promise than to field after one'sthird strike a game in intelligible refusingleavethe that be on whole allow ofbaseball the on grounds itwould better the to four to out"-an argument which accounts our for strikes constitute "striking of and about compatibility utilitarianism But suspicions the promise-keeping. he cannevertheless dismiss those that suspicions, arguing a utilitarian by of as would justas feasible defence the of practice promisinga whole be as to three-strike inthe onedirectedthe convention game baseball; the of in case ofpromising, example, needonly for one a out point that practice which denies thepromisor, a defence, general to as any to appeal theutilitarian principle the has great utilitarian of advantage allowing future betied the to down plans becoordinatedadvance. and to in Rawls takes these arguments toshow importance distinction deploy, heends essay the ofthe and his they indiagnostic byoutlining very mode, two different ofthe conceptions logical of status the of rules human one-which Rawls thinks practices: philosophers areprone assume-serves obscure importancethedistinction to to the of between and practices individual whereas other-to the which is he acts, committed-makes itsnecessity itslogical clear and basis. Cavell's concern the primary involves assumption underlies whole that the course Rawls's of argument-that and promising punishing practices are or socialinstitutions. defines quasi-technical "practice" Rawls his term as follows:
Anyform activity of specified a system rules by of which defines offices, roles, moves, defenses so on,andwhich and penalties, givesthe activity structure. examples its As one maythink gamesandrituals, of trials parliaments. and (TCR, p. 3, fn1)

What Rawls'sclaimthat justifies promising be added this of can to list that this examples, itfits definition "beyond question"?
Thisis shown thefact theform words promise" a performative by that of "I is utterance whichpresupposes stage-setting thepractice theproprieties the of and defined it. by (TCR, p. 30)

Butsoare"I warn, beseech, pick, bet, accuse, forgive "I commend you," him toyou," withdraw, "I protest" performative utterances. they practices? Are all

ANDCIT1IENSHIP CONSENT, MulhallPROMISING, /

173

between of onesoccurring be Theycan certainly thought as social actions, are a definite social ground, there particular and ways of persons against them-not anything do willbe competently performing performing just you are as But them. thisshowsonlythat they conventional well as social,that this it one call havewhat might a logicorgrammar; does notshowthat they a defines setof offices, ofrulesthat roles,moves, is specified a system by are and and threatening, revenge also defences, penalties, so on.Comforting, whohas beeninjured of socialactions possessed a grammar (onlysomeone but can can takerevenge, onlysomeonewho is suffering be comforted), in forms(e.g., revenge, although theycan take highlyinstitutionalised of and certain that societies havenot legalconcepts crime redress), developed and neednotdo so (I can be injured another, takerevenge uponher, they by and in highly ways). unexpected uninstitutionalised a were then could of IfRawls'sanalysis promising correct, being promisor unlike other offices areestablished that but be calledan office, itis obviously Unliketheoffice pitcher of or such as gamesor law-courts. in practices for it there no specialprocedure entering (no oaths), is prosecuting counsel, or for for routes beingselected training yourself it,andso on. no established to and it adult competent hold, one is Ifitis an office, is onethat normal any in herself itwith to with she that can holdsimply putting respect anyone by whom might she of whom is in,orwith a form relationship. create, certain she is Thesameholdsfor ideathat the with specified promising a practice certain In what promise we do indeed a learn what defences it defences. learning is, or to should failtokeepit.But we is appropriate competent enter, where, and to theseare notdefences as supposed specific promising opposedto other arejustthedefences learn learning defend ofour we in to any practices; they conductthatcomes to grief-thoseexcuses,explanations, justifications Cavellcalls"elaboratives") make thebulk moral that up of defence per (what se. Someonewhohas notyetgrasped does notsimply lack thosedefences theinformation needed participate a specific to in socialinstitution; ifshe for wereunaware thevarious of human actions be excused, can waysin which in or whata human defended, justified, whatsensewouldshe understand action Sucha person is? wouldlacka mastery socialintercourse se, a of per without which wouldnotqualify a responsible autonoshe as and mastery mousmember society. of Whatis goingwrong herecan perhaps mostclearly seen if we turn be to as or briefly Rawls's parallelanalysisof punishing a practice social For institution. Cavell,unlike punishing orincludes clear is a case promising, of a socialinstitution; "theinstitution punishment" be conceived but of can intwovery different ways.

/ 174 POLITICAL THEORY April 1997 of on with law Wemay conceivingiteither a par institutionskinship be like systems, and dimenwhich societies hives galaxies, from or religion, institutions distinguish general of ofhuman will or sions terms which community in any beings bedescribed;wemay ona or or be thinkingitas a specific of institution, parwith monogamymonotheism is interms which societydistinguished one from or institutions of suttee death stoning, by at or the another society, from samesociety an earlier stage. (TheClaim Reason, of hereafter Oxford: 1979, 299-300; OUP, pp. CR)

can one institution utilitarianism ofcourse On Cavell'sview, justify specific over and of punishment another, it cannot, is notmeant justify but the to, of as institution punishment such-since theonlyutilitarian general justifican is utilitarians only the cationfor punishment itsdeterrent effect, justify of that with effect so must lightest system punishment is compatible that and be to it wherever in principle committed abolishing altogether feasible. the of it Whatever merits that Rawls's view, however, shouldbe clearthat of as treats as ifit wereone specific it social analysis promising a practice be as to institution, if it might compared or replacedby another such of institution theway an institution revenge be (in might superseded a by for is legal system), whereas, Cavell,promising moreakinto one of the of be generaldimensions means of whichhumanforms life might by from and of distinguished theactivities interactions bees and stars. Human to follow beingsmakeandbreak promises, as they just point objects, rules, makethreats, issueorders, makeandbreak and to this friendships;point out is notto engagein comparative or sociology comparative anthropology, but to compile remarks aboutthenatural of history mankind. To see this,we need onlytryto imaginealtering removing or such of We dimensions ourform life. canimagine of someone urging reform a of of a giveninstitution revenge punishment,evenurging theinstituor or that be behind tionof revenge left but it altogether, whatmight meanto urgea reform alonethesupercession) the"practice" promising? how of (let of And one that as might justify "practice" itnowstands? Rawlsoffers following the justification:
Thepoint the of practicetoabdicate title act accordance utilitarian is one's to in with and inorder the considerations that future betied prudential may down plans and co-ordinated inadvance. There obvious are utilitarian advantageshavingpractice in a which denies tothe promisor, defence, general asa any appeal the to utilitarian principle inaccordance with which practice may justified. p. 16) the itself be (TCR,

This secondsentence notobviously is comprehensible. since(as Rawls For is part theconcept promising onedoes notkeepor of it of emphasises) that breakpromises general on utilitarian there wouldbe no promise grounds,

Mulhall PROMISING,CONSENT,AND CITI1ZENSHIP 175 /

apart a knowledgethat onthe ofthe from of fact would-be part so promisor; to we could intelligibly not individual actions attemptjustify under falling that to fact. sentence makes "advantages" concept appeal that Thefirst the by of the"practice" promising of rather more rather appear less optional, than are. fundamental, they one's to really Forabdicating title actupon utilitarian prudential and considerations as itwere, oneinstituis not, just tional ofcoordinating plans thefuture; very our for way the existence of and coherence individual human of society, the conduct, depends our upon so doing. Suchabdication notone specific is human but institution, a for institution persons all.Moreover, isolating preconditionany at among by as of "practice" promising, implies such abdication the of point the Rawls is central, even only, inwhich or that the promisingthe human way beings do so abdicate; anyhuman but has commitment exactly effect, this and is the promising by no means onlywayin which human create beings commitments.
There anynumber ways, are of other promising, committing than for to yourself a course ofaction: expression declaration anintention, giving an impression, the and of the of not someone's correcting a on misapprehension, beginning courseof conduct thebasis of which else hastaken someone and action, so on. (CR,p. 298)

There nothing is sacred about that promising isnot sacred about expressingan intention,anyother ofcommitting or way oneself category (a to which-insofarany as utterance with implications carries it orcommitments ofthe analysed Austin, kind by and Wittgenstein, Grice, amongst others-we must assign andall linguistic Promises important itis any are acts). when important explicit one's tobe about commitments, does make but that not our and many various nonexplicit commitmentslessreal constraining. any or In other words, Rawls'sanalysis makes promising appear bothless fundamentalmore and special itreally Asa resultmakes than is. it promising to appear be more a game like than really About it is. competitive games, much Rawls that into packs hisdefinition practice true. ofa holds There are defined clearly offices; counts a move the what as in game, so howone and might adjudicate over disputes whether a given action counts a move, as is settled advance a system rules rules play), onecaneasily in by of (the of and imagine over disputes possible reformsthe of game's rules-over baseball's three-strikes-and-out soccer's or rule, offside rule-disputes which to utilitarian considerations bepertinent. with would Even respect games, to howRawls's ever, analysis rigidifies reality practices. the of On hisaccount, whenever a person questioned challenged a is or about action is particular that defined specified a practice, that or by and challenge

THEORY/ 1997 176 POLITICAL April

is notdirected thepractice a whole, "must at as he assume thequestioner that know heis engaged itordoesn't that in know what practice the either doesn't of is is" (TCR, p. 27). Sincetheform theaction specified a rulethat by helps to to definethe practiceas a whole (since it is only by reference the of thathis actionis the actionit is), the only stage-setting thepractice he the action tocitetherelevant and is justification cangivefor specific rule, raise someonecan onlyintelligibly a question aboutthat actionif specific he are aboutthepractice is engaging orignorant in they either that ignorant in he is engaging it.The example Rawlsgivestobackthis is drawn from up baseball.
if In a game baseball, a batter toask"CanI havefour of were itwould be strikes?", what rule told assumed hewasasking the was;andif, that when what rule the was, he he that occasion thought he itwould best the on whole were saythat meant onthis to be him four rather three, would most this be for tohave strikes than taken kindly as ajoke. Onemight that would a better iffour be were contend baseball strikes allowed game of instead three; onecannot but picture rules a guide what best the the as to is on whole their inparticular and toparticular asparticular cases, question applicability cases cases. (TCR, 26) p.

Here we are touching of uponthepractice conception rulesthat Rawls his over concludes essaybyrecommending thesummary conception (which to is rulesas guides what beston thewhole), itshould clear and pictures be how thisconception be to the might thought underline distinction between as the justifying practices a wholeandjustifying individual actions occur that His batter questioning actionwhoseform partly is as partof them. an is of practice baseball, with definitive the of and to respect this particular (highly implausible) example,Rawls's claim thatthisquestionshows the questioner'sincompetence ignorance surelytrue.But does thatclaim or is to generalize all questioning all actions onemight of that think as defined of orspecified thepractice baseball? of by Theproblem that is "action defined the by practice" ambiguous: could is it refer anyaction is required therulesofthegame,oritcouldrefer to that by toanyaction doesnot that violate those rules (anyaction within legitimate the of limits play).The point that is mostlegitimate movesin thegamearenot required therulesofplay:onlyinsituations by where alternative no moveis open to herdo thedefining rulesof play dictate whata player mustdo, of although coursethey alwaysdictate how she must ifheractionis to act count a legitimate as movein thegame.Ifaccordingly, a certain at point in thegame, choosestotry stealsecond she to basewhen was opentohernot it to do so, and heractionconforms therulebook's specification what to of

MulhallPROMISING, / ANDCITIZENSHIP 177 CONSENT,

countsas stealing secondbase, herdecisionso to act can nevertheless be or competently challenged (e.g., as short-sighted, illselfish, otherwise and then considered), itcannot competently answered be the simply citing by rulethat defines what is to steala base. it In one sense,of course, sucha challenge notdirected theplayer's is at of rulesofthegame;itrather grasp thedefining criticises grasp what her of one might itsstrategic call it be that do principles-and might thought they notdetermine itis toplaythegamebut what rather itis toplaythegame what well. But no one who grasped game'sdefining a rulesand yetshowedno graspof itsstrategies wouldcount a competent as as player; Cavellputsit, "a certain of in mastery thegameis required order be saidtoplaythegame to atall" (CR,p. 304). Accordingly, a query about player's a action is based that its violation a game's principles play can be thought as a of upon of of to of it challenge hergrasp what is toplaythe game-of something helps that to define practice baseball. the of In general, "notknowing then, whata gameis" is notsynonymous with "not knowing rules the the of game";so itis not casethat the every intelligible challenge a particular to actionspecified a practice be satisfactorily can by answered citing defining its by rules.Rawls's analysisof gamesfailsto accommodate fact; is as ifhepresupposes every this it that action performed as partof a game mustbe determined (rather thansimply by beingin accordance the with) defining ofthat rules game-as ifevery moveina game is prescribed itsrulebook.Andbecausehe leavesno roomforstrategic by rulesin his visionof games,he loses sightof whatis perhaps most the fundamental about fact them-that within what must is ideally we games, do completely specified radically and marked from off what ought should we or notdo, so that might we focusexclusively thelatter. on
Itisas though within prosecution game, areset toconcentrate our the ofa we free allof consciousness energy the and on very human quests utility style: the for and if moves and rules betakenfor can then granted, wecangive ourselves totallydoing over to what will and applause. ideathat win, win (The freedom isachieved through subjection tothe lawis fully tothe true conduct games.) p.308) in (CR,

The point a gamelies notintheframework prescription makesup of of that itsrulesofplay, in thespacetherulesofplaydefine; but within space, that thosewhocan marry grasp strategy thenecessary a of to talent physical and who condition, can see what ought be doneandarein a position do it, to to aresetfree achieveforms human to of excellence. Rawls'svisionofgames mistakes framework thespace,the the for prescriptive means thecelebrafor endsthey tory subserve.

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is Cavell's view,therefore, thatRawls's understanding gamesis as of of he treats as as erroneous his understanding thephenomena erroneously and But most fateful to analogous games-namely, punishing promising. the that is is erroneous of implication that analogy itssuggestion howan action and in is in to be described evaluated moralterms determined advanceby akin of Partofwhat willbe called"rules" a in something to a system rules. howdisputes over what counts a moveinthe as booksettle game'srule game, whencertain or whether not a givenactionso countsare to be settled are whomake or eventualities andwhat arise, penalties defences opentothose common Without prearranged this couldnot sucha move. knowledge, games couldnotdo what do. and and be practised, umpires referees they Butmoral in and conflict cannot settled cannot practised this be be conduct way, moral to thedefining rulesof a practice. reference anything to An by analogous a promise notanalogousto a move in a game, is actionsuch as making what was becauseinsuchcontexts, precisely done-what"move" wasmade, settled advancebut is rather open in what"defence" offered-isnot an question.
will A moral debate the over breaking keeping a promise exactly or of concern such as what questions whether yousaidwas(tantamount (serious) whether to)a promise, from it you were to really prevented keeping(orperhaps succumbedtemptation only or what to to intimidation), whether, knowing waslikely happen, ought have you made it, whether didwhat possible alleviate consequences the was to the for promisee. you (CR, p. 295)

As we saw earlier, in competence moral argument a matter knowing is of whichdefences, excuses,and justifications is appropriate enter it to and but the of when, although relevance a particular consideration notup for is discussion argument, precise or the to weight be attached it is-and this to secondquestion typically coreofanyrealmoral is the dispute, which in an defence bemet a pertinent appropriate may by counter, then a pertinent and by responseto thatcounter, so on. So, although and any responsible and autonomous member society of must know howtomake promise, know a and that a amounts making commitment, know one to making promise a and that does notbreak keepparticular or promises general on utilitarian grounds, it does notfollow anyone that whohasmadea promise then and failed keep to itis necessarily to subject moral condemnation. Everything depend will upon thenature thecompeting of considerations, efforts the madebythepromisor to warnthoserelying herpromise, so on; in fact, theimmediate on and if consequencesof keepingthe promisewere sufficiently severe,and the did promisor everything possibleto mitigate negative the consequences of

ANDCITIZENSHIP 179 MulhallPROMISING, / CONSENT,

her and her inthe breaking promise, sheenters justification right atthe way not right then would beobviously time, it to moral sensibiliparadoxicalour ties her excuse action utilitarian for to her in terms. moral discoursenot arena which is an in individuals take For Cavell, then, whose and and moves are uppositions make responsibilitiesconsequences one which individual an comes fix to the in but fixed advance, rather within she to and for position which is prepared take responsibilityothers attempt is whether position something canrespect. that Moral todecide they agents make final a where will and must judgment concerning they stand how they and the stances must will regard different ofothers, those judgments conform callselaboratives, they not but of Cavell are tothe logicorgrammar what and in or determinedrules principles by agreed upon known advance. of thinks as the common we Cavell thread Bynow, perhaps, canseewhat of and them inRawls's portrayalgames, punishing promising. analysing By of definition practice,the ofa at heart which his of interms histechnical lies of of these conceptiondefining herigidifies forms human reducing rules, life, in the of responsibilities them arenas which precise to and range scope our in are fixed advance impersonal and our in by principles, restrictingrole them to thecarrying-out fixed of the of an responsibilities officeholder. With this that the respect games, means hestresses constraining to framework of and therules playto theexclusion thefreedoms virtues those of of that constraints possible. respect punishing, make With to itmeans hisfocus that the of manifestations than is upon socialspecificityitsinstitutional rather as a to uponitsspecies-specificityresponse wrongdoing guilt. and With itmeans heregards amongst to that one respect promising, of many ways the that human social interaction creating commitmentsmake possible if as itwere unique modifiable ofinteraction; a but mode inshort, Rawls treats as were contracts. promises ifthey legal
About everything says these Rawls about offices, defences, etc., true; details moves is the of "offer," "acceptance," "consideration," "misrepresentation," elaborately etc.,are the is and specified, practice definitive, a given conflict beadjudicated can (umpired). involves whole oflooking society, inwhich human a This, however, at one way all are as rather personal, relationships pictured contractual than within which one's arefrom outset commitments, liabilities, responsibilities the and total, at limited, not or in course being of determined. still We relate oneanother to anyrate always the as in but insofar westand certain as defined with roles respect one to persons, only socially The is if another. picture made clearer we include suggestion the the that central idea the Law is of underlyingEnglish ofContractthat a bargain. p. 299) (CR,

It would be difficult linkthis not to liberal vision morality the of to ofsociety sociologists characterized rationalization that have interms a of

THEORY April 180 POLITICAL 1997 /

between and distinction and to Gemeinschaft Gesellschaft, thereby thecomof munitarian But to critique liberalism. it might provemoreilluminating this of conclude section myessaybyadopting diagnostic the modeofwhich Rawls makesuse at theend of his own,and ask: whyshouldsomeone both and in misrepresent promising the morallife more generally this a someone of particular way?How orwhy that might adopt conception rules him both encourages to contractualize ourpersonal and responsibilities our interpersonal relations? To think thecommitmentswhich of to human and speech action givesrise of as fixedby a system defining rulesensures thosecommitments that are in limited advance,and limited impersonal in of ways; to think human as determined ouroccupation sociallyderelationships exhaustively of by fined roleslimits advancetherange depth their in and of claimsuponus as On the persons. Cavell'sview, reality that reach suchcommitments is the of andrelationshipsalwaysinthecourse being is of and in determined, so must fact fixed us. So Rawls'svision themoral effectively be of life by makes the self'scommitments relationships fluid moreevident and less and than they really andthereby are, of conjures a fantasy a selfthat more up is more fixed, and invulnerable more to than really transparentitself it is. Takefirst Rawls'sconception theself'scommitments. concept of The of human action tiedtotheconcept elaboratives is of becausetheindependence oftheworldandthepreoccupations themindineluctably of drive wedge a between an what agent thinks herself doing what actually of as and she does; that gap is onlymadebearable hercapacity excuseor explainit,and by to to to thereby contribute determining she is answerable (e.g., by what for the characterising actualconsequences whatshe did or failedto do as of unforeseen unforeseeable, inadvertent accidental, heedlessly or as or as or unwillingly entrained). subjecting By personal answerability one's acfor tionsto impersonal Rawls trades limits, one kindof humanfreedom for another: restricts potential he the individualityourelaborations, so our of and personal contributionfixing for to that which areanswerable, he also we but restricts capacity world mind require the of and to suchelaboration us,to of putin question settled any sensewe might have of whatwe are or can be responsible andso ofwhowe are.He transforms person's for, one determination thelimits hervulnerability an agentintoan objective of of as and foreseeable limitation human upon vulnerabilitysuch, thereby as and attenuatestheself'ssenseof exposure itsworldand to theopacity itsown to of In motivations. short, restricting self's capacity self-definition, the by for Rawlsfortifies capacity self-possession. its for A similar trade-off his grounds contractualization ofhuman relationships. their By regarding range extent fixed impersonal defining and as by rules the

MulhallPROMISING, / ANDCIT CONSENT,

NSHIP 181

socialroleswe occupy, us Rawlsrelieves oftheresponsibility ofhaving todefine redefine limits our and their constantly as moral with relationships and alter others under pressure newcircumstances the of develop and actions. we unforeseen our to to Instead, canregard ability continue inhabit the same moral universe purelyfunctionour as a of success applying in the rules moral andany defining ofour discontinuation result as the practices, of a certain ofimpersonal kind In neither do we discover case incompetence. about other whom aredealing, about we something theparticular with or moral encounternolonger matter exploring defining is a of ourselves; and thepositions feelabletooccupy, so ofdefining we and ourselves. a Such vision out advantages might rules any that accrue interpersonal from relations ofgreater orintimacy, italsorules any but out disadvantages might depth that accrue from deeporintimate claims others make that any us. may upon For thekeyanxiety consequent remaining tothedevelopmenta upon of open more with personal is more theselfmust of relationship others that be in to exposed order do so. Onceagain, Rawls sacrifices self's the potential self-definition desire self-possession. for toits for

POLITICS: CONSENTANDCITIZENSHIP A Theory Justice of

InhisCarus Lectures, Cavell argues Rawls's that contractual ofthe vision moral carries into vision politics social life over his of and justice, that as is presentedA Theory Justice in of (hereafter Tobegin Ti). with, section of 52 ATheory ofJustice deploys unaltered idea promising social entirely the of asa institution orpractice wehavespent much criticising In that so time here. other that words, early account this of human is activitydeemed Rawls by to fit into wider neatly the that theory heisconstructing much book. inthis later But can it be shown that wider this theory itself embodies unduly an contractual ofthe notion political life? InA Theory Justice, of something wemight the that call conversation of occurs two at points. justice There the is conversation eventual citizens must haveabout fairness theoriginal the of in position which principles the of are justice chosen, there alsothe and is conversation citizens have actual must injudging degree which the to those principles embodied theactual are in of society which arepart. first, they The founding conversation is meant to establish faimess the the of principles required the in second conversation, tomeasure degree which the to existing institutions from social diverge ideal

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POLMICAL THEORY /April1997

The conversation toattain aims reflective between justice. first equilibrium and of intuitions justice survive about that some ofprinciples those our set but is second conversation conducted? tobe Rawls upon reflection, how the of from to "the saysthat measure departures theidealis left importantly of as of to but intuition" is ultimatelybe understood a matter thedegree with principles characterize that a well-ordered society's compliance "the and that who resentfavourable under society circumstances," "those express to must state ment the [at existing ofsociety] beprepared show certain why them" pp.245,246, or have are institutionsunjust howothers injured (TJ, remarks that second conversation ofjustice also and533).These imply the and and if of involvesmatchingintuitions principles that aninitial a judgment is cannot be an that injustice being perpetrated ultimately backed by up interms a principlejustice, itmust of to then be reference(orarticulated of) the of was can and of rejected, those us towhom accusation voiced think and conduct beyond ourselves "our reproach" p.422). (TJ, [a]s his to question As Rawls explicitly acknowledges, general approach the of on traditionsocial contract carries the ofsocial justice theory. aiming By to it the that toensure any that principles areagreed withinarefair, structure to of us to oftheoriginal position gives reason consent membershipany and makes those central any to that society embodies them, thus principles whether actual our at given moment to deserves attemptsassess society any In the ourcontinued that allegiance. other words, emphasis principles upon to conversation ofjustice carries is central thefirst to through thesecond ofjustice, this very and has conversation specific consequences.
The idea ofdirecting consent theprinciples which to on society basedrather is than, as it were,to society such,seemsto be or to lead to an effort imagine as to confining or I the proportioning consent givemysociety-toimagine thesocialcontract only that not in that from states effect I maywithdraw consent when public the my society institutions I ofjusticelapsein favour which haveforegone of certain natural rights judgement (of andredress), that contract but the in might, principle, specify howfarI mayreduce my consent scope or degree)as justiceis reduced or (in (legislatively judicially). my But intuition that consent notthus is is or my modifiable proportionable (psychological exile is notexile): I cannot focussed thesuccessesor gracesof society; on keep consent it reachesintoevery corner society's of failure ugliness. or (Conditions Handsome and

Unhandsome,107-8) pp.

OnRawls's ofpolitical principles-based understanding consent,society's a with principlesjustice amount its of partial compliance its must to distancing itself its from members-the degree depth the or of distancing proporbeing tional the to degree itsnoncompliance those of with principles. Cavell's On ofpolitical such understanding consent, partial compliance rather may pre-

ANDCITIZENSHIP 183 MulhallPROMISING, / CONSENT,

with sent itself a senseofcompromise itorconspiracy it-as revealing as by to I thedegree which havegiven consent injustice. to my in ofmembership thepolitical commuIn effect, Rawls's interpretation of promising, too contractual; underis he nity, likehis interpretation just of commitments responsibilitieswhich and to and stands nature extent the the in rules they openus as settled advance impersonal by defining orprinciples. of us it This has theeffect distancing from society, making appearas an central theteaching thesocialcontract to of effect is indeed that artifact-an of but that myth, italso has theeffect denying something is equallycentral of to itsteaching-itsarticulation how deeplywe experience ourselves as as in with joinedtosociety, being implicated oridentified it,andso as having in its consented it.He misses, short, sensethat consent to our alwaysalready as as is tosociety suchas much itis toanyprinciples it be uponwhich might founded. ForCavell,theclassicalcontract theorists (particularly Rousseau)do not of is think thefull that reach ourconsent society determinable advance to in in terms specific of ofwhether notwe explicitly or or principles, regardless or insteadwe can legitimately think of tacitly agreedto them, whether ourselves ifwe haddoneso. On hisview, as these rather theorists from begin that of as thedatum we think thissociety ours, that recognize we ourselves and as party society itsarrangements, that do notalways to but we recognize for ourselves responsible thespecific as lacksoffreedom, and inequalities, absenceof fraternity they that sustain. Faced with thesecircumstances, we needtodiscover howfar consent our for it reaches, what makes responsius to ble,andto whatwe areprepared continue consent; content our to the of its and are settled advance such in consent, substance, itsrange not of practical instances thesecondconversation justicebutare rather of their of of one central be must determined them. topics, ofwhat part by A better senseofwhat suchdetermination involves appear we look will if morecloselyat how,according Cavell,themyth thesocial contract to of conceptualises consent. WhatI consent whenI consent the political to to socialcontract notmere is obedience thegovernment, membership to but of a political and Cavell,that twoimplications: community, for has
First, I recognize principleconsent which that the of itself; means I recognize that others tohave consented me, hence I consent political with and that to equality. Second, I that the recognize society its and government, soconstituted, which asmine; means I am that not answerable merely it, for So far, as I recognize to but it. then, myselfbeexercising to my for responsibility my it, obedience itis obedience my laws; to to own citizenship in that is the case same my as autonomy; polis the the is field within whichwork my I out political and identity itis the creation (political) of freedom. p. 23) (CR,

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as in the or here Politics appears an arena which selfdefines creates itself; is of as and as political autonomy an aspect human autonomy such, insofar I I must think myself shaping of as or exercise political my responsibilities, But is essenforming (political) my identity. thisprocessof self-definition within which canalonebe achieved constituted it the is tially communal; field and as only insofar I recognize others, they recognize as fellow-members; me, and consent the to polisas mine sincethe polisis a community, sinceI cannot that else who givestheir without consent equally can recognizing anyone I viewthelawsoftheperfected as both claimitas their mine own, must polis work mypolitical out alone. andours.I cannot identity is In other to words, speakforoneself politically to speakfortheothers whom to and to with for youconsent association, itis to consent be spoken in for someone whospeaks bythem-as someone mutuality speaks you, your for and mind. for is of content Speaking others being spoken byothers part the of politicalconsent; that is of for granting consent a condition speaking But oneself the politically. then fundamental of "disadvantage" withdrawing one's consent becomesclear:itwouldamount having to nothing (political) to voiceless. Without a tosay, being politically commurecognizingpolitical as which meansmaking answerable itandallowing for nity yours, yourself to others speak foryou, thereis no such thing politicalidentity, as no of out This possibility working that aspectof one's autonomy. is whythe of social contract thinks us as deeplyjoined to society;to talkof myth as amounts thinking an advantage to membership having it "advantages" to existpolitically, havea political to self. It willtherefore be hardly newsto a socialcontract theorist despite that, thespecific of imperfections mostactualpolitical communities, will they the rarely of outweigh disadvantages withdrawing consent one's from This it. means themodeofpolitical that discourse is likely dominate that to everyday life of an political is that dissent-not undoing consent, a dispute of but about itscontent,dispute a within overwhether it present arrangements faithful are to it.It amounts declaring whilst political to that, the community continues tobe yours, doesnotinthis it respect speakfor you;itamounts an attempt to to exercise your to responsibilitymakethelaws ofthepolisyour own,ones forwhich to youareprepared be answerable. Nevertheless,atsomepoint if thedegreeof society's distance from ideal becomesintolerable, a its then withdrawal consent of mayappear unavoidable. Since,however, too is that a kindof political act,it mustinvolvespeaking bothforyourself for and others: you mustsay both"It is not mineany longer"(I am no longer responsible it,itno longer for speaksfor me) and"Itis no longer ours"(not what bargained we no longer we for, recognize principle consent it, the of in theoriginal "we" is no longer boundtogether consent byforce, by but and

/ MulhallPROMISING, ANDCITIZENSHIP 185 CONSENT,

It so nolonger a to the exists). is,ineffect,last-ditch attempt re-found political to its to community, restore faithfulnesstheoriginal contract forcing an by of acknowledgementitspresent faithlessness. of and aboutitscontent exercises are Bothwithdrawals consent disputes ofone'spolitical voiceandso constitute ofwhat Cavellcallsthesecond part of in are conversation justice.In both cases,those engaged them attempting the and consent-todiscover to determine substance rangeof their what to to present position areprepared take with they up respect the arrangements In what are for ofsociety. determining they answerable politically speaking, of work thelimits their out and of they political identification, so thelimits means limits the the of community which their with political identity-which In consent associate. short, explore, to and the they they define, redefine depth and of oftheir them. Insofar they as membership theextent those joinedwith must continue claima political to that voice,they acknowledge they speak for and others but others that others is nomore are speakfor them, whothose knowable priori the a than range substance their and of In consent. these ways, a political intercourse constitutesmodeofeducation: presupposes the it that of finding and forming myself the and requires finding forming my of with relations others. From Cavell'sperspective, Rawlsmultiply distorts reality political the of He intercourse. assumes those that whoexercise their voiceaccordpolitical of ing to theterms thesocial contract myth possess a settled and shared of of limits their knowledge thepreexisting sincethisconsent consent, is directed the at principles found that their rather atsociety such. than society as This implies their that is political identity notso much found formed or by theirintercourse withothersas confirmed reaffirmed; depthand or its to of extent-which, according theterms thesocialcontract, means depth the of their identification society with and theextent thosewho sharethat of identification-is never opento exploration further or definition redefi(or nition) through political or engagement activity thecommunity, is in but entirely or transparent self-evident advanceof any particular in political discussion encounter or withothers. short, (political)self,like the In the moral is self, entirely obvioustoitself. As we have seen,it further implies that consent be thought as a can of matter degree as entirely of and proportionalthe to degree society's of success in implementing founding its principles. eliminates This whatis surely not an uncommon aspectof political phenomenology-the sense that least at someofsociety's failures justiceimplicate members, amongst of its that the worst theill consequences of attendant socialinjustice thefact upon is that itis donein ourname, that mere and no personal recitation reiteration or of ourcommitment principles justicecan eradicate responsibility to of our for

/ 1997 THEORY April 186 POLMICAL

is done.Forifwe think political of consent consenting have as to what being a political a voice meansallowing others voice,and if having political to the then cannot speakinyour name, you pickandchoosebetween particular of as things they as representativeyour say political mind-you cannot, it to but from consent society withdraw consent somesubset the of were, your said and donein its(and so in your)name, ifyour as things mind political andpartly to theterms themyth of was partly public of private. According there no suchthing a private ofyour is as thesocialcontract, part political as no modeofpolitical To mind, suchthing a private speech. distance yourself from either yoursociety's withdraw imperfections, must you entirely your which means voiceentirely-becoming consent, losing your political politiwith the"disadvantages" accrues; youmust all that callyvoiceless, or show do that your society's representativesnotspeakfor youbyspeaking (differfor dissenting which means those ently) yourself-by politically, addressing with to that youtake be incommunity youandclaiming your present political are to You willthen find out arrangements faithless your original compact. howmany those address onesfor of are you whom canspeak, thereby you and fix limits your of provisionally the and of political community thelimits your political identity. of By thinking political consent directed as toward Rawls's principles, visionof politics further entails that thosewhocharge that society now is faithless itsoriginal to intolerably contract (those whoprepare orherald, for, their withdrawal consent) only of can do can legitimately so ifthey showthat their has society beenradically faithless itsprinciples. to What perspecthis tiveobliterates the is possibility this that faithlessness take might theform of hersociety's failing giveher voiceinher to a own(political) history. idea The hereis onethat given is in expression Marx'stalk(inTheCritique Hegel's of Philosophy Right) "a social group of of that thedissolution all social is of of that a universal has groups, a sphere character becauseof itsuniversal and sufferings laysclaimto no particular becauseitis theobjectofno right injustice ofinjustice general." is central Mill's descripparticular but in It to tion ourtimes OnLiberty) anepoch which of as (in in everyone exercises who their tasteanddecidesa courseofconduct thinks ofconformity, first "until their by not following own nature, theyhave no nature follow."The to is a problem notthat fair ruleorprinciple beenunfairly has appliedin their is case; theproblem rather thewholeframework principles terms that of in of whichtheymustconduct secondconversation justiceis experithe of encedas so pervasively systematically and unresponsive their to suffering that appears stifle it to to them, constitute a vocabulary which in nothing that canbe saidtruly their speaks mind, gives expression their to experience. Their senseis that as society it presently stands threatens political their identity

/ ANDCITIZENSHIP 187 MulhallPROMISING, CONSENT,

becausethey no longer can its as recognize institutions onesin which they be of lead a lifethat senseof who might might genuinely expressive their are. they think theright lead a lifeof one's own as a of to Insofar one might as fundamental of such principle liberal democracy, an appealcouldbe saidto of but lies be a matter principle, itsground notin society's failure apply to of of one of theprinciples justice,butin one of its member's experience but and pain-individual pain, ofpolitical origin, therefore acknowledged by she for thesufferer something which has consented, whichshe bears as to it of her some measure responsibility. Since,however, threatens sense of and entails shemust that thoseshe identity, sinceitspolitical origin regard of takesto be fellow members herpolitical as in community implicated its she imposition, can onlytakeup that personal responsibility threatening by her meansclaiming society no longer that to withdraw consent-which is hers no longer and those regards herfellows she as theirs, ineffect by asking whether cancontinue consent thewaythings when ofthose to to are they one withwhomtheytakethemselves be in community to characterises their present political as arrangements ones in whichshe can onlyexercise her voiceinthis and radical, ina senseself-punishing, to way-callingattention of refusal hervoicebyrefusing society's her society voice. On Cavell's view,such a challenge and rangeof our putsthe extent in political commitments question; presuming upona shared identification withsociety, asks us to recognize unusualbutradicalthreat the it an to of well-being a fellowmember and challenges to acknowledge us our in implication that threat-which wouldmeantaking the on responsibility of our aboutit,demonstrating society's speaking mind that representatives do notspeakfor when us they maintain threat, thereby that and beginning do to whatwe can todeflect eliminate Sincethis or it. appealdoes notbase itself on principles, suchactioncould notresemble required respond that to to politicaldissent-no readjustment political of to reality its framework of will principles suffice, onlyan openness theneedtore-found but to society, tothepossibility faithfulnessitsfounding that to principle mutual of consent that might require itsfounding of principles justicebe transformed the from ground In thiscontext, up. personal misery aims to provoke impersonal and shame, ifthat shame in results political action, mayshowtothesufferer it that society notyet her is entirely faithless itsoriginal to compact, so not and of yetentirely undeserving continued consent. course,thepersonso Of addressed choosenot respond; may may to he think the that challenge based is notonmisery onenvy, is otherwise but or incompetently leveled, hemay and be right. But on Cavell's view,any suchchallenge notdismissable is as in incompetent advance, purely reference itsform; political by to our com-

188 POLITICAL 1997 THEORY/ April

are mitments one another notso narrowly to or defined, so impersonally We to of discharged. mustrather respond thespecific qualities each such and that challenge, ifwe decidetodismiss one,then is ourpersonal responthat is the positionwe choose to take up withthisparticular sibilityof would-befellowmember our community. Since her addressputs in sense of identification us, thenour negative with questionhercontinued of response redefines limits ourcommunity-and so doing, further the in it fixesour sense of who we are, politically On speaking. Cavell's view, to in therefore, choosing define by political relationships sucha wayas to makethem or Rawlshasmadethem beyond abovesuchreproaches, unduly narrow superficial. and Moreparticularly, has helpedto ensure he that his will idealpolitical to community be unresponsive anycalls for revisions of to any sense thatits inevitable its founding vision, faithlessness might take of the sometimes theform violating identity itsmembers of rather than theirrights. Rawls's overlycontractual of conception consentomitsits of to embodiment ourconsent envisage transformations substance in the of ourconsent, so totransformations selvesandoursociety. and ofour PoliticalLiberalism of this it Against background argument,is notdifficult see what to Cavell in might make of the shifts methodology emphasisattendant and upon Rawls'srecent of representationhistheory justiceas fairness a species of as ofpolitical A liberalism. keycomponent Rawls'sdefinition thepurely of of realmis his conception its concerns relating theperson political of as to understood as purely a citizen-an aspectoftheperson's identity is to that be sharply from that distinguished those depend her upon membership subof and supra-political communities as churches, such professional bodies,and tradeunions, and thatis a function herembeddedness certain of in basic political, institutions. more social,andeconomic The precisely Rawlsdefines theduties obligations associates and he with citizenship, more the evident it is likelyto appearto Cavell that Rawls is attempting thereby limit to the responsibilities commitments political and of existence identity those or to of citizenship-or moreprecisely, morecontractual conception the his of turns to be. The problem not, course, Rawlshas a out citizenship is of that sense of thedistinctiveness thedemands strong of placeduponus in our political relationships-as opposedto thosethat flowfrom other kindsof association identification others or with (religious, moral, aesthetic, professional,andso on). The problem rather he conceives those is that of distincas demands ifthey tively political insofar we stand a certain as apply only in

ANDCITIZENSHIP 189 MulhallPROMISING, I CONSENT,

to werea role sociallydefined with respect one another-asifcitizenship defined practice-based specialkindof institutionally or office rather a than of existence relationship is essentially basicdimension human and that open orpartly undefined advance. in This contractualizing form the in emphasis appearsin itsmostgeneral forspecifying realmof thepolitical. have the We third Rawls's criteria of mentioned conception citizenship itsrelation thebasic his of and already to of restricts political institutionssociety, histhird but criterion that any theory to that aimsto deal with suchmatters resources are availablein thepublic that is culture thesociety which theory intended apply. of to to political This meansthat must drawuponelements anyparticular it not of comprehensive or of doctrines conceptions thegood-on painoffailing to properly respect theequalright all itscitizens of to lives.This freely choosehowtolivetheir restriction Rawls'sconviction Western derives from that liberal democracies existina condition reasonable of their are to pluralism; members subject the burdens judgment variety quasi-conceptual of of (a factors make that reasonable disagreement fundamental over moral issuesinevitable), a variety and of competing reasonable and of conceptions the good have accordingly established Sincereasonable significant citizens boundto disare support. of agreeoverwhich these comprehensive doctrines adopt, sincethey to and areequally bound acknowledge fact, canonly to this the they respect freedom andequality their of fellow citizens agreeing to utilize by not their coercive are political powerin waysthat justifiable byreference oneofthese to only controversial comprehensive conceptions. Thisspecification what of counts a legitimate as political theory-namely, a purely as political opposed a comprehensive to one-bases itsdefinition of thepoliticalrealm,and so of politicalidentity citizenship, and uponthe presupposition theboundary that between purely political valuesand conand ceptions comprehensive can be sharply objectively ones and settled in advance everyday of political debate (i.e.,before engaging the in second kind of conversation aboutjustice),and it assumesfurther pain of self(on that condemnation) thiscan be settled waysthat notthemselves in do draw of uponelements controversial comprehensive doctrines. closerinspecOn tion, bothassumptions however, appear excessively demanding distorand tiveofthereality political of debate. Let us imagine, example, for someone whoaccepts Rawls'sdescription ofmodern societies existing thecondition reasonable as in of pluralism, and whofurther accepts thevery that great valueofa society organised alongthe lines of justice as fairness generally outweigh values thatmight any be furthered the by political imposition any of particular reasonable comprehen-

I 1997 190 POLMCALTHEORY April

feel fundaSuch a person nevertheless that certain sive conception. might this generalcalculationof costs and mentalpolitical issues overturn the value at stakein theissue is of benefits-that specific comprehensive as a of of suchimportance tojustify localsuspension thegeneral priority the values.One obvioussuchissueincontemporary is relevant political society whoregard abortion murder, citation the as no of For that abortion. those of will their accrue from liberal a general gainsthat polity outweigh conviction that stateshouldgiveno support thosewhoengagein that the to practice. of a What,then,might defender purely politicalliberalism to such say citizens? Rawlssaysthis:
we the in of ... values: important political Suppose that consider question terms three for ofhuman the respect human the over due life, ordered reproduction society time, in and of including family some the the as form, finally equality women equalcitithat reasonable balance these of three values givea will zens.... NowI believe any woman duly a whethernot end pregnancy the or to her qualified todecide right during for is first trimester. reason this that this The at of the early stage pregnancy political of equality women overridingany of is ... value the doctrine leads comprehensive that of values that qualified inthe trimester toa balance political is excluding duly right first and tothat extent on of itmay unreasonable; depending details itsformulation, alsobe
Liberalism cruelandoppressive. (Political [hereafter p. 243,fn32) PL],

Itis hard avoidtheconclusion the to that voiceofthe of opponent abortion stifled. hint No has herebeenfirmly that of emerges thequestion abortion is becauseformanyit involves destruction a human the of "troubled," life; Rawls says impliesthatthisconcern everything in(whether religiously or flected not)is somehow irrelevant-that suchopponent politically of any musteither failing acknowledge importance political abortion be to the of for or equality women is somehow committed an unreasonable to balancing of that valuewithothers. Even if we acknowledge thisis no political that more than sketch a possible a of argument, skeleton assumptionslays the of it baremakesitclearthat evensuchtroubled issuesas these notsuggest do to the Rawlsthat boundary between what andwhat nota political is is valueis that of opentoquestion, thepoint theprocess political of debate precisely is to worktoward answers suchquestions, that so doingbothour to and in of realm ourconception ourselves citizens conception thepolitical and of as is subject further to provisional definition. What will only heighten sense of misery the and rage producedin of opponents abortion this the by passage, point crystallizes sense that their ofvoicelessness, itsseemingly is untroubled oftheideaofwhat andis use is notreasonable. sawearlier this We that ideais utilised Rawlstodefine by the

ANDCITIZENSHIP 191 MulhallPROMISING, / CONSENT,

and and it between do boundary concerns that must political comprehensive that Its epistemological itself overtones so without breaching boundary. the of and certainly characsuggest kind impersonality a priori precision and of characteristic: teristic Rawls's the contractualism,itsroleis equally of reasonable functiona means excluding as impersonal ofthe limits from of the that the has as characteristic realm politics quality Cavell interpreted realm morals that of ofthe but Rawls's contractarian account that of realm of ofdifferentequally but represses-the reasonable availabilitya multitude In Rawls hisideaofthe uses reasonable ensure to positions. other as words, of as that realm politics not need grapple the with possibility far possible the ofreasonable disagreement. a closer reveals this that exclusionary is move Unfortunately, inspection more than For is controversial itmay is appear. what "reasonable"more a than notion Rawls; part is defined an in moral anepistemological for it by of quasi-conceptual ofthe idea burdens judgment, it of acceptance the but an alsorequires acceptance a very of of specific conceptionsociety:
Reasonable ... not but for own by general as such desire its good persons are moved the a in sake social world which as free equal, cooperate others terms and can with on they, allcanaccept. p. 50) (PL,

In other the is words, reasonableanelement Rawls's ofsociety a of idea as of cooperation between andequalpersons;is anaspect system fair free it of hispurely political nevertheless but substantive morally conceptionsocial of fairness. then cannot But he invoke as the it of pivot a supposedly objective ornoncontroversial ofthis defence of conceptionsociety against those who or its might question value even its for outright; then he reject basicterms either arguinga circle in would be (taking granted central ofwhat for one part is supposed be inquestion) he would forced reach to or be to beyond the limits the of purely political defend conception society to his of (including itsconceptionwhat reasonable) part a comprehensive of is as of conception ofhuman well-being. Itseems, that then, Rawls only anappearance impersonality can give of anddefinitiveness conceptionthe tohis of political realm; vision how his of anylegitimate political theory must conduct itself certainly issuesin a conceptionthe of political relationships as clearly defined their in extent and but range, only because presents he a controversial conceptionthe of limits ofthe as purely political ifitwere beyond reasonable disagreement. Taking upa fixed on an position such issue not, course, is of morally rationally or but incompetent,bypresenting matter ifitwere the as impersonally in fixed Rawls advance, avoids obligationbear personal the to the responsibility that

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goeswith making that the of and decision, itsconsequent of fixing thelimits of thepolitical community. FromCavell's pointof view,Rawls's constant tendency contractualize to humanmoraland politicalrelationships here reaches apotheosis. its

NOTES
1. "Perfectionism, Politicsand the Social Contract: Rawls and Cavell on Morality and Politics," Journal Political of Philosophy no. 3 (September 2, 1994). 2. Mounted S. Cavell,Conditions in Handsome and Unhandsome (Chicago:University of ChicagoPress,1990). 3. In ThePhilosophical Review (1955): 3-32. 64

Stephen Mulhallis aformier PrizeFellowofAllSoulsCollege,Oxford, is currently and readerinphilosophy Essex University. publications at His include Liberals and Communitarians ed.,Blackwell, (2d 1996),Stanley Cavell(1994),andHeidegger "Being and andTime"(1996).