The refutation of utilitarianism, and its replacement by some new and comprehensive alternative, has become one of the major Anglo-American growth industries. The problem of how to live with a liberal and mildly interventionist state if we no longer accept the premisses upon which such a state was originally founded has rightly exercised philosophers on both sides of the Atlantic, though it is striking how difficult it has proved for them fully to disentangle themselves from the old ways of thinking. Bruce Ackerman’s Social Justice in the Liberal State is the latest work to consider these matters. It is distinguished by two features: one is its unusual heuristic device of what he calls ‘dialogic’ method, and the other is the seriousness with which it takes the familiar call for a plurality of political and moral visions – ‘conceptions of the good’, in Ackerman’s terminology. His argument starts from a simple question: ‘what would our social world look like if no one ever suppressed another’s question of legitimacy, where every questioner met with a conscientious attempt at an answer?’ To answer this question, he imagines a set of dialogues consisting of claims for special treatment in some area of social life by one agent countered with scepticism from another, and supposes that any dialogue which ends in silence on the part of one participant represents a defeat for his claim and (in an ideal world) his failure to make it good in terms of the real conditions of social life.
Despite the fact that his imagined interlocutors appear to have extremely limited intellectual resources, to be suspiciously easily silenced by one another, and to inhabit a world drawn largely from early 1950s Science Fiction, this is a distinctive and not unattractive heuristic device. But Ackerman at times seems to want to claim more for it: he talks of the ‘dialogic bond’ as the heart of liberalism, and deplores the possibility of ‘unleashing forces that may rapidly destroy all hope of reestablishing civil dialogue’. Indeed, there is in some of his remarks an almost Habermasian sense that the agreement actually arrived at in the context of an unconstrained dialogue or communication between social agents would eo ipso constitute the source of legitimacy for social actions. But in Habermas this conviction is linked to the much deeper claim that truth itself is nothing other than such an unconstrained consensus, while Ackerman operates with a perfectly conventional philosophical apparatus in areas outside his political theory. Given this, it is difficult to see how his dialogues can be intended to do more than point to conditions for legitimate social action which gain their legitimacy, not from the fact of a possible or actual dialogic consensus, but from the principles according to which any dialogue must be structured – and those principles can be considered in isolation from any putative communicative acts to which they might be applied.
The relevant principles are outlined as follows:
A power structure is illegitimate if it can be justified only through a conversation in which some person (or group) must assert that he is (or they are) the privileged moral authority:
Neutrality. No reason is a good reason if it requires the power-holder to assert:
(a) that his conception of the good is better than that asserted by any of his fellow citizens, or
(b) that, regardless of his conception of the good, he is intrinsically superior to one or more of his fellow citizens.
We can put the apparatus of ‘conversation’ and ‘assertion’ on one side, and restate these principles in the more familiar forms that either (strong version) no one man’s conception of the good can be said to be better than anyone else’s and no person can be said to be intrinsically superior to another, and that therefore these cannot be good reasons for anything, or (weak version) that no superiority either of his conception of the good or of his own person is a good reason for one man to have power over another. Ackerman is prepared to employ either formulation, endorsing the strong version by saying that ‘while everybody has an opinion about the good life, none can be known to be superior to any other,’ and the weak version by restating the traditional liberal view that whatever the truth, it is undesirable to force people to recognise it. By ‘conception of the good’, it is worth remarking, Ackerman means primarily the sense people have of the overall purpose or purposes of their lives in accordance with which they make potentially competitive claims for the allocation of scarce resources. Such a sense may be generalisable – other people ought perhaps to share our conception of the good – but what matters to Ackerman (and indeed to any theorist of justice) is its role as the generator of competitive claims.
As we all know, something like each of the versions of the argument for neutrality presented above has been used extensively by utilitarian writers: indeed, Bentham clearly saw one of the most distinctive features of his work as being his advocacy of precisely the strong version, while Mill is the most famous advocate of the weak version. Much of the original thrust of utilitarianism was, after all, directed against what its advocates saw as the illegitimate assertion of the inherent superiority of certain activities or people. It is ironic that in Ackerman’s eyes utilitarianism should itself be criticised on these grounds.
He denies that his argument can rightly be presented in a utilitarian form largely because, as he correctly points out, even if we allow the possibility of interpersonal utility comparisons, if a utilitarian is interested in maximising want-satisfaction defined in a way which excludes some goods, then anyone who wishes to organise his life in terms of one of those goods is going to be excluded from the utilitarian calculation, and is thus going to be (in some sense) under the power of his more accommodating fellow citizens. But it is not obvious that any standard utilitarian does today want to limit the area within which he maximises in this kind of way. What he assumes, however implausibly, is that intensity of preference between different options can be measured and interpersonally compared, and it does not follow (except on the basis of certain contentious accounts of how we are to make interpersonal comparisons) that such measurement requires the various agents to want the same kinds of things. To use an example which Ackerman employs, one man may order his priorities on the basis of some crude want-satisfaction, and another may order his on the basis of the extent to which they render him philosophically wise: but the utilitarian is only interested in how intense each person’s preferences are between any two options, and how one person’s level of intensity may be compared with the other’s.
It is, moreover, a striking feature of Ackerman’s discussion that he is unwilling to attack this argument at its weakest point: namely, the assertion that we can in some way compare utilities of this kind. He remarks rather oddly: ‘the absence of a modern-day Bentham leads to an embarrassment in exposition. On the one hand, I myself believe that the conventional wisdom about interpersonal comparisons of utility is quite wrong: while there are very real (conceptual and practical) problems, I do not think they always make impartial comparisons of utility possible. On the other hand, I can hardly take the time to do the utilitarian’s work for him.’ But without a fuller discussion of just what he supposes to be wrong with utilitarianism, the distinctiveness of his own theory is left in doubt. His discussion of what constitutes such things as a ‘liberal’ education and immigration policy are interesting and often plausible, and they seem to follow relatively straightforwardly from the two great principles of ‘Neutrality’, but they are not so uniquely the product of his own ‘dialogic’ method as he seems to think.
In some ways, it is a relief to turn from Social Justice in the Liberal State to the collection of (mostly already published) essays on similar themes by David Raphael, Justice and Liberty. The clarity quotient is much higher and the pretentiousness quotient much lower; there is also a much deeper knowledge of the history of moral and political philosophy behind his pronouncements, which gives them a weight to which the Science Fiction speculations of Ackerman cannot aspire. It is this sense of the history of the subject, I suspect, which lies behind the most characteristic feature of the essays: the sympathy which Raphael extends to both utilitarianism and its formidable rival, Kantianism, and his unwillingness to proclaim one obviously superior to the other. His attitude is expressed most clearly in an essay on Chaim Perelman, first published in 1979: ‘it seems to me that many of the most serious conflicts of values in social life, many of the serious differences of value-judgment in different ideologies, boil down to a conflict between the claims of the general interest and the claims of the individual – in philosophical terms, between utilitarian ethics and Kantian ethics. I have no formula, of universal acceptability, for resolving this fundamental conflict.’ Elsewhere, in an essay published six years earlier, he had admitted that ‘most of us find an immediate attraction in utilitarianism. If we are later convinced that it does not account satisfactorily for the concept of justice, we are not quite sure which way to go.’ The essays constitute a series of reflections, always honest and perceptive, around this central theme.
The longest is also the most detailed: it is an extended account of legal argument in the USA about reverse discrimination (and in particular the Bakke case), a topic which also surfaces prominently in Ackerman’s book. The difference between the two men’s treatment of the subject is striking. Ackerman is a good liberal in the current American sense, though his arguments purport to be those of the more traditional kind. Thus he defends affirmative-action programmes on the grounds that where one group is disadvantaged in some respect (e.g. it is blind), it is not sufficient to ensure that the group is not discriminated against in other areas, such as employment: it must be positively preferred in at least one of those areas in order to compensate it for its disadvantage in the other. As Raphael observes about affirmative-action programmes, this has the consequence which would traditionally have been unwelcome to the liberal of treating some people unfairly in the areas selected for positive discrimination: why should I have an unequal right to employment because I am competing with someone who is blind, and whose ability to do the job is no greater and may indeed be less than my own? Ackerman acknowledges that it is a difficult matter actually to select the areas in which affirmative action should take place, but that difficulty is revelatory of the potentially illiberal (though not, of course, necessarily thereby undesirable) character of such programmes.