Constructivism develops an account of human rights on the basis of a thin conception of the person and her needs, abstracting away from controversial conceptions of human flourishing, and then deduces basic rights from this thin conception. The hope is that these rights will remain robust whatever ends the actual people who comprise a society turn out to have. This strategy works well for some rights, notably the right to free speech. But people have urgent needs that go far beyond what is necessary to exercise their moral powers or to participate in democratic dialogue.

I will focus on one extreme human rights case: the practice of female genital mutilation (FGM), which, most agree, violates basic human rights. Doubtless Rawls was appalled by the practice. Yet his theory cannot generate a basis for condemning it. A satisfactory conception of human rights must draw upon some normative source beyond that offered by constructivism. This conclusion is reinforced by considering the work of another political liberal, Martha Nussbaum, who offers a more coherent basis for rejecting FGM. Nussbaum accomplishes this goal, I will show, only by silently abandoning constructivism.

How severe a problem is this issue for constructivism? It depends on what constructivism is understood to be attempting. If the aspiration is a justificatory structure from which a complete account of human rights can be deduced, then it fails. On the other hand, its attractions remain powerful if it is understood to articulate a political ideal, one which, however, competes with other ideals and so is of indeterminate strength and scope.

This essay presents the familiar political theory of Rawls, focusing on his specification of the basic liberties. It then tests Rawls against the case of FGM and shows that his theory cannot generate a basis for condemning it. Possible rejoinders by Rawls follow. Finally, the implications of the argument are discussed.

Rawls's Constructivism

Samuel Freeman has observed that the “overriding concern” of all of Rawls's work “is to describe how, if at all, a well-ordered society in which all agree on a public conception of justice is realistically possible.”Footnote ¹ A well-ordered society, for Rawls, “is a society all of whose members accept, and know that the others accept, the same principles (the same conception) of justice.”Footnote ² The aim is a stable basis for mutually respectful political life in a society that is profoundly divided about comprehensive moral doctrines.

This aspiration is possible, Rawls argues, because people with different comprehensive conceptions can and should reach an “overlapping consensus” on the principles of political cooperation. In an overlapping consensus, they may disagree about the ultimate foundations of the political principles that govern them, but they agree upon the principles. They believe those principles are moral and affirm them on moral grounds.Footnote ³

Political constructivism begins from a conception of free and rational persons, which Rawls thinks is implicit in modern democratic culture. It holds that “the principles of political justice (content) may be represented as the outcome of a certain procedure of construction (structure).”Footnote ⁴ The parsimonious conception of persons and their needs in the original position, and the decisional procedure modeled in A Theory of Justice, generates the two principles of justice.

The specific conception of justice that Rawls endorses, based on the idea of the original position, is designed to exclude from the outset controversial conceptions of the good. “Systems of ends are not ranked in value” in the original position, because the parties do not know their conceptions of the good.Footnote ⁵ Those conceptions of the good simply do not figure into reasoning about the justice of the basic structure of society.

The exclusion of conceptions of the good shapes Rawls's position with respect to both the basic liberties and the distribution of goods. Each citizen, Rawls thinks, is entitled, as a matter of basic justice, to a certain set of basic liberties, together with a share of primary goods that is as equal as possible, subject to inequalities that can be justified by the difference principle.

In response to objections to the specification of the principles of justice that he offered in A Theory of Justice, Rawls in Political Liberalism elaborated the political conception of the person upon which he relied, and consequently offered a refined specification of both the basic liberties and the objects of distributive justice. Persons are regarded as free and equal in virtue of their possessing to a sufficient degree the two powers of moral personality: the capacity for a sense of justice and the capacity for a conception of the good.Footnote ⁶

The two moral powers are derived analytically from the minimal requirements of human agency and collective self-government. No one can act without a conception of the good; no collectivity can fairly govern itself without some sense of justice. The constructivist procedure consists precisely in building up the conception of justice from this political conception of the person. Because of the inevitable plurality of comprehensive conceptions, Rawls thinks that any conception of the good that is not analytically derivable from the constructivist procedure cannot be the basis of social unity.

In A Theory of Justice, Rawls explained the priority of liberty with the claim that “liberty can be restricted only for the sake of liberty itself.”Footnote ⁷ Freeman observes that even if the scope of this demand is restricted to the basic liberties, it is implausibly strong. Restrictions on speech that prevent fraud or false advertising infringe on a basic liberty, but do not rise to the level of a human rights violation on that account.Footnote ⁸

H.L.A. Hart persuaded Rawls that liberty is not the type of thing that can be maximized, and that A Theory of Justice did not specify citizens' most fundamental interests sufficiently for this to be a workable criterion of justice.Footnote ⁹ The idea of the moral powers provided the answer that Rawls ultimately endorsed: these liberties were to guarantee the conditions for the development and exercise of the moral powers in two “fundamental cases.” Connected with the capacity for a sense of justice, the first fundamental case is “the application of the principles of justice to the basic structure of society.”Footnote ¹⁰ This is the basis of the political liberties. Connected with the capacity for a conception of the good, the second fundamental case is “the application of the principles of deliberative reason in guiding our conduct over a complete life.”Footnote ¹¹ This is the basis of liberty of conscience and freedom of association.

Rawls's final position is that “a liberty is more or less significant depending on whether it is more or less essentially involved with, or is a more or less necessary institutional means to protect, the full and informed and effective exercise of the moral powers in one (or both) of the two fundamental cases.”Footnote ¹² Freeman observes that political discussion thus deserves nearly absolute protection because it is central to the exercise of the capacity for justice.Footnote ¹³ The moral powers are protected because they are indispensable to social cooperation.Footnote ¹⁴

On the other hand, in the case of behavior that does not concern “constitutional essentials and basic issues of justice,”Footnote ¹⁵ it is permissible for a legislature to rely on its comprehensive conception. “Fundamental justice must be achieved first. After that a democratic electorate may devote large resources to grand projects in art and science if it so chooses.”Footnote ¹⁶ Thus political liberalism “does not rule out as a reason the beauty of nature as such or the good of wildlife achieved by protecting its habitat.”Footnote ¹⁷ As Freeman puts it, “it may well be that majority democratic decision by itself is sufficient ‘public reason’ for restricting conduct.”Footnote ¹⁸ Thus, for example, the legislature could act to “protect a dwindling and endangered species of moles that live in unspoiled prairie land that Old MacDonald plans to sow in wheat.”Footnote ¹⁹

Rawls similarly refined his account of the primary goods that are the objects of the difference principle. The “thin theory of the good” offered in A Theory of Justice understood the primary goods as “things that every rational man is presumed to want.”Footnote ²⁰ This elicited Thomas Nagel's objection that there are no primary goods in this sense: some ways of life—religious asceticism, for instance—have no use for large amounts of wealth.Footnote ²¹ Rawls revised his conception of primary goods in much the same way he revised his conception of basic liberties. His final position was that primary goods are the needs of citizens understood from a political point of view. According to the political conception, every person has higher-order interests in developing and exercising his moral powers to develop a sense of justice and a conception of the good. Justice requires “conditions securing for those powers their adequate development and full exercise.”Footnote ²² The primary goods are “essential all-purpose means to realize the higher-order interests connected with citizens' moral powers and their determinate conceptions of the good (so far as the restrictions on information permit the parties to know this).”Footnote ²³

The moral powers are also the basis for Rawls's conception of basic human rights. These are “a special class of urgent rights, such as freedom from slavery and serfdom, liberty (but not equal liberty) of conscience, and security of ethnic groups from mass murder and genocide.”Footnote ²⁴ These are “necessary conditions of any system of social cooperation. When they are violated, we have command by force, a slave system, and no cooperation of any kind.”Footnote ²⁵ As Freeman puts it, “[h]uman rights are regarded as the minimal freedoms, powers, and protections that any person needs for the most basic development and exercise of the moral powers that enable him or her to engage in social cooperation in any society.”Footnote ²⁶ What distinguishes the basic human rights from the rights provided in justice as fairness is that the former are so fundamental that, if a government violates them, its neighbors are justified in invading its territory to put a stop to the violations.Footnote ²⁷

The Female Genital Mutilation (FGM) Objection

To understand the limitations of Rawls's conception of human rights, we begin with his attempts to address the gay rights issue. In A Theory of Justice, he argued that justice as fairness “requires us to show that modes of conduct interfere with the basic liberties of others or else violate some obligation or natural duty before they can be restricted.” In particular, ideas “that certain kinds of sexual relationships are degrading and shameful, and should be prohibited on this basis,” are excluded.Footnote ²⁸ Thus, prohibitions of homosexual sex would violate the priority of liberty.

This conclusion, however, was derived from his premise that liberty can only be restricted for the sake of liberty. Once that premise is abandoned, a ban on homosexual relationships appears to stand on the same footing as the restriction of Old MacDonald's planting. Certainly the ability to engage in a particular sex act is not necessary in order to participate in political life.

Is sexual freedom necessary “to secure the full and informed and effective application of citizens' powers of deliberative reason to their forming, revising, and rationally pursuing a conception of the good over a complete life”?Footnote ²⁹ Freeman observes that Rawls's view of liberty in his late work is less expansive than John Stuart Mill's, since the idea of a central range of application for the basic liberties does not appear in Mill.Footnote ³⁰ The clearest and most forceful case of priority is liberty of conscience, the freedom to hold and communicate religious, philosophical, and moral convictions.Footnote ³¹ But it is obscure how this extends beyond freedom of thought, to any particular action in the world that a person might want to engage in. The problem lies in the ambiguity of the moral power to form and pursue a conception of the good. In order to exercise this power, one must have a menu of choices. But this does not entail the right to have any particular option appear on the menu.

Thomas Pogge observes that Rawls's conception of the moral powers excludes any interest that is specific to some citizens and not others. The right to engage in specific conduct—Pogge uses the example of animal sacrifices—is “of very little significance to some citizens—and of great significance to others.”Footnote ³² It is not clear how these rights and liberties could be mutually adjusted into a fully adequate scheme. The effort “could also be socially divisive, as any such balancing would produce winners and losers among conceptions of the good.”Footnote ³³ Some severe restrictions on liberty do not preclude the exercise of the moral powers. “As the case of Immanuel Kant demonstrates, it is possible (and even easier with modern communications) to develop and exercise the two moral powers without ever leaving the vicinity of one's hometown.”Footnote ³⁴ Sodomy prohibitions are another illustration. They restrict some people's liberty, obviously, but others have a strong personal interest in living in a society in which sodomy is unacceptable, and the presence of openly gay people makes them feel like strangers in their own neighborhoods, which is not a trivial harm.Footnote ³⁵ To decide that sexual freedom is a protected liberty, the moralistic interests of some citizens would have to be balanced against the personal interests of others, and constructivism has no resources with which to perform such balancing.

Rawls holds that there is “a general presumption against imposing legal and other restrictions on conduct without sufficient reason. But this presumption creates no special priority for any particular liberty.”Footnote ³⁶ The control of one's sexual intimacy is part of nearly everyone's conception of the good. But its value cannot be deduced from the moral powers. It is simply something that most people happen to value highly, and such regard is not enough to qualify something as a primary good:

In his last essay, “The Idea of Public Reason Revisited,” Rawls returned to the gay rights question, writing that with respect to family law, the requirements of public reason exclude “appeals to monogamy as such, or against same-sex marriages,” because such appeals “would reflect religious or comprehensive moral doctrines.”Footnote ³⁸ Monogamy and opposition to same-sex marriage are, however, policy conclusions, not premises. Arguments for these conclusions might or might not reflect comprehensive doctrines. Moreover, as we have seen, comprehensive doctrines are not excluded as a basis for regulating conduct when this does not infringe on a basic liberty. How could marriage be shown to be a basic liberty in Rawls's terms? Whose moral powers are damaged by its denial? Rawls concedes, later in the same paragraph, “there might be other political values in the light of which such a specification would pass muster: for example, if monogamy were necessary for the equality of women, or same-sex marriages destructive to the raising and educating of children.”Footnote ³⁹ But of course opponents of same-sex marriage, even those whose opposition rests on frankly religious grounds, typically do make such claims. Patrick Devlin, to whom Rawls was specifically responding in A Theory of Justice,Footnote ⁴⁰ used purely political arguments to defend the prohibition of sodomy.

A few sentences later, he firmly asserts that “arguments for considering, say, homosexual relations unworthy or degrading” are not appropriate bases for political action. “Thus, in considering whether to make homosexual relations between citizens criminal offenses, the question is not whether those relations are precluded by a worthy idea of the full human good as characterized by a sound philosophical and nonreligious view, nor whether those of religious faith regard it as sin, but primarily whether legislative statutes forbidding those relations infringe the civil rights of free and equal democratic citizens.”Footnote ⁴¹ But what entitles him to say that? Once more, why aren't gay people in this regard in exactly the same position as Old Macdonald?

Since sexuality is not necessary to the exercise of the moral powers, it is not a matter of constitutional essentials. The legislature could, then, ban same-sex marriage, or even private consensual homosexual sex, on the basis of its comprehensive views. Rawls's theory offers no basis for regarding gay rights as a matter of basic justice.Footnote ⁴²

This gap will trouble some readers less than others. Gay rights remain controversial. I therefore move on to an omission that will alarm nearly everyone. Rawls's Kantian constructivism cannot cognize the injustice of the ritual practice, common in some northern parts of Africa, of female genital mutilation (FGM).Footnote ⁴³

FGM is commonly practiced on girls, sometimes on infants. It almost always involves removal of the clitoris, and sometimes involves much more radical damage to the pubic area. Even when medical complications are avoided,Footnote ⁴⁴ women often experience a greatly diminished capacity for sexual pleasure.Footnote ⁴⁵ FGM has been outlawed worldwide,Footnote ⁴⁶ and it is widely agreed that prohibiting the practice is a matter of basic justice. But this condemnation is obviously not universal. If it were, the practice would disappear. As an international statement condemning FGM observed in 1996, “Human behaviours and cultural values, however senseless or destructive they may appear from the personal and cultural standpoint of others, have meaning and fulfil a function for those who practise them.”Footnote ⁴⁷

FGM is not devoid of purpose. African women have reasons for supporting the practice.Footnote ⁴⁸ One survey found that 82 percent of Egyptian women endorse its continuation.Footnote ⁴⁹ Some think, in accordance with long-settled cultural norms, that FGM initiates them into womanhood and their tribe. Some regard the clitoris as unhygienic and ugly. Some regard FGM as necessary to become a real woman. Some regard the practice as divinely sanctioned; some think that it is a requirement of Islam. It is often a valued marker of ethnic identity. Particularly in its more severe forms, it makes sexual intercourse difficult and so increases the likelihood that a woman is a virgin before marriage. It is also thought to enhance a husband's sexual pleasure. For these reasons, it is sometimes indispensable to a woman's marriageability, in societies in which marriage is vital to a woman's status and security.Footnote ⁵⁰ In order to reject FGM, one must argue that these ends are outweighed by the harm caused by the loss of sexual capacity. But that involves just the kind of balancing that, Pogge showed, Rawls was unwilling to do.

People from many different cultures agree that prohibiting the practice is a matter of basic justice for women. Yet, can Rawls say this?

Consider an immigrant mother who wants to have the operation performed (by a competent surgeon) on her daughter. Is there a basis in political liberalism, as formulated by Rawls, for saying that the state has an obligation to interfere with her decision? Does not the mother satisfy Rawls's very abstract standards of reasonableness? Rawls assumes that the family is an association “in which elders (normally parents) have a certain moral and social authority.”Footnote ⁵¹ The immigrant mother does not propose to tell others how to raise their children. The principle that parents get to make value choices on behalf of their own children is a traditional constraint on state power in free societies, one on the basis of which people could reason in common. Her comprehensive view, which entails FGM, is not an unreasonable one, and “reasonable persons will think it unreasonable to use political power, should they possess it, to repress comprehensive views that are not unreasonable, though different from their own.”Footnote ⁵²

It will not do to say simply that political liberalism aims to “secur[e] the conditions under which we can further our determinate conception of the good, whatever it is.”Footnote ⁵³ FGM does not deprive its victims of their capacity to exercise their moral powers. It does not deprive them of primary goods. It removes an option, of course, but it provides other options. The value of the lost option is irrelevant for Rawls's theory, because “in establishing the fair terms of social cooperation (in the case of the basic structure) the only relevant feature of persons is their possessing the moral powers (to the sufficient minimum degree) and having the normal capacities to be a cooperating member of society over a complete life.”Footnote ⁵⁴ Sexuality, then, is not a feature of a person's life that is relevant from the standpoint of basic justice.Footnote ⁵⁵ Rawls's constructivist procedure asks, “which traditionally recognized principles of freedom and equality, or which natural variations thereof, would free and equal moral persons themselves agree upon, if they were fairly represented solely as such persons and thought of themselves as citizens living a complete life in an ongoing society?”Footnote ⁵⁶ In order for the harm of FGM to be recognized, persons have to be represented, not solely as free and equal moral persons, but as sexual beings who have the vulnerabilities specific to such beings. FGM does not deprive its victims of their moral powers or their normal capacities for cooperation. FGM hurts them in other ways.

Rawls would clearly deem it permissible for a government to ban FGM at the legislative stage. He demands governmental neutrality toward conceptions of the good only with respect to the basic structure. But the prohibition of FGM is a matter of legislative discretion. It would not be required by justice. The legislature's discretion, moreover, is remarkably broad. It could rely on its comprehensive views about well-being to enact a law requiring that girls undergo FGM, in the same spirit in which states now require that children be vaccinated against disease.

Rawlsian Rejoinders

Has Rawls really no resources with which to condemn FGM? Earlier drafts of this essay have been shown to a number of distinguished scholars of Rawls, and they have unanimously rejected this claim. This, they argue, is an easy case for him. They have not, however, agreed about why.

There are at least five Rawlsian rejoinders: Rawls condemns FGM as a kind of child abuse; FGM permanently deprives girls of a valuable option, thereby restricting their equality of opportunity and capacity for moral choice; FGM violates women's basic right to health; FGM violates the integrity of the person; FGM is an instance of gender inequality. I will take them up in turn.

The Knife in the Clam

How big a problem is constructivism's inability to address FGM? It depends on how important it is to exclude nonconstructivist ideas of the good from our conception of justice. Rawls fears that such nonconstructivist ideas cannot be the basis of social unity. In this, we can now conclude, he is too pessimistic. There is an impressive amount of agreement about FGM, even though constructivism lacks the resources to condemn it.

The source of the pessimism, for Rawls, is the experience of inevitable pluralism. “Our individual and associative points of view, intellectual affinities, and affective attachments, are too diverse, especially in a free society, to enable those doctrines to serve as the basis of lasting and reasoned political agreement.”Footnote ⁷⁷ For this reason, justice cannot depend on any comprehensive conception.

There is a revealing slippage in Rawls's definition of a comprehensive conception. A conception is comprehensive, Rawls explains, “when it includes conceptions of what is of value in human life, and ideals of personal character, as well as ideals of friendship and of familial and associational relationships, and much else that is to inform our conduct, and in the limit to our life as a whole.”Footnote ⁷⁸ “A conception is fully comprehensive if it covers all recognized values and virtues within one rather precisely articulated system.”Footnote ⁷⁹ There can be no social consensus around such fully comprehensive conceptions.Footnote ⁸⁰

However, Rawls also relies on a much more peculiar notion, that of a “partially comprehensive” conception, which comprises “a number of, but by no means all, nonpolitical values and virtues and is rather loosely articulated.”Footnote ⁸¹ This locution is odd. It is like saying that a person with a speck of dirt on his shoulder is partially buried. Evidently “comprehensive” refers to any conception of the good not derivable from constructivism, even if it is itself not very comprehensive at all.Footnote ⁸²

Are partially comprehensive conceptions impossible bases of social unity? Consider one possibility: a political liberalism that guarantees to everyone the opportunity to exercise the moral powers, but also opportunities for sexual satisfaction, at least via heterosexual intercourse within marriage. In other words, Rawls's constructivism with one tiny bit added. Call it C + S (constructivism plus sex). The addition of that tiny bit makes C + S a partially comprehensive conception. Why would one think that this diminishes the prospects for social unity? It rather seems to increase the likelihood of social unity, at least compared with constructivism, since so many people are persuaded that FGM violates basic justice.

The real problem is that the bit that has been added is not derived from the moral powers in the way the other goods on the list were. It lacks constructivist credentials. Once the bouncer has let this patron in, the lack of such credentials can no longer be a principled reason to exclude others. If there is such a reason, it cannot be derived from constructivism. The addition of FGM is not like a small additional wing on the constructivist building. To vary the metaphor, it is more like a knife in a clam. Once the blade gets in, the clam has no resources left for keeping anything else out.

Rawls evidently thinks that pure constructivism is the only reliable path to social unity. Modern societies have so much normative pluralism that the only overlapping consensus consistent with respectful relations is consensus constructed without any reference to the actual normative views of members of society. That is why “partially comprehensive” views must be excluded. Political liberalism, he argues, should be freestanding, so that it “can be presented without saying, or knowing, or hazarding a conjecture about, what [comprehensive] doctrines it may belong to, or be supported by.”Footnote ⁸³ “[T]he political conception of justice is worked out first as a freestanding view that can be justified pro tanto without looking to, or trying to fit, or even knowing what are, the existing comprehensive doctrines.”Footnote ⁸⁴ This approach may possibly work under certain circumstances, but they are likely to be as unusual as the circumstances under which it is safe to drive a car while blindfolded.

Rawls aspires to “civic friendship,” in which we the citizens exercise power over one another on the basis of “reasons we might reasonably expect that they, as free and equal citizens, might reasonably also accept.”Footnote ⁸⁵ In order for people to be “reasonable where others are concerned,” Rawls writes, they must be “willing to govern their conduct by a principle from which they and others can reason in common.”Footnote ⁸⁶ Citing and paraphrasing the more fully elaborated view of Thomas Scanlon, Rawls writes that in order to be reasonable, we should want “to be able to justify our actions to others on grounds they could not reasonably reject—reasonably, that is, given the desire to find principles that others similarly motivated could not reasonably reject.”Footnote ⁸⁷ Comprehensive doctrines can reasonably be rejected. “Since there are many reasonable doctrines, the idea of the reasonable does not require us, or others, to believe any specific reasonable doctrine, though we may do so.”Footnote ⁸⁸

This formulation carries with it some of the difficulties of Scanlon's own view. Unity with others is attractive. However, we give up on it as soon as we decide that what matters is what they would accept were they reasonable, rather than what they actually accept. Scanlon's criterion of ideal justifiability, Colin McGinn observes, “effectively surrenders the idea that morality necessarily involves unity with others—actual unity, I mean. For what is the point of unity with purely hypothetical others?”Footnote ⁸⁹

Rawls's aspiration is similarly hypothetical. “[O]ur exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason.”Footnote ⁹⁰

This hypothetical aspiration is still present even in Rawls's last, somewhat chastised conception of the possibility of social unity. Rawls eventually acknowledged that there is “a family of reasonable though differing liberal political conceptions.”Footnote ⁹¹ Even if Rawls's basic framework is accepted, “there are indefinitely many considerations that may be appealed to in the original position and each alternative conception of justice is favored by some considerations and disfavored by others.”Footnote ⁹² Freeman observes that the concession that there will not be general agreement on justice as fairness “must have been an enormous disappointment to him, for he had worked for nearly forty years trying to show how a well-ordered society where everyone accepts justice as fairness as its public charter is a realistic possibility.”Footnote ⁹³

The family of reasonable conceptions still evidently includes only those that can arguably satisfy Scanlonian standards. For any of these conceptions, “when terms are proposed as the most reasonable terms of fair cooperation, those proposing them must think it at least reasonable for others to accept them, as free and equal citizens, and not as dominated or manipulated or under pressure caused by an inferior political or social position.”Footnote ⁹⁴ As Freeman puts it, “[e]ven if reasonable and rational democratic citizens cannot agree on the same conception of liberal justice—not to mention the most reasonable conception for Rawls, justice as fairness—all are under a duty to propose and support laws that they can reasonably expect other citizens can reasonably endorse in their capacity as free and equal citizens.”Footnote ⁹⁵ The aspiration to hypothetical agreement remains a regulatory norm even after it is admitted that the aspiration for actual agreement is forlorn.

The reasonableness here is not the reasonableness of prediction, the way we ask whether it is reasonable to think that you can get that jalopy to start on this frigid morning. It is not a claim about what the citizens of a society will probably endorse. Rather, it is a claim about what endorsement can reasonably be asked for. The payoff may then be, not social unity, but confidence in our own righteousness as we gird for political warfare. If the demands of constructivism are reasonable, but our fellow citizens do not in fact endorse them, then that is their fault and not constructivism's. We may not be able to have unity with them, but we can have unity with hypothetical, reasonable others.

A more charitable reading would understand Rawls and Scanlon as making proposals, proffering terms of cooperation that are a possible basis for community among persons with differing views. “Putting people's comprehensive doctrines behind the veil of ignorance enables us to find a political conception of justice that can be the focus of an overlapping consensus and thereby serve as a public basis of justification in a society marked by the fact of reasonable pluralism.”Footnote ⁹⁶ The path to actual civic friendship leads through reasonable terms of cooperation.Footnote ⁹⁷

If you want unity with actual others, however, you had better learn what others think before proposing terms of cooperation with them. Rawls's answer, which abstracts from all comprehensive views, is problematic from his own perspective if the regime it produces so alienates some citizens that they no longer feel themselves part of the political community. The consequences of excluding “partially comprehensive” views may be unacceptable to some. If, as I have argued, constructivism cannot cognize atrocities such as FGM, those consequences may even be unacceptable to you.

Of course, if a thicker conception of the good than that imagined by constructivism is integral to the basic structure of the regime, that will alienate some people, too. The immigrant mother considered earlier, for example. Political alienation is inevitable.Footnote ⁹⁸ But it can be minimized. One can try to have as small a remainder of alienated people as one can manage. And even with respect to them, the regime will be a good deal less brutal if it understands that remainders are inevitable.Footnote ⁹⁹ This task is a prudential one, involving practical, consequential judgments. The problems it raises are not resolvable from the standpoint of high theory. Constructivism is one possible solution, perhaps suitable for a society that faces a maximum of moral disagreement. But that does not appear to be our situation.

The question with which Rawls begins is still the right question to ask: “[H]ow is it possible for there to exist over time a just and stable society of free and equal citizens, who remain profoundly divided by reasonable religious, philosophical, and moral doctrines?”Footnote ¹⁰⁰ Rawls's response is political liberalism. Constructivism of the kind he contemplates is part of any possible answer; a system that denies some people the opportunity to exercise their moral powers in the fundamental cases is not a system of cooperation at all.Footnote ¹⁰¹ (I regard the present article as a friendly amendment to Rawls.) But must political liberalism stop there? The answer depends on what counts as political liberalism. Perhaps Rawls's understanding of the demands of political liberalism is too stringent, so that conceptions that may, in fact, be attractive bases for social unity, such as C + S, are unnecessarily excluded.

In order for a conception of justice to be political, Rawls writes, three conditions must be satisfied: it must apply solely to the basic structure of society, be independent of any wider comprehensive doctrine, and be elaborated in terms of ideas implicit in a society's public political culture.Footnote ¹⁰² Given his broad definition of what counts as a wider comprehensive doctrine, this seems to permit only some variety of constructivism. Anything else, such as C + S, violates the second condition.

If one wants an overlapping consensus without constructivism, then simply removing Rawls's second condition will not do. That lets in far too much. The criteria for political liberalism must be revised altogether.

The kind of wholesale revision that I am suggesting has already been undertaken, unannounced, in the recent work of Martha Nussbaum. Nussbaum claims that she is a “political liberal,” and says that, in this respect, she is following Rawls.Footnote ¹⁰³ However, she justifies this label for her own, capability-based conception of justice on very different grounds than Rawls relies upon. Her conception is open-ended and subject to revision; its terms are abstractly specified; it is “freestanding,” that is, not grounded in any particular moral conception; it emphasizes capability and not functioning, so that people can choose whether to exercise any particular capability; the major liberties that protect pluralism, such as freedom of speech, are central; and it is not a basis for intervention in the affairs of other states, short of crimes against humanity.Footnote ¹⁰⁴

Nussbaum silently abandons Rawls's constructivist sense of “freestanding,” by which he means that a conception “can be presented without saying, or knowing, or hazarding a conjecture about, what [comprehensive] doctrines it may belong to, or be supported by.”Footnote ¹⁰⁵ For Nussbaum, “freestanding” means that a conception “does not contain any particular metaphysical or epistemological doctrine, and can be rendered compatible with the major ones that citizens may hold.”Footnote ¹⁰⁶ It is obviously a good deal easier to satisfy Nussbaum's requirement than Rawls's. Many partly comprehensive views could meet Nussbaum's criteria; none could meet Rawls's.Footnote ¹⁰⁷

It is unsurprising, then, that Linda Barclay disputes Nussbaum's claim to be a political liberal. Barclay has argued that the controversial goods on Nussbaum's capabilities list show that Nussbaum is not a political liberal at all, but rather has formulated a distinctive kind of comprehensive liberalism, “a theory that takes as its most central value the realisation of each individual's capacity to choose and pursue their own conception of the good life.”Footnote ¹⁰⁸ Nussbaum responds by acknowledging the controversial elements of her conception, but (here silently reducing the six characteristics above to the single most important one) she insists that her conception is still “acceptable to people holding many different views of life.”Footnote ¹⁰⁹ This criterion is responsive to the needs of a pluralistic society, but it is also less formal and, more important, less demanding than that laid down by Rawls. If Nussbaum is a political liberal, it is because she has redefined political liberalism in a way that makes the club easier to get into. This move is objectionable if and only if pure constructivism, of the kind that Rawls offers, is the best way to respond to the fact of pluralism.

There is a certain ipse dixit quality to Nussbaum's capabilities list: she argues for none of the elements; she simply hopes that the reader will agree that these are necessary elements of a decent human life.Footnote ¹¹⁰ She is, at the same time, cautious about saying too much. She is not even willing to say that the exercise of the capabilities is good, since that does not show enough respect for those who disagree.Footnote ¹¹¹ The effort to be just barely specific enough is a delicate one. It is not clear how one can valorize a capability without valorizing what the capability is for.Footnote ¹¹² But if the execution of her project generates puzzles, the project itself is the right one to undertake: to minimize the remainder, while taking a stand on those matters with respect to which she is unwilling to budge.

I noted at the outset that constructivism has two attractions: it provides a secure foundation for human rights, and it makes possible a kind of civic unity in the face of intractable differences about what is good. It should now be clear that both of these selling points need to be qualified. Constructivism provides a foundation for some rights, but others, equally urgent, will require support from some other source. The civic unity constructivism offers may not be the most inclusive unity available in our society.

What can we say about the intractability of disagreement about the human good? Sometimes goods can be bad. Different people have different ideas about what makes a life good, and these differences may make it hard to live together in a mutually respectful way. Introducing controversial conceptions of the good into politics can have pernicious consequences. It is necessary to contain goodness somehow. Rawls's constructivism attempts to filter out bad goods. But, as we have seen, it filters out too much; it cannot cognize some goods that are intensely relevant to questions of justice.

It is sometimes appropriate to define some good, for political purposes, at a high level of abstraction, so that it incorporates unorthodox as well as conventional variants. The state will then be neutral among those variants, and so filter out conceptions of the good that are inappropriately specific. But whether this is so in any particular case will depend on the reasons for abstraction that exist in that particular case.Footnote ¹¹³

The opening of discourse on justice to partly comprehensive views is not a prescription for civil peace. It means that there will be endless contestation and negotiation about the kind and degree of neutrality we will have. Rawls concludes his final book with the sober reflection that if his political ideal of reasonableness cannot be realized, “[i]f … human beings are largely amoral, if not incurably cynical and self-centered, one might ask, with Kant, whether it is worthwhile for human beings to live on the earth.”Footnote ¹¹⁴ But these are not the only possibilities. It is possible that the specific terms of reasonable cooperation proposed by Rawls are not feasible, but that human beings, nonetheless, continue to strive for respectful cooperation, albeit on different terms than Rawls proposes. That striving, in a context of continuing disagreement about justice, is not the constructivist vision of social unity. But it may be “the deepest and most reasonable basis of social unity available to us as citizens of a modern democratic society.”Footnote ¹¹⁵