The Sectarian Conundrum of Political Liberalism (Part 3)
Why We Need More Than a Modus Vivendi
This is the third post of a series about the “sectarian conundrum” of pollical liberalism. A fourth post will follow later. You can read the first post here and the second here.
I continue with my exploration of the “sectarian conundrum of political liberalism”. As a reminder, I characterize this conundrum as follows:
Sectarian Conundrum of Political Liberalism. According to political liberalism, legitimacy depends on the public justification of laws and rules. But a liberal society may need to be sectarian, i.e., to restrict the requirement of public justification to only a subset of the population. In this case, laws and rules can never be fully legitimate.
In the previous episode, I discussed how the so-called New Diversity Theory, a brand of public reason and political liberalism, addresses the conundrum. The conclusion was that the “convergence approach” of new diversity theorists fails to solve it because it underestimates the need to base public justification on shared reasons. In absence of such shared reasons, the risk is that, for any possible law on a given issue, a significant part of the population considers to have a valid reason to not accept it. Anticipating this problem, “members of the public” may be wary of the inclusion of a too-diverse set of evaluation systems.
This post presents a more radical approach to the sectarian conundrum in terms of “multilevel social contract theory” (MSCT) as defended by the philosopher Michael Moehler in his book Minimal Morality.[1] In some ways, this approach does not belong to political liberalism because, as I will explain, its main thesis is that in deeply pluralistic societies the only prospect to avoid sectarianism is to rely on a kind of Hobbesian modus vivendi. However, its intellectual roots are nonetheless located in political liberalism and actually the same as the convergence approach of new diversity theorists. As usual, I’ll first present Moehler’s account of “minimal morality” and then evaluates how far it goes in solving the sectarian conundrum.
The basic idea of MSCT is that in societies characterized by what Moehler calls deep moral pluralism, individuals may fail to find an agreement about what is fair or what is permissible based on “traditional first-level moral theories”. First-level moral theories are the traditional moral doctrines (e.g., utilitarianism) and their principles (e.g., Rawls’s difference principle) that define the right and the good and determine how individuals ought to act. In general, traditional first-level theories are instantiated through practices and rules that individuals take to be morally justified. Though we may imagine other accounts of how traditional moralities come to serve the general function of promoting coordination and cooperation in society, Moehler endorses a broadly Humean account according to which moral principles first emerge as conventions that individuals follow for non-moral reasons and that progressively acquire a normative meaning as they are internalized. Depending on the circumstances, different societies will settle on different equilibria and therefore will endorse different moral theories.
This Humean view of traditional moral theories has strong affinities with the kind of evolutionary account of public justification that the main proponent of the New Diversity Theory, Gerald Gaus, has developed.[2] The idea is that it is impossible ex ante to determine what is the “true” moral theory nor to predict which one will be adopted. What matters however is that the members of society converge toward some set of moral rules that they all consider to be publicly justified. MSCT parts way with New Diversity Theory however by acknowledging that this convergence may never happen in societies that are too pluralistic. Moreover, Gaus’s and other new diversity theorists’ convergence accounts still depend on substantive moral commitments that are constitutive of political liberalism, in particular the idea that the members of society are free and equal moral persons.[3] What happens however if some individuals do not accept this constitutive idea of political liberalism? This seems to compromise the possibility of public justification, even by mere convergence of reasons.
The more a society is morally pluralistic, the less we should expect an agreement on rules instantiating traditional first-level moral theories. Moehler’s central thesis is that in this case, an agreement over a minimal form of morality can only emerge based on a non-moralized and instrumental form of rationality where individuals’ primary goal is to avoid costly and destructive conflicts. While its first level is essentially Humean, the second level of Moehler’s MSCT is thus fundamentally Hobbesian.[4] The relationship between the two levels is one of subsidiarity. The instrumental approach to morality has no moral authority as long as members of society are able to find an agreement on rules that appeal to first-level moral principles. But in deeply pluralistic societies, cases of conflict where these moral principles will not be able to fulfill their regulative function will happen quite often. The instrumental approach can avoid falling back to sectarianism by identifying a non-moral principle that will nonetheless fulfill the same functions – or at least some of the functions – as traditional moral principles.
What principle should we expect to find at this instrumental second level? Moehler develops a long argument in favor of what he calls the “weak principle of universalization”. Let me call his definition:[5]
“In cases of conflict, only pursue your interests subject to the constraints that your opponents can (i) enter the process of conflict resolution at least from their minimum standards of living, if the goods in dispute permit it, and (ii) fulfill their interests above this level according to their relative bargaining power.”
The weak principle of universalization can be understood as a generalization of a solution concept in bargaining games modeling distributive conflicts. According to this solution concept consists, we should first make sure that all players’ disagreement points are not located below what is required to satisfy their minimum standard of living. If some of them happen to be below, a redistributive transfer (based for instance on a flat tax or a negative income tax) should first be realized. Then, players are left with a bargain on the distribution of the goods according to their relative bargaining power, as formalized by the Nash bargaining solution.
Moehler claims that the weak principle of universalization is entirely derived from non-moral premises and is therefore not compromised by deep moral pluralism. A condition however is that individuals unconditionally want to avoid the disastrous consequences of a total conflict and value enough the improvements in their living conditions promoted by a peaceful agreement. Through empathetic reasoning, they must then all realize that it is in their well-considered material interest to act such as to guarantee everyone enough resources such as nobody having the incentive to engage in destructive behavior – the first part of the weak principle of universalization. Beyond the satisfaction of this minimum standards living condition requirement guaranteeing the possibility of peaceful long-term cooperation, there is no moral restriction on what one can demand; bargaining power emerging from the exercise of instrumental rationality and contingent circumstances is the ultimate (non-moralized) criterion to determine the degree to which one’s demands are satisfied.
The minimal morality that emerges from this second level of the social contract obviously has some of the characteristics of the Hobbesian modus vivendi. It is sensitive to empirical conditions and is susceptible to evolve as relative bargaining powers change. Nonetheless, Moehler suggests that the principle also displays a Kantian feature captured by its first condition. This first condition weakly universalizes the requirement that everyone should enter the process of conflict resolution from their minimum standards of living, provided that the empirical circumstances and the motivational assumptions are those that have been used to elaborate the principle.
Moehler develops interesting considerations regarding the implications of the weak principle of universalization in terms of political morality. He notably contends that it justifies the institutions of a democratic productivist welfare state. It promotes economic institutions aiming at maximizing the economic welfare resulting from a framework of cooperation. This includes free markets but also the public provision of public goods. On the other hand, the principle also requires that economic and political institutions are such that they guarantee everyone minimum living standards. Under plausible empirical conditions, this may land the justification of an unconditional basic income.
Moehler’s MSCT is clearly an interesting candidate to respond to the sectarian conundrum. It indicates that we can identify a minimal morality justifying economic and political institutions even in case people deeply disagree about fundamental moral matters. It provides a ground for persons with radically different moral views to engage in cooperative and productive ventures. Still, this approach does not provide a fully convincing answer. I will not mention here the familiar problems that are related to all Hobbesian moral accounts.[6] I can identify at least three points that more specifically suggest that MSCT is not a complete solution to the sectarian conundrum.
First, an important observation is that while the principle of weak universalization has relatively clear economic and political implications with respect to distributive problems, it is far less obvious how it translates in other domains where conflicts may emerge due to deep moral pluralism. What does the principle say, for instance, about conflicts about rights of privacy and the distribution of harms related to “moral” externalities and public “bads”? Can religious convictions be brought into the public debate to justify laws restricting or permitting specific behaviors or practices? How this principle can help to settle moral issues like abortion or euthanasia? It seems that Moehler’s minimal morality has a fairly limited scope, restricted to considerations about the production and the distribution of economic wealth. There is no doubt that these are important issues because the economic conditions of a society largely underlie many domains where moral disagreement is at stake. But it does not seem that the institutions of a democratic productivist welfare state, even with an unconditional subsistence income, are enough to regulate all the moral conflicts that may emerge in a diverse society.
A second difficulty is related to a point that Moehler acknowledges. The ability of the principle of weak universalization to regulate conflicts depends on contingencies determining the current distribution of goods and relative bargaining powers. If some members of the society consider that these contingencies are such the distribution of goods and relative bargaining powers are unjustified, e.g., they are due to past injustices, they will reject the principle of weak universalization. Moehler is optimistic that this is not an insurmountable problem. He sees the introduction of the unconditional subsistence income as a (partial) response to past injustices. There is no doubt that economic measures can help to lessen the resentment that results from what some parts of the population see as unfair treatment of their ancestors.[7] But not only it is doubtful that such measures will be viewed as sufficient. They can also trigger resentment in other parts of the population and feed, rather than tame, moral conflict. Similar remarks can be made with respect to policies such as affirmative action that aim at lessening the effects of socioeconomic inequalities partially related to what some view as past injustices. The obvious concern is that, in case of conflict due to deep moral pluralism, individuals will not agree on what a past injustice is.
A third limit of Moehler’s approach is well identified in a comment by Gerald Gaus on Moehler’s book.[8] In the second level of his social contract account, Moehler assumes that individuals are bargaining based on exclusively prudential reasons. That supposes that they are able and willing to put all their moral convictions and commitments apart. But there are two related issues here. There must be an assurance that individuals will remain so committed over the long run and that moral commitments will not reenter into their overall evaluative assessments of practices and rules. It is unclear that they have all-things-considered reasons to do so and even less to believe that others have. Moreover, it is unclear that even at this second level moral commitments should not be part of what individuals are bargaining about. In this case, Moehler’s minimal morality would take the form of a full-fledged Hobbesian modus vivendi. The two-level structure would lose its appeal. For the weak principle of universalization to do the job Moehler is attributing to it, there must therefore be some public reason for individuals to refrain from invoking moral commitments. But that’s precisely where the issue of sectarianism comes from. In highly diverse and polarized societies, there is no such public reason. It is difficult to abstract from your moral commitments when you don’t expect others to do so, and further when you regard them as being constitutive of your personal and social identities.
[1] Michael Moehler, Minimal Morality: A Multilevel Social Contract Theory (Oxford, New York: Oxford University Press, 2018).
[2] Gerald Gaus, The Order of Public Reason: A Theory of Freedom and Morality in a Diverse and Bounded World, Reprint edition (Cambridge New York,NY: Cambridge University Press, 2012).
[3] This very broad conception of persons as being free and equal moral entities is the common feature of all forms of political liberalism. For instance, it is also at the core of Charles Larmore “realist” variant of political liberalism. See Charles Larmore, What Is Political Philosophy? (Princeton, New Jersey: Princeton University Press, 2020).
[4] I follow Moehler by focusing on the simple, two-level version of MSCT. But we may imagine intermediary levels of social contract that find a compromise between different first-level moral theories and rely on more resources than purely instrumental rationality.
[5] Moehler, Minimal Morality, p. 125.
[6] Several points could be mentioned. For instance, it is unclear that Moehler’s minimal morality is moral at all, nor that his weak principle of universalization necessarily follows without adding moral premises. The issue of the moral status of vulnerable persons is also a traditional concern with Hobbesian approaches. It should be noted however that these problems are attenuated in the multilevel theory because it is not claimed that morality is reduced to minimal morality. As the idea of subsidiarity I mentioned in the text indicates, minimal morality has authority only in the last resort.
[7] A good illustration is San Francisco’s “reparations plan” currently under discussion. See for instance this Guardian article: https://www.theguardian.com/us-news/2023/mar/14/san-francisco-reparation-plans-black-residents.
[8] Gerald Gaus, “Moral Conflict and Prudential Agreement: Michael Moehler’s Minimal Morality,” Analysis 79, no. 1 (January 1, 2019): 106–15.