Rawlsian Theory and the Circumstances of Politics

Author(s): Andrew Mason

Source: Political Theory, Vol. 38, No. 5 (October 2010), pp. 658-683
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Rawlsian

Theory
the Circumstances

and

of Politics
Andrew

PoliticalTheory
38(5) 658-683
2010 SAGE Publications

Reprints and permission: http://www.

sagepub.com/journalsPermissions.nav
DOI: 10.1177/0090591710372862
http://ptx.sagepub.com

(DSAGE

Mason1

Abstract
Can Rawlsian theory provide us with an adequate response to the practical
question of how we should proceed inthe face ofwidespread and intractable
disagreement over matters of justice? Recent criticism of ideal theorizing
might make uswonder whether this question highlightsanother way inwhich

ideal theory can be too far removed from our non-ideal circumstances to
provide any practical guidance. Further reflection on itdoes not show that
ideal theory is redundant, but itdoes indicate that there isa need for a non
ideal theory that does not consist simply inan account of how to apply the
principles which are yielded by ideal theory to non-ideal circumstances in
the lightofwhat isfeasible and an assessment of the costs of implementation.
Indeed any non-ideal theory that can adequately address this question will
have to be partially autonomous, drawing on a notion of legitimacythat is
rather differentto the one which lies at the heart of Rawlsian ideal theory.

Keywords
Rawls, justice, legitimacy,disagreement

JeremyWaldron argues thatRawlsian theory1has paid insufficient atten

tion towhat he calls the circumstances of politics, that is, the existence of
intractable disagreement over matters of justice, which occurs not only
'University of Southampton, United Kingdom
Corresponding
Andrew Mason,

Author:
Politics and International Relations, School of Social Sciences, University of
Southampton SO 17 IBJ,United Kingdom

Southampton,
Email: A.D.Mason@soton.ac.uk

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659

Mason

amongst professional theorists but also ordinary citizens.2 This disagree

ment arises in relation to a range of different issues and occurs at different
levels. It includes disagreement over what counts as a just exercise of
coercive political power, disagreement over basic liberties and how
much weight each should be accorded, disagreement over what consti
tutes a just distribution ofwealth and income, and disagreement over what
decision-making procedures are likely to produce themost just outcomes.
Sometimes these disagreements are over fundamental principles, whilst on
other occasions they concern the application of shared principles to com
plex circumstances that are interpreteddifferently.At a more abstract level
(and mainly in academic writings), there is disagreement over whether an
adequate theory of justice must be constructivist, realist, or contextualist
in character?or none of these. InWaldron's view, Rawlsian
theory is
flawed because itdoes not provide us with an adequate response to the fact

thatwidespread disagreement over matters of justice is likely to persist

even if there is a particular set of principles that are the best defended or
themost reasonable.
Recent criticism of ideal theorizing, or of some forms it takes,3might
make us wonder whether this problem highlights another way inwhich
this case about achieving convergence on a par
various assumptions?in

ticular conception of justice?can deprive ideal theory of value by making

the gap between itand non-ideal circumstances too great. Here I resist this
conclusion but argue that reflection on the question of how we as citizens
should proceed in the face ofwidespread and intractable disagreement over
matters of justice?which
I shall refer to as thepolitical question?shows
thatwe need a non-ideal theorywhich does not consist simply in an account
of how to apply the principles that are yielded by ideal theory to non-ideal
circumstances in the light of what is judged to be feasible and an assess
ment of the costs of implementation. Indeed any non-ideal theory that can
adequately address thepolitical question, when thatquestion is understood
as a plea for practical guidance, will have to be partially autonomous, draw
ing upon a notion of legitimacy that is ratherdifferent to the one which lies
at the heart of Rawlsian ideal theory.The notion of legitimacy that I defend
does not bridge the gap between ideal theory and our nonideal societies but

rather contributes to an importantbut neglected area of non-ideal theoriz

ingwhich takes the circumstances of politics seriously in a way that ideal
theory, in its dominant form at least, is unable to do because of its framing
assumptions. Although ideal theory is importantly incomplete, I do not
claim that it lacks value.4

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Political
Theory
38(5)

660
Ideal Theory,

Idealizations,

and Convergence

Rawlsians might reply to the charge that theyhave paid insufficientattention

to the circumstances of politics, and have failed to address thepolitical ques
tion, by insisting that it is precisely because they are developing an ideal
theory that theymust presuppose convergence on a particular set of principles

of justice. From this standpoint, engaging with the political question may be
importantbut it falls under non-ideal theory,which is outside of their remit.
Those who work within ideal theorycannot be criticized for failing to address
thisquestion, for as Rawls himself says, "an omission is not as such a fault."5

Ideal theory is intended to provide states, and indeed the citizens inwhose
name they are supposed to act, with some practical guidance but itdoes not
aim to address every question thatarises out of a concern with justice or the
beliefs we hold about it.
But why must ideal theorypresuppose convergence on a particular con
ception of justice? Ideal theory is premised on strictcompliance, that is, gen

eral or widespread compliance with the principles which must be followed

for a society tobe fullyjust.6As a result ideal theory in effectpresupposes the
absence of the circumstances of politics, for it assumes that in a fully just
society therewill be convergence on a particular set of principles of justice.
This might be denied on the grounds thata society's basic institutionscan be
organized in accordance with principles thatmake them just even if not
everyone accepts these principles, and thatwe should not confuse the idea of
a well-ordered society (which does require everyone to endorse the princi

ples which govern it)with the idea of strictcompliance. But Rawls's concep
tion of strict compliance does seem to involve the stronger condition that
those subject to theprinciples must endorse rather thanmerely comply with
them, for it is supposed to capture the idea of a (near) perfectly just society,

seems to believe thata society could not be fullyjust unless all its
citizens accept, and act from, the principles which make its institutionsand
practices just.7 So ideal theory in Rawls's sense is concerned with well
ordered societies, whose basic institutionsare organized in accordance with
theprinciples thatmust be realized in order for a society to be fully just and
and Rawls

inwhich citizens not only fully (or near fully) comply with what these prin
ciples require of thembut also endorse theprinciples.
Yet this cannot quite be Rawls's considered position, for inhis laterwrit
ings at least he seems to relax the idea that in a well-ordered society citizens

converge on a particular conception of justice. In his introductionto thepaper

back edition ofPolitical Liberalism, Rawls emphasizes that there is a family

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661

Mason

of reasonable liberal political conceptions of justice, of which his favored

he
view, justice as fairness, is but one8?albeit themost reasonable?and
seems to allow that some reasonable disagreement over principles of justice
may occur even in a well-ordered society.9But he nevertheless places strict
limitsonwhat counts as a reasonable conception of justice. It isnot only those
conceptions which deny the fundamental equality of differentcitizens, what
ever theirrace, sex, or ethnic origin, thatare classed as unreasonable but also
conceptions that fail to give appropriate priority to basic liberties, such as
freedom of conscience. This appears to entail that some communitarian posi
tions that give community values priority over basic liberties are unreason
able, as well as forms of religious fundamentalism thatare prepared touse the
law to enforce religious compliance. Even if such conceptions are relatively
rare in liberal democratic societies, the same is not trueof some other concep
tionswhich Rawls also regards as unreasonable, namely, thosewhich lack a

commitment to ensuring that citizens, whatever their social position, have

adequate means tomake intelligent and effective use of their liberties and
opportunities.10 This entails that libertarian conceptions of justice, such as
Robert Nozick's (which denies the justice of redistributive taxation, except as
compensation when people are unjustly deprived of entitlementswhich flow
from theirproperty rights11),and theirpopular equivalents, are unreasonable
by Rawls's lights.A well-ordered society is one whose citizens endorse only

reasonable conceptions of justice and thereforeagree thatNozick's theoryand

others like it are unacceptable. The idea that a well-ordered society contains
only reasonable conceptions of justice is not incoherentbut itdoes imply that
a consideration of the question of how citizens of liberal democratic states
should deal with disagreement overmatters of justice when it involves one or
more of these unreasonable positions is relegated to non-ideal theory,even
though thatdisagreement is pervasive in these states.
Although it is coherent to suppose that ideal theory is concerned with
well-ordered societies effectively regulated by reasonable conceptions of jus
tice,with each citizen subscribing to one or other of a family of reasonable
conceptions, there seems to be a tension between ideal theory's subject mat
ter, so understood, and a furthercondition thatRawls imposes on ideal the

ory,namely, that itmust be realistic in the sense that theprinciples defended

within itmust at least be realizable in a stable way in the best of foreseeable
circumstances.12 This feasibility constraintmay make it difficult to restrict
consideration of the issue of how we should proceed in the face of intractable
disagreement over matters of justice when that involves one ormore unrea
sonable conceptions to the realm of non-ideal theory. Ifwe have no reason to
expect convergence on a particular family of liberal conceptions of justice

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PoliticalTheory 38(5)

even in the best of foreseeable circumstances, thenRawls's feasibility con

straintwould seem to be violated by thenotion that such convergence would
occur in a well-ordered society.

Let us put to one side the question ofwhether ideal theory should be lim
ited by a feasibility constraint of this kind.13Does the notion that in a well
ordered society each citizenwill subscribe to one of the family of (whatRawls
regards as) reasonable conceptions of justice fall foul of this constraint ifwe
have no reason to expect such convergence even in the best of foreseeable

circumstances? If itdoes, Rawlsian ideal theory itself seems to be in some

difficulty,for itwould be impossible to satisfy both its conditions, that is, to
satisfy the condition of full compliance and the feasibility constraint. Itmight
be argued that there is no problem reconciling the two on thegrounds that the
feasibility constraint applies only to principles of justice. The idea thatevery
one endorses, and acts from, one of a family of reasonable conceptions of
justice is part of thedescription of a fullyjust society, but it is not itselfa prin
ciple of justice, so the constraintdoes not apply to it.But thenwe might won
der why the feasibility constraint should not apply to all aspects of the
specification of a well-ordered society rather than simply theprinciples which

govern it.After all, what relevance could a characterization of a well-ordered

society have for thenon-ideal circumstances inwhich we live unless thatsoci
etywas at least achievable under the best of foreseeable circumstances? If
Rawls's feasibility constraint is justified, at least in part, on the grounds that
ideal theory is supposed to be able toprovide us with some practical guidance
when itcomes to reformingunjust policies and institutions,then itmust surely
apply to the overall characterization of a well-ordered society, not only to the
principles which govern that society.
There are, however, at least twoways

inwhich Rawls could address this

we should respond to the circum
that
would
the
of
issue
how
difficulty
keep
stances of politics beyond the bounds of ideal theory,whilst preserving that
theory's coherence and its action-guiding character. First, he could (and I
thinkwould) argue thatwe do have good reason to expect convergence on a

particular family of conceptions of justice, at least in the best of foreseeable

circumstances, by describing a process throughwhich we might reasonably
expect this to occur.14Or second, he might distinguish between the claim that
there isno reason to expect convergence on a particular family of conceptions
of justice and the claim that convergence of this sort is impossible, and then
argue that convergence is possible in the best of foreseeable circumstances
even ifwe have no reason to expect it to occur. He might even concede that
there is no probability of convergence occurring whilst insisting that it is not
impossible in the relevant sense because it could happen. So understood,

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Mason

Rawls's theorizingwould be an example ofwhat David Estlund calls hopeless

rather thanhopeful realism.15Despite the terminology,a hopeless realist the
ory can be action guiding, for itcan provide reasons for reforming institutions
and practices even when there is no chance of fully transformingthem so that
theymeet the standards specified by it.16
The notion that ideal theory (whether hopeless realist or not) is flawed
unless it is able to provide us with some guidance in our practical delibera
tions has, however, made some theorists suspicious of the idealizations that it
normally contains, and theirconcernsmay yet raise a difficultyfor ideal theo
ry's refusal to engage with the political question posed by the circumstances
of politics. Onora O'Neill contrasts idealization with abstraction: abstraction
"is a matter of bracketing, but not of denying, predicates that are true of the

matter under discussion,"17 whereas idealization involves making claims that

are strictlyspeaking false as a way of simplifyingan argument or theory.18For
example, Rawls's assumption that everyone is "rational and able tomanage
theirown affairs" and that the subjectmatter of a theoryof justice is thebasic
structureof society conceived "as a closed system isolated from other societ
ies" are idealizations.19 There is nothingwrong inprinciple with the introduc
tion of idealizations. Contrary towhat O'Neill seems to suggest, theydo not
even need tomake any false claims about theworld since idealizations can

always be represented counterfactually: for example, the "assumption" that

human beings are rational can be represented as the counterfactual question
"if everyone was rational,what principles of justice should apply?" and the
"assumption" that society is a closed system can be represented as the coun
terfactual "if society was a closed system,what principles of justice should
apply?" Itmight nevertheless be thought that some idealizations are such that
theyprevent a theorywhich incorporates themfrom providing practical guid
ance, and that the notion thatpeople converge on a particular conception of
justice (or a family of reasonable conceptions), which formspart of the speci
fication of a fully (or approximately) just society, has thatcharacter even if it
is not strictlyspeaking an idealization.

Laura Valentini draws a distinction between good and bad idealizations

which bears upon the issue of how ideal theorymust be constructed if it is to
provide us with practical guidance in relation to non-ideal circumstances.
She argues thatwhen an idealization is a condition for the applicability of an
ideal theory,that theory is unfit forpurpose. Perhaps a betterway of express

to say
ing her point?a formulation that she herself employs in places?is
that in some cases idealizations may make the gap between the ideal theory
and non-ideal circumstances unbridgeable, so thatwe would simply have to
startagain ifwe wanted to determine what would count as just policies and

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664

institutions in those circumstances.20 So, for example, she argues thatWill

Kymlicka's theoryofminority rights is premised on the idea thatminorities
have just internal arrangements in a way thatmakes the gap between his
theory and non-ideal circumstances unbridgeable.21 In one respect, her gen
eral argument here goes furtherthan those who claim that ideal theory is
insufficientforguiding political action (because itdoes not tellus what to do
when the principles itdefends are unrealizable or when the costs of imple
menting themwould be very high),22 or that it is unnecessary for guiding
political action (because we can assess different laws and policies without
it).23For Valentini is claiming that in some cases ideal theorymay be inca

pable by its very nature of providing practical guidance, even when com
bined with an analysis ofwhat laws and policies are feasible and the costs of
implementing them.24 It is certainly possible that some idealizing assump
tions have this effect;when they do, they could not constitute "helpful sim
plifications." The relevant issue for us iswhether the notion that in a fully
just society citizens converge on a family of reasonable conceptions of jus
tice is liable tomake that gap unbridgeable because ideal theory becomes
irrelevant to answering what I have called the political question, that is, the
question of how we should proceed in the face ofwidespread and intractable
disagreement overmatters of justice, including disagreement involving (what
are regarded as) unreasonable conceptions.

The Political Turn

Ifwe specify that ideal theory is concerned with a fullyjust society inwhich
citizens converge on a particular conception of justice, or a family of reason
able conceptions, itmight seem that the gap between ideal theory and
non-ideal circumstances becomes unbridgeable because we are in effect
making an assumption which denies a constitutive feature of the political.25

Indeed itmight be thought thatan adequate response to thepolitical question

requires us tomake a political turn,toward the idea thata conception of jus
tice is justified only to the extent that it is theproduct of some actual political
process, one which provides each citizen with an equal opportunity to engage
inpolitical debate on equal terms,and topresent theirown particular view of
what justice requires. From thisperspective, much Rawlsian theorizing about
justice has been deeply flawed because it has been theoretical rather than
itmight be thought that it is this featurewhich has made it
political?and
unable to provide an adequate response to thepolitical question. A version of
thiscritique has been mounted byAnthony Laden (although he would absolve
Rawls himself from it,since he sees itas emerging from a reading ofRawls's

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laterwork rather than providing the basis for a critique of it). Laden distin
guishes between theoretical and political approaches to the justification of
political principles, arguing in favor of a political approach. According to
theoretical approaches, "what ultimately justifies [political] principles ... is
the soundness of the theorist's reasoning," whereas according to political
approaches, "what justifies political principles is ultimately the endorsement
(in some suitably defined sense) of actual people acting politically in actual
societies."26

In reply to Laden, a defender of a theoretical approach might distinguish

between two differentkinds of justification, insisting that a person's justifica
tion for accepting a political principle depends on the quality of the reasons
in its favor (regardless of whether actual people, acting politically, endorse
it), but conceding thatwhether the state (or indeed any actor) is justified in
implementing itdepends on whether ithas been endorsed through legitimate

political procedures. The notion of justification involved in the firstof these

claims is purely epistemic, whereas it is thenotion ofmoral justification that
is invoked in the second, drawing upon the idea of legitimacy.According to
this view, a person may be epistemically justified in accepting a normative

principle because of the quality of the reasons in its favor, but the statemay
lack anymoral justification for implementing thatprinciple because, say, its
decision-making procedures did not lead to the endorsement of theprinciple.
So too a person may lack an epistemic justification for accepting a principle
because the reasons in its favor areweak, but the statenevertheless possesses
themoral justification to implement itbecause itwas theproduct of its legiti
mate

procedures.

Itwould of course be consistent with thispicture to hold that in practice,

a person's acceptance of a normative principle ismore likely to be epistemi
cally justified ifhe has the opportunity to listen to and debate with others on
equal terms, so thathe can learn from them and testhis reasons for holding
that principle. But defenders of political approaches appear to go further,
because they seem tomaintain that there are conceptual reasons for thinking
that epistemic justification requires an actual dialogue to take place. For
example, some hold that it is a condition of a person being justified in accept
ing a normative principle thatothers accept it as well when they are able to
debate it on free and equal terms.27But whatever themerits of a strongly
dialogical conception of this sort,28itdoes not appear to be able to provide an
adequate answer to the political question. For it is in effectmerely to throw
another theory of justice into themix?one which will raise difficult ques
tions about whether justice is a purely procedural notion, and what conditions
a dialogue must meet for it to justify a principle which emerges from it.

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PoliticalTheory 38(5)

Those who argue for such a conception of justice, and for the realization of
the institutional structures that are required by it,will meet resistance from
those who are committed to a rival conception. In the face of this disagree
ment, the arguments presented by a defender of a stronglydialogical concep
tionhave no more authority than any other argument presented by one fellow
citizen to another, so thepolitical question, understood as a plea forpractical
guidance, still arises, namely, how should we as citizens proceed in the face
of this disagreement? This seems tome to be true in general of approaches
which invoke ideal procedures, whether theymake the radical claim that the
epistemic justification for accepting a political principle depends conceptu
ally upon itsbeing the outcome of some dialogue or procedure inwhich each
citizen has equal opportunity toparticipate on equal terms,or themore mod
erate claim thatwhen a principle emerges in thisway, it ismore likely to be
epistemically justified?or indeed whether theymake the different sort of
claim that themoral justification for imposing a political principle depends
upon its being the product of some such procedure. For disagreement over

whether political procedures need to be robustly deliberative or dialogical,

and over what is to count as a dialogue or procedure inwhich citizens are
situated as equals, is likely to be pervasive and intractable irrespective of
whether ideal procedures of thiskind are defended as part of an argument for
a stronglydialogical conception of justice or in some otherway.
In the next section, I shall agree thatan adequate response to thepolitical
question needs to invoke the idea of legitimate procedures, but I shall argue
that ithas to distinguish more radically thanhas become customary between
justice and legitimacy. Itwill require developing a notion of the latterwhich
does not specify in ideal terms the criteria thathave to be met for a procedure
to be legitimate but at the same time resists the idea that a society's actual
procedures are automatically legitimate. This response to the political ques
tion does not "bridge the gap" between ideal theory and our non-ideal cir
cumstances but rather provides a way of addressing it that avoids ideal
theorizing?which is not to say that it is normatively uncommitted.

Two Notions

of Legitimacy

It seems tome that thereare two very differentways of thinkingabout legiti

macy.29 The dominant approach, which I shall call the liberal conception of
legitimacy, regards the legitimate exercise of coercive political power as
equivalent to themorally justified or morally permissible exercise of that
power.30 (This is in effect treated as a conceptual truth.)And itmaintains that
the exercise of coercive political power is legitimate, at leastwhen matters of

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basic justice are at stake, if and only if it is justified by principles that are
acceptable to all citizens or, at least, to all reasonable citizens. Taken together,
these propositions imply that the exercise of coercive political power ismor
ally justified when matters of basic justice are at stake if and only if it is
justified by principles thatare acceptable to all reasonable citizens.

liberal conception of legitimacy need not suppose?and

indeed it
can
denies?that
be
exercised
power
characteristically
legitimately only
when enforcing or implementingjust laws or policies. According to it,par
ticular laws or policies may be unjust, but power nevertheless exercised legit
imately (i.e., in a way which is morally justified) in order to enforce or
The

implement them,provided that they are the product of procedures that form
part of a just constitution governed by principles that are acceptable to all
reasonable citizens. There are nevertheless limits to how unjust a law or pol
icy can be yet its implementation legitimate, for some laws and policies will
be incompatible with a just constitution, for example, those that deny free
dom of conscience. Although power may be exercised legitimately inpursuit
of unjust outcomes, justice places limits on what can count as the legitimate
(and hence morally justified) exercise of political power, and the liberal con
ception of legitimacy is normally presented as part of ideal theory: even if
legitimacy is not sufficient for a perfectly just society, it is necessary for it,

and justice constrains legitimacy.

In Political Liberalism, Rawls presents a significantmodification to the
liberal conception of legitimacy, in effect adjusting it to take account of his
concession, noted earlier, that thereare a range of differentreasonable liberal
conceptions of justice, and hence no particular set of principles that citizens
cannot reasonably reject or thatmust be acceptable to all reasonable citizens.
If I understand his account properly, it holds that the exercise of coercive
political power inmatters of basic justice is legitimate in liberal democratic
societies ifand only if the law or policy that sanctions it is endorsed forpub
lic reasons, that is, on the basis of reasons which it is reasonable to think
might reasonably be accepted by others, and thatwhen a plurality of public
reasons are invokedwhich pull indifferentdirections, that law or policy rep
resents the sincere and reasonable view of themajority concerning how these
public reasons should be balanced against each other. In one respect, these
modifications make his conception more demanding than the liberal one
itself because they entail that a law or policy concerning matters of basic
justice is legitimate only if it is actually endorsed on the basis of public rea
sons rather thanmerely that it can be defended in thisway.31 (In thisway
Rawls make his own political turn in the context of theorizing legitimacy.) In
another respect, however, Rawls's conception is less demanding, for itallows

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that a law or policy governing matters of basic justice may be legitimate

when it is supported by a particular balance of public reasons, even when
itwould be reasonable to balance these reasons differentlyand in a way that
would lead to the rejection of this law or policy.
The liberal conception of legitimacy (and also Rawls's latermodification
of it) is applied primarily to the exercise of coercive power inmatters of basic
justice. And it treats the legitimate exercise of coercive power as equivalent to
themorally justified exercise of thatpower. The notion of legitimacy some
timesplays a differentrole, however, inwhich it is oriented in a particularway
to answering thepolitical question, that is, thequestion of how we, as citizens,
should proceed in the face ofwidespread disagreement over which principles
of justice are best, disagreement over what decision-making procedures are
likely to produce themost just outcomes, and indeed disagreement over what
counts as themorally justified exercise of coercive power.
The political question might be addressed simply by declaring that a par
ticular conception of justice should be implemented because it is the best,
togetherwith a presentation of the arguments which show that it is?these

argumentsmight even be thought sufficientlypowerful that they ought to be

accepted by any reasonable person. There would also be room here for a non
ideal theorywhich assessed the costs of implementation, bothmoral and oth
erwise, andwhich determined the second best when circumstances were such
that itwas impossible fully to implement the best conception of justice. And
themoral costs of implementation might be taken to include the fact that
some citizens do not share the conception of justice that is tobe implemented.
But if this is to be understood as the giving of practical guidance, as opposed
to a piece of abstract theoretical reflection on the political question, then it
must either be the recommendation of one (perhaps highly educated) citizen
to his or her fellows, many ofwhom are likely to see things differently,or it
is advice to?or perhaps even the declaration of?a would-be (philosopher?)
ruler. If the latter, it is normatively unsatisfying, since itbegs the question
why theirview should prevail; if the former, then the political question sim
ply

re-emerges.

Any normatively satisfying answer to thepolitical question which treats it

as intended, that is, as a request forpractical guidance, will have to appeal to
the importance of political procedures. The liberal conception of legitimacy,
in itsdominant form, invokes procedures but itdoes so in a way thatmakes it
incapable of providing an adequate answer to thepolitical question, in effect
for the reason that emerged at the end of the previous section. The liberal
conception maintains that the exercise of political power is legitimatewhen
it is the product of a just constitutional order. Even if the notion of a just

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Mason

constitutional order is specified in a way thatallows for the existence of dis

agreement over conceptions of the justice, it cannot be invoked as part of an
adequate answer to thepolitical question, for thatquestion arises to a signifi
cant extentfrom the fact thatwe disagree over what is to count as a just con
stitutionalorder.Again, one might simply declare that the procedures thatare
constitutive of such an order should be realized, or taking into account the

costs of doing so and in the lightofwhat is feasible, one might recommend a

second best that is closer to actual procedures, butwhen this isproposed as an
answer to the political question in a way that is intended to provide practical

guidance, itfaces the same dilemma: either it is one citizen's recommendation

to his or her fellows, inwhich case itwill be disputed and the political ques
tionwill arise again, or it is advice to, or the declaration of, a would-be ruler.

Rawls's modified version of the liberal account is similarly unable to pro

vide us with an adequate answer to the political question. Itmaintains that
power is exercised legitimatelywhen, and only when, it is the product of a
constitutional order governed by a reasonable conception of justice, in a way

that reflects the sincere and reasonable view of themajority concerning how
the differentpublic reasons which emerge from differentreasonable concep
tions should be balanced against each other when they come into conflict.
But again this is a controversial account of a just constitutional order, relying
as it does on some classification of conceptions of justice as unreasonable,

with arguments derived from them then being regarded as inadmissible in

public debates because they are not based on public reasons. The claim that
it is nevertheless thebest account of such an order, and thatwe should there
fore strive to bring it intobeing, would face the same dilemma.
Itmight be thought thatwe can make progress bymoving to a democratic
conception of legitimacy according towhich the exercise of political power
is legitimate, and thereforemorally justified,when it is the product of prop
erly democratic procedures. But even if that could provide us with an ade
quate account of when political power is exercised in a way that ismorally
justified, it is problematic as an answer to the political question for now
familiar reasons. Existing procedures are likely to fall short of the standards
set by a democratic conception, and therewill be disagreement over themer
its of differentmodels of democratic decision making that is likely to be as

the latter
intractable as disagreement over conceptions of justice?indeed
will feed the former?thereby raising thenow-familiar dilemma.
I believe that thenotion of legitimacy can provide a satisfactoryanswer to
thepolitical question but only if it is re-configured so that legitimacy isunder
stood primarily as a property of political procedures thatmeet a moral stan
dard which iswidely shared in a particular polity, rather than as a criterion for

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PoliticalTheory 38(5)

themorally justified exercise of political power. Those who endorse this stan
dard have a pro tanto reason for abiding by laws and policies which are
enacted in accordance with procedures thatmeet it, in effect, an "internal"
reason which they acknowledge emerges from theirown normative commit
ments. Provided the existing procedures in a societymeet such a standard, its
citizens have a reason to abide by theoutcomes of them.Consider what I think
is themost promising approach of thiskind, for a wide range of societies at
least,which I shall refer to as the inclusiveness account. Itmaintains that a
political procedure is legitimate if and only if it involves all citizens rather
than just some subsection of the citizen body. According to themost demand
ing version of this account, a political process is legitimate if and only if all
citizens participate on equal terms in itor enjoy equality of opportunity to do
so. But the inclusiveness account can be made plausible as part of an answer
to thepolitical question by formulating it in a way that allows fordegrees of

legitimacy and by specifying a common standard which has to be met for

procedures to possess some degree of legitimacy32?a minimum standard
which (as I shall explain below) may vary from one society to another.
The idea would be that there is some minimum level of inclusiveness in a
given society which is sufficient for its procedures to possess a degree of

legitimacy, even though this levelmay fall shortof themaximal inclusiveness

that is required for full legitimacy.Citizens in that societymay have different
reasons forvaluing inclusiveness, but thevast majority of themmay neverthe
less be able to agree that there is a standard of inclusion that,when theirpro
cedures meet it,provides themwith a reason for abiding by the outcomes of
those procedures. If a standard is tobe widely accepted, itmust be possible for
those with very different conceptions of justice to endorse it,perhaps on a
variety of differentgrounds. Those who go along with a procedure that satis

fies this standardmay not think it is the best from a moral point of view or
fullyjust, or even that it is likely to produce themost just outcomes, and they
may have differentviews about what would constitutemaximum inclusive
ness (including, e.g., whether it is consistent with procedures which place
decisions about constitutionalmatters outside of the ordinary democratic pro
cess). But theymust at least regard this procedure as meeting a minimum
standard of moral acceptability, thereby providing themwith a reasonably
weighty pro tanto reason for accepting itsoutcomes in the face ofwidespread
if itcan on occasion produce
disagreement over conceptions of justice?even

laws (or policies) that they think are so morally unacceptable, or so unjust,
that theyregard this reason forobeying the laws as outweighed. Let me call an
account which specifies this common minimum standard and nothingmore,
"the political version of the inclusiveness account" for that society. This

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Mason

political version differsfrom other versions of the inclusiveness account that

provide a more or less complete account ofwhat affects the degree of legiti
macy possessed by procedures, and what would constitute full legitimacy,
which are likely to be a matter of contest amongst citizens.

A full blown, nonpolitical version, of the inclusiveness account might

allow thatthe exercise of power can be fully legitimatebutmorally unjustified
all things considered, for example, when procedures meet the required stan
dard of inclusiveness but lead to law or policy that forbids the religion of a
minority.33The political version of the inclusiveness account, however, will
bracket the issue ofwhether the exercise of political power can be legitimate
but morally unjustified, given that these issues are matters of dispute. Com

pare the liberal conception of legitimacy,which (as I noted earlier) allows that
coercive power may legitimatelybe exercised in support of unjust outcomes,
including unjust laws. In such cases, power is being exercised in a way that is
morally justified, in accordance with procedures thatare part of a just consti
tution, even though the laws which are the product of these procedures are
themselves unjust. But the liberal conception cannot allow thatcoercive polit
ical power can be exercised in a way that is legitimatebutmorally unjustified
all things considered, for according to this conception part ofwhat it is for the
exercise of coercive political power to be legitimate is for it to be morally

justified, all things considered.

The liberal conception of legitimacy emerges from ideal theory in a way
thatmakes itunable to provide an adequate answer to the political question.
According to this conception, what counts as the legitimate exercise of coer
cive power depends to a considerable extent upon what is just and unjust, for
whether the exercise of coercive power ismorally justified or notwill depend
upon whether it is exercised in accordance with a just constitution or just pro

cedures, or at least upon whether it is exercised in order to bring about out

comes thatare sufficientlyjust or not too unjust. The political question requires
a normative answer?it is concerned with how we as citizens should proceed
in the face of intractablepolitical disagreement?but an adequate answer to it

will need to bracket the issue ofwhat is to count as themorally justified exer
cise of coercive power, and what kinds of injustice are consistent with it. It
will need to appeal instead to theway inwhich citizens may converge in
accepting amoral standard that theirprocedures meet, therebyproviding them
with a reason to comply with laws and policies thatare the outcome of these
procedures. They then have a reason to comply with these laws and policies
even when theyjudge them to be unjust (and even when they are unjust when
judged in accordance with the conception of justice that is themost defensible
ormost reasonable), although theymay regard this reason as insufficienton

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672

PoliticalTheory 38(5)

some occasions to require their compliance and believe that civil disobedi
ence, for example, iswarranted. When existing procedures do notmeet what
a citizen regards as a minimum acceptable standard, she has a reason to abide
by the outcomes of these procedures only when she thinks these outcomes
have independentworth, and she has a reason to act on her own orwith others
to bring new procedures intobeing thatmeet what she and they regard as an

When existing procedures meet theminimum standard,

acceptable standard.34
citizens are nevertheless permitted to strive to bring into existence what, by
their lights, are even better (perhaps more inclusive) procedures, consistent

with thatminimum standard, through their existing procedures. In thisway

thepolitical version of the inclusiveness account of legitimacy I am defending
provides us with an adequate approach to answering thepolitical question that
meets itsrequest forpractical guidance in a way that is impossible fromwithin
ideal theory.35

Challenges

to the Inclusiveness Account

As an answer towhat I have called thepolitical question?one which aims to

identifyprocedures for dealing with political disagreement thatmeet a moral
standard that iswidely accepted?the political version of the inclusiveness
account invites challenges from differentdirections. Some will respond that
inclusiveness of any sort is too demanding a standard and indeed thatproce
dures may be legitimate even if they are not at all inclusive,whilst otherswill
argue thatany standard of inclusiveness which is likely tobe widely accepted
will be insufficientlydemanding. Amongst thosewho think that thepolitical
version of the inclusiveness account is too demanding are thosewho would
argue that a procedure is legitimate to some degree if it secures a minimum

level of law and order, and the conditions necessary for some degree of coop
eration, that is, if it satisfieswhat Bernard Williams called "the basic legiti
mation demand,"36 even if it is not at all inclusive. Amongst thosewho think
a more demanding standard of inclusiveness is required than thatwhich is
warranted by thepolitical version of the inclusiveness account are thosewho
would defend the view thatpolitical procedures possess a degree of legiti

macy only ifcitizens enjoy equality of opportunity toparticipate in them and

thatwhen matters of basic justice are at stake these procedures ensure that
decisions aremade on the basis of public reasons alone.
In response to both of these challenges, it is important to emphasize that
what degree of convergence is possible on a particular moral standard, and
the procedures which embody it,will depend upon specific facts about the
society in question. For these circumstances will in part determine whether

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Mason

there is a moral standard that iswidely accepted thatmight provide the vast
majority of citizens with an internal reason to abide by the outcomes of a
procedure which meets it.37It seems tome that inmature liberal democracies
there is the potential forwidespread agreement on a standardwhich requires
procedures to do more than secure a minimum level of law and order, and
indeed to be inclusive in a way thatgoes beyond what is achieved in a society
with what Rawls calls a "consultation hierarchy."38Although no doubt there
are still some who think that, say, women or racial minorities should be

excluded from the political process, inmost liberal democracies theirpreju

dices place them firmly in a small minority. However, a standard that insists
on more than some degree of democratic inclusion, and which requires pro
cedures thatpermit only public reasons when matters of basic justice are at
stake,will not be widely accepted. As a result the disagreement which raised
the political question in the firstplace will simply re-surface, perhaps in a
modified form, for citizens will disagree about whether only public reasons
should be regarded as admissible orwhether, say, religious reasons should be
allowed. Itmight nevertheless be thought that inmature liberal democratic
societies therewill be considerable convergence on theneed for some consti
tutional provisions as part of inclusive procedures, going beyond what is

required for the effective operation of those procedures, for example, rights
which protect freedom of conscience, and prevent the state from imposing a
particular religion on its citizens. This argument has some force. But to the
extent that it is successful, itwould justify these constitutional provisions not
on the grounds that they are required in order for political power to be exer
cised in a way that ismorally justified, but rather on the grounds that the

convergence of views inmature liberal democracies is sufficient to justify the

conclusion that the common minimum moral standard which determines
whether the exercise of political power possesses a degree of legitimacy
includes a commitment to freedom of conscience. Indeed we are not entitled
to rule out a priori the possibility that in the future convergence will be
achieved on the ideal of public reason, or on the broader question of what
procedures are the best, most just, or most democratic, in a way that allows
the standard of inclusiveness which (according to thepolitical version of the
inclusiveness account) needs tobe met forprocedures topossess some degree
of legitimacy to become much more demanding. But we have no reason to

expect that to be the case, at least in the shortormedium term.

To say thatwhat counts as a legitimate procedure varies from one society
to another, and from one historical period to another, is not to say that it
ismerely in the eye of the beholder. According to the political version of
the inclusiveness account, in a wide range of societies whether a political

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PoliticalTheory 38(5)

procedure enjoys some degree of legitimacy depends on whether itmeets a

moral standard of inclusion that the vast majority of citizens accept. Such
standards of inclusiveness possess genuine moral significance, even though
thepolitical version of the inclusiveness account does not take a position on

why they do. Very different reasons forwhy political procedures should be
inclusive will be given and will form the basis of different "non-political"
versions of the inclusiveness account. Some will emphasize thebasic fairness
of inclusive procedures. Others will argue thatfairness alone is insufficientto
toss of a coin is as fair?and will argue that
justify such procedures?the
these procedures are justified, at least in part, because their outcomes are
likely tobe better, judged by various criteria (including thatof justice).39 But
itdoesn't matter from thepoint of view of thepolitical question what the cor
rect reasons are forvaluing inclusiveness, and indeed thepolitical version of
the inclusiveness account brackets disagreements over that issue.When the
existing procedures in a polity reach a common minimum standard of inclu
siveness, determined inpart by theprevailing views in a society, theyprovide
an adequate answer to the political question, irrespective of what reasons

particular citizens have for valuing inclusiveness and independently of the

quality of those reasons. This is not to deny that theremay be a worthwhile
discussion of what is valuable about inclusiveness and indeed of itsprecise
relationship to justice. But that discussion will not help us to address the
political question, even though it can lead to the development of different
"non-political"

versions

of the inclusiveness

account.

The fact that the liberal conception of legitimacy (and Rawls's modifica
tion of it) and the inclusiveness account are motivated by different concerns
might make one think that the term legitimacy is simply ambiguous, and
indeed thatonce we have distinguished between itsdifferent senses, we are

not forced to choose between these accounts since theyare not genuine com
petitors. From this standpoint, the liberal account and itsmodifications pro
vide us with an answer to the question "When is the exercise of coercive
power morally justified?" whereas the inclusiveness account addresses the
differentquestion "What procedures can or should command our allegiance
in the face of "the circumstances of politics"? There is a plausible diagnosis,
and indeed we do not have to see either of these approaches as the correct
one. We can use both, provided we are clear which one it is thatwe are
employing in a given context. Of course democratic inclusion is sometimes
offered as a genuine alternative to the criteria for legitimacy that are laid
down by the liberal conception of legitimacy, in effect as providing an
answer to the question of when the exercise of coercive power ismorally
justified. The liberal conception is sometimes regarded as too demanding

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Mason

(e.g., on the grounds thatwhen matters of basic justice are at stake there are
no reasons acceptable to all which could justify the exercise of political
power), and a procedural or democratic conception of legitimacy is pro
posed in itsplace as a plausible but less demanding alternative.40Although
I share some of these doubts about the liberal conception of legitimacy, I am

not persuaded thatany democratic or purely procedural conception of legiti

macy could provide us with an adequate answer to the question "When is the
exercise of coercive political power morally justified?"41 Coercive political
power might be exercised in conformitywith fully inclusive or democratic

procedures, after reasoned debate and in accordance with thewishes of the

majority but in a way thatwas deeply unjust in its ramifications, thereby
raising doubts about whether that exercise of power could be just, for exam
ple, when it involves the suppression of religious liberty.
In response, defenders of a democratic conception of legitimacymay argue

that the exercise of coercive political power is properly inclusive only if it

occurs "within a constitutional order that respects the equal status of all citi
zens and that effectively guarantees each citizen the basic liberal rights and
entitlementsnecessary to participate in political processes on equal terms"42
and thatreligious and other kinds of intolerance represent a failure to respect
that equal status, to treat fellow citizens as equals. But this is contentious at

best. The suppression of religious liberty(or other forms of intolerance) need

not be defended by appeal to the idea that some people are superior ormore
deserving than others?the religiously intolerantmay suppose that all citi
zens, regardless of theirreligious views, are equal in the eyes of god, and they
need not denigrate or demean non-believers, or deny them their say, even
though they regard them as holding mistaken views. If a version of thedemo
cratic conception is to be defended, itwould be best seen as a fully fledged
answer to thedifferentquestion of "What procedures can or should command
our allegiance in the face of 'the circumstances of polities'?" with thepolitical
version of the inclusiveness account specifying a minimum standard consis
tentwith that conception which procedures must meet to possess a degree of
legitimacy. In some societies inwhich there iswidespread convergence on
liberal ideals, thepolitical version might justify the conclusion thatforproce
dures to possess some degree of legitimacy theymust involve constitutional
protection of, for example, freedom of religion, but in other, less liberal, soci
eties, theminimum common moral standards which determine whether the
exercise of political power possesses a degree of legitimacymay fall shortof

doing so.
Even though the liberal and inclusiveness conceptions of legitimacy address
differentquestions, itwould be mistaken to think that they have nothing in

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PoliticalTheory 38(5)

common. Both approaches give a central role to the idea ofwidespread accept
ability: the liberal account determines the legitimacy of the exercise of coer
cive political power (inmatters of basic justice) by examining whether the
principles on which it is based are, or can be, accepted by reasonable citizens,

the political version of the inclusiveness account determines the

standard of inclusiveness required for a procedure to have some degree of
legitimacy inpart by examining whether that standard is, orwould be, widely
accepted by citizens. Furthermore, some liberal accounts of legitimacy can
be understood as offering an answer to thepolitical question?but one that is
not of a procedural kind. Indeed Rawls's theorizing about justice starts from

whereas

the observation thatpeople disagree about justice. His solution, however, is

to seek to identifysharedmoral ideas thatcan form the basis for a family of
conceptions of justice on which reasonable citizens can converge, and then to
defend political procedures that embody an ideal of public reason. But even

ifwe grant the relevance of the distinction between reasonable and unreason
able citizens, it is hard for him to deny that inpractice many citizens will as
a matter of fact reject each of the (liberal) conceptions thathe thinks can be
worked up from sharedmoral ideas thatare part of thepublic culture of con
stitutionaldemocracies, including his conception of justice as fairness. Some
will reject the idea that there is a reason of justice to ensure that all citizens
have themeans tomake intelligent and effective use of their liberties and
opportunities. Some will give less priority to the basic liberties thanRawls
thinks is necessary to count as reasonable. If the concept of legitimacy is to
provide an answer to thepolitical question, itmust acknowledge thediversity
of disagreement over conceptions of justice in our societies, not just between
different liberal conceptions, and identifyprocedures for dealing with this
disagreement, including disagreement over what is to count as themorally
justified exercise of coercive power and disagreement over what reasons are
admissible inpublic debate.

Conclusion
Political theorists owe us an answer to the question of how we as citizens
should proceed in the face of intractable disagreement over conceptions of
justice. Even though a full answer to thisquestion lies outside of ideal theory,
itneeds to be addressed since disagreement over justice is likely to persist,
perhaps even in thebest of foreseeable circumstances, and we have no reason
to suppose that itwill be restricted to disagreement between (what Rawls
regards as) differentreasonable liberal conceptions. If ideal theorymakes ide
alizing assumptions thatare, ineffect, inconsistentwith thevery circumstances

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Mason

of politics, this does not show that it lacks any value, but itdoes highlight the
importance of non-ideal theorizing. In this context non-ideal theorydoes not
somuch bridge the gap between ideal theoryand non-ideal circumstances as
enable us to engage in partially autonomous reflection on a question that
ideal theory's framing assumptions put beyond its reach. Reflection on the
political question shows thatnon-ideal theory cannot simply consist in com
bining the principles which emerge from ideal theorywith empirical facts
about what is feasible, and an assessment of the costs of implementing ideal
principles, in order to reach a conclusion about what should be done, for this
could not enable us to answer that question adequately, at least when it is
understood as a plea for practical guidance. If this conclusion about "what

should be done" provides practical guidance, it is either advice to (or the

declaration of) a ruler or it ismerely a recommendation made by one citizen
to his or her fellows that is likely to be disputed by them. Either way, it is
unsatisfactory as an answer to thepolitical question. If non-ideal theory is to
provide us with an adequate answer, itwill need to give an analysis of the

idea of legitimacy and its role in the face of intractable disagreement over
matters of justice that is ratherdifferent to the one which is employed at the
heart ofRawlsian ideal theory.
That is not to say thatRawlsians must abandon theiraccount of legitimacy,
for that account is tailored to answering a rather different sort of question,
namely, what is to count as themorally justified exercise of coercive political
power? This reinforcesWaldron's conclusion that there are at least two tasks
for political philosophy: theorizing about justice and theorizing about poli
tics.43Although Rawlsians have contributed littleto debates about how politics
should be theorized?and arguably have played a role in themarginalization of
these debates?their theorizing about justice does not prevent them from
engaging in them, and indeed some of the resources contained in Rawls's
thoughtcan be transformedinways thathelp us to understand better thepoliti
cal question and how itmight be adequately addressed. For the political ver
sion of the inclusiveness account that I have developed in effectmakes use of
the idea of an overlapping consensus which was central toRawls's laterwork,
though I conceptualize itdifferentlyand give ita differentrole, independent of

ideal theory.In the absence of such an account, Rawls's own ideal theorycan
seem a ratherunhappy halfway house: itaccommodates some disagreements
over conceptions of justice, between differentmembers of a family of liberal
views that it regards as reasonable, but banishes consideration of other dis
agreements (including disputes between liberals and libertarians,where the lat
terare regarded as holding an unreasonable view because itdenies thatjustice
requires us to ensure thatall citizens possess themeans tomake intelligentand

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Political
Theory
38(5)

678

effectiveuse of their libertiesand opportunities, and disputes between liberals

and communitarians,where the latterare regarded as holding an unreasonable
position because it is thought to give the basic liberties insufficientpriority).
Without non-ideal theorizing of the kind inwhich I have been engaged, an
adequate treatmentof thepolitical question will be impossible.
Acknowledgements
I am grateful
referees

to Chris Armstrong,

Richard

comments.

for their helpful

An

Bellamy,

and

Dietz,

Mary

the journal's

of the paper was

earlier version

at

presented

theworkshop on Political Normativity,which was organized by Rainer Forst and

PeterNiesen as part of theECPR JointSessions at theUniversity of Lisbon, 14-19
April 2009.1 would like to thanktheparticipantsfortheircommentsand suggestions,
Sorin Baiasu,

especially
Tamara

Dimitris

Jugov, Glyn Morgan,

Christian

Laura

Rostboll,

Declaration

Newey,

Forst, Casiano

Peter Niesen,

David

Hacker-Cordon,
Paul

Owen,

Patton,

and Lea Ypi.

Valentini,

of Conflicting

Rainer

Efthymiou,

Glen

Interests

with respect to theauthorshipand/or

The author(s) declared no conflictsof interests
of this article.

publication

Funding
The

research

and

authorship

at the University

employment

of this article was

funded

as part of my

contract

of

of Southampton.

Notes
I mean

1.What

by "Rawlsian

theory" will

become

as the article proceeds.

clearer

It is intendedtopick out theorieswhich endorse theconceptionof ideal theoryI

describe in thefirstsectionand adopt some (perhapsmodified) version ofwhat in

the thirdsection I call the liberalconceptionof legitimacy.

2. See J.
Waldron, Law andDisagreement (Oxford:OxfordUniversityPress, 1999),
especially
3. See

1-4, 149-63.

especially

C. Farrelly,

"Justice

in Ideal Theory: A Refutation,"

Political

Stud

ies 55 (2007): 844-64; A. Sen, "WhatDo We Want froma Theory of Justice?"

Journal ofPhilosophy 103 (2006): 215-38; I. Robeyns, "Ideal Theory inTheo
ry and Practice," Social Theory and Practice 34 (2008): 341-62; L. Valentini,
"On theApparent Paradox of Ideal Theory,"Journal ofPolitical Philosophy 17

(2009): 332-55; A. J. Simmons, "Ideal andNonideal Theory,"Philosophy and

Public Affairs38 (2010): 5-36.
4.

In my

view,

and non-ideal

Farrelly

ismistaken

theory, and

to suppose

that we must

in that respect misreads

my

choose

argument

This content downloaded from 142.104.240.194 on Thu, 29 Jan 2015 23:08:43 PM

All use subject to JSTOR Terms and Conditions

between

ideal

in A. Mason,

Mason

679

"JustConstraints,"BritishJournal ofPolitical Science 34 (2004): 251-68. See

Farrelly,
phy

5. J. Rawls,

in Ideal Theory,"

"Justice

inNonideal

844-45.
Social

Circumstances,"
as Fairness:

Justice

Cf. A.

A Restatement

Swift, "The Value

and Practice

Theory

(Cambridge,

of Philoso

34 (2008):

MA:

370-71.

Harvard

Univer

sityPress, 2001), 66. Here Rawls points out that inA Theory ofJustice (Cam
bridge,MA: Harvard UniversityPress, 1971) he discusses only two issues that
arise

in the context

of non-ideal

civil disobedience

theory, namely,

(paragraphs

55-59) and toleratingthe intolerant(paragraph35).

6. See

I. Robeyns,

"Ideal

Theory

in Theory

and Practice,"

a degree

of criminality,

343-44.

This

condition

should be understood in such a way as to be compatiblewith the existence of

some

on-going

e.g.,

injustices,

but

with

incompatible

deep and pervasive injustices(or theircontinuingeffects),such as ongoing gen

der injustice.Rawls explains strictcompliance by sayingthatitmeans thatnearly
everyone complieswith, and abides by, theprinciples of justice and that it is
concerned

with what

just, or nearly

"a perfectly

just, constitutional

regime might

be like" (seeRawls, Justiceas Fairness, 13,emphasis added),whichmakes space

of some degree

for the existence

ance.

In A Theory

of Justice,

as part of non-ideal
7. Rawls,

theory, whereas

as consistent

understood

A Theory

of criminality

however,

with

of Justice,

Rawls

under
regards

itwould

conditions
of strict compli
a theory of just punishment

be part of ideal
of low-level

the assumption

theory when

that is

criminality.

527-28.

8. J.Rawls, Political Liberalism (New York: Columbia University Press, 1996,

paperback edition), xlviii-xlix; cf. J.Rawls, "The Idea of Public Reason Re
in John Rawls:

visited,"

Collected

ed. S. Freeman

Papers,

MA:

(Cambridge,

Harvard UniversityPress, 1999), 578, 581.

9. This

goes

however, which under

against the orthodox
interpretation of Rawls,
as saying that in a well-ordered
the same
society everyone endorses

stands Rawls
conception

of justice.

See,

e.g., S. C. May,

"Religious

Democracy

and the Liberal

Principle ofLegitimacy,"Philosophy and Public Affairs37 (2009): 148.But the

orthodox

interpretation

referred, which
10. Rawls,

Political

is hard

presumably
Liberalism,

to reconcile

represent

with

to which

the passages

his final considered

I have

view.

xlviii.

11. See R. Nozick, Anarchy State, and Utopia (Oxford:Blackwell, 1974), especially
chap.

7.

12. See Rawls,

Justice

as Fairness,

13; Rawls,

Political

Liberalism,

xix. There

is a

case to be made that this conditionunhelpfullyfuses considerationsof justice

and stability, which
For further discussion,

are distinct

concerns.

see D. Copp,

I shall not explore

"Pluralism

and Stability

this issue, however.

in Liberal

Theory,"

Journal ofPolitical Philosophy 4 (1996): 191-206;Mason, "JustConstraints,"

259-62; G. A. Cohen, Rescuing Justice and Equality (Cambridge,MA: Harvard

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All use subject to JSTOR Terms and Conditions

PoliticalTheory 38(5)

680

Press,

University
"realistically

327-30.

2008),

sometimes

Rawls

Justice

see, e.g., Rawls,

Utopian";

theory as

ideal

characterizes

as Fairness,

4.

13. Some would argue thatideal theory

may coherentlybe developed in theabsence
G. A. Cohen,

constraints.

of any feasibility

that fundamental

e.g., maintains

prin

ciples of justice are not governed by considerationsof feasibility.He endorses

what Adam Swift calls an epistemological ratherthana practical conception of
therole of political philosophy: "the question forpolitical philosophy isnotwhat
we shoulddo butwhat we should think,evenwhen what we should think
makes
no practical

difference"

"The Value

of Philosophy

(G. A.

"Facts

Cohen,

and Principles,"

and

Philosophy

Public Affairs31 [2003]: 243; Cohen, Rescuing Justice and Equality, 268; Swift,
inNonideal

366-68.

Circumstances,"

See

also Mason,

"Just Constraints.").
14. See Rawls,

Political

158-68;

Liberalism,

Justice

Rawls,

as Fairness,

192-98.

Waldron discusses a mechanism towhich Rawls might appeal in arguing that in

the long term at least, we might
conception

reasonably

as fairness.

of justice

to achieve

expect

See Waldron,

Law

on his

convergence

161-63.

and Disagreement,

Those who believe thatthe concept of justice is essentiallycontestedwould of

course be sceptical.

See W.

B. Gallie,

Contested

"Essentially

Proceed

Concepts,"

ings of theAristotelianSociety 56 (1955-1956): 167-98;A. Mason, Explaining

Political
15. D.

Disagreement

Estlund,

Princeton
16. But
cause
might

(Cambridge:

Democratic

these theories

Authority:
Press,

University

also

be very

"Designing

them the danger

different.

in which
See

Constitutions:

the best will

Estlund,

The

Press,

University

Framework

1993),

2.

chap.

NJ:

(Princeton,

264-65.

2008):

carry with

in circumstances

Cambridge

A Philosophical

Democratic

Political

of making

not be

the second
266;

Authority,

Constitution

of

be

things worse,

achieved

best

R. Goodin,

a Mixed

Common

wealth," Political Studies 44 (1996): 635-46; R. Goodin, "Political Ideals and

Political Practice,"BritishJournal ofPolitical Science 25 (1995): 37-56.
17. O. O'Neill,

Towards

Justice

and Virtue: A Constructive

Account

of Practical

Rea

soning (Cambridge:CambridgeUniversityPress, 1996), 40.

18. Some seem to thinkthat it is the introduction
of idealizingassumptions that(at
least

in part)

gives

ideal

theory

its ideal

character:

see, e.g., Valentini,

"On

the

Apparent Paradox of Ideal Theory," 338. This is not an implicationof Rawls's

conception

of ideal

tions in the course

theory, though he does

introduce

various

idealizing

assump

of his arguments.

19. Rawls, A TheoryofJustice,248, 8.

20. This is also one strandof Farrelly's critiqueofRawlsian ideal theory:he thinks
itmakes a numberof idealizingassumptionswhich mean thatit is impossible to
bridge thegap between ideal and non-ideal theory;see Farrelly,"Justice in Ideal
Theory,"

848-56.

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Mason

21.

681

"On

See Valentini,

theApparent

Paradox

of Ideal Theory,"

am not per

349-54.1

suaded byValentini's analysis ofKymlicka's theory,thoughhere isnot theplace

to pursue
22.

that argument.
out that Rawlsian

e.g., points

Farrelly,
ing basic

rights and he argues

ideal theory brackets

the costs of protect
on how we
that as a result it can give us no guidance

shouldmake trade-offs
when itcomes to the costs of protectingdifferentrights,
and indeed trade-offs
between protectingbasic rightsand (forexample) ensuring
Sen,

scendental

for making

necessary

is more

of an

to justice, which

approach

comparative

just or less just

in Ideal Theory,"

"Justice

that the possession

e.g., argues

ment

see Farrelly,

of opportunity:

equality
23.

ideal

amounts

judgements

thing)

concerning

whether

"What

a tran

he calls

to the same

see Sen,

than another:

848-56.

theory (or what

un

is generally

one arrange

Do We Want

from

a Theory of Justice?"especially 216, 221-22, 237; A. Sen, The Idea ofJustice

(London:
Nonideal
24. Neither

Penguin
Theory,"

Books,

Valentini's

argument,

such as John Dunn

mentally

12-18. For a response,

2009),
nor

and Raymond

misconceived

because

the one
Geuss,

I shall construct,
who

any adequate

that is, start from an analysis

alistic,

see Simmons,

"Ideal

and

34-36.

argue

theory

is funda

needs

to be re

theorizing

political

of our concrete

as far as those

goes

that ideal

historical

circumstances

(see

J.Dunn, Interpreting
Political Responsibility [Cambridge:CambridgeUniversity
Press, 1990], chap. 12), includingtheway inwhich our actual institutions
oper
ate andwhat actuallymotivates us (see R. Geuss, Philosophy and Real Politics
NJ: PrincetonUniversityPress, 2008], 9). I provide a partial defence
[Princeton,
of unrealistic
25. This
way

seems

theorizing
to me

in which

politics

inMason,

"Just Constraints."

to be one of Bonnie

Rawls's

work,

for the sake of justice:

Honig's

in A Theory
see B. Honig,

concerns

when

of Justice

at least,

Political

Theory

she laments
seeks
and

the

to displace

theDisplace

ment ofPolitics (Ithaca,NY: Cornell University Press, 1993), 12, 126-61. See
also G. Newey,

After Politics:

The Rejection

of Politics

in Contemporary

Lib

eral Philosophy (Basingstoke,UK: PalgraveMacmillan, 2001). The idea that

much contemporaryliberalpolitical theoryseeks to displace or rejectpolitics
is sometimesframed in termsof the idea that it treatspolitical philosophy as a
kind of applied ethics.See B. Williams, In theBeginningWas theDeed: Realism
NJ: PrincetonUniversityPress,
andMoralism inPolitical Argument(Princeton,
2,
8,
12-14;
Geuss,
2005), especially
Philosophy and Real Politics, especially 6,
70-76,

80-94.

26. A. Laden, Reasonably Radical: Deliberative Liberalism and thePolitics ofIden

tity(Ithaca,NY: Cornell University Press, 2001), 16. See also D. Owen and
J. Tully,

"Redistribution

and Recognition:

Two Approaches,"

inMulticultural

ismand Political Theory, ed.A. Laden and D. Owen (Cambridge: Cambridge

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All use subject to JSTOR Terms and Conditions

682 Political
Theory
38(5)
University Press, 2007), especially 278-86. For a good example of a political
in Laden's

approach

see J. Habermas,

sense,

Facts

Between

and Norms

(Cam

bridge,MA: MIT Press, 1996).

that a real discourse

mind"

(J. Habermas,

of argumentation

process

Moral

and commands

requires

in a strictly monological

occur

out and this cannot

be carried

form, i.e., in the form of a hypothetical

individual

of norms

that "the justification

e.g., maintains

27. Habermas,

in the

occurring

Ac

and Communicative

Consciousness

MA: MIT Press, 1991], 68).

tion,trans.C. Lenhardtand S. Nicolsen [Cambridge,
28. For thedistinctionbetween stronglyandweakly dialogical theories,and a critique
of the latter, see C. McMahon,
I draw on a discussion

29. Here

"Discourse

and Morality,"

110 (2000):

Ethics

to legitimacy

of these two different approaches

521.
inmy

"Public Justifiability,
Deliberation, andCivic Virtue,"Social TheoryandPractice
33 (2007): 682-89.
30.

See

Democratic

Estlund,

2, 41; A.

Authority,

"Political

Buchanan,

Legitimacy

andDemocracy," Ethics 112 (2002): 689-90.

31.

e.g.

Suppose
public

that citizens

reasons,

and none which

count against

it, the exercise

stances.

This

the exercise

favor

but there are nevertheless

of coercive

to Rawls's

Idea of Public

not be

would

power

reasons

public

it.According

power

solely

available

which

conception,

legitimate

of the idea of legitimacy

fits his formulations

ism, xlvi, and "The

of coercive

Reason

under

justify

it

as I interpret
these circum

in Political

578, although

Revisited,"

for non

Liberal

it is less clear

thatit is entailedby theformulationatPolitical Liberalism, 137.The requirement

that the law or policy must
at Political

expressed
32.

Iris Young,

represent

Liberalism,

e.g., maintains

a reasonable

balance

of public

reasons

is

221.

that "the normative

of a democratic

legitimacy

deci

sion depends on thedegree towhich those affectedby ithave been included in

the decision-making
comes"

(I. Young,

and have had

processes
Inclusion

the opportunity

and Democracy

[Oxford:

to influence

Oxford

University

the out
Press,

2000], 5-6; see also J.Bohman, Public Deliberation: Pluralism, Complexity,and

MA: MIT Press, 1996], 26).
Democracy [Cambridge,
33. Of coursemaking such a judgement involves invokinga particularconceptionof
justice, or ofwhat ismorally justified,one thatmay be contested,but I am here
(butnot elsewhere) assuming thata commitmentto freedomof religionwill be

part of the most

34. What

reasonable

if others

regard

or most

existing

defensible

procedures

account

as meeting

of justice.
a moral

standard which,

mean thattheyaremorally acceptable to some degree, but she

by their lights,
does not?Does thefact thatothersconverge on thisstandardprovide herwith a
reason to abide by theoutcomes of procedures thatmeet it independentofwhat
those outcomes are? She may regard itas doing so, for shemay thinkitbetter
to have

a deeply

morally

flawed

procedure

that others

endorse,

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rather

than no

683

Mason

decision-makingprocedures at all ormorally flawed procedures thatare simply

imposedby thepowerfuldespitemost regardingthemas wholly unacceptable.
35. A fullanswer to thepolitical questionwould have to go beyond procedures and
to the many

attend

and varied

their differences,

despite

in which

ways

restraint

through

can

people

and

learn to live together

(see,

compromise

e.g.,

J. Raz,

"Disagreement in Politics," American Journal of Jurisprudence, 43 [1998]:

47-9;

R. Bellamy,

and Pluralism:

Liberalism

a Politics

Towards

of Compromise

[London:Routledge, 1999], especially Part II). But citizenswill disagree about

the value
mental

so an appeal

of restraint and compromise,

role in answering

the political

a funda

to them cannot play

furthermore,

question;

it is procedures

that

provide the context inwhich restraintand compromiseoperate, and thatiswhy

an appeal

to procedures

36.

See Williams,

37.

In some

is central

In the Beginning
and historical

social

fying answer

to answering

Was

question,

question.

3-4.

circumstances

to the political

the political

theDeed,

be no normatively

there may

since

there may

be no minimum

satis
moral

standardwhich iswidely accepted thatcouldmake theoutcomes of a procedure

whichmeets itnormativelysignificantfor thevastmajority of citizens.
38. JohnRawls, The Law ofPeoples (Cambridge,MA: Harvard University Press,
1999), 71.
39. Estlund,
40.

Democratic

See D. Reidy,

Authority,

"Reciprocity

especially

and Reasonable

chap.

4.
From Liberal

Disagreement:

toDem

ocraticLegitimacy,"Philosophical Studies 132 (2007): 243-91;May, "Religious

Democracy

and the Liberal

Principle

Deliberative

son, "Liberalism,

of Legitimacy";

Democracy,

and

J.Bohman

'Reasons

that All

and H. Richard
Can Accept,'"

Journal ofPolitical Philosophy 17 (2009): 253-74.

41. This is, in effect,to questionwhether anypurelypolitical approach to determin
of specificpolitical principles ismorally justified
ingwhether the implementation
can be successfully
42. May,

"Religious

43. Waldron,

Law

defended.

Democracy

and the Liberal

and Disagreement,

Principle

of Legitimacy,"

136.

3.

Bio
Andrew Mason is a professorof political theoryat theUniversity of Southampton.
He is the author of Levelling thePlaying Field (OxfordUniversity Press, 2006),
Community,Solidarity and Belonging (CambridgeUniversityPress, 2000), and of a
numberof articles inpolitical philosophy.He is currentlytheholder of a Leverhulme

Major Research Fellowship,working on a book provisionally titledLiving Together

as Equals: TheDemands ofCitizenship.

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